Terms and Conditions1) Approval
Membership in the Banana Ads LLC Network is subject to prior approval of Banana Ads LLC. Banana Ads LLC reserves the right to withhold approval of membership in the Network for any reason whatsoever. Approval of membership in the Network is limited only to the specific Publisher web properties for which such approval relates. Upon Approval to the Network, an Banana Ads LLC representative will provide Publisher with a log in name and temporary password that will enable Publisher to access Banana Ads LLC Network advertising content.
These terms shall apply to Publisher for as long as Publisher is a member of the Network and shall constitute the entire Agreement between the parties regarding Publisher's membership in the Network superseding all previous communications, representations or Agreements, whether written or oral between the parties.
Banana Ads LLC reserves the right to terminate any Publisher's relationship with the Network at any time and for any reason whatsoever. Termination notice may be provided via e-mail and will be effective immediately. Upon receipt of termination notice, Publisher shall immediately cease using the Banana Ads LLC Network services.
3) Compliance with CAN SPAM ACT
Publisher will fully comply with all requirements of the CAN SPAM ACT in every email it drops containing offers from the Banana Ads LLC network.
Without limiting the generality of this compliance requirement, Publishers are specifically advised of the following:
- Email shall not contain a false or misleading domain name in the senders address or anywhere else in the message header. All domain names used in message headers must be properly registered by the Publisher with accurate contact information used in the registration.
- Email shall not contain a non functioning IP address. All IP addresses used in connection with sending email containing an offer from the Banana Ads LLC Network must be valid and must be under the ownership/control of the sending party.
- Email shall not contain a falsified or deceptive subject line. Every subject line must have a substantive relationship to the content of the email. Any attempt to make an email appear as if it was in reply to a previous email or an email forwarded to the recipient by someone else is strictly prohibited.
- Email shall not contain a false or deceptive alias or "from line". The from line must have a substantive relationship to the sender or the content of the email. Use of from lines containing the name of any individual not directly employed by the Publisher is prohibited without the express written consent of Banana Ads LLC.
- Every email shall contain a valid physical address of the Publisher sending the email. A post office box address is insufficient to comply with this requirement.
- Every email shall contain a functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, that-- (i) a recipient may use to submit, in a manner specified in the message, a reply electronic mail message or other form of Internet-based communication requesting not to receive future commercial electronic mail messages from that sender at the electronic mail address where the message was received; and (ii) remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message.
- Publisher warrants that it honors unsubscribe/opt out requests within 5 days of original receipt.
- Email shall only be delivered to person's who have provided prior affirmative consent to receive commercial email messages from the Publisher. Use of harvested or culled data is strictly prohibited.
- To the extent that Publisher uses any affiliate or other third party to deliver email containing commercial offers provided by Banana Ads LLC, Publisher warrants that said affiliate or third party will act in full compliance with the CAN SPAM ACT and all other Banana Ads LLC Publisher Terms and Conditions.
- Publisher agrees to fully indemnify and defend Banana Ads LLC against any claim brought against it for any violation of the CAN SPAM ACT that is the result of an email delivered by Publisher or any affiliate or third party acting on behalf of Publisher.
- In the event that Banana Ads LLC determines in its sole discretion that Publisher has violated any provision of the CAN SPAM ACT or any other part of the Banana Ads LLC terms and conditions, Banana Ads LLC will terminate Publisher's account status immediately and without pay for all outstanding campaigns. In the event that Banana Ads LLC takes such action, Publisher may obtain a written explanation of the reasons behind the cancellation if explanation is requested from Banana Ads LLC within 48 hours of notification of cancellation. Explanation shall be provided within 5 business days.
- Publisher warrants that it has downloaded and removed the domains located on the FCC's wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from all current data used in Banana Ads LLC Network mailings. Publisher further warrants that any new data that it acquires, regardless of its source, will be run against the FCC's wireless domain names list and that domain names contained therein will be removed before sending any Banana Ads LLC Network mailings.
4) Publisher's Duty to Honor Suppression Requests
Publisher agrees that prior to mailing any campaign available on the Banana Ads LLC Network, it will download the most recent suppression list for any particular campaign and, for that campaign, will suppress all email addresses within its database that are found on such list. In addition, for Banana Ads LLC Network campaigns that include a domain suppression list, Publisher agrees that prior to mailing the campaign it will download the most recent domain suppression list for any particular campaign and, for that campaign, will suppress all domains within its database found on such list.
5) Publisher's Content Warranty
Publisher guarantees that all content, products, and services included in its publications are legal for distribution and that it owns or has the legal right to use any and all copyrighted material presented therein.
Banana Ads LLC reserves the right to refuse to do to business with any Publisher who engages in business practices inconsistent with Banana Ads LLC's corporate policies or accepted standards of common decency. Such practices include, but are not limited to:
- Publishing pornographic or indecent material;
- violating intellectual property rights of others;
- publishing content designed to incite sentiment against the United States and its allies;
- publishing content promoting or extolling any illegal activity or information
- publishing content that discriminates against individuals based on race, gender, religion, ethnicity, or national origin.
Publisher acknowledges that Banana Ads LLC has proprietary relationships with the third party advertisers participating in the Banana Ads LLC Network and agrees not to solicit or recruit, either directly or indirectly, any advertiser that is known to the Publisher to be member of the Banana Ads LLC Advertiser Network, for the purpose of offering products or services that are designed to compete or interfere with Banana Ads LLC's ongoing business relationships during the term of Publisher's membership in the Banana Ads LLC network and for the 180 day period following termination of Publisher's membership in the network.
Any attempt by a Publisher to directly contact or solicit an advertiser who provides advertisements for Publisher's Newsletter(s) through the Newsletter Network will result in immediate termination without pay. Withholding pay shall in no way be deemed to prevent Banana Ads LLC pursuing additional remedies, which may be available at law or equity.
6) Prohibited Marketing Tactics
Banana Ads LLC does not condone or tolerate spam. Unsolicited commercial email is absolutely prohibited. Use of any incentives designed to improve consumer response rates beyond those included in the creatives provided by Banana Ads LLC is also strictly prohibited. Banana Ads LLC reserves the right to terminate the relationship with any Publisher using prohibiting marketing tactics immediately and without pay. Use of search engine advertising is strictly prohibited without the express written approval of the Banana Ads LLC team. Banana Ads LLC also reserves the right to terminate relationships with any Publisher using search engine marketing tactics, without pay, unless Publisher has attained proper approval from Banana Ads LLC prior to beginning a search engine campaign. Any advertising through display ads, "fan pages", or miscellaneous posts through social media sites including but not limited to facebook, myspace and twitter found to be deceptive or misleading as determined in the sole discretion of Banana Ads LLC is strictly prohibited and will result in immediate termination of the Publisher without pay.
7) Payment Terms
Payments will be made on or about the last day of every month for campaigns run the previous month. Banana Ads LLC reserves the right to delay or cancel payment to publisher for campaigns for which Banana Ads LLC has not yet been paid. Further, Banana Ads LLC reserves the right to withhold from future payments any amount which Banana Ads LLC has previously paid to Publisher but has since classified as bad debt due to non-payment by an Advertiser. No checks will be issued for any amount less than $25 U.S.D. All un-issued earnings will rollover to the next pay period. Banana Ads LLC reserves the right not to pay any Publishers that violate any of the above terms and conditions to be determined in the sole discretion of Banana Ads LLC. All payments will be based on the Banana Ads LLC performance tracking system.
Banana Ads LLC shall have the sole responsibility for calculation of statistics, including Impressions, clicks, and accepted action numbers. Definitions of what constitutes an accepted action will vary based on the nature of the advertisement. Publishers should read and become familiar with the terms of every campaign prior to publishing.
In the event Publisher disagrees with any such calculation, a written request for clarification explaining the Publisher's position should be sent to Banana Ads LLC immediately. Banana Ads LLC will provide Publisher with a detailed audit of the campaign performance, which shall be final and binding on the parties.
Publisher hereby grants Banana Ads LLC a world wide, non-exclusive license to use its name, trademarks, and/or logos in referring to its relationship with Publisher for the limited purpose of marketing and promoting the Banana Ads LLC Network.
10) Disclaimer of Warranties
Banana Ads LLC MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTIES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN.
11) Limitations on Liability/Indemnification
- EXCEPT AS PROVIDED IN SUB-SECTION B BELOW WITH RESPECT TO INDEMNIFICATION, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED HEREIN. PUBLISHER AGREES AND DOES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT AGAINST Banana Ads LLC FOR ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT.
- Publisher is solely responsible for any legal liability arising out of or relating to (i) the content and other material set forth in the Publisher and/or (ii) any content or material to which users can link through the Publisher's email or website (other than through an advertisement supplied by Banana Ads LLC). Publisher agrees to indemnify, defend and hold harmless Banana Ads LLC and its officers, directors, agents, affiliates and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings (a) for libel, defamation, violation of right of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with the Publisher's Content (except for advertisements supplied by Banana Ads LLC); (b) arising out of any material breach by Publisher of any duty, representation or warranty under any agreement with Banana Ads LLC; or (c) relating to a contaminated file, virus, worm, or any other file or programming script originating from the Publisher designed to harm or interfere with third party computers. (other than through an advertisement supplied by Banana Ads LLC).
12) Choice of Laws/Venue
This agreement shall be governed by, construed and interpreted according to the laws of the state of Calfornia. The parties agree that the appropriate, convenient and exclusive venue for any litigation arising out of this agreement shall be the court of appropriate jurisdiction in Alameda County, California.
Banana Ads LLC reserves the right to modify or amend the conditions of this contract at any time upon five days written notice to Publisher detailing the substance of the change. For purposes of this section, email shall constitute valid written notification.
Publisher may not assign its rights and responsibilities pursuant to this Agreement without the prior written consent of Banana Ads LLC.
If any provision of this agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this agreement shall not be affected thereby and shall continue in full force and effect.