PUBLISHER TERMS AND CONDITIONS
LAST UPDATE AS OF May 1st 2016
I Publisher Obligations and Eligibility Requirements
1. To join and remain in Media UpSurge, LLC a publisher must meet the following Eligibility Requirements. The following requirements apply to any content that you publish where you have posted your unique Media UpSurge source code, including all web pages within those domains regardless of whether that particular page hosts Media UpSurge source code or not.
A. Represent specialty content. Portals, search engines, and sites of links to other people’s content do not fit our definition of specialty content.
B. Provide current, regularly updated content.
C. Be in English. Media UpSurge does not allow any of its ads to appear on foreign language sites.
E. Reside on a top-level domain.
F. Your site may NOT contain any adult, sexually explicit, or mature content, use explicit language, or link to adult or sexually explicit content.
G. Your site may NOT allow Media UpSurge ads on any sites or pages for which you are not directly responsible or any sites that have not been reviewed and approved by Media UpSurge.
H. Your site may NOT infringe on any material protected by copyright.
I. Your site may NOT allow timed rotation or auto refresh of Media UpSurge banners.
J. Your site may NOT contain user-submitted content that is not moderated.
2. Media UpSurge requires that all sites comply with all Federal privacy laws including the Children’s Online Privacy Protection Act (COPPA). Media UpSurge requires each publisher to designate itself as having children’s or non-children’s content as well as designating if they knowingly collect any personal information from children under the age of thirteen. It is the publisher’s responsibility to notify Media UpSurge in the event that either their content or their policy on data collection changes. Media UpSurge reserves the right to change a publisher’s designation if, in our judgment, the publisher’s designation does not match site content and demographics. In addition, Media UpSurge requires that sites have a posted privacy statement, linked from the home page that reflects the current fair information practices approved by the U.S. government and prominent Internet industry organizations.
3. Media UpSurge does not guarantee any specific percentage of paid advertising to a website. “Default Impressions” (impressions served when no paid advertising is available) are a by-product of our business. Publishers may choose to redirect all or a portion of their Default Impressions at no additional charge. If a Publisher does not specify a default redirect, Media UpSurge reserves the right to utilize these Default Impressions for its sole benefit without compensation to the Publisher. Such uses may include, but are not limited to, running opt-in visitor surveys, collecting user data, promoting Media UpSurge products and services, running test campaigns, running public service announcements, and/or running “make good” campaigns (make good campaigns are unpaid advertisements that are run to make-up for the occasional discrepancies that occur during the normal course of business).
II Rates & Revenues
1. Media UpSurge will determine all advertising rates and may change the rates without notice. You are free to set advertising rates for any advertising sold by you or members of your staff.
2. Rate information is proprietary and confidential information and it may not be shared with other advertisers or third parties.
III Billing & Payment
1. Media UpSurge will handle all accounting arrangements and provide you an online summary of the activity on your unique Media UpSurge source code.
2. Your earnings will equal (1) your Contract Rate times (2) the sum of (a) your gross advertising billing minus (b) any advertising agency commissions and minus (c) other expenses. Other expenses are used to cover the fees and risks incurred in order to fulfill campaigns successfully such as, but not limited to, building creative, ad serving, data purchase, campaign research, sweepstakes and prize fulfillment, conversion tracking, foreign currency exchange, cost-of-money, as well as a handling expense. Other expenses may also include fees such as one-time set-up fees, annual servicing fees, or licensing fees, which Media UpSurge will recoup by allocating a fixed fee to all of the appropriate campaigns. Media UpSurge will pass-through these expenses in the form of a reduced price per unit paid. Such fees may not be detailed in the contract between Media UpSurge and the advertiser. This will be the only basis for payment to you for advertising.
3. Media UpSurge pays members on the last day of each month elected via electronic payment for all campaigns that ended at least sixty  days earlier regardless of whether the advertiser has paid Media UpSurge. Media UpSurge retains the credit risk of collections and guarantees you payment on a regular schedule.
4. You will be paid for all campaigns unless you have earned less than your minimum requested amount (not to be less than $100). Your balance will carry forward until such time as you have a balance greater than your minimum requested amount. Media UpSurge reserves the right to terminate this agreement if your account goes unpaid due to a failure to meet the minimum requested payment amount ($100) during any six (6) months period.
5. Payments under $5.00 for an inactive account will not be made and are permanently forfeited.
6. NOTE: MEDIA UPSURGE WILL NOT MAKE ANY PAYMENTS TO YOU UNTIL SUCH TIME AS WE HAVE RECEIVED FROM YOU AN EXECUTED COPY OF THIS AGREEMENT
7. Revenue will be calculated based on traffic audits from Media UpSurge’s central server. Media UpSurge traffic audits will be the sole source of audience traffic measurement for billing purposes. Some ads may be shown by a third party server. In that case Media UpSurge may need to rely on the third party server’s traffic audits as the sole source of audience traffic measurement for billing purposes.
8. You agree not to use, or allow the use of, any deceptive, incentivized, mechanical, computerized or other artificial means of increasing the number of users, impressions, page views, click-throughs or any other measure of your traffic.
9. If, in its reasonable judgment, Media UpSurge concludes that there has been deceptive, incentivized, mechanical, computerized or other artificial means used to increase impressions, page views, click-throughs, or any other measure of Internet traffic at your web site, Media UpSurge may terminate this Agreement and seize all of your earnings hereunder, whether they have been paid out to you or not.
IV Web Site Advertising
1. Upon execution of this Agreement, you will be given a password which allows you to access the information on the Media UpSurge Publisher Portal (RPP). You are responsible for the security of your RPP password and are responsible for any actions taken by anyone using your password.
2. Media UpSurge will provide you with source code that will display advertising from Media UpSurge’s server on your web page(s). Load the code as prescribed on the BPAC and do not alter it without Media UpSurge’s consent. By running our source code, you agree to abide by the terms and conditions for the advertising set forth in this Agreement and on the BPAC.
V Ownership of Data
All data collected by Media UpSurge or advertisers through the Media UpSurge source code or otherwise from your web site will be the property of Media UpSurge or the advertiser, as the case may be, and you will have no rights in or to such data. You hereby acknowledge that information, graphics, and infrastructure provided by Media UpSurge are the sole property of Media UpSurge and may not be used without its prior written consent.
1. Term: Month-to-Month (non-exclusive)
1. You may terminate this agreement at any time by sending an email to support@MediaUpSurge.com. Revenue for advertising run through the date of termination will be payable.
2. Media UpSurge reserves the right at any time, in its sole and absolute discretion, to terminate this Agreement, or in lieu of terminating this Agreement, to suspend the marketing of and placement of advertising for you. If Media UpSurge terminates this Agreement for any reason other than your breach, then revenue for advertising run through the date of termination will be payable.
If no new Agreement is executed upon this Agreement’s expiration, this Agreement will automatically renew as a month-to-month (non-exclusive) agreement, but pursuant to the terms and conditions in the then current form of Advertising Sales Agreement posted on the Media UpSurge web site.
IX Representations, Warranties and Covenants
You hereby represent, warrant and covenant that (a) use of your publications by Media UpSurge or any of Media UpSurge’s advertisers will not infringe on any third party intellectual property rights, including without limitation, United States or foreign trademarks, patents, copyrights, rights of publicity, moral rights, music performance or other music-related rights, or any other third-party right, (b) your web site does not and will not contain any content which violates any applicable law or regulation, and (c) you have all necessary rights and authority to enter into this Agreement and place advertising on the publications identified in this Agreement and on, adjoining, or in the vicinity of other web sites that may be viewed, linked or visited through access to your web site or in any location where you choose to place your individualized Media UpSurge ad code.
1. If any claim or suit is brought against Media UpSurge or an advertiser due to your breach of this Agreement, or (ii) any other act by you, including anything related to your website, you will assume the defense of any such claim or suit and to indemnify Media UpSurge and the advertisers against any damages, losses, expenses and reasonable costs, including attorney’s fees, in such suit or claim and in the reasonable investigation of any allegations of such suit or claim.
2. If any claim or suit is brought against you due to a breach of this Agreement by Media UpSurge, Media UpSurge will assume the defense of any such claim or suit and to indemnify you and the advertisers against any damages, losses, expenses and reasonable costs, including attorney’s fees, in such suit or claim and in the reasonable investigation of any allegations of such suit or claim.
XI Disclaimers, Exclusions and Limitations
1. Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THAT PARTY’S WEB SITE AND ANY PRODUCT, SERVICE OR INFORMATION THEREON OR OTHERWISE RELATING TO THESE TERMS AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. NEITHER PARTY WARRANTS THAT ITS WEB SITE WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
2. Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS AND CONDITIONS UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM ANY PROVISION OF THESE TERMS AND CONDITIONS , INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. IN NO EVENT SHALL THE RECEIVING PARTY’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS EXCEED THE PAYMENTS TO THE DIRECTING PARTY HEREUNDER. THE LIMITATIONS OF LIABILITY UNDER THIS SECTION 11.B SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS CONTAINED IN SECTION 10.
XII Governing Law, Venue, Arbitration
1. This Agreement shall be governed by the laws of the State of Arizona.
2. You hereby irrevocably submit to the nonexclusive jurisdiction of any Arizona state or Federal court sitting in Phoenix in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (ii) agree that all claims in respect of such action or proceeding may be heard and determined in such Arizona state court or in such Federal court, and (iii) waive, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding.
3. Any claim, controversy or dispute between the parties to this Agreement, their agents, employees, officers, directors or affiliated agents (“Dispute”) shall be resolved by arbitration conducted by a single arbitrator engaged in the practice of law, under the then current rules of the American Arbitration Association (“AAA”). The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, not state law, shall govern the arbitration of all Disputes. The arbitrator shall have authority to award compensatory damages only. The arbitrator’s award shall be final and binding and may be entered in any court having jurisdiction thereof. Each party shall bear its own costs and attorneys’ fees, and shall share equally in the fees and expenses of the arbitrator. The arbitration shall occur in Phoenix, Arizona and the laws of Arizona shall govern the construction and interpretation of the Agreement.
XIII Successors and Assigns
This Agreement shall be binding on the undersigned, its successors and assigns. You may assign this Agreement in connection with an assignment, sale or other conveyance of your web site, provided, however, in connection with such assignment, the assignee must load new unique Media UpSurge supplied programming code on each page of the web in which advertising is run in order to identify the new owner for tax reporting purposes.
In the event Media UpSurge is due any sums under the terms of this Agreement or for any other services provided by Media UpSurge, Media UpSurge may collect such amounts from your earnings.
XV Confidential Information
In the course of performing the services contemplated by this Agreement, it may be necessary for the parties hereto to disclose to each other confidential information. Neither party will, during or after the term of this Agreement, reveal any such information to any third parties or use such information for itself or any third party except as authorized in writing by the disclosing party or as required by applicable law or court order. Each party will take reasonable precautions to insure that all such information is not disclosed by any of its employees or agents to any unauthorized persons and will limit disclosure to its employees on a “need to know” basis. Confidential information does not include information that is, or subsequently may become within the knowledge of the public generally, through no fault of the party hereto receiving the information, or information that the receiving party can show was previously known to it at the time of receipt.
The above provision applies solely to confidential information of you and Media UpSurge. In the course of providing advertising to your site, advertisers will disclose to you and Media UpSurge additional confidential information. Advertisers generally consider all information that they disclose to be confidential, including, but not limited to, the content of the advertising, the web sites the advertising is run on, the number of impressions delivered, the fee paid for the advertising, the data collected from users and even the fact that the advertising was placed on a web site. Advertisers impose strict confidentiality obligations on anyone receiving such information. With respect to this advertiser confidential information, you agree to comply with the requirements in the immediately preceding paragraph. Further, no advertiser confidential information may be disclosed, released, used or made public in any other way without our prior written consent.
Please indicate your agreement to these terms and conditions by clicking below (for registration through the internet).
NOTE: IF YOU ARE UNDER 18 YEARS OF AGE, YOU MUST RETURN A HARD COPY OF THE AGREEMENT TO MEDIA UPSURGE, LLC , CO-SIGNED BY A PARENT OR GUARDIAN, EITHER BY POST OR FAX.
PLEASE MAIL TO MEDIA UPSURGE, LLC , ATTN: PUBLISHER SERVICES, 14632 N FLW Blvd. #1390, Scottsdale, Az 085260 OR FAX TO 1-602-357-3031.
Media UpSurge, LLC
14632 N FLW Blvd. #1390
Scottsdale, Az 85260