Terms Of Service

The following terms and conditions, together with any and all Acceptable Use Policies referenced herein (“AUP”), constitute the binding legal agreement (this "Agreement") between 2WAP Media, LLC. ("Company") and you ("You" or "Your"), the user of the AdTwirl website (the "Site") and the AdTwirl mobile advertising network service (the “Service”). You and Company may also be individually referred to herein as a "Party" and collectively as "Parties." You agree to use the Site, the Service and any additional products and/or services offered by Company in the future only in accordance with this Agreement. Company reserves the right to make changes to the Site, the Service and the terms and conditions of this Agreement at any time. The latest Agreement will be posted on the Site. Your continued use of the Site and/or the Service after any such modification and notification thereof shall constitute Your consent to such modification. Therefore, You should regularly check the Site for updates and/or changes. If You agree to accept this Agreement, it applies to and governs Your relationship with the Company in all matters including, without limitation, as an Publisher Partner (“Publisher”) of the Company’s Service. For purposes of this Agreement “Publisher” means the company or entity registering with the Company and, without limitation, any parent entities, owners, subsidiaries, Publishers, predecessor or successor entities, and any agents, officers, directors or employees acting on behalf of same. If You do not agree to the terms and conditions contained within this Agreement in their entirety, You are not authorized to register as an Publisher, use the Service and/or Site in any manner or form whatsoever.

1. Background and Use of the Site and the Service.
Company provides advertising content (“Offers”, “Campaigns”) including images and text (“Creatives”) in connection with various advertising campaigns sponsored by Company or its third party advertising clients (“Advertisers”) on Company’s proprietary network (“Campaign(s)”). Company posts software code (“Ad Tags”, “Ad Codes”) customized to each Publisher on its website. Publishers include Ad Tags on their mobile web sites to request Creatives in an automated fashion. Approved Publishers shall be permitted to download the Ad Tags to request Creatives: (i) for publication on Publisher’s mobile website and/or any other mobile website Publisher with, owned, operated and/or controlled by Publisher (“Publisher Site”). Approved Publishers can use the Site to approve available Campaigns for inclusion on their site. The Campaigns will specify the amount and terms under which You will receive payment (“Bounty”) when the Campaign's requirements are fulfilled. Bounties are generated from a specified event (“Event”) identified in the Campaign terms and conditions which include, without limitation, clicks, click-throughs, sales, registrations, impressions and leads, as applicable. The definition of the Event associated with each Campaign shall be set forth in the applicable Campaign’s specifications, and such definition shall apply with respect to that Campaign. If You accept a Campaign, You agree that the Company may include that Campaign's Creative among the Creatives to be automatically included on Your Publisher Site, in accordance with the terms of this Agreement and the accepted Campaign. Company may change a Campaign at any time, unless otherwise specified in the Campaign terms, upon prior notice to You. Similarly, You may cease participation in previously accepted Campaigns at any time, unless otherwise specified in the Campaign terms. Company is responsible for displaying and administrating all active Campaigns and tracking associated Campaign payments owed. Company shall compile, calculate and electronically deliver data necessary to determine Your billing and compensation. Company’s figures and calculations regarding Events, Bounties and any compensation due to You shall be final and binding. Any questions regarding the data provided by Company need to be submitted in writing within fourteen (14) days of receipt, otherwise the information will be deemed accurate and accepted as such by You.

2. License.
You must obtain official approval from Company before you may become a Publisher. Company may reject Your Publisher application and/or terminate Your participation in any Campaign at any time and for any reason, in Company’s sole discretion. Only websites that have been reviewed and approved by Company may be utilized in connection with the Site and Service. Company reserves the right to withhold or refuse approval of any websites and/or email distribution lists for any reason, whatsoever, in Company’s sole discretion.

In order to be eligible to become a Company Publisher, and in order to maintain an active Publisher status, Your Publisher Site and/or Publisher E-mails must meet the following criteria:

1. Your Publisher Site must contain distinct and legitimate content, substance and material, not simply a list of links or advertisements. Further, the applicable Publisher Site(s) must serve a purpose substantially or completely separate and distinct from merely being designed to earn money solely from Company’s Advertisers or other third party advertisers;
2. Your Publisher Site must be written in English and contain only English language content;
3. Your Publisher Site must each be represented by a legitimate second-level domain name (e.g. yoursite.com is acceptable; however, a shared server, e.g., sharedsite.com/yoursite, is not acceptable);
4. Your Publisher Site cannot be offered as a part of a community-based website personal entry or personal page;
5. Your Publisher Site may not incentivize users to click on ads. Incentives include, but are not limited to, awarding users cash, points, prizes, contest entries, etc.;
6. Your Publisher Site must be fully functional at all levels; no "under construction" sites or sections are permissible; and
7. Spawning process pop-ups and exit pop-ups may not be activated through Your Publisher Site.

The content of Your Publisher Site must not promote, advocate, facilitate or otherwise include any of the following:

1. Racial, ethnic, political, hate-mongering or otherwise objectionable content;
2. Investment, money-making opportunities or advice not permitted under law;
3. Violence or profanity;
4. Material that defames, abuses, is libelous, is tortious or threatens physical harm to others;
5. Material that displays any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third person;
6. Material that impersonates any person or entity;
7. Any indication that any statements You make are endorsed by Company or an Advertiser, without Company’s specific prior written consent;
8. Promotion of illegal substances or activities (e.g., illegal narcotics, how to build a bomb, counterfeiting money, etc.);
9. Material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation;
10. Content which is inappropriate or harmful to children;
11. Promotion of terrorism or terrorist-related activities, sedition or similar activities;
12. Software Pirating (e.g., warez, hotline);
13. Hacking or Phreaking;
14. Any material that contains software viruses or any other computer code, files or campaigns designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
15. Any software, product or service that is illegal or that violates the rights of a third party including, but not limited to, spyware, adware, campaigns designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, campaigns designed to initiate “denial of service” attacks, mail bomb campaigns and campaigns designed to gain unauthorized access to networks on the Internet;
16. Any software, product or service that harvests or collects the personal information of Internet users, whether or not for commercial purposes, without the express consent of such users;
17. Any spoofing, redirecting or trafficking from other websites in an effort to gain traffic;
18. Any content that infringes upon the intellectual property rights of any third party;
19. Any material that otherwise infringes upon the rights of any third parties including, without limitation, false advertising, unfair competition, invasion of rights of publicity or privacy, violation of any anti-discriminatory law or regulation, or any other right of any person or entity
20. Gambling, contests, lotteries, raffles, or sweepstakes;
21. Any material that violates the CAN-SPAM Act of 2003, as amended ("CAN-SPAM"); or
22. Any illegal activity whatsoever.

Upon approval of Your Publisher application, Company grants to You a non-transferable, non-exclusive, limited license to use the Site, the Service, Ad Tags, Creative, Offers and any data, reports, information and/or analyses arising out of such use that Company makes available to You, subject to the terms and conditions set forth herein. You acknowledge and agree that Company may reject Your Publisher application for any reason, in Company’s sole discretion. You acknowledge and agree that You do not have, nor will You claim any right, title or interest in, the Site or the Service software, applications, data, methods of doing business or any elements thereof. You may only access the Site via web browser, email or in a manner otherwise approved by Company. No part of the Site may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Site, Site content or any portion thereof. Company reserves any rights not explicitly granted in this Agreement. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site. In addition, Ad Tags included in the Advertiser Creative or otherwise may NOT be altered under any circumstances. Altering Ad Tags may jeopardize Your ability to be paid for Events and would be grounds for immediate termination of Your Publisher account. You may not take any action that imposes an unreasonable or disproportionately large load on the Company infrastructure. Your right to use the Site is not transferable.

3. Fraud.
Company actively monitors traffic, Events, Bounties and other Campaign-related activities for fraud. If Company suspects that Your account has been used in a fraudulent manner, Your account will be deactivated effective immediately and with no notice to You pending further investigation.
If You fraudulently add leads, clicks or other Events, or inflate leads, clicks or other Events, through the use of fraudulent means of traffic generation (as determined solely by Company, such as pre-population of forms or mechanisms not approved by Company), You will forfeit your entire Bounty-related commissions for all campaigns, not just those commissions associated with the fraudulent activity, and Your account will be terminated effective immediately. Company reserves sole judgment in determining fraud, and You agree to be bound these determinations.
When fraud is suspected, it is the OBLIGATION of Publisher to prove to Company that the Publisher has NOT engaged in fraud. Company will hold Your Bounty-related payments in 'Pending Status' until You have satisfactorily provided evidence that You have not engaged in fraud. Company uses a variety of methods to flag accounts for possible fraud, including accounts that:

1. Have click-through rates that are much higher than industry averages and where solid justification is not evident;
2. Have ONLY click campaigns generating clicks with no indication, based upon site traffic statistics, that it can sustain the clicks reported;
3. Have shown fraudulent leads as determined by Company or its Advertisers; and
4. Use fake redirects, automated software and/or fraud to generate clicks or leads from Campaigns.
5. Have excessive traffic originating from privately operated WAP Gateways.

4. Use of Downloadable Software
Ad Tags are not for inclusion in Downloadable Software.

5. Use of SMS/MMS for Marketing Purposes
Push marketing to mobile phones is not an acceptable method to drive traffic to your Mobile Site.

6. Payment.
You will be paid the applicable Bounty rate for each Campaign Event specified in the applicable Campaign terms. The Parties understand and agree that payment will be owed to Publisher from the applicable Advertiser, and that corresponding payments shall be made from Company out of the funds actually collected by Company from the applicable Advertiser approximately thirty (30) days after the last day of a given calendar month, for Bounties realized in that month. All accounts will be paid in US dollars ($US). No checks will be issued for any amounts less than Fifty US Dollars ($50) (“Payment Threshold”). Every Publisher account must have a unique, valid taxpayer identification number. All payments are based on actual figures as defined, accounted for and audited by Advertiser. Company will facilitate payment by disbursing the earned portion of lump sum aggregate payments to individual Publishers based upon the receipt of corresponding payments from the applicable Advertiser(s).
In the event that Company fails to receive the applicable corresponding payments due from the respective Advertiser(s), Company shall have no payment obligation to Publisher. Instead, Publisher shall have the right to pursue any and all legal remedies directly against any Advertiser that has not made funds available to pay sums due and owing to Publisher for Bounties earned in connection with a particular Campaign. If Advertiser does not pay on time, Company will notify Publisher and may, in its sole discretion, offer its reasonable assistance in matters related to collections. Publisher agrees that Company shall have no obligations and incur no liabilities to Publisher in connection with any such payment-related dispute. Advertisers will not pay for any Events that occur before a Campaign is initiated, or after a Campaign terminates. Invoices submitted to Company and payments made to You shall be based on the Events and corresponding Bounties as recorded by Company. Company will not be responsible to compensate You for Events that are not recorded due to Your error.
All fees owed by the Publisher to any third party based on revenue derived from activity covered by this agreement are solely the responsibility of the Publisher. To avoid confusion, any revenue share, flat fee, per user fee, or any other obligation made by the Publisher to a Wireless Service Provider are to be paid by the Publisher out of payment received from the Advertisers by way of the Company.

7. Termination.
This Agreement shall commence upon Company’s acceptance of Your Publisher application and remain in effect until terminated as set forth herein. This Agreement may be terminated by either Party upon three (3) days’ prior written notice. This Agreement shall terminate immediately upon the dissolution or insolvency of either Party. Company reserves the right, in its sole and absolute discretion, to terminate a Campaign and/or remove any Creative and/or Offers at any time for any reason, upon notice to You. Company also reserves the right to terminate Your access to the Site at any time with or without notice to You. Termination notice will be provided via e-mail and will be effective immediately. All legitimate moneys due to Publisher that are actually collected from the applicable Advertiser, even amounts below the Payment Threshold, will be paid during the next billing cycle. If Publisher commits fraud in connection with the Service or any Campaign, or otherwise violates this Agreement or the AUP, then such payments otherwise due Publisher shall be revoked, as determined solely by Company. The representations, warranties and obligations contained in Sections 6, 8, 9, 10 and 11 hereof shall remain in full force and effect after termination of this Agreement. All payment obligations accruing prior to the date of termination shall survive until fully fulfilled.

8. Representations and Warranties.
You represent and warrant that:

1. You will not, nor knowingly permit any person to, use third-party trademarks in any way to direct traffic to any Publisher Site or Advertiser Website including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name, or any derivative of any such trademark, service mark or brand name, of any of Company, any Advertiser and/or any of their respective Publishers or clients;
2. Your Publisher Sites are, and shall remain at all times during the term hereof, in compliance with all applicable laws and do not contain or promote, or link to another mobile website that contains, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content;
3. Your Publisher Sites are, and shall remain at all times during the term hereof, in compliance with all applicable AdTwirl rules and policies, including the eligibility and content policies set out in Section 2 (above);
4. Your Publisher Sites are, and shall remain at all times during the term hereof, in compliance with any applicable rules and policies set forth by the respective Advertisers in the Campaigns that You elect to participate in;
5. You agree not to send Unsolicited Bulk Email, SMS, MMS (i.e., SPAM) or otherwise violate any of the provisions of the CAN-SPAM;
6. You agree not to post any messages to newsgroups, chat rooms, bulletin boards or any other places that mention specific AdTwirl Advertisers or Campaigns unless You obtain express prior written permission from Company;
7. You agree not to promote on or through Your Publisher Site, nor link to websites containing, racial, ethnic, political, software pirating (e.g. Warez) or hacking, hate-mongering or otherwise objectionable content;
8. You will be solely responsible for the development, operation and maintenance of the Publisher Site and for any and all materials that appear therein. Such responsibilities include, without limitation: (i) the technical operation of the Publisher Site and all related equipment; (ii) creating and posting content, descriptions and references on or through the Publisher Site; and (iii) the accuracy and propriety of materials posted on or through the Publisher Site;
9. You agree not to engage in any illegal activity, in accordance with Federal Law, whatsoever;
10. There is no pending or, to the best of Your knowledge, threatened claim, action or proceeding against You;
11. Your execution, delivery and performance of this Agreement will not conflict with or violate: (i) any provision of law, rule or regulation to which You are subject; (ii) any order, judgment or decree applicable to You; (iii) any provision of Your corporate by-laws or certificate of incorporation, if applicable; or (iv) any agreement or other instrument applicable to You;
12. You own, or have the legal right to use and distribute, all content, copyrighted material, products, and services displayed on or through Your Publisher Site;
13. You agree to not use deceit when marketing Advertiser’s Offers or presenting these Offers to consumers;
14. You have the right, power, and authority to enter into this Agreement and grant the rights specified herein;
15. You will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective the Ad Tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure the performance of Creative, calculate Bounties and Events and otherwise provide the Service ("Site Data");
16. You will not “frame” or “mirror” any part of the Site, without our prior written authorization;
17. If instructed to do so by Company and/or if this Agreement terminates, You will immediately remove and discontinue the use of any Creative, Offers and/or Site Data;
18. You acknowledge that Company does not represent, warrant, or make any specific or implied promises as to the successful outcome of any Campaigns;
19. You agree to display the Creative exactly as it is made available to You in connection with the applicable Campaign and You will not alter in any way any Creative that has been made available to You by and through the Site;
20. If You are notified that fraudulent activities may be occurring in connection with or through Your Publisher Site, and You do not take any action to stop the fraudulent activities from continuing, then You are responsible for all associated costs and legal fees resulting from these fraudulent activities; and
21. You acknowledge and agree that if any errors or undesirable results occur in connection with recording or calculating Events, Bounties, associated payments or otherwise due to no fault of Company, Company shall not be responsible for any associated losses.

9. Customer Information; Non-Disclosure.
All information submitted by end-user customers (“Customer Information”) in connection with a Campaign Offer shall be considered proprietary to and owned by Company and/or Company’s partners. Such Customer Information is confidential information of Company and may not be utilized or otherwise disclosed by You. In addition, You acknowledge that all non-public information, data and reports made available by Company hereunder or otherwise as part of the Services is proprietary to and owned by Company. All proprietary and confidential information is protected by copyright, trademark and other intellectual property laws. You agree not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary or confidential information of Company in any manner. These non-disclosure obligations shall survive termination or expiration of this Agreement.
10. Limitation of Liability; Disclaimer of Warranty.

IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH YOUR MARKETING EFFORTS) FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE SITE, OPERATION OF A CAMPAIGN, ADVERTISERS’ UNDERLYING PRODUCTS AND/OR SERVICES OR YOUR DISPLAY OF ANY CREATIVE ON OR THROUGH YOUR PUBLISHER Site INCLUDING BUT NOT LIMITED TO SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S MAXIMUM AGGREGATE LIABILITY TO PUBLISHER AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE FIVE HUNDRED DOLLARS ($500). PUBLISHER RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE.
THE SITE, CREATIVE, OFFERS, CAMPAIGNS, ADVERTISERS’ UNDERLYING PRODUCTS AND SERVICES, INFORMATION, CONTENT AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE SITE, CREATIVE, OFFERS, CAMPAIGNS AND/OR ADVERTISERS’ UNDERLYING PRODUCTS AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. COMPANY HAS NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD PARTY, FOR PUBLISHER’S USE OF, OR INABILITY TO USE, THE SITE, CREATIVE, OFFERS, CAMPAIGNS AND/OR ADVERTISERS’ UNDERLYING PRODUCTS OR SERVICES AND COMPANY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT PUBLISHER’S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OF THE CAMPAIGNS WILL BE AVAILABLE TO PUBLISHER. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND PUBLISHER. THE SITE, CREATIVE, OFFERS, CAMPAIGNS AND/OR ADVERTISERS’ UNDERLYING PRODUCTS AND SERVICES WOULD NOT BE PROVIDED TO PUBLISHER WITHOUT SUCH LIMITATIONS. COMPANY MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE SITE, CREATIVE, OFFERS AND/OR CAMPAIGNS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM COMPANY THROUGH THE SITE, CREATIVE, OFFERS AND/OR CAMPAIGNS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.

11. Indemnity.
You shall indemnify, defend and hold Company, its parents, Publishers and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of or related to: (a) Your improper use of the Site, Creative or any Offer; (b) Your improper operation of a Campaign; (c) any third party claim related to Your Publisher Site and/or Your marketing practices; (d) Any content, goods or services offered, sold or otherwise made available by You on or through the Publisher Site or otherwise; (e) any claim that Company is obligated to pay any taxes in connection with payment made to You in connection with this Agreement and/or any Campaign; (f) any claim that Company is obligated to pay any revenue share to any third party such as Wireless Service Providers in connection with payment made to You in connection with this Agreement; (g) and/or any Campaign breach or violation of this Agreement and/or any representation or warranty contained herein; and/or (h) Your use of the Services, in any manner whatsoever. Company shall indemnify, defend and hold You harmless from and against any and all claims allegations, liabilities, costs and expenses (including reasonable attorneys' fees) by third parties arising out of any actual infringement of intellectual property rights resulting from Your display of the Creative provided in connection with any Campaign.

12. Assignment and Jurisdiction.
Company may assign this Agreement with or without Your consent. You may not assign this Agreement without the prior written consent of Company, which may be withheld for any reason. This Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties’ successors and assigns.

13. Severability.
If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not effect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.

14. Force Majeure.
Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of such Party.

15. Attorneys' Fees.
Company shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding arising out of this Agreement.

16. Miscellaneous.
You agree that any unauthorized and/or unlawful use of the Site, Creative, Offers and/or Campaigns would result in irreparable injury to Company for which monetary damages would be inadequate. In such event, Company shall have the right, in addition to other remedies available to it pursuant to this Agreement, to immediate injunctive relief against You without the need to post a bond. Nothing contained in this Agreement shall be construed to limit any legal remedies available to Company. This Agreement, together with the AUP and the AdTwirl Privacy Policy, contains the sole and entire agreement and understanding between the Parties relating to the subject matter herein, and merges all prior discussions, whether through officers, directors, salespersons, employees or consultants. Each Party is an independent contractor and not a partner, joint venturer or employee of the other. Neither Party shall have the right to bind the other or to incur any obligation on the other’s behalf. All notices shall be sent to the addresses submitted by You when signing up for the service by certified mail, fax, email or courier. Company’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Company reserves the right to change any of the terms and/or conditions of this Agreement at any time, with or without notice to you.
We encourage Users to frequently check this page for any changes to stay informed. You acknowledge and agree that it is your responsibility to review this terms of service periodically and become aware of modifications.

By using this Site, you signify your acceptance of this Terms and Privacy Policy. If you do not agree to this terms, please do not use our Site. Your continued use of the Site following the posting of changes to this terms will be deemed your acceptance of those changes.

If you have any questions about this Terms of Service, the practices of this site, or your dealings with this site, please contact us at:
AdTwirl
http://adtwirl.com
This document was last updated on February 09, 2013