Display Advertising Agreement for Publishers
eSpot and Publisher, enter into this Publisher Network Agreement (“Agreement”) to establish the terms and conditions by which Publisher may enter the eSpot Network and market advertisements on behalf of eSpot Customers (“Advertisers” or “Customers”). eSpot and Publisher agree to be legally bound as follows:

1. eSpot Network
   1.  Membership. Membership in the eSpot Network is subject to prior approval by eSpot Digital. eSpot reserves the right to refuse service to any new or existing Publisher for any reason, in its sole discretion. Approval of membership in the eSpot Network is limited to the domains and/or specific root URLs for which Publisher has applied for approval by eSpot Digital. eSpot reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Publisher or Website for any reason at any time with or without notice to Publisher and regardless of whether such Publisher or Website was previously accepted. Without limiting the foregoing, eSpot    reserves the right to require a potential or existing Publisher to submit detailed descriptions or explanations of the Publisher’s Website(s) or application(s) functionality and back-end technology through a questionnaire or survey. Refusal to participate or answers deemed unsatisfactory constitutes grounds for non-acceptance or termination from the eSpot Network. This Agreement is voidable by eSpot immediately if Publisher fails to disclose, conceals or misrepresents itself in any way. Unless otherwise advised due to technological issues by eSpot Digital, any person, Publisher, or affiliated group may have only one account, however; each account may include multiple Websites/domains. In the event that Publisher receives approval from eSpot for multiple Websites/domains, each and every additional Website/domain is obligated and bound by these same terms and conditions.  In any event, eSpot reserves the right to reject or approve any additional Website(s), and is under no obligation to accept any Website(s), even if the additional Website(s) is the property of an already approved Publisher.  All activity for a given account will be consolidated into one report.
   2. eSpot Websites.  For purposes of this Agreement, all Websites that are owned, operated or hosted by or on behalf of eSpot, including, without limitation, eSpot’s branded Websites at http://www.espotdigital.com, http://www.espotdigital.co.uk, http://www.epsotdigital.in, http://www.epsotdigital.net, are referred to herein collectively as the "eSpot Websites." Publisher agrees that it will not use the eSpot Websites or any content therein or data obtained therefrom for any purposes other than to fulfill this Agreement and that Publisher will not disseminate any of the information contained on eSpot Websites. Publisher agrees that it will not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access or manage your account with eSpot or to monitor or copy the eSpot Websites or the content contained therein except via automated means expressly made available by eSpot, if any, or authorized in advance and in writing by eSpot (e.g. eSpot -approved third-party tools and services). The eSpot Websites contain robot exclusion headers and Publisher agrees that it will not bypass eSpot’s robot exclusion headers (including using any device, software or routine to accomplish that goal), or to interfere or attempt to interfere with the proper working of the eSpot Websites or any program thereon, or the eSpot system. Without limitation to the foregoing, Publisher agrees that it will not take any action that imposes an unreasonable or disproportionately large load on the eSpot Websites, any programs thereon, or eSpot’s infrastructure, as determined by eSpot.
   3. Services. Publisher understands and agrees that from time to time the eSpot services hereunder may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which eSpot may undertake from time to time; or (iii) causes beyond the control of eSpot or which are not reasonably foreseeable by eSpot, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of Websites or interfaces, network congestion or other failures. While eSpot will attempt to provide the services on a continuous basis, Publisher acknowledges and agrees that eSpot has no control over the availability of the services on a continuous or uninterrupted basis. Publisher also understands and agrees that eSpot is not responsible for the functionality of any third-party Website or interface. Terms of this Agreement are subject to eSpot hardware, software, and bandwidth traffic limitations. eSpot’s failure to deliver because of technical difficulties does not represent a failure to meet the obligations of this Agreement.  eSpot reserves the right to discontinue offering any of the eSpot systems and/or eSpot Websites at any time. Except as otherwise specified by eSpot, Publisher agrees that it will direct all communications relating to any eSpot Website or your participation therein directly to eSpot and not to any other entity.
2. Website Content and Prohibited Conduct
   
   1.  Prohibited Websites. eSpot Code and eSpot Network IP shall not be used on Websites that contain forums, discussion boards, chat rooms, or any content area that is open to public updates without regulation unless otherwise indicated by eSpot through written communication.
      Furthermore, eSpot Code and eSpot Network IP shall not be used on Websites that;
      1. Contain content that could be construed as Hate Content, Obscenity and Indecency;
         Websites that contain content articulating views intended or reasonably likely to cause or incite hatred of any race, religion, creed, class, or ethnic group; Content articulating views calculated to cause offence to or incite hatred of any individual or group; Content explicitly glorifying or delivering for the purposes of entertainment, scenes or descriptions of non-consensual pain, suffering, death, torture or ill-treatment of humans or animals; Content that is unlawful by reason of obscenity or indecency under prevailing legislation (such as the Obscene Publications Act 1959 and the Protection of Children Act 1978); Video content that may not be distributed under the Video Recordings Act 1984, either because it requires a video classification certificate or because of the classification it has been given (in particular, the 18R classification);
      2. Contain content that could be construed to contain promotion of Bombs, Guns, or Ammunition;
         Content offering genuine or replica guns, bombs, ammunition or other offensive weapons for sale; Content glorifying the use of or offering technical information on the illegal use of guns, bombs, ammunition or other offensive weapons; Invalid clicks are clicks generated by prohibited methods; Examples of invalid clicks include repeated manual clicking or the use of robots, automated clicking tools, or other deceptive software.
      3. Product Invalid Clicks (non-human clicks);
         Invalid clicks are sometimes intended to artificially or maliciously drive up an advertiser's clicks or a publisher's earnings. Sources of invalid clicks include: Manual clicks intended to increase costs to the advertiser or to increase profits for website publishers hosting the advertising; Clicks by automated tools, robots, or other deceptive software.
      4. Promote the use of or generate impressions and/or clicks through Spyware;
         This includes, but is not limited to, any software covertly installed on a user’s machine (as distinct from the addition of a cookie to the appropriate location within the user’s browser software). Specifically, Spyware is: installed without the user's full knowledge; cannot be easily uninstalled or disabled; covertly transmits information about the user's activities to a remote host often used to facilitate delivery of advertising messages, often with a high frequency; Those applications that are a sub-set of spyware being, malware (malicious code). Malware includes viruses, worms and Trojans. A defining characteristic of malware is that it is intended to cause harm or be otherwise used for criminal purposes. Examples of spyware in this category are keystroke loggers, password sniffers, spam launchers, remote access tools (RATs) and screen capture utilities.
      5. Produce unauthorised Code requests; (anywhere that the code requesting the ad isn’t owned by the publisher);
         Any advertising delivery taking place outside of Websites specifically contracted to deliver the campaign under this agreement to purchase advertising space or represent Website inventory, governed and controlled by the terms & conditions laid down in this document. This clause is specifically intended to prevent Publishers “passing on” tags to unauthorised parties or illicitly placing eSpot Codes to deliver advertising in unauthorised content areas or Websites that may or may not be appropriate for the campaign and may or may not comply with eSpot’s content guidelines.
         Failure to abide by section 2(a) of this agreement will mean non-payment of all earnings and immediate termination of this agreement with no obligation to eSpot.
   2. Pre-approval Required. Publishers that have Websites that relate to or have any characteristic of the following shall be approved on a case by case basis: (i) excessive ads, app – quest/test, user content (blogs, etc.), (ii) controversial issues, religion, sexual orientation and/or edgy humor, (iii) old content, and/or (iv) poor quality design and functionality.
   3. Prohibited Conduct. eSpot does not accept Websites that produce, relate to or have characteristics of Prohibited Conduct. “Prohibited Conduct” is defined as:
      
      1. Ad Placement & Tracking. Publisher shall not: (1) place Creatives or Ads in emails; (2) intentionally place Creatives on blank web pages or on web pages with no content; (3) stack Creatives (e.g. place on top of one another so that more than 2 ads are next to each other); (4) place Creatives on non-approved Websites or web pages, or in such a fashion that may be deceptive to the User; (5) incentivize offers or create the appearance to incentivize offers; (6) place statements near an Ad requesting that Users "click" on the Ad (i.e., "Please click here") or "visit" the sponsor (i.e., "Please visit our sponsor"); (7) place misleading statements near the Ad (i.e., "You will win $5,000."); (8) redirect traffic to a Website other than that listed by the particular Advertiser; (9) ask Users to take advantage of other Ads or offers other than those listed by the particular Advertiser; (10) serve Creatives, or drive traffic to such Creatives, using any downloadable applications without the prior written approval of eSpot, which, if provided, is subject in each case to the following condition: Creatives delivered in approved downloadable applications may only be shown once per User session when the application is active, enabled and clearly recognizable by the end User as being active and enabled. Serving Creatives at any time when the downloaded application is not active is strictly prohibited and grounds for immediate termination without pay; (11) use invisible methods to generate Impressions, Clicks, or transactions that are not initiated by the affirmative action of the end-user; (12) attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Website tags, source codes, links, pixels, modules or other data provided by or obtained from eSpot that allows eSpot to measure Ad performance and provide its service.
      2. Websites. Publisher shall not place any Creative, Ads or eSpot Network IP on Websites that contain, promote, reference or have links to: (1) profane, obscene, sexually explicit materials, hate material, promote violence, defame, misrepresent, promotion of pain, suffering, death, torture or ill-treatment of humans or animals, violate the privacy or publicity rights of others, discriminate based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other materials deemed unsuitable or harmful to the reputation of eSpot; (2) software piracy (warez, cracking, etc.), hacking, phreaking, emulators, ROM’s, illegal downloads or MP3 activity, or viruses or other destructive programming or device(s) that may impair or injure any data, computer system, software, property, person or entity; (3) illegal activities, including without limitation, false or deceptive or comparative advertising laws, gaming and gambling laws, competition laws, and criminal laws, deceptive practices or violations of the intellectual property or privacy rights of others; (4) personal web pages, or free hosted pages (i.e. Geocities, Xoom, Tripod, Talk City, etc.); (5) websites under construction, hosted by a free service, personal home pages, or do not own the domain they are under; (6) charity clicks/donations, paid to surf, personal Websites, Website applicants who are not the owner of or employed by the applying Website, active x downloads, no content (link site), all affiliate links, or incentivized traffic; (7) content offering or glorifying the use of genuine or replica guns, bombs, ammunition or other offensive weapons for sale or offering technical information on guns, bombs, ammunition or other offensive weapons; or (8) promote activities generally understood as Internet abuse, including but not limited to, the sending of unsolicited bulk electronic mail or the use of Spyware.  For purposes hereof, “Spyware” shall mean computer programs or tools that (i) alter a computer User’s browser or other settings or use an ActiveX control or similar device to download ad supporting software without providing fair notice to and obtaining affirmative consent; (ii) prevent a computer User’s reasonable efforts to block the installation of or disable or remove unwanted software; (iii) remove or disable any security, anti-Spyware or anti-virus technology on a User’s computer; (iv) send email through a User’s computer without prior authorization; (v) open multiple, sequential, stand-alone advertisements in the consumer’s Internet browser which cannot be closed without closing the Internet browser or shutting down the computer or (vi) other similar activities that are prohibited by applicable law.
      3. Search & Miscellaneous. Publisher shall not: (1) violate guidelines of any search engines being utilized; (2) engage in search engine spam, doorway pages, cloaking, etc.; (3) bid on any trademarked name or terms in any PPC/“keyword”/”adword”/campaign; (4) conduct search ads falsely suggesting a link between eSpot and a third- party or otherwise infringing on a third-party’s intellectual property rights; (5) engage in any advertising via facsimile or telemarketing; or (6) engage in any misleading or deceptive conduct.
3. Ad content & Placement
   
   1. Compliance with Industry Standards. Publisher agrees to undertake and complete the services as specified by the eSpot Network, including all Ad placement restrictions or channels specified, in accordance with the highest industry standards. Publisher shall position the Ads in such a manner to assure that they are fully and clearly visible to consumers and displayed in a similar manner as other merchants included in the Website. 
   2. Compliance with IASH (Internet Advertising Sales Houses) Requirements. Publisher warrants that it will comply with the following IASH conditions:   
      
      1. (I) The publisher of the site either owns or reasonably believes that it is entitled to use the content displayed on all URLs on which activity is running;
      2. (II) The site does not to the publisher’s knowledge include any ‘virus’ or other destructive programming or device that could impair or injure any data, computer system or software;
      3. (III) The site does not to the publisher’s knowledge violate any applicable laws or regulations, including without limitation, false or deceptive or comparative advertising laws, gaming and gambling laws, competition laws, and criminal laws;
      4. (IV) The site does not to the publisher’s knowledge contain content originated by or on behalf of the site publisher that is defamatory, violates any rights of privacy or publicity or constitutes a misrepresentation;
      5. (V) The content of the site originated by or on behalf of the site publisher does not and will not to the publisher’s knowledge infringe any Intellectual Property Rights or other proprietary rights;
      6. (VI) The publisher of the site does not knowingly engage in, promote or facilitate on the site activities such as pirating, hacking or any other activities which are illegal under applicable law.
      7. (VII) In respect of unlawful activity or content contributed to the site without the publisher’s knowledge or awareness of its unlawfulness, the publisher operates a “notice and takedown” policy that complies with applicable law (currently for publishers situated in the UK, the Electronic Commerce (EC Directive) Regulations 2002).
      8. (VIII) The site publisher will use all reasonable endeavours not to include on the site those types of content forbidden by the IASH Code of Conduct. See the definitions of ‘barred inventory’ in Schedule C of the IASH Code of Conduct (www.iash.org.uk).
      9. (IX) The site publisher will use all reasonable endeavours to ensure that inventory booked on this site will not be re-sold or re-brokered.
   3. No Modifications to Creative, Code or Network IP. Except as permitted under this Agreement, Publisher shall not alter, copy, modify, take, sell, re-use, or divulge in any manner any Creative, Network IP, or computer code provided by eSpot without eSpot prior written consent. Publisher may not copy eSpot’s Ads and display them from Publisher's Website directly, redirect traffic to a Website other than that listed by eSpot or the Advertiser; or ask Users to take advantage of other Ads or offers other than those listed by eSpot or Advertiser. Any eSpot content which is copied, changed or altered without prior written consent will result in non-payment for the campaign and may result in termination. Any approved modifications to eSpot Code or Network IP shall be owned solely by eSpot.
   4. Requirements. Publisher shall be solely responsible for (i) managing its advertising content exclusions in the eSpot interface, and (ii) placing Ads on the Publisher Media, which placement shall be subject to the terms and conditions of this Agreement. Ads may only be placed on Approved Websites. Banner, Leaderboard, Skyscraper, and Wide Skyscraper Ads must be placed within 600 pixels of the top of the Webpage (above the page scroll/fold).  eSpot pop-under or In-Vue windows cannot be launched from Websites that launch more than a total of two pop windows, including the eSpot pop-under or In-Vue. Skyscrapers or Wide Skyscrapers and half page formats cannot be placed on the same page. Text Ads are limited to a total of seven text links per page in any combination of standalone and/or multiple links. Publisher will not place Ads in emails, on blank pages, on pages with no content, on top of one another, on non-approved Websites, or in such a fashion that may be deceptive to the User. Ads may not be placed on forums, chat rooms, and other entities for which Publisher does not have complete control and/or ownership. Publisher agrees to use the eSpot Code provided by eSpot for displaying an Ad not more than ONCE per page view. PLACEMENT OF ADS IN EMAILS IS PROHIBITED.
   5. Default Ads. Publisher acknowledges and agrees that eSpot may not be able to fill 100% of advertising requests sent to its servers with paying Ads. eSpot provides free Publisher-defined default redirects expressly for this reason. Publisher-defined default Ads must adhere to the content guidelines outlined for all eSpot Advertisers (no adult content, etc.). Publishers found using default Ads that violate the content restrictions of this Agreement will be removed from the eSpot Network. If Publisher chooses not to specify a default redirect, eSpot will display so-called 'house' and/or on Publisher's Website when paid advertising is unavailable. eSpot may also display so-called 'house' on Publisher's Websites when technical difficulties require it. So-called 'house' ads are not paid advertising. Under no circumstances does eSpot guarantee to provide any percent fill of paid advertising to a Website.
4. Marketing and Promotional Use
   Publisher unconditionally authorizes eSpot to use Publisher’s name and logo on the eSpot website, in media collateral, and in press releases. Publisher may use eSpot’s name and logo upon obtaining written authorization from eSpot.
5. Network Quality
   
   eSpot will not tolerate or accept any activities it deems harmful or potentially damaging to its reputation and/or business, or that of its Advertisers including but not limited to the activities stated in this Agreement. eSpot employs individuals for the express purpose of monitoring the Publisher Websites within the eSpot Network to ensure that Advertisers are receiving the highest quality leads. eSpot also has developed an advanced anti-fraud system and regularly audits Publisher's traffic. Publishers that commit fraudulent activities, including false clicks, false impressions, and incentivized clicks, will have their accounts permanently removed from the eSpot Network and will not be compensated for fraudulent traffic. eSpot has several fraud mechanisms at our disposal that will detect most forms within a few days of the initial activity.  All Creatives must be served from an eSpot server or serving location, or through an eSpot approved third-party-hosted server. Stored images that are loaded from a different location will not count towards any statistic or payment.
6. Proprietary Rights
   1. (a) Licenses. At the agreed upon pay-out price and provided that Publisher complies with all provisions of this Agreement, eSpot hereby grants to Publisher a nonexclusive, limited, revocable license to use, execute, and display the Network IP solely for purposes of performing its other obligations hereunder. Except for the limited license expressly granted in this Section, nothing in this Agreement shall be construed as eSpot granting Publisher any right, title or interest in Network IP.  Publisher acknowledges and agrees that eSpot and/or Advertiser owns all right, title and interest in and to the Network IP and all related intellectual and proprietary rights of any kind anywhere in the world.  Publisher’s use of the Network IP or the results created thereby, or disseminating or distributing any of this information except as expressly permitted by this Agreement is strictly forbidden and will result in the termination of this limited license and may result in Publisher being held liable under applicable law. 
   2. (b) Intellectual Property Ownership. Subject to the limited licenses granted to eSpot and Publisher hereunder, each party shall own and shall retain all right, title and interest in its trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, knowhow and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future ("Intellectual Property"). Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express prior written consent of such party. 
   3. (c) Data Ownership.  Publisher understands that all data, including, but not limited to, personally identifiable information provided by Users in response to an Ad and/or any and all reports, results, and/or information created, compiled, analyzed and/or derived by eSpot from such data is the sole and exclusive property of Advertiser and/or eSpot and is considered Confidential Information pursuant to this Agreement. eSpot and/or its Advertisers, in their sole discretion, shall have the right to market and re-market the User(s) and/or data without further obligation to Publisher. Publisher shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such information, or any portion thereof, to any third-party. Unless otherwise agreed to in writing by the parties, any other use of such information is strictly prohibited. 
7. Representations and Warranties
   1. Publisher Responsibility. The parties hereby acknowledge that Publisher is solely responsible for the method of dissemination of the Ads, and that eSpot will not have any control over the method of dissemination and is relying entirely on these warranties made by Publisher.
   2. Publisher Warranties. Publisher represents, warrants, covenants and acknowledges that (i) it will provide and maintain the resources, personnel and facilities suitable to perform its obligations under the Agreement; (ii) it will comply with all applicable laws and regulations including, without limitation, laws relating to advertising, the Internet, privacy and unfair business practices; (iii) it will not engage in Prohibited Conduct; (iv) it will comply its privacy policy, and with eSpot’s Privacy Policy as amended from time to time; (v) that Publisher is at least 18 years of age on the effective date of this Agreement; and (vi) that eSpot does not make any specific or implied promises as to the successful outcome of any campaigns.
   3. Mutual Warranties. Each party represents and warrants to the other that (i) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound; and (iii) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in the Agreement.
8. Privacy
   1. Obligations.  Internet consumer privacy is of paramount importance to eSpot, its subsidiaries, and its Advertisers. eSpot is committed to protecting the privacy of consumers, clients, and Advertisers, and to do its part to maintain the integrity of the Internet. Publisher therefore affirms and attests that it will adhere to fair information collection practices with respect to its performance under this Agreement. Publisher warrants that it is in compliance with the Data Protection Act 1998 and agrees that it is the "data controller" of any "personal data," as both terms are defined by the Data Protection Act 1998.
   2. Privacy Requirements. Publisher shall clearly post on its Website(s) an easy to understand privacy policy that (i) is in compliance with all governmental guidelines and any other applicable laws, rules and regulations with respect to online privacy; (ii) identifies the nature and scope of the collection and use of information gathered by Publisher and offers the User an opportunity to opt-out from such collection and use of the data; and (iii) contains language materially similar to the following:
      "We have contracted with eSpot to monitor certain pages of our website for the purpose of reporting website traffic, statistics, advertisement 'click-throughs', and/or other activities on our website. Where authorized by us, eSpot may use cookies, web beacons, and/or other monitoring technologies to compile anonymous statistics about our website visitors. No personally identifiable information is collected by or transferred to any party other than the Advertiser. For more information about how the information is collected and used by eSpot, please see eSpot’s privacy policy.”
   3. Cookies. Publisher acknowledges that (i) cookies are important devices for measuring advertising effectiveness and ensuring a robust online advertising industry; and (ii) efforts are required to increase User awareness about the use of cookies and their role in providing free content and other benefits to users.  Publisher agrees to take such steps as may be commercially reasonable and appropriate to promote User awareness about cookies or similar devices as may be identified by eSpot. 
9. Payment
   1. Payment Rate. eSpot’s standard commercial terms for Publisher (publisher and web site owners carrying advertising inventory) that sign up through this web site or via any other electronic means is a revenue share of 45/55 whereby 55% of the NET advertising revenue invoiced and received without dispute from the advertiser (agency or direct client) is paid out to the Publisher. These payments will be paid 45 days from the receipt of the invoice into eSpot’s Finance Department at finance@espotdigital.com. Should a Publisher require special trading terms they are free to discuss such terms with operations@espotdigital.com. Until any special terms are agreed the commercial agreement is as stated above. These agreements would need to be signed and returned to the eSpot Digital Limited Contracts Department at contracts@espotdigital.com prior to implementation of the same. Any Publisher that accepts adserving tags and implements them will be paid in accordance with the above. Furthermore Publishers are advised that we only recognize the statistics produced by eSpot’s ad serving system as the true record of the quantity delivered.  This statistic will be used in conjunction with the above revenue share for the payment of due’s to the Publisher. For the avoidance of doubt unless otherwise agreed in writing with eSpot’s Contracts department the above terms and conditions are the extent of the Publisher payments and commercial terms. For the relevant VAT jurisdictions, eSpot and Publisher hereby acknowledge and agree that eSpot shall provide Publisher with a value added tax (“VAT”) invoice. Publisher agrees not to raise any VAT invoices with respect to the revenue due to it pursuant to this Agreement. eSpot will complete invoices showing the publishers’ address, VAT Registration number, together with all details which constitute a full VAT invoice. Publisher agrees to notify eSpot in the event Publisher ceases to be registered under the VAT number delineated in this Agreement, transfers or sells its business or becomes registered under a different VAT number. eSpot agrees to make a new agreement in the event that the publisher’s VAT registration changes. In the event eSpot intends to outsource responsibility for issuing VAT invoices under this Agreement to a third party, eSpot shall notify the Publisher of such outsourcing. All accounts will be settled in British Pounds, US Dollars or Euros. No payment will be issued for any amount less than 250 British Pounds, or the equivalent Euros or Dollars (“Minimum Payment Threshold”). All unpaid earnings will rollover to the next pay period.  Any Publisher account that goes unpaid for six (6) months becomes subject to immediate payoff and dismissal from the eSpot Network. As a condition to eSpot’s obligation to make payments hereunder to Publisher, Publisher must have on file with eSpot (i) a completed and accurate VAT number, where applicable, and (ii) the appropriate Publisher bank information to allow for direct transfers of funds. VAT will not be paid if a VAT number is not provided, and eSpot will not pay VAT that relates to prior periods if a VAT number is provided at a later date. eSpot does not issue cheques. If the required bank information is not on file with eSpot within three months of the date of a scheduled payment, eSpot may charge a monthly administrative fee, representing eSpot’s cost of establishing and maintaining Publisher's account, equal to 25% of the original balance. All payments are based on actuals as defined, accounted and audited by eSpot. eSpot reserves the absolute right to withhold payment from accounts or Publishers that violate any of the terms and conditions set forth herein. eSpot will determine, in its sole discretion, whether acts or omissions are deceptive, fraudulent or violate this Agreement. Examples of such acts may include, without limitation, Clicks without referring URLs, extraordinary high numbers of repeat Clicks, and Clicks from non-approved root URLs.
   2. Breach or Fraud. If Publisher violates or refuses to fulfill its responsibilities, or commits fraudulent activity, eSpot reserves the right to withhold payment and take appropriate legal action.
   3. Calculation. Calculation of Publisher earnings shall be in eSpot’s sole discretion.  In the event Publisher disagrees with any such calculation, Publisher shall immediately send a written request to eSpot detailing, with specificity, Publisher's concerns. Thereafter, eSpot will provide Publisher with an explanation or, if such calculations are determined by eSpot to be incorrect, an adjustment. eSpot’s calculations shall be final and binding.  In the event no adjustment is necessary, Publisher shall reimburse eSpot for its expenses in responding to Publisher's requests under this Section.
10. Indemnity
    Publisher is solely responsible for any legal liability arising out of or relating to (i) Publisher's Website(s); (ii) any material to which Users can link through Publisher's Website(s); and/or (iii) any consumer and/or governmental/regulatory complaint arising out of any campaign conducted by Publisher, including but not limited to any spam or fraud complaint and/or any complaint relating to failure to have proper permission to conduct such campaign to the consumer. Publisher shall indemnify, defend, and hold harmless eSpot and its officers, directors, employees, agents, shareholders, partners, affiliates, representatives, agents and Advertisers (collectively “eSpot Parties”) harmless from and against any and all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, costs related to in-house counsel time, court costs and witness fees) (collectively “Losses”) incurred by, or imposed or asserted against, the eSpot Parties which, if true, would constitute or relate to any claims, suits, or proceedings for (a) libel, defamation, misrepresentation, violation of rights 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 Publisher's Website(s); (b) any breach by Publisher of any duty, representation or warranty under this Agreement; (c) any breach by eSpot of any duty, representation, or warranty to provide Ad(s) for placement on Publisher's Website(s) due to any breach by Publisher of this Agreement; (d) a contaminated file, virus, worm, or Trojan horse originating from the Publisher's Website(s); or (e) gross negligence or willful misconduct by Publisher.
11. Limitation of Warranties and Liability
    1. (a) Disclaimer of Warranties.  ALL SERVICES PROVIDED BY eSpot ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, eSpot MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. eSpot IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.
    2. (b) Limitation of Liability.  UNDER NO CIRCUMSTANCES SHALL eSpot BE LIABLE TO PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF eSpot HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN.  IN NO EVENT SHALL eSpot’s TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR FIVE THOUSAND POUNDS (£5,000.00 GBP). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST eSpot   MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
    3. (c) No Disclaimer for Death or Personal Injury. Nothing in this Agreement limits or excludes either party's liability for fraud or for negligence causing death or personal injury.
       (d) Consideration.  PUBLISHER ACKNOWLEDGES THAT eSpot HAS AGREED TO PRICING IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. PUBLISHER AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO PUBLISHER.
12. Term and Termination
    1. Termination. This Agreement, as may be amended, applies to Publisher for as long as Publisher distributes Ads for eSpot. eSpot reserves the right to terminate any Publisher from the eSpot Network at any time, with or without cause.   
    2. Post-termination. Upon termination, Publisher agrees to immediately remove from its Website(s) any and all eSpot     Code and Network IP supplied to Publisher by eSpot. Publisher will be paid, in the next scheduled payment cycle following termination, all legitimate, non-fraudulently accrued, earnings due up to the time of termination. If Publisher has not reached the Minimum Payment Threshold, Publisher will be charged an administrative fee representing eSpot’s cost of establishing and maintaining the Publisher's account; such fee to be any balance remaining in the Publisher's account. Upon termination all ties to referrals will be permanently severed and Publisher will not receive nor be entitled to receive future referral commissions hereunder.
13. Confidentiality
    Each party agrees that it may provide the other with information that is confidential and proprietary to that party or a third-party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential ("Confidential Information"). eSpot’s campaign rates are considered confidential. Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this Agreement. Confidential Information shall not be commingled with information or materials of others and any copies shall be strictly controlled. The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third-party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty; or (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, or upon written request by eSpot, Publisher must destroy or return to eSpot any Confidential Information provided by eSpot under this Agreement.
14. Choice of Law and Attorney's Fees
    This Agreement is governed by the laws of England and Wales, except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the courts in London, England. The parties consent to such venue and jurisdiction, waive any right to a trial by jury, and agree to waive the personal service of any process upon them by agreeing that service may be effected by overnight mail (using a commercially recognized service) or by British mail with delivery receipt to the last address provided by Publisher.  The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorney’s fees and costs.
15. Entire Agreement and Modification
    This Agreement, including exhibits, addenda, the eSpot Privacy Policy (as amended from time to time and which is incorporated herein by reference), contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a "click through" acknowledgement of assent. No interlineations to this Agreement shall be binding unless initialed by both parties. Notwithstanding the foregoing, eSpot shall have the right to change, modify or amend ("Change") this Agreement, in whole or in part, by posting a revised Agreement at least five (5) days prior to the effective date of such Change. Publisher’s continued use of the eSpot Network after the effective date of such Change shall be deemed Publisher’s acceptance of the revised Agreement. No change, amendment, or modification of any provision of the Agreement by Publisher will be valid unless set forth in a written instrument signed by an executive of both Parties with the corporate authority to do so.
16. Notice
    Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (i) for eSpot, via British mail, return receipt requested or via an internationally recognized express mail carrier to: Operations Director, eSpot LTD, C 15-16 Sector - 6, Noida-201301, India (effective upon actual receipt); and, (ii) for Publisher at the email or physical address listed on Publisher’s account (effective upon sending as long as eSpot does not receive an error message regarding delivery of the email) or five (5) days after mailing). 
17. Assignment
    No rights or obligations under this Agreement may be assigned by Publisher without the prior written consent of eSpot. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. eSpot and any of its subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties, under this Agreement to any party. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
18. Independant Contractors
    Each party is an independent contractor.  Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party’s prior written consent.
19. Marketing
    Publisher shall not release any information regarding campaigns, Creatives, or Publisher’s relationship with eSpot or its customers, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of eSpot. eSpot shall have the right to reference and refer to its work for, and relationship with, Publisher for marketing and promotional purposes. No press releases or general public announcements shall be made without the mutual consent of eSpot and Publisher.
20. Force Majeure
    Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
21. Survival and Severability
    Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening.  Each party acknowledges that the provisions of the Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder.  All provisions are inserted conditionally on their being valid in law.  In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the Agreement, then (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
22. 22. Remedies and Waiver
    Except as otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity.  Failure of either party to require strict performance by the other party of any provision shall not affect the first party’s right to require strict performance thereafter. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.

 Definitions
“Ad" or “Creative” means the graphic or text file(s) provided to Publisher to market on behalf of Advertiser and/or eSpot.

"Advertiser" means eSpot and/or the advertiser or advertising agency providing Ads to eSpot for use on Publisher's Website(s) as specified herein.

“Approved Websites” means the Publisher’s domain(s) and/or specific root URLs approved by eSpot.

“eSpot Code” means pixels, intellectual property or other computer code provided by eSpot for use by Publisher.

"eSpot Network" means eSpot’s affiliated group of third-party Websites by which eSpot may insert Ads.

"CPC" means a campaign for which Publisher shall be paid on a Cost Per Unique Click basis as measured by eSpot.

"CPM" means a campaign for which Publisher shall be paid on a Cost Per Thousand Impressions basis as measured by eSpot.

“Click, Click-Thru or Click-Through” means the activation of a hyperlink using a mouse or other input device. The click-through is essential to the interactivity of online advertising.

“Click-Through Rate” or “CTR” means the rate of activated ads to total ads displayed.

“eSpot” means eSpot Media, having its address at C15-16, Sector 6, Noida, UP, 201301, India as indicated in the footer of this agreement.

"Impressions" means the number of times an Ad is served to, and received by, a unique visitor on Publisher's Website or other media as measured by eSpot.

“Incentivized Traffic” means a Website where Ads are placed where Users have some sort of incentive to click through on Ads.

“Network IP” means the Ads, eSpot Code or other intellectual property made available to Publisher in connection with its performance under this Agreement.

“Prohibited Conduct” means conduct, during the course of performance of this Agreement that is listed or related to the proscribed conduct listed in Section 2.

“Publisher Acceptance Email" means an email by eSpot clearly communicating acceptance to Publisher’s Affiliate Network Application which also contains further instructions for Publisher regarding participation in the eSpot Network.

“Publisher Media” shall mean the Website, search engine or other electronic media on which Publisher places Ads.

"Unique Click" means the number of times, as recorded by eSpot’s server, a User viewing Publisher's Media, as identified by a cookie or IP address, clicks on a Creative, provided however, that a click on a specific Creative by a particular User shall only be counted as a Unique Click once every 24-hour period.

"User" means any person accessing Publisher Media.  

"Website" means an HTML document containing a set of information available via the Internet.