Rapsio.com Program Terms of Use

GENERAL INFORMATION; ACCEPTANCE OF TERMS

Before you (“you,” also referred to herein as “Advertiser” or “your”) use the Rapsio.com website (“Site”) and the related the services and content, please review these Terms of Use (“Terms”), which represent an agreement between you and Pelican Software SRL, the owner of Rapsio.com (“Rapsio.com,” also referred to herein as “us,” “we,” or “our”).

You have the right to understand how we collect and use information provided by you or your computer to the Site. You should read our Rapsio.com Privacy Policy before using the Site or contacting us through the Site. The Rapsio.com Privacy Policy is incorporated into these Terms and applies to your access to and use of the Site.

By using the Site, you acknowledge your agreement to these Terms, including our use of your information as provided herein and in the Rapsio.com Privacy Policy. If you do not agree to these Terms or our use of your information, immediately cease your access of the Site.

PLEASE KNOW THAT RAPSIO.COM MAY AMEND THESE TERMS AND THE RAPSIO.COM PRIVACY POLICY AT ANY TIME. UPDATED TERMS THAT INCLUDE AMENDMENTS WILL BE POSTED ON THIS SITE. IF YOU CONTINUE TO USE THE SITE AFTER AN AMENDMENT IS POSTED ON THIS SITE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THE AMENDMENT. ACCORDINGLY, YOU SHOULD REVIEW THESE TERMS AND OUR PRIVACY POLICY EACH TIME YOU USE THE SITE. WE ALSO ENCOURAGE YOU TO SAVE A COPY OF THESE TERMS AND OUR PRIVACY POLICY FOR REVIEW AND REFERENCE.

I. PROGRAM DESCRIPTION

1.1 Overview. Under the Program and based on the Campaign (as defined below) information Advertiser provides, Rapsio.com will serve to users connected to the Internet and who have opted into receiving: (a) full page display Advertisements (as defined below) based on user search terms and URLs visited (referred to herein as "Display Advertisement(s)"), (b) textlink Advertisements (“TextLink Advertisement(s)”) based on keywords on web pages visited by users and/or (c) banner Advertisements (“Banner Advertisement(s)”).

1.2 Definitions. In addition to the terms defined herein, the following capitalized terms shall have the meanings associated with them below.

  1. The term "Advertisement(s)" means advertisement(s) delivered by Advertiser pursuant to the Program, including all content of such advertisements (whether trade names, domain names, logos, trademarks, service marks, text, graphics, audio, weblinks, URLs, or otherwise, individually and collectively, referred to herein as the "Content").
  2. The term “Affiliate(s)” means principals, employees, officers, consultants, directors, members, agents, subsidiaries, or affiliates.
  3. The term "Campaign(s)" means advertising ordering information (e.g., designation of Keyword Targets, bid amounts, banner purchases, etc.) Advertiser submits via the Program including by way of the Rapsio.com website along with any updates and modifications to the same which Advertiser may implement from time to time during Advertiser's participation in the Program.
  4. The term "Keyword Targets" means keywords, keyword phrases, search terms or URLs which Advertiser selects for Advertiser's Campaign.
  5. The term "Served Advertisement(s)" means Advertisements that are served to users under the Program.

1.3 Frequency of Displays. How often Advertiser's Advertisements are served is dependent upon (i) the terms of Advertiser's then-current Campaign, (ii) whether other advertisers have selected the same Keyword Targets as Advertiser has and/or have agreed to pay a higher price for displays, and (iii) whether the Advertisement continues to be run by Rapsio.com (as further provided below). For example, Advertiser may not receive any impressions of Advertiser's Advertisements with respect to a specific Keyword Target if there are other advertisers bidding more than Advertiser is bidding for that Keyword Target. Typically, the higher the bid on a Keyword Target, the greater the volume of the bidder's Advertisements served for that Keyword Target. To be clear, however, notwithstanding the foregoing or anything to the contrary, Advertiser acknowledges and agrees that Rapsio.com makes no promise or guarantee regarding any minimum or certain number of impressions with respect to any one or more Advertisements and/or Keyword Targets.

II. CAMPAIGN RULES AND RESTRICTIONS

2.1 Submission of Campaign Information. Advertiser may update Advertiser's Campaign information at any time. Such updates will be implemented as soon as practicable (generally, updates are implemented within two (2) hours). Updates may include, for example, changes to Keyword Targets or changes in fee levels. Advertiser's updates will have prospective effect only.

2.2 Campaign Responsibility. Advertiser may request the help or involvement of Rapsio.com to help Advertiser select Keyword Targets, develop Advertiser's Campaign strategy, manage Advertiser's Campaign(s), or otherwise support Advertiser's participation in the Program (all such services, collectively referred to herein as the "Campaign Support"). However, Advertiser understands, acknowledges and agrees that (i) Rapsio.com is under no obligation to provide Campaign Support pursuant to these Terms and will have no liability to Advertiser or to any third party for the provision of and/or any failure to provide such Campaign Support, and (ii) at all times Advertiser shall remain solely responsible for (a) the content, design and management of Advertiser's Campaigns, including confirming and maintaining the accuracy and acceptability of Advertiser's Campaign parameters and set-ups, (b) the selection of Advertiser's Keyword Targets, (c) the creation and submission of Advertisements which are in compliance with Rapsio.com requirements, these Terms and with applicable laws, (d) the content of any destinations or items linked to Advertiser's Advertisement, and (e) the process, success, content, quality and accuracy of all transactions with, or information provided to, users through Advertiser's Advertisements.

2.3 Submission of Advertisements. Advertisements shall be submitted in accordance with these Terms (including updates to these Terms as made from time to time by Rapsio.com in its sole discretion). If and to the extent that a delivered Advertisement does not conform to Rapsio.com’s then-current format specifications and/or policies and these Terms, Rapsio.com may, at its option and in its discretion: (i) immediately reject the Advertisement and require Advertiser to submit a compliant Advertisement, or (ii) make technical modifications as necessary to conform the Advertisement to such specifications. Rapsio.com may also immediately reject or suspend an Advertisement, in its discretion, if Rapsio.com believes the content of the Advertisement is or may be (a) inappropriate, (b) unauthorized by necessary third parties, (c) in violation of Rapsio.com's or any third party's intellectual property rights and/or in violation of any applicable law, regulation, ordinance or rule, or (d) inconsistent or incompatible with the business interests of Rapsio.com or its Affiliates. Neither Rapsio.com nor its Affiliates shall have any liability to Advertiser or any third party including any third party claiming through Advertiser as a result of or arising out of (a) Rapsio.com's decision to reject or suspend an Advertisement, (b) Rapsio.com’s decision to accept any Advertisement, or (c) Rapsio.com’s transmission, delivery, posting or other distribution of such Advertisement, directly or through its Affiliates.

2.4 License. Advertiser hereby grants to Rapsio.com a non-exclusive, license fee-free and royalty-free, worldwide license to use, store, reproduce, distribute, create derivative works of, publicly perform, publicly display and digitally perform all of Advertiser's Advertisements (including all Content) for purposes of performing its obligations under these Terms and for related promotional and business purposes.

2.5 Program Reports and Data; Usage Statistics. Any data which may be collected in connection with the operation of the Program, including in connection with the implementation and operation of Advertiser's Campaign(s), shall be and remain the sole and exclusive property of Rapsio.com; provided, however, that, Rapsio.com hereby grants to Advertiser the right to use any Program report provided or made available to Advertiser by Rapsio.com for Advertiser's internal business purposes. In addition, at Advertiser's request, and subject to Advertiser's compliance with applicable security measures, Advertiser will have online access to usage statistics relating to Advertiser's Advertisements. Rapsio.com will not provide Advertiser with specific usage statistics relating to other advertisers.

2.6 Program Prohibitions. In no event is Advertiser authorized to and it shall be deemed a material breach of these Terms if Advertiser, directly or indirectly, uses the Program in violation of these Terms (including updates to these Terms as made from time to time by Rapsio.com in its sole discretion) or uses the Program (including any Advertisement) to:

  1. infringe on any third party's copyright, patent, trademark, trade secret or other intellectual property or proprietary rights or any third party right of publicity or privacy, including but not limited to, generating unauthorized displays of Advertisements or third party advertisements, or distributing an Advertisement which includes third party content without having secured any and all rights, consents, licenses, waivers and clearances required from and the express prior documented authorization of such third party;
  2. generate or facilitate visits to Rapsio.com or third-party sites that are based on fraudulent or deceptive practices, including the use of robots or other automated tools to generate unintended user requests, to open windows without a direct user click or authorization, and/or to redirect a user to a website such user did not intend to visit;
  3. use optimization services and/or software to fraudulently alter information regarding advertising results;
  4. advertise any substances, services, products or materials that are illegal or prohibited in any state or country or other jurisdiction where the Advertisement is or may be displayed;
  5. violate any applicable law, statute, ordinance, rule or regulation, including the laws and regulations governing (i) misleading, false or deceptive advertising, (ii) online advertising or marketing, (iii) anti-discrimination, (iv) unfair competition, or (v) export control;
  6. disseminate Content which (i) is defamatory or libelous or constitutes trade disparagement or libel, (ii) is lewd, pornographic or obscene, (iii) consists of an adult nature or products of an adult nature, including images, videos or text portraying nudity, sexual acts, drugs, adult toys or contraceptives; or (iv) promotes violence or hate speech;
  7. disseminate Advertisements that includes or consists of gambling, sweepstakes or similar activities;
  8. engage in keyword bidding, or the use of domain names or "ad word" advertising in violation of the policies of any search engine provider, such as Google, Yahoo! or MSN;
  9. display any download prompt or Active-X launch prompt or Active-X auto-install without requiring a direct click on Advertiser's Advertisement by the user;
  10. redirect a user to another URL without a direct click by the user on Advertiser's Advertisement;
  11. modify, tamper with or interfere with the operations or size of the window inside which the Advertisement is displayed in a manner that prevents the title bar and window closing controls from being visible;
  12. disseminate viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines that if downloaded could cause harm (intentionally or unintentionally) to a user's computer;
  13. disseminate Content that has been modified in any respect from or is additional to that originally submitted to Rapsio.com with the Advertisement or promote products or services different from or in addition to those initially represented or promoted by the Advertisement originally submitted to Rapsio.com; or
  14. engage in practices which Rapsio.com, after considering established industry standards but in its sole discretion, determines to be misleading, deceptive, unfair, damaging to Rapsio.com users or business or otherwise inappropriate or unacceptable.

Advertiser acknowledges and agrees that any violation of any of the foregoing terms may result in the immediate suspension or termination of Advertiser's participation in the Program and/or termination of these Terms by Rapsio.com and may subject Advertiser to other legal consequences and damages, including direct and indirect damages under contract, equity, law, tort and otherwise.

2.7 Representations and Warranties. Advertiser represents and warrants that, for as long as these Terms are in effect:

  1. the information Advertiser has provided or will provide in connection with Advertiser's participation in the Program is and will be accurate and complete and will be updated as required in order to maintain its accuracy, currency and completeness;
  2. Advertiser holds and will maintain all rights, consents, licenses, waivers, clearances, requisite approvals, permits and/or necessary filings, and all authority required to produce, deliver, and distribute the Advertisements as contemplated hereunder and to authorize Rapsio.com to use, store, reproduce, display, transmit and distribute the Advertisement;
  3. Rapsio.com's use, storage, reproduction, display, transmission or distribution of Advertiser's Advertisements, and any website(s) linked to through Advertiser's Advertisements, and products or services to which users are directed through Advertiser's Advertisements, will not, in any state or country or other jurisdiction where the Advertisement is or may be displayed violate any applicable law, statute, regulation, rule or ordinance;
  4. Advertiser will not, nor will Advertiser authorize any third party to, infringe upon or misappropriate Rapsio.com's or its Affiliates’ intellectual property embodied within or relating to, copy, clone, reverse engineer, decompile, disassemble, or otherwise attempt to gain unauthorized access to or derive the source code of, hack, interrupt, interfere with or damage the operation of the Program, the Rapsio.com website or any other website or operations of Rapsio.com or its Affiliates; and
  5. Advertiser will not violate the "Program Prohibitions" set forth in Section 2.6 above.

2.8 Relationship Between Rapsio.com and Advertiser. The relationship between Advertiser and Rapsio.com is one of independent contractors and nothing contained within these Terms or relating to Advertiser's or Rapsio.com's performance under these Terms shall in any way modify that relationship or be construed to make either party a partner, employee, agent or joint venturer of the other. Without limiting the foregoing, (a) neither Rapsio.com nor Advertiser may make any representation or commitment or incur any obligation on behalf or in the name of the other party, and (b) Advertiser will not make any commitment to any third party which would purport to require Rapsio.com to make the Program available or continue the Program or its support of any Campaign or any element of any Campaign for any minimum or fixed period of time.

2.9 Eligibility to Use the Site. Rapsio.com reserves the right to monitor the location from which you access the Site and to block access from any computer which Rapsio.com determines, in its judgment, is located in a jurisdiction where use of the Site is prohibited or restricted. To use the Site, you must be a natural person, at least 18 years old and reside in a jurisdiction where use of the Site is permitted. Notwithstanding the foregoing, you understand and agree that we reserve the right to, in our sole discretion, deny access to the Site to any person or entity, and that we shall have no liability of any kind, to you or to any third party as a result of any decision to deny you access to the Site. You understand that Rapsio.com reserves the right to monitor all Site activity in order to (i) enforce these Terms, (ii) maintain and enhance Site offerings and performance, (iii) maintain Site integrity, and (iv) for other business purposes of Rapsio.com. Notwithstanding the foregoing, you understand and agree that by accessing the Site, you are authorizing Rapsio.com to review your activity of the Site to investigate complaints against you, allegations of Site Abuse by you, and/or Site activity conducted by you, and to disclose information to any third party including law enforcement agencies to protect its rights and property in response to legal process. Any violation of any of these Terms may subject you to penalties, as determined by Rapsio.com in its sole discretion, including denial of your access to the Site or prosecution for violations of law. You are subject to all laws and regulations of the state, province and/or country in which you reside and from which you access the Site, and you are responsible for obeying those laws and regulations.

2.10 Acknowledgment of Proprietary Rights. The trademarks, logos and service marks displayed on the Site whether or not registered (the “Trademarks”), are Trademarks of Rapsio.com, its affiliates, subsidiaries, and/or third parties. You have no right to use the Trademarks in any way, and nothing contained on the Site should be construed as granting to you any license or right to use any Trademarks without our written permission or the written permission of the third party that owns the Trademarks. Your misuse or unauthorized use of any Trademarks or any Site Materials (as defined below) is strictly prohibited. Be advised that we are prepared to enforce our intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution where appropriate. We will reasonably cooperate with any third party alleging that such party’s intellectual property rights have been infringed on the Site. Further, we shall take such steps as are allowed by law or otherwise reasonable to resolve any such complaint. If you believe that any specific Site Material (as defined below) or any Trademarks violate your copyright or trademark or that of a party for whom you are authorized to speak, please follow our notification procedure provided in the Rapsio Privacy Policy. You agree that you shall not attempt to: (i) gain unauthorized access to the Site’s systems, (ii) interfere with performance of the Site, (iii) deliberately damage or undermine the Site, or (iv) commit fraud with regard to the Site. Your violation of any of the terms of this Acknowledgement of Proprietary Rights section may result in civil and/or criminal prosecution against you. By using the Site, you acknowledge that all information and content contained on the Site (the “Site Materials”) may be protected by one or more copyrights, patents, trademarks, trade secrets, or other proprietary rights owned by Rapsio.com, its affiliates or third party content suppliers, vendors, licensors or partners. Except for third party materials in the public domain, you may not modify, publish, participate in the transfer or sale of, create derivative works from, or in any other way exploit the Site Materials.

III. FEES AND PAYMENT TERMS

3.1 How Advertiser is Charged. Program charges are determined by (a) how much Advertiser chooses to "bid" for Advertiser's Advertisement to be served on the Keyword Targets that Advertiser has selected for such Advertisement, and (b) how often Advertiser's Advertisement is served. Display Advertisements are charged on a Cost Per View/Display ("CPV") basis. TextLink Advertisements are charged on a Cost Per Click ("CPC") basis. Banner Advertisements are charged on a Cost Per Thousand Impressions (“CPM”) basis. There is a minimum bid level for Advertisements posted on the Rapsio.com website.

Program fees do not include any applicable taxes, duties or other governmental charges, all of which shall be Advertiser's responsibility. Rapsio.com may modify its fee structure, including then-current minimum bid levels, at any time, with prior notice to Advertiser which notice shall be communicated either through a posting on the Rapsio.com website or via email.

Advertiser will be charged and agrees to pay for each Served Advertisement pursuant to the terms of Advertiser's Campaign. If Advertiser or Rapsio.com pauses or terminates any Campaign pursuant to these Terms, Advertiser will also be charged and agrees to pay for charges incurred during the time period (up to a maximum of forty-five (45) minutes) during which it takes to pause or terminate such Campaign.

Advertiser understands and agrees that all Program charges will be calculated solely based upon Rapsio.com records. No other measurements or statistics of any kind shall be accepted by Rapsio.com or have any effect under these Terms. If Advertiser disputes any charge made under the Program, Advertiser must notify Rapsio.com in writing within fifteen (15) days of any such charge; failure to so notify Rapsio.com shall be deemed a waiver by Advertiser of any claim relating to the disputed charge. Advertiser further understands and agrees that Advertiser will be responsible for the payment of any amounts due hereunder whether or not Advertiser is paid by the third party(ies), if any, on behalf of whom Advertiser is creating, delivering, disclosing or distributing one or more Advertisements.

3.2 Payment Method. All Advertisers are required to deposit $1,000 to open an account, and this initial payment of $1,000 will be automatically charged to your credit card before you can start spending. Alternatively, this initial payment can be made via wire transfer. After this initial prepayment has been spent, Rapsio.com will charge you for any outstanding balance owed along with a $500 prepayment. Subsequently, each time your account reaches zero, Rapsio.com will charge you for any outstanding balance owed plus another $500 prepayment. You can also make discretionary prepayments on your account at any time and these will be used completely before any automatic charges will be made to your credit card.

To pause account charges, Advertiser must log on to the Rapsio.com website and follow account pause procedures. To terminate Advertiser's Account, Advertiser must follow the procedures set forth in Section 5 below. Advertiser understands and agrees that unless and until Advertiser has completed the procedures to pause or terminate (as applicable) Advertiser's Account, Advertiser will be responsible for all charges incurred.

3.3 Refund Policy. There are no refunds for any services charged under the post-pay method since such services have been fully rendered. However, you may request a full refund at any time of any prepayments that you made to the Site that have not already been spent on the service.

3.4 Currency of Transaction: All transactions are in United States Dollars.

IV. DISCLAIMER OF ALL PROGRAM WARRANTIES

ADVERTISER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE PROGRAM, INCLUDING ALL SERVICES PROVIDED UNDER AND PRODUCTS SUPPORTING THE PROGRAM, IS PROVIDED TO ADVERTISER "AS IS" AND WITHOUT ANY WARRANTIES, AND THAT ADVERTISER'S PARTICIPATION IN THE PROGRAM IS AT ADVERTISER'S OWN RISK. WITHOUT LIMITING THE FOREGOING, ADVERTISER UNDERSTANDS AND ACKNOWLEDGES THAT RAPSIO.COM AND ITS AFFILIATES: (A) EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE PROGRAM (INCLUDING ALL SERVICES PROVIDED UNDER AND PRODUCTS SUPPORTING THE SAME), INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES IMPLIED OR ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (B) DOES NOT WARRANT OR REPRESENT THAT (I) THE PROGRAM WILL MEET ADVERTISER'S REQUIREMENTS, (II) OPERATION OF THE PROGRAM WILL BE ERROR-FREE OR UNINTERRUPTED, (III) ADVERTISER'S USE OF THE PROGRAM WILL GENERATE ANY SALES OF ADVERTISER'S PRODUCTS OR SERVICES OR THOSE OF ANY THIRD PARTY ON WHOSE BEHALF ADVERTISER MAY BE SUBMITTING ADVERTISEMENTS, OR (IV) THE PROGRAM WILL DELIVER ANY MINIMUM OR SPECIFIC NUMBER OF SERVED ADVERTISEMENTS.

V. TERMINATION OF AGREEMENT, PROGRAM, CAMPAIGN

5.1 Termination by Either Party. Rapsio.com may at any time, in its sole discretion and without prior notice to Advertiser, immediately terminate the Program, these Terms, or Advertiser's use of any Keyword Target, Campaign or Advertisement. Rapsio.com will, however, use commercially reasonable efforts to notify Advertiser via email of any such termination within a reasonable period of time. Advertiser may, at any time, in Advertiser's sole discretion, terminate these Terms and Advertiser's participation in the Program by providing two (2) business days prior written notice to Rapsio.com by email or by US mail as set forth in Section 9.1 below. Notwithstanding the provision of notice, however, to pause account charges that may be incurred after Advertiser has provided notice of termination but prior to the effective date of termination, Advertiser must log on to the Rapsio.com website and follow all account charge pause procedures. If Advertiser has auto-funded Advertiser's Account, then in addition to providing notice of termination, and pausing charges on Advertiser's Account, Advertiser must follow the account termination procedures set forth in the auto-funding agreement.

5.2 Effect of Termination on Account Balances. If, upon termination of these Terms, Advertiser has a positive balance in Advertiser's Account due to prior prepayments, and if such termination resulted other than from Advertiser's breach of these Terms, Rapsio.com shall (a) if such termination occurs within the first six (6) months of Advertiser's participation in the Program, refund to Advertiser the amount of such balance (after deducting Program fee charges and any other charges which may have been incurred prior to and through the effective date of termination), or (b) if such termination occurs after the first six (6) months, provide Advertiser with an additional ninety (90) days during which to use any account balance before forfeiting the same. If these Terms terminate as a result of Advertiser's breach, then Advertiser shall forfeit any balance in Advertiser's Account unless such forfeiture is waived by Rapsio.com, in its sole discretion; provided, however, any such forfeiture shall not prejudice any other rights or remedies Rapsio.com may have available to it as a result of such breach.

5.3 Other Consequences of Termination. Neither party shall have any liability to the other or to any third party as a result of its decision to exercise or waive its rights under Section 5.2 above; provided however, that any termination of these Terms, the Program, a Campaign or any element of a Campaign shall not affect either party's rights or obligations (including payment obligations) under these Terms to the extent such rights or obligations incurred or accrued prior to the effective date of termination. In addition, those provisions which by their nature would be understood to survive any termination shall be deemed to survive, including those provisions governing ownership rights, payment obligations, limitation of liability, releases, disclaimers, indemnification, ownership, confidentiality, assignment, governing law and venue, and integration.

VI. LIMITATION OF LIABILITY

6.1 Limitation of Liability. IN NO EVENT WILL RAPSIO.COM OR ITS AFFILIATES BE LIABLE TO ADVERTISER OR TO ANY THIRD PARTY (WHETHER OR NOT CLAIMING BY OR THROUGH ADVERTISER) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, REVENUES, GOOD WILL, REPUTATION, PROFITS OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ADVERTISER'S USE OR THE PERFORMANCE OF THE PROGRAM, WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED ON LAW, EQUITY, CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE RELEASED PARTY(IES) HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. RAPSIO.COM'S AND ITS AFFILIATES' CUMULATIVE LIABILITY TO ADVERTISER AND ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND BASED ON ANY THEORY OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES PAID BY ADVERTISER TO RAPSIO.COM DURING THE THIRTY (30) DAY PERIOD PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM.

YOU EXPRESSLY AGREE THAT THE USE OF THE SITE AND SITE MATERIALS ARE AT YOUR OWN RISK. THE SITE AND SITE MATERIALS ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY WARRANTY IMPLIED THROUGH COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE. NOTWITHSTANDING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT RAPSIO.COM DOES NOT WARRANT NOR REPRESENT THAT: (I) THAT THE SITE OR SITE MATERIALS WILL OPERATE CORRECTLY OR ERROR-FREE OR WITHOUT INTERRUPTION, (II) THAT THE SITE OR SITE MATERIALS ARE ACCURATE, COMPLETE, FREE FROM VIRUSES OR FREE FROM INFRINGEMENT, OR (III) THAT YOUR USE OF THE SITE OR SITE MATERIALS WILL NOT INFRINGE ON THE RIGHTS OF THIRD PARTIES.

SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

You understand and agree that neither Rapsio.com, nor its affiliates and subsidiaries, are responsible for any damage, loss, or injury resulting from hacking, tampering or other unauthorized access or use of the Site.

6.2 Force Majeure. Neither party shall incur any liability hereunder as a result of a failure or delay in such party's performance (other than in the performance of its payment obligations) to the extent such failure or delay results from interruptions in the electrical supply, failure of the Internet, terrorism, cyber attack, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, or any other condition or occurrence beyond the reasonable control of such party. In the event of any such failure or delay on the part of Rapsio.com, Rapsio.com's sole and exclusive obligation and Advertiser's sole and exclusive remedy shall be for Rapsio.com to, in its discretion and at its sole election, (a) restore service as soon as reasonably practicable, or (b) terminate these Terms upon written notice to Advertiser.

6.3 Additional Releases. In no event will Rapsio.com or its Affiliates be liable for, and Advertiser hereby releases each from, any claim by Advertiser and/or any third party arising out of or in connection with (a) the lack of success of any Campaign, (b) the failure of any Campaign or any Advertisement to achieve any minimum or fixed number of Served Advertisements in any particular context or at any particular time, (c) Rapsio.com's implementation of a campaign on behalf of any third party which is or may be at any time competitive with a Campaign established by Advertiser, and (d) any Campaign Support provided (or not provided) by Rapsio.com.

VII. INDEMNIFICATION

Advertiser agrees to indemnify, defend and hold Rapsio.com and its Affiliates harmless from and against any and all liability, loss, damages, claims or causes of action, including internal and external legal fees and expenses, arising out of, related to or which may arise from (a) Advertiser's use of the Program, (b) Advertiser's Advertisements and any material to which users can link through an Advertisement, (c) Advertiser's selection and use of Keyword Targets, and/or (d) Advertiser's breach of any term (including any warranty or representation) of these Terms. If any claim or action is brought against Rapsio.com or its Affiliates for which indemnity may be sought pursuant to this Section 7, such party shall be entitled to participate at their own expense in the defense of such claim, and no settlement may be entered into without such party’s prior written consent.

VIII. OWNERSHIP, CONFIDENTIALITY AND PRIVACY

8.1 Ownership; No Transfer of Title. Nothing in these Terms shall be construed as transferring any intellectual property rights or ownership interests from Rapsio.com to Advertiser. Without limiting the foregoing, all ownership of and all right, title and interest including all copyrights and all other intellectual property rights in and relating to the Program, websites, services, design and formatting specifications and any content embodied by or set forth in the same shall be and remain exclusively with Rapsio.com or its Affiliates. Rapsio.com and its Affiliates reserve all rights not expressly granted hereunder.

8.2 Confidential Information. Each party agrees that all non-public business, marketing, technical (including software code and algorithms), operational, vendor, marketing (including pricing, Keyword Target performance statistics, and competitive information), employee, customer, and financial information they obtain from the other, are the confidential property of the disclosing party ("Confidential Information"). The receiving party shall protect the Confidential Information with the same degree of care as it would with its own Confidential Information, but in no event with less than reasonable care. The receiving party shall not disclose Confidential Information to the receiving party’s employees, agents, consultants, subsidiaries, corporate affiliates or any other third parties, except when disclosure is necessary to perform the obligations under these Terms, provided that any such recipient shall be under the same obligations of confidentiality as that of the receiving party and shall be contractually bound to protect the Confidential Information consistent with these Terms. The receiving party shall not be obligated under this Section 8.2 with respect to information the receiving party can document (i) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents, (ii) is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information, or (iii) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party. The receiving party may make disclosures required by law or court order provided the receiving party uses reasonable efforts to notify the other party in writing as promptly as practicable (and, if possible, prior to making the disclosure) in order to permit the disclosing party to limit disclosure and to obtain confidential treatment of the information.

IX. MISCELLANEOUS TERMS AND CONDITIONS

9.1 Notices. All notices to Rapsio.com shall be sent via email to legal@pelicansw.com with a copy to matt@rapsio.com or by United States mail to: Rapsio.com, ISL Complex, Warrens Industrial Park, St. Michael, Barbados, Attention: Legal Department. Notices to Advertiser shall be delivered via email to the email address Advertiser provides with Advertiser's Campaign information or by United States mail to Advertiser at the address first set forth above.

9.2 Privacy Policy. The parties agree to post their respective privacy policies and adhere to their policies, which comply with applicable laws. Rapsio.com's privacy policy as it relates to the Program can be found at: http://www.rapsio.com.

9.3 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of Barbados without reference to its conflicts of laws provisions. The sole and exclusive venue of any claims arising out of or in connection with these Terms shall be resolved in courts of competent jurisdiction in Barbados. Each party hereby agrees to the personal jurisdiction of such courts and waives any objections it may have to venue, including any objection of forum non conveniens.

9.4 Public Announcements. Advertiser agrees not to, at any time before, during or after the term of these Terms, issue any press releases or other public statements concerning the existence, subject matter, terms or performance of any Campaign or these Terms without Rapsio.com's prior written approval.

9.5 Entire Agreement. These Terms, including the terms of the Rapsio.com a href="~/Home/PrivacyPolicy">Privacy Policy which are incorporated by reference herein, and other rules and provisions detailed in writing on the Site, constitute the entire agreement between you and Rapsio.com and can only be modified by Rapsio.com. For the avoidance of doubt, these Terms cannot be modified by you or any other individual, whether or not such individual claims affiliation with Rapsio.com. If any provision in these Terms is deemed unenforceable or void, then such provision shall be deemed severed from the other provisions which shall not be affected by such severance and shall continue in full force and effect.

If any practice covered by these Terms is prohibited by the law of any jurisdiction, it is automatically void and unenforceable.

9.6 No Assignment. Advertiser may not assign or transfer these Terms or any obligation incurred hereunder without the prior written consent of Rapsio.com. Any attempt to do so without such consent shall be null and void and of no force and effect.

9.7 Changes to Terms. As stated herein, Rapsio.com may, at any time, amend these Terms in its sole discretion. Rapsio.com reserves the right to implement the amendment immediately upon posting, without prior notice. Any changes to these Terms will be effective as of the date indicated at the bottom of these Terms. Depending on the materiality of the change, Rapsio.com may, but has no obligation to, announce the change (i) on the home page of the Site, or (ii) provide such notice via email to you. By continuing to use the Site, you will be deemed to have agreed to such changes.*

9.8 Dispute Resolution by Binding Arbitration and Choice of Law. THIS SECTION AFFECTS YOUR LEGAL RIGHTS AND REMEDIES BY PROVIDING THAT DISPUTES BETWEEN YOU AND RAPSIO.COM MUST BE RESOLVED THROUGH BINDING ARBITRATION, WITH SOLE AND EXCLUSIVE VENUE IN BARBADOS. THESE TERMS ARE GOVERNED BY THE LAWS OF BARBADOS, IRRESPECTIVE OF ANY PRINCIPLES OF CONFLICTS OF LAW.

Most user concerns can be resolved quickly by contacting us. In the unlikely event that we are unable to resolve a complaint you may have to your satisfaction (or if we have not been able to resolve a dispute with you after attempting to do so), you and Rapsio.com agree to resolve those disputes through binding arbitration, rather than proceeding in a court of general jurisdiction. You and Rapsio.com further agree that each party can bring claims against the other only in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.

 

Effective Date: August 26, 2014