TERMS AND CONDITIONS FOR PUBLISHERS

These Terms and Conditions apply to the use of the Service of Digital Sales Media (hereinafter Onlyellow Unip) as defined below. By using the Service, you agree to the Terms and Conditions. If you do not wish to agree to them, you cannot use the Service.

These Terms and Conditions apply to the use of the Service of Digital Sales Media (hereinafter Onlyellow Unip) as defined below. By using the Service, you agree to the Terms and Conditions. If you do not wish to agree to them, you cannot use the Service.

1. Definitions

The following definitions shall apply to the Publisher Terms and Conditions as follows, regardless of whether they are used in the singular or plural:

1.1 Advertiser Ads – the Advertiser's proprietary advertising materials, including, without limitation, banners, buttons, text links, e-mail newsletters, graphic files and similar online media promoting the Advertiser's Services.

1.2 Campaign Terms – the affiliate program set up on the Publisher, through which the Onlyellow Unip. Services are marketed by displaying the Advertiser Ads on the Publisher Media and through which the Publisher(s) are compensated. These include any additional terms and conditions such as start and end dates for a campaign, the target countries, the pricing model, the campaign budget (cap), the payout, as well as traffic restrictions, which are agreed upon in the I.O. If the I.O. and these terms contradict each other, the terms of the I.O. shall prevail.

1.3 Clicks - click by an End User. "Clicks" do not include clicks which are invalid as determined by Onlyellow Unip.'s internal tracking system and traffic quality scoring process or for which Onlyellow Unip. does not recognize revenue from its advertiser partners. Invalid Clicks may include clicks (i) generated by automated crawlers, robots or click generating scripts providing traffic which has no intent to sign-up, purchase or otherwise act upon a product or service offering; (ii) multiple clicks on the same advertisement within a brief period of time, or (iii) that an Advertiser receives and rejects for a valid business purpose (e.g., a Click which was not generated by an End User).

1.4 End User – a bona fide living human Internet user. An "End User" excludes any person or any mechanical, artificial or fraudulent means (such as a so-called robot, spider, software or scraper) lacking an intention to purchase, sign up or otherwise act upon a product or service of the marketer contained on a Landing Page.

1.5 Insertion Order (“I.O.”) – the order duly signed by the authorized representative of the Publisher as well as of Onlyellow Unip. with respect to the Onlyellow Unip. Services.

1.6 Intellectual Property Rights – copyrights, trademarks, patents, design rights, know-how, and any other similar protected rights in any country.

1.7 Landing Page - an html page or a framed html page hosted by or on behalf of Onlyellow Unip. displaying search links, search results and/or other content from Onlyellow Unip. servers or such servers as Onlyellow Unip. uses.

1.8 Onlyellow Unip. Services – the technical processing of the campaign, including tracking, creating statistics, the administration of Publishers as well as billing and payments through Onlyellow Unip. and / or Onlyellow Unip.´s agents and / or third parties commissioned.

1.9 Payment Models - for the purposes of this Insertion Order the following are defined as such: CPA = compensation per action, acquisition, or application. CPS = compensation for each time a sale is completed by a user within the Advertiser's Services. CPI = compensation for a successful installation of a software (e.g. a client software and / or mobile application). CPC = compensation per click. CPM = compensation per thousand impressions. Revenue Share = commission paid to Publisher based on a percentage of net revenues received by Onlyellow Unip.

1.10 Publisher - any natural person or legal entity that makes use of Onlyellow Unip.’s Services.

1.11 Publisher Media – the advertising environment of Publisher, including, but not limited to, websites, mobile sites, social media profiles, email newsletters, software, applications for smartphones, tablets and other suitable devices.

1.12 Service - the platform exploited by Onlyellow Unip. on which it provides the Publisher with the content that enables them to advertise with the Publisher Media.

2. Applicability

2.1 These Terms and Conditions apply to all offers, quotations and proposals made by Onlyellow Unip. as well as to the Agreement and all other agreements to which Onlyellow Unip. is a party, insofar as the parties have not in writing stipulated terms and conditions that vary from these Terms and Conditions.

2.2 If any provision of these Terms and Conditions turns out to be void or voidable or is for any reason invalid either wholly or in part, the other provisions of these Terms and Conditions shall remain fully in force. Onlyellow Unip. shall replace the invalid provision with one that is valid and whose legal consequences, taking into account the content and purport of these Terms and Conditions, most closely correspond to those of the invalid provision.

2.3 No general terms and conditions or other conditions of the Publisher shall be binding upon Onlyellow Unip. and any such terms and conditions are hereby explicitly rejected. In the unlikely event that both these Terms and Conditions and the Publisher's general terms and conditions are applicable, these Terms and Conditions shall prevail.

3. Service

3.1 During the term of the Agreement the Publisher undertakes, as a non-exclusive Publisher, to promote the Onlyellow Unip. Services.

3.2 Under the conditions laid down in these Terms and Conditions, Onlyellow Unip. grants the Publisher a limited, personal, revocable, non-exclusive, non-sub-licensable and non-assignable right to access to and use of the Onlyellow Unip. Services for the purposes described in these Terms and Conditions and under conditions regarding the payments concerned.

3.3 The Publisher may not sell, hire out or dispose of the Onlyellow Unip. Service or grant limited rights to it or make it available to a third party in any manner or for any purpose whatever.

3.4 Alterations made to the Service by a Publisher must be submitted for the assessment of Onlyellow Unip.. The Publisher may not launch any link Onlyellow Unip. link before Onlyellow Unip. grants its approval. The approval of alterations is solely at the discretion of Onlyellow Unip..

3.5 Onlyellow Unip. is at all times entitled, without prior announcement and without in any way becoming liable to the Publisher, (i) to make procedural and technical alterations and/or improvements to the Website and/or the Service and (ii) to (temporarily or permanently) discontinue, limit or remove the Website, the Service or the Account.

3.6 The Publisher is himself responsible for the purchase and/or proper operation of the infrastructure and reliable telecom facilities (including internet connection) which are required for using the Service. Onlyellow Unip. is not responsible or liable for costs arising from the use of telecom facilities and charged via the telecom provider.

3.7 Onlyellow Unip is in no way liable to the Publisher for any damage that arises from or is the result of any (temporary) unavailability or (interim) breakdown of the Website and/or Service.

3.8 When a Publisher uses the services provided by Onlyellow Unip., it is created and account for the Publisher to use Onlyellow Unip.’s web-based interface. Publisher is responsible for selecting and continuously managing his, her or its password and security settings to protect Publisher's account and Publisher's domain monetization settings (including Publisher's contact information) from unauthorized changes. Publisher is entirely responsible for maintaining the confidentiality and secrecy of Publisher's password and account security settings, as well as Publisher's other information. All consequences of Publisher's voluntary disclosure of password and account information as well as all activities that occur in Publisher's account are Publisher's responsibility.

3.9 Publisher agrees to notify Onlyellow Unip. immediately of any unauthorized use of Publisher's account or any other breach of security. Publisher agrees that it will be responsible for all activity that arises from Publisher's account, whether initiated by Publisher or others on Publisher's behalf and Onlyellow Unip. shall be entitled to rely on any requests which have been initiated from Publisher's account. Onlyellow Unip. disclaims any liability for any activity in Publisher's account, whether initiated or authorized by Publisher or not.

4. Payment; Factors Affecting Payment; Taxes and Withholding; Payment Disputes

A. Payment. Publisher will be paid based on the Payment Models (as defined herein) agreed on the IO. Validated results will be mailed to Publisher in U.S. Dollars (USD) within fifteen (15) days after the end of the month in which the results were generated. Payment shall be made on a counter-invoicing basis, and Publisher will be paid withing the Payment Terms agreed in the I.O.. In the event that the commission payable for a particular calendar month is less than $300, the amount earned will be paid by Paypal or will be rolled over to the next month and combined with that month's earnings until at least $500 is earned. Additionally, in the event Publisher has a past due advertising invoice with Onlyellow Unip., may off-set and apply any available earnings from the Publisher, if any, against the amount past due.

B. Factors Affecting Payment. Publisher acknowledges and agrees that Onlyellow Unip. will pay Publisher pursuant to these Terms and Conditions based on the mutual understanding that Onlyellow Unip. will be able to monetize the traffic through agreements with its upstream advertiser partners ("Advertisers") and that such agreements require that payment be made only upon appropriate traffic. As such, Publisher acknowledges and agrees that all traffic will be subject to review by Onlyellow Unip. If Onlyellow Unip. is unable to collect revenues from any such third party partners due to any failure of Publisher to comply with the restrictions of the offers or with these Terms and Conditions, any breach of Publisher's representations, warranties or covenants contained herein, the quality of the traffic which is being delivered or any other factor that would prevent Onlyellow Unip. from earning revenue, then commissions payable to Publisher hereunder shall be reduced accordingly. If the amount earned by Publisher hereunder is reduced to an amount less than the amount previously paid by Onlyellow Unip., then Publisher shall, upon invoice by Onlyellow Unip., immediately pay the difference to Onlyellow Unip.. Without limiting the generality of the foregoing, Publisher understands and agrees that in the event any payment is made by Onlyellow Unip. to Publisher and Onlyellow Unip.'s Advertiser subsequently denies payment to Publisher for clicks generated from that Publisher traffic, Onlyellow Unip. shall be entitled to repayment of any such amount whether through reduction of future payments to Publisher or Publisher's repayment to Onlyellow Unip. of any such commissions based on such clicks for which payment is denied. Further, Publisher agrees that Onlyellow Unip. may withhold payments (i) while clicks are being reviewed in its traffic quality process or (ii) if Onlyellow Unip. reasonably believes that such Onlyellow Unip. will not receive payment for such clicks from its Advertisers.

C. Taxes and Withholding. Publisher understands and agrees that taxes with respect to commissions or any other payments made by Onlyellow Unip. to Publisher hereunder will not be withheld or paid directly or indirectly by Onlyellow Unip. unless Onlyellow Unip. determines in its sole discretion that Onlyellow Unip. or its Publishers may be liable for any such taxes, in which case it shall withhold the estimated amount and notify Publisher of such withholding. Publisher understands and agrees that it is Publisher's responsibility to pay all applicable local and/or foreign taxes on commissions and other income received from Onlyellow Unip. pursuant to these Terms and Conditions. Publisher agrees to promptly reimburse and indemnify Onlyellow Unip. from any claim or assessment of taxes by any local, and/or foreign taxing authority, and any other costs and damages, arising from or in connection with the operation.

D. Payment Disputes. Publisher understands and agrees to address any questions Publisher may have with any payment of commissions under these provisions to Onlyellow Unip. within thirty (30) days of the date of such payment. Failure to notify Onlyellow Unip. within such period will constitute an acceptance of, and agreement with, the applicable payment.

5. Restrictions and Rights

All of the following terms and conditions must be adhered to and are legally binding, immediately upon acceptance of these Terms and Conditions.

General Restrictions

A. Onlyellow Unip. reserves the right to terminate the collaboration with the Publisher in its absolute and sole discretion at any time.

B. Publishers may not generate traffic to Onlyellow Unip.’s links by any of the following methods: listings on newsgroups, bulk e-mailing, icq postings, IM messages, chatroom/irc postings, iframes, zero pixel frames, hitbots, clickbots, spiders, cgi-scripts, JavaScript, DNS hacking, spoofing or pharming, cache poisoning, any toolbar or downloading of any computer software application, altering an End User's host file to point another domain to a Publisher's domain, PTC Sites, click farms, via cell phone messages, online viral media, other online incentives, media advertising of any type, any promotion of a domain, including, but not exclusively, communications or press release with a media outlet or organization capable of public communications with the intention to create an interest or drive traffic in a domain, or any other similar method.

C. Publishers are prohibited from monetizing domain names they do not own, using Onlyellow Unip.’s links by all previously mentioned methods.

D. Publishers may not misrepresent their ownership of a domain name in any way.

E. Publishers may not beg, ask, entice, or incentivize End Users into clicking on Onlyellow Unip.’s links.

F. Publishers may not mislead End Users into believing that the End User will receive anything, other than an internet search by clicking on a text link or search box or otherwise encourage End Users, either with or without their knowledge, to click on advertising results through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent, in the sole but reasonable judgment of Onlyellow Unip..

G. Onlyellow Unip. reserves the right to terminate the Publisher’s account if it is idle for more than 3 months. Onlyellow Unip. may notify the Publisher in advance of such cancellation.

H. Publisher may not direct or redirect domains to the Onlyellow Unip.'s servers in any manner which has not been previously approved by Onlyellow Unip.. As such, Onlyellow Unip. reserves any and all rights to direct the method by which Publisher directs or redirects its domains to the Onlyellow Unip.'s servers, whether through DNS, redirect code or otherwise.

 

Additional Restrictions. Publisher shall not: (a) edit, modify, filter, alter, truncate, rearrange, add to, or change the look, feel or content of any Landing Page; (b) host the Landing Page or (c) display graphical or text units in any form (including but not limited to pop-up, pop-under or exit windows, expanding buttons and animation) that block or otherwise inhibit the full and complete display to End Users of any Landing Pages accessed by clicking on Onlyellow Unip. links; (d) place, display or use any unauthorized branding or attribution of any kind on such Publisher, including without limitation on any Landing Page or framed in conjunction with any such pages, to indicate that any search engine is providing such results or for other promotional purposes, (e) except to the extent provided by Onlyellow Unip., contain any pornographic, hate-related or violent content or contain any other material, products or services that (i) violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights, or (ii) would otherwise give rise to civil liability or (f) include content above or below the Landing Page, unless that content is submitted for approval in writing to Onlyellow Unip. and pre-approval in writing is received from Onlyellow Unip., prior to any such content being displayed on the Publisher Media.

Any failure to comply with the terms of this policy may result in an immediate termination of Publisher's account and forfeiture of any commissions earned or to be earned by Publisher hereunder.

Consequences of Non-Compliance. Publisher acknowledges that, in addition to any other remedies at law that Onlyellow Unip. may have, failure by Publisher to comply with any or all of the terms in these Terms and Conditions will result in (i) the forfeiture by Publisher of any yet unpaid commissions and/or (ii) the obligation to pay additional compensation from future earnings, over time, to compensate for the values paid out by Onlyellow Unip. plus applicable interest, limited to 5% per annum of the principal, accrued monthly. Future earnings payment applies only if Publisher is a still existing client. Onlyellow Unip. shall make the determination of length of time and value of any violation of the terms herein, solely and such determinations will be final. Publisher may present information to the contrary up to fifteen (15) calendar days after notification to Publisher of the beginning of the investigation. Publisher agrees to hereby accept Onlyellow Unip.'s decisions regarding such violations of the Terms and Conditions as final and wave any litigation rights, whatsoever, of any issue, compensation or otherwise relating to the decision and/or Terms and Conditions violations. Publisher or Onlyellow Unip. may terminate these Terms and Conditions at any time. Onlyellow Unip. reserves the right to access any outstanding balance payments, in its sole discretion, if Publisher, its subsidiary, or related company were to reapply to be a Publisher using the Onlyellow Unip. Services at any time in the future. Finally, such failures may also result in the termination of Publisher's account.

6. General Terms

6.1 Intellectual Property

As between Onlyellow Unip. and Publisher, Onlyellow Unip. (or others it so designates in writing) shall own all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), relating to Onlyellow Unip. Service (and any derivative works or enhancements thereof), including but not limited to, all software, technology, processes, materials, guidelines, documentation, relating in any way to the Onlyellow Unip. Service. For purposes of these Terms and Conditions, "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide. Publisher shall not, and shall not allow any third party to: (i) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any intellectual property in any way related to Onlyellow Unip.; (ii) affix any unauthorized copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of any site, or any other technology, software, materials and documentation related to the Onlyellow Unip. Services; (iii) crawl, index or in any non-transitory manner store or cache information obtained from the Site; (iv) transfer, sell, lease, lend, disclose, or use for co-branding without explicit written permission from Onlyellow Unip., any aspect of the Onlyellow Unip. Services, under any timesharing, service bureau or other unauthorized method or access thereto; (v) directly or indirectly access, launch and/or activate the Onlyellow Unip., Services through or from any software application or means other than the Publisher Media; or (vi) engage in any action or practice that reflects poorly on Onlyellow Unip. Lda Services, Onlyellow Unip. or its Advertisers, or otherwise disparages or devalues the reputation or goodwill of the same.

6.2 Confidentiality

Publisher agrees to safeguard and, except for the benefit of the Onlyellow Unip. Services, not to disclose to anyone outside Onlyellow Unip any proprietary or confidential information acquired from Publisher's access to Onlyellow Unip. Services. Such information includes, without limitation, business plans, customer lists, operation procedures, trade secrets, design formulas and programming code, know-how and processes, computer programs and inventions, discoveries, and improvements of any kinds.

6.3 Modifications

Onlyellow Unip. reserves the right to change these Terms and Conditions at any time in its sole discretion and pursuant to applicable law. Amended versions of this Agreement will be sent to Publisher. Onlyellow Unip. agrees to use commercially reasonable efforts to minimize unscheduled modification and maintenance interruptions. Variations, amendments and additions to these Terms and Conditions shall only be valid if agreed in writing between the Publisher and Onlyellow Unip..

7. Indemnification

Publisher shall indemnify, defend, and hold harmless the Parties from and against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, reasonable attorney fees, accounting fees, and expert witness fees) incurred by the Parties, known or unknown, contingent or otherwise, directly or indirectly arising from Publisher's breach of any term or provision of these Terms and Conditions or any way related to Publisher's use of the Site, including but not limited to any claim that the domain name is owned by someone other than Publisher or that the domain name infringes on the intellectual property rights of a third party. Onlyellow Unip. shall notify Publisher of any such claim and shall cooperate with Publisher, at Publisher's expense, in defending or settling such claim. Publisher may not settle any such claim in a manner that imposes any non-indemnified costs or otherwise adversely affects Onlyellow Unip. rights without Onlyellow Unip.'s prior written consent. Onlyellow Unip. may join in defense with counsel of its choice at its own expense. If Publisher does not assume the defense of any such claim within thirty (30) days after the date notice of such claim is given, Onlyellow Unip. may defend against such claim in such manner as it may deem appropriate at Publisher's expense, including, without limitation, settling such claim, after giving notice of the same to Publisher.

8. Miscellaneous

Governing Law. These Terms and Conditions shall be governed by, and construed in accordance with, the laws of Portugal, without giving any effect to any choice of law provisions thereof that would cause the application of the laws of any other jurisdiction.

No Third Party Beneficiaries. These Terms and Conditions are made solely for the benefit of Publisher and the Parties and their respective successors and assigns, and no other person or entity shall have or acquire any right by virtue of these Terms and Conditions.

Prohibition of Assignment. Publisher may not assign any of its rights or delegate any of its duties under these Terms and Conditions without the prior written consent of the Onlyellow Unip.. Despite such consent, no assignment shall release the assignor of any its obligations or alter any of its primary obligations to be performed under these Terms and Conditions.

Successors and Assigns. Except as otherwise expressly provided in these Terms and Conditions, these Terms and Conditions shall bind and inure to the benefit of the successors, assigns, heirs, executors and administrators of the parties to these Terms and Conditions.

Independent Contractor. The relationship of Publisher and Onlyellow Unip. established by these Terms and Conditions is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other.

Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, riot, act of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.

Waiver. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of these Terms and Conditions shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No failure or delay by Onlyellow Unip. in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

Entire Agreement. Except as may be set forth in an written agreement signed between Onlyellow Unip. and Publisher, these Terms and Conditions constitute the final, complete, and exclusive statement of the terms of the use of the Site between the parties and supersedes all prior and contemporaneous understandings or agreements of the parties.

Attorneys Fees. If Onlyellow Unip. prevails in any action, suit, or proceeding arising from or based upon these Terms and Conditions, Onlyellow Unip. shall be entitled to recover from Publisher Onlyellow Unip.'s reasonable attorneys' fees in connection therewith in addition to the costs of such action, suit, or proceeding.

Notice. Any notice, communication or statement relating to these Terms and Conditions shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile or other confirmed electronic transmission; (iii) when delivered by certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective party as indicated herein (or in the case of Publisher, as last provided to Onlyellow Unip.); (iv) and in the event of material changes to this Agreement, notice shall be effective upon the sending of an email from Onlyellow Unip. to the email address last provided by Publisher.

Survival. Sections 3.1, 3.3, 3.5, 3.7, and any other obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of these Terms and Conditions shall survive and remain in effect after such happening.

Interpretation. Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of these Terms and Conditions. These Terms and Conditions shall not be construed against either party by reason of its drafting.