Advertiser Terms and Conditions

MIVA AK, Inc. Bid Program Terms and Conditions Agreement

By participating in MIVA AK, Inc.'s Bid Program (as defined below), you are entering into a binding and enforceable legal agreement with MIVA AK, Inc. as set forth below. You represent and warrant that you are authorized to enter into this MIVA AK, Inc. Bid Program Terms and Conditions Agreement (the “Agreement”). You understand that any website(s) you have listed with MIVA AK, Inc. may be viewed by consumers who access your website(s) through MIVA AK, Inc. or any licensed affiliate of MIVA AK, Inc. Please read this Agreement carefully since, by participating in the MIVA AK, Inc. Bid Program, you are signifying your assent to this Agreement. As used in this Agreement, the terms "Advertiser" and "You" mean you, the company or entity which you represent, and any of your or your company’s or entity’s employees, agents, representatives or any other third party authorized to act on your behalf or on behalf of your company or entity (as applicable).

1. BID PROGRAM. For purposes of this Agreement, the MIVA AK, Inc. Bid Program is that program whereby Advertisers wishing to advertise their website, services or products, bid for a keyword advertisement to appear in the results or listings generated by MIVA AK, Inc. and/or its affiliates in response to search-, browse-, or contextually-driven keyword queries. Additionally, users may be redirected by MIVA AK, Inc. and/or its affiliates to an advertiser’s website via direct navigation. For example purposes only, and without limitation to other examples that may apply, if an advertiser participating in the Bid Program bids on the keyword “car insurance”, when an end user clicks on a car insurance link on a MIVA AK, Inc. or participating affiliate website, the user may be redirected to the advertiser’s website. You understand that your keyword advertisements shall be served in response to queries on keywords that you have bid on as well as different misspellings, singular and/or plural variations, or other related keywords or keyword phrases that MIVA AK, Inc. maps to your keyword advertisements. For example purposes only, and without limitation to other examples that may apply, MIVA AK, Inc. may serve keyword advertisements for the keyword “car” in response to keyword queries such as “cars,” “car’s,” “carss.” Generally, the amount of an Advertiser's bid determines placement of such Advertiser's keyword advertisement in MIVA AK, Inc.'s results list and placement in a redirect campaign. MIVA AK, Inc. continually updates placement based upon the ongoing results of the bids for placement. From time to time, MIVA or its affiliates may utilize the Bid Program to advertise websites, products or services owned by or otherwise affiliated with MIVA.

2. PAYMENT. The Advertiser agrees to pay MIVA AK, Inc. based on the number of clicks by a user on your keyword advertisement and the number of direct navigation redirects on your bidded keywords multiplied by the amount which you have bid to pay for each click or redirect. The amount of clicks or redirects are measured by tracking reports prepared by MIVA AK, Inc. and you understand and agree that such report shall be the only and definitive measure of the amount of clicks or redirects. A deposit (of at least $25) shall be paid to MIVA AK, Inc. to initiate services to the Advertiser, and $25 of such deposit is non-refundable. Advertiser agrees to pay all charges to its account, including any and all taxes which may be applicable, all in accordance with MIVA AK, Inc.'s terms then in effect at the time a fee is incurred. Advertiser acknowledges that its payment obligation hereunder is based solely on the number of clicks and redirects and not on Advertiser's ability to convert clicks or redirects to sales, registrations, or other user actions. In the event that Advertiser has elected to pay MIVA AK, Inc. by credit card and has selected the AutoReplenish feature, Advertiser agrees that MIVA AK, Inc. may charge the credit card for the pre-determined amount set by Advertiser prior to Advertiser’s account being taken off-line. The Advertiser represents that all payment information provided to MIVA AK, Inc. will be accurate and complete. In the event that MIVA AK, Inc. is unable to charge an Advertiser's credit card or a check issued by the Advertiser is returned, MIVA AK, Inc. may, in its sole discretion and in addition to any other remedies available to it under this Agreement and any and all applicable laws, suspend or terminate the Advertiser's participation in the Bid Program. Advertiser shall be responsible for the payment of any and all charges and/or fees incurred by MIVA AK, Inc. as a result of any dishonored check or credit chargeback. If Advertiser believes any claim or dispute exists with respect to any charges or fees incurred by Advertiser pursuant to the terms of this Agreement, Advertiser shall notify MIVA AK, Inc. in writing no more than 30 days following posting by MIVA AK, Inc. to Advertiser’s account of such charge or fee. Advertiser’s failure to notify MIVA AK, Inc. of any claim or dispute within such 30 day period will result in the waiver of any such claim or dispute by Advertiser and such charges or fees shall become final. In the event your account does not have any click or redirect activity for a period of twelve (12) consecutive months, MIVA AK, Inc. may close your account and retain all of your unused account balance to cover account maintenance and other costs.

3. YOUR REPRESENTATIONS AND WARRANTIES TO US. You represent that you are the authorized owner or representative of the website(s) for which keyword advertisements are requested and that such website(s) is not involved in any illegal activity, hate activity (whether racial or otherwise), does not contain any defamatory, slanderous or libelous matter. You will not hold MIVA AK, Inc. or its affiliates liable or responsible for the activities of visitors who come to your website(s) through a link or redirect provided from MIVA AK, Inc. and/or an affiliate. You further represent that your website is not unsuitable for the MIVA AK, Inc. Bid Program and that the keywords and content utilized to advertise your website do not infringe on the patent, copyright, trademark, or intellectual property rights of others. Unsuitable websites include those that (a) promote violence or are threatening in any way or nature to any third party; (b) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (c) have resulted in or are intended to defraud consumers; (d) promote illegal activities or are undertaken in violation of the laws, rules or regulations of any governmental authority having proper jurisdiction over You, the company or entity You represent or the website for which links are requested; (e) violate or infringe upon the rights of any third party, including intellectual property rights, publicity rights, or privacy rights; and (f) promote goods or services that have resulted in or are intended to cause any type of physical or mental harm to any third party. If you dispense prescription drugs, in connection with each keyword advertisement you submit to the MIVA AK, Inc. Bid Program pertaining to your business, you further represent that you shall: (g) only dispense a prescription drug upon receipt of a valid prescription; (h) maintain a copy of each prescription as required by law, and in no event for less than one year after termination, cancellation or expiration of your participation in the MIVA AK, Inc. Bid Program; (i) maintain a commercially reasonable system to retrieve each prescription tendered to you in connection with the MIVA AK, Inc. Bid Program; and (j) tender to government authority, as directed by MIVA AK, Inc. and as permitted by law, a copy of any prescription(s) and related records demanded, within five business days of written request. MIVA AK, Inc. reserves the right, in its sole and absolute discretion, to reject or remove any website it deems unsuitable for the MIVA AK, Inc. Bid Program.

4. YOUR INDEMNIFICATION OBLIGATIONS. Advertiser agrees to indemnify and hold MIVA AK, Inc., its affiliates, distribution partners and their respective officers, directors, employees, representatives, consultants and other agents harmless from and against any losses, costs, damages or expense (including reasonable attorneys' fees) resulting from claims or actions arising out of or in connection with Advertiser's participation in the MIVA AK, Inc. Bid Program (including keywords and content utilized by Advertiser to promote its website), Advertiser's website content or Advertiser's breach of any agreement, representation or warranty hereunder, including, without limitation, third party claims for infringement of patent, copyright, trademark or other intellectual property rights and violation of rights of privacy, publicity and property. You agree that you are solely responsible for defending any claim, and for payment of damages or losses resulting from the foregoing to both a third party and to MIVA AK, Inc. You further agree that MIVA AK, Inc. shall have the right, in its sole discretion, to select its own legal counsel to defend MIVA AK, Inc. from any such claim and that You shall be solely responsible for the payment of all MIVA AK, Inc.’s reasonable attorneys’ fees incurred in connection therewith. You agree that any proposed settlement or resolution of any claim (whether having been finally adjudicated or otherwise) brought against You, the company or the entity You represent, or MIVA AK, Inc. that is subject to your indemnification obligations set forth herein shall be subject to the prior written approval of MIVA AK, Inc., in its sole discretion, if such settlement or resolution results in any further obligation or liability for MIVA AK, Inc.

5. LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER. THE MIVA AK, INC. WEBSITE, INCLUDING THE MIVA AK, INC. BID PROGRAM, IS AVAILABLE ON AN "AS IS" BASIS. MIVA AK, INC. MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF ANY SERVICE PROVIDED BY MIVA AK, INC. FOR A PARTICULAR PURPOSE INCLUDING, WITHOUT LIMITATION, THE NUMBER OF CLICKS PER KEYWORD ADVERTISEMENT WHICH WILL BE DELIVERED, THE NUMBER OF DIRECT NAVIGATION REDIRECTS WHICH WILL BE DELIVERED, THE PLACEMENT OF KEYWORD ADVERTISEMENTS AND THE SUCCESS OF YOUR KEYWORD ADVERTISEMENT(S) OR REDIRECT CAMPAIGN. MIVA AK, INC., ITS DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS AND OTHER AGENTS SHALL NOT BE LIABLE FOR ANY LOSS, COSTS, DAMAGE OR EXPENSE (INCLUDING REASONABLE ATTORNEY'S FEES) INCURRED BY ADVERTISER IN CONNECTION WITH THE BID PROGRAM OR INCURRED BY ADVERTISER AS A RESULT OF ANY SERVICES PROVIDED BY MIVA AK, INC. AND/OR ITS AFFILIATES OR DISTRIBUTION PARTNERS INCLUDING, WITHOUT LIMITATION, THE CONTENTS OF ANY WEBSITES OR PAGES, THE LOCATION, CIRCUMSTANCE, APPEARANCE (OR FAILURE TO APPEAR) OF THE ADVERTISER’S KEYWORD ADVERTISEMENT(S), ANY TECHNICAL MALFUNCTION, COMPUTER ERROR, LOSS OF DATA, DELAY IN OPERATION, COMPUTER VIRUSES, COMMUNICATION LINE FAILURE, DESTRUCTION OR UNAUTHORIZED USE OR ACCESS TO ANY WEBSITES OR RECORDS, OR OTHER INJURY DAMAGE OR DISRUPTION TO ADVERTISER. NOTWITHSTANDING THE FOREGOING, SHOULD MIVA AK, INC. BE HELD LIABLE FOR ANY REASON, ADVERTISER AGREES THAT IN NO EVENT SHALL MIVA AK, INC.'S LIABILITY EVER EXCEED THE TOTAL AMOUNT PAID TO MIVA AK, INC. BY ADVERTISER IN THE SIX MONTHS PRIOR TO ANY ALLEGED LOSS. IN NO EVENT SHALL MIVA AK, INC. BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT MIVA AK, INC. HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. MIVA AK, INC. WILL NOT BE LIABLE FOR, OR CONSIDERED TO BE IN BREACH OF OR IN DEFAULT, ON ACCOUNT OF ANY DELAY OR FAILURE TO PERFORM AS ANTICIPATED BY THE PARTIES, A DELAY IN CHANGING A BID BY YOU, OR IF ITS WEBSITE OR BID PROGRAM BECOMES INOPERABLE OR INCAPABLE OF PERFORMING AS INTENDED. MIVA AK, INC. MAKES NO REPRESENTATIONS THAT THE OPERATION OF ITS WEBSITE OR BID PROGRAM WILL BE UNINTERRUPTED OR ERROR-FREE, AND WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. YOU FURTHER AGREE THAT YOU WILL NOT HOLD MIVA AK, INC. RESPONSIBLE FOR ANY ACTS, ERRORS, OR OMISSIONS OF ANY THIRD PARTY IN CONNECTION WITH THE MIVA AK, INC. BID PROGRAM, MIVA AK, INC. WEBSITE, AND/OR WEBSITES LINKED TO THROUGH THE MIVA AK, INC. WEBSITE.

6. RIGHT TO REJECT. All requested URL links, search terms, descriptions and bids are subject to MIVA AK, Inc.'s approval. MIVA AK, Inc. reserves the right to reject, cancel or remove any URL link, search terms, descriptions and bids at any time for any reason whatsoever and MIVA AK, Inc., its employees, consultants and other agents shall have no liability for such decisions.

7. RELEVANCY. You may only submit search terms and descriptions to MIVA AK, Inc.'s Bid Program that are relevant to your website(s). If any information provided on your website(s) is changed, you must update your search terms and descriptions to be both current and accurate. All search terms and descriptions submitted are subject to relevancy review by the MIVA AK, Inc. editorial staff, and are subject to removal or rejection (see MIVA AK, Inc.'s RIGHT TO REJECT above). No refunds will be issued for charges incurred to any account as a result of submitting irrelevant words to MIVA AK, Inc.'s Bid Program. Excessive violations of relevancy regulations may result in termination of your account without refund for any charges already incurred.

8. ONLINE GAMBLING-RELATED KEYWORD ADVERTISEMENTS. MIVA AK, Inc. reserves the right, in its sole and absolute discretion, to not display keyword advertisements that are online gambling-related and you understand and agree that MIVA AK, Inc. is not obligated to place such keyword advertisements within any results generated in connection with MIVA AK, Inc. MIVA AK, Inc. considers a keyword advertisement to be an "Online Gambling-Related Keyword Advertisement” if such keyword advertisement includes, promotes, or links to content or websites related to the following: online casinos, online sportsbooks or other operations which facilitate online wagering on games including, but not limited to Blackjack, Poker, Roulette, Baccarat, Slot Machines, Horse Racing and all sporting events, whether collegiate or professional. Notwithstanding the foregoing, MIVA AK, Inc. retains the right, in its sole and absolute discretion, to determine that any keyword advertisement submitted by you is an "Online Gambling-Related Keyword Advertisement.” MIVA AK, Inc.’s policy is not to display Online Gambling Related Keyword Advertisements to users on the MIVA AK, Inc. Network with IP addresses which originate from the United States or the country of origin is undeterminable.

9. ADULT CONTENT. MIVA reserves the right, in its sole and absolute discretion, (a) to not accept websites containing unacceptable adult content (such as, for example, pornographic content), and (b) to not display keyword advertisements that contain unacceptable adult content. You understand and agree that MIVA AK, Inc. is not obligated to place such keyword advertisements within any results generated in connection with MIVA AK, Inc. MIVA AK, Inc. reserves the right, in its sole and absolute discretion, to designate a website or a keyword advertisement as containing unacceptable adult content without notification to Advertiser and to disallow, suspend or remove such website or keyword advertisement.

10. MEDICAL PRODUCTS. The promotion, sale, import, export, and distribution of medical products, including drugs, medical devices, and biologics, is strictly regulated by federal and state laws and regulations. If you are an advertiser of such products, by participating in MIVA AK, Inc.’s Bid Program, You represent that you fully comply with all federal and state laws and regulations governing such products including, but not limited to, the U.S. Federal Food, Drug, and Cosmetic Act, as amended, as well as the MIVA AK, Inc. relevancy guidelines, which are found at https://adcenter.us.miva.com/help_center/Relevancy_Guidelines.htm (or successor domain thereto) and as may be modified from time to time by MIVA AK, Inc. in its sole and absolute discretion. MIVA AK, Inc. reserves the right, in its sole and absolute discretion, to determine that any keyword advertisement submitted by you may not comply with the laws and regulations governing medical products, this Agreement or its relevancy guidelines, and may elect not todisplay keyword advertisements MIVA AK, Inc. considers to be non-compliant. For example, MIVA AK, Inc. considers keyword ads that contain references to unapproved drugs, biologics, or medical devices, counterfeit medical products, fake medical products, illegally imported or exported products, or advertisements for medical products from unauthorized sellers or distributors, to raise issues of non-compliance with applicable laws and regulations; it is MIVA AK, Inc.’s policy not to display such advertisements to users. MIVA AK, Inc. will only accept keyword advertisements from online pharmacies and authorized distributors who are properly certified by a pharmacy certification seal provider as detailed in the MIVA AK, Inc. relevancy guidelines, which may be modified from time to time by MIVA AK, Inc. in its sole and absolute discretion, and who are approved by MIVA AK, Inc. in its sole and absolute discretion.

11. KEYWORD ADVERTISEMENTS. MIVA AK, Inc. does not guarantee that your keyword advertisements will be available or displayed and you understand that MIVA AK, Inc. reserves the right to not place your keyword advertisements within any search results list generated in connection with MIVA AK, Inc. The format of your keyword advertisement may vary and MIVA AK, Inc. makes no representations as to the format of your keyword advertisement, e.g., a keyword advertisement that is displayed through MIVA AK, Inc. or any licensed affiliate or distribution partner of MIVA AK, Inc. may include a truncated keyword advertisement title or keyword advertisement description. In all cases information for the keyword advertisement must be submitted in the form requested by MIVA AK, Inc. All keyword advertisements are subject to the MIVA AK, Inc. relevancy guidelines, which may be modified from time to time by MIVA AK, Inc. in its sole and absolute discretion.

12. TERMINATION. You may cancel your participation in the MIVA AK, Inc. Bid Program at any time by providing 72 hour written notice to MIVA AK, Inc. Following such notice period, you will be entitled to receive a refund for all amounts not yet charged to your account, if any. In the event your account does not have adequate funds available to pay for all charges incurred by You in connection with your participation in the MIVA AK, Inc. Bid Program through the effective date of your termination, You will remain responsible for promptly paying such charges. In all events, the initial $25 deposited into your bid account is non-refundable. We may cancel your participation in the Bid Program at any time for any or no reason. MIVA AK, Inc. reserves the right to cancel the Bid Program at any time.

13. MISCELLANEOUS. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York and jurisdiction and venue of all matters relating to this Agreement shall be vested exclusively in the Southern District of New York or New York Supreme Court, County of New York, and you agree to the jurisdiction of such Courts. This Agreement may not be amended by you unless it is mutually agreed upon in writing by you and MIVA AK, Inc. No waiver of any right under this agreement shall be valid unless signed in writing by the party waiving such right. The invalidity or unenforceability in whole or in part of any portion of this Agreement will not affect the validity or enforceability of the remaining portions of this Agreement. If for any reason, any provision is determined to be invalid or in conflict with any existing, or future law or regulation by any court or governmental authority having valid jurisdiction, such provision shall be modified to the least extent necessary to become valid or in conformity with such law or regulation. All notices and other communications required by this Agreement shall be sent via certified mail to MIVA AK, Inc., 5220 Summerlin Commons Boulevard, Suite 400, Fort Myers, Florida 33907, or via facsimile to (239) 936-1355, in each case to the attention of: Legal Department. This Agreement constitutes the entire agreement between the parties relating to the participation in MIVA AK, Inc.'s Bid Program. Nothing in this Agreement, express or implied, is intended or shall be construed to create any third-party beneficiaries. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by Advertiser without the prior written consent of MIVA AK, Inc. This Agreement supersedes all prior and/contemporaneous agreements relating to the subject matter hereof and Advertiser has relied upon no representations, oral or otherwise, not contained within this Agreement. MIVA AK, Inc. reserves the right to change the terms upon which it offers its Bid Program to the public and may change this Agreement upon notice to Advertiser, including through publication on the MIVA AK, Inc. website or notification in the Bid Program advertiser account interface. Advertiser's continued participation in the Bid Program following notice of such changes shall be deemed an assent to such changes.