By creating a StumbleUpon advertising account and/or signing an insertion order with StumbleUpon, you are agreeing to be bound by this advertising agreement (the “Agreement”).
“StumbleUpon” means StumbleUpon.com, Inc. and “Advertiser” means the individual or organization using the advertising services. If the advertising services are being used on behalf of an advertising agency representing an advertiser, then “Advertiser” includes both the advertiser and the agency. If the advertising services are being used on behalf of an organization, such as an employer, “Advertiser” means the organization or agency for which the advertising services will be provided and you represent that you are authorized by the organization to accept this Agreement on its behalf. By entering this Agreement, you represent that you are at least 18 years of age and that there is no legal reason that you cannot enter into a binding contract.
The following terms and conditions apply to the submission of advertising materials by Advertiser for referrals within the StumbleUpon Platform, also called “Stumbles.” As used herein, “Ad” or “Ads” means Advertiser’s URL or URL(s), as supplied to StumbleUpon, and “Campaign” means the Ads including the parameters for advertising, as set by Advertiser through its account. “Content” refers to the images, photos, videos, audio, text and any other material located on or accessed through the Ad. The “StumbleUpon Platform” includes the StumbleUpon website located at http://www.stumbleupon.com, the StumbleUpon toolbar, the StumbleUpon mobile and tablet applications, and such other aggregations of content that may be referred by StumbleUpon through its related applications, such as widgets, badges or other tools.
a) Ads and Campaigns: Ad submissions, modifications and Campaigns shall be made through Advertiser’s account page, presently located at http://ads.stumbleupon.com. Advertising on the StumbleUpon Platform is subject to prior approval of StumbleUpon, which reserves the right to reject, omit or exclude any new or existing Advertiser, Ad or Campaign in its sole discretion, for any reason at any time, with or without notice to the Advertiser and regardless of whether such Advertiser, Ad or Campaign was previously accepted.
b) Ad Content and Delivery: When you use StumbleUpon to promote your business, we refer your Content directly to users who have expressed an interest or who we predict will be interested in your Content. The number of “Stumbles” by users an Ad receives will be measured by the internal data of StumbleUpon. Data and metrics relating to the Ad will be available to Advertiser on a real-time basis through the StumbleUpon dashboard accessible through Advertiser’s account with StumbleUpon. Delivery of Ads will be governed by the StumbleUpon Ads Program described at http://ads.stumbleupon.com/tour. By submitting your Ad, you represent that it complies with the StumbleUpon Content Guidelines located at http://ads.stumbleupon.com/help/content-guidelines/.
c) Advertiser’s Representation: Advertiser represents and warrants that: (1) it is the owner or is licensed to use the entire Content and subject matter contained in the Ad; (2) the Ad is free of any “worm”, “virus” or other device that could impair or injure any object, person or entity; (3) the Ad does not violate any law or regulation governing false or deceptive advertising, sweepstakes, gambling, comparative advertising, or trade disparagement; (4) the Ad does not contain any misrepresentation or Content that is defamatory or violates the rights of privacy or publicity of any person; (5) Advertiser will comply with all applicable laws, rules and regulations, including but not limited to laws regarding data collection, privacy and the online protection of children and minors; and (6) the Ad and its display by StumbleUpon does not and will not infringe the copyright, trademark, patent or other proprietary right of a third party. Advertiser grants to StumbleUpon the right and license to transmit the Ad to the StumbleUpon Platform.
d) Data: Advertiser serves and controls the Content of the Ad. All user data collected by Advertiser from and through the Ad remains the property of Advertiser. StumbleUpon shall have no legal responsibility in connection with Advertiser’s data collection practices. Usage data as to how users are referred to and interact with an Ad will be collected by StumbleUpon, and will be accessible by Advertiser through its account.
e) No Guarantee: Whether an Ad or Campaign is successful depends upon a number of variables that are outside of the control of StumbleUpon. StumbleUpon does not guarantee the continued inclusion within the StumbleUpon Platform of any Ad, any minimum amount of traffic referrals, or the success of any Campaign or Ad.
a) Payments: For any given Ad, you agree to pay StumbleUpon in accordance with the terms of this Agreement and the provisions regarding payment contained in the StumbleUpon Ads Program. All payments will be in US dollars. We use third parties to collect and process payment information. By submitting such information to our partners, you are consenting to the collection of such credit card information or other data necessary for the processing of the transaction. StumbleUpon does not preserve or retain the payment information. Unless credit terms have been approved in writing by StumbleUpon, all advertising fees shall be pre-paid by depositing funds with StumbleUpon prior to the beginning of a Campaign. StumbleUpon shall deduct from the pre-paid amounts collected, for Campaigns delivered in accordance with the StumbleUpon Ads Program. Unless other payment arrangements have been authorized, StumbleUpon will not have an obligation or any liability to Advertiser to begin a Campaign until Advertiser has deposited the necessary funds. In the event that your Campaign exceeds the amounts pre-paid, then you understand that no further Ads will be delivered unless you increase your pre-paid amount. Any amounts pre-paid but not used in connection with a Campaign may only be used by Advertiser for future Campaigns and shall not be refundable.
b) Fee Calculation: Advertiser, through its account, will determine the fees attributable to the Campaign it has selected. StumbleUpon will deduct from Advertiser’s account the applicable fees for the Campaign as they are incurred. StumbleUpon shall decide, in its sole and complete discretion, the calculation of aggregate fees based on StumbleUpon’s internal data of “Stumbles” delivered. Any invoices that StumbleUpon issues to Advertiser will be derived from StumbleUpon’s internal data.
c) Taxes: Advertiser is responsible for any and all taxes applicable to the Campaign (except for taxes based on StumbleUpon’s income).
StumbleUpon reserves the right to terminate an Advertiser’s relationship with the StumbleUpon Platform at any time, with or without cause. Advertiser may terminate a Campaign at any time through its account. Upon receipt of such termination, StumbleUpon will remove the Campaign from the StumbleUpon Platform and no further fees will be invoiced.
a) Indemnification: Advertiser hereby agrees to indemnify, defend and hold harmless StumbleUpon and its officers, directors, agents, affiliates and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any third party claims, suits or proceedings (collectively “Claims”) arising out of or relating to (i) the Content set forth in or accessed through the Ad; (ii) any Content or material to which users can link through the Ad; (iii) any data gathered through the Ad, or through tags, tracking technology, or other means associated with the Ad; (iv) relating to a contaminated or fraudulent file, tag, virus, worm or Trojan horse originating from the Ad; and (v) the breach by Advertiser of any duty, representation or warranty made herein. Such Claims include but are not limited to Claims for libel, defamation, violation of right 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 applicable law, statute, ordinance, rule or regulation in connection with Advertiser’s Ad.
b) WARRANTY DISCLAIMER: STUMBLEUPON DOES NOT MAKE AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE PERFORMANCE OF ANY AD OR CAMPAIGN, ITS TOOLBAR, WEBSITE, MOBILE APPLICATIONS OR ANY SERVICES PROVIDED. STUMBLEUPON SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
c) LIMITATION OF LIABILITY: STUMBLEUPON WILL NOT BE SUBJECT TO ANY LIABILITY WHATSOEVER FOR (i) ANY FAILURE OR ABILITY TO ACCESS ALL OR ANY PART OF THE STUMBLEUPON PLATFORM DUE TO SYSTEMS FAILURES OR OTHER TECHNOLOGICAL FAILURES; (ii) DELAYS IN DELIVERY AND/OR NON-DELIVERY OF AN AD; OR (iii) ERRORS IN CONTENT OR OMISSIONS IN ANY AD. STUMBLEUPON SHALL IN NO EVENT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO LOSS OF PROFITS, INCOME OR GOODWILL OR ANY DAMAGES UNDER THIS AGREEMENT THAT EXCEED THE TOTAL AMOUNT PAID BY ADVERTISER TO STUMBLEUPON.
a) Other Important Provisions: This Agreement constitutes the entire agreement between the parties with respect to the subject matter, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. Applicable sections shall survive expiration or early termination of this Agreement. Nothing in this Agreement shall be deemed to create a partnership or joint venture between the parties and neither StumbleUpon nor Advertiser shall hold itself out as the agent of the other, except as specified in this Agreement. Failure by either party to enforce any provision of this Agreement shall not be a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement shall be effective only if in writing and signed by the parties. If for any reason a court finds any provision of this Agreement to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent so as to reflect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
b) Public Release: No press releases or public announcements shall be made without the mutual consent of StumbleUpon and Advertiser, except that both parties may refer to its relationship with the other for marketing and promotional purposes.
d) Assignment: Advertiser may not assign this Agreement, in whole or in part, without written consent from StumbleUpon. Any attempt to assign this Agreement without such consent will be null and void.
e) Governing Law: This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law principles. Each party to this Agreement irrevocably consents to the exclusive jurisdiction of the state and federal courts of San Francisco County, California.