- Advanced Targeting
1. Introduction : The Performance Network provides you access to distribute advertisements on The Performance Network, subject to your compliance with the terms and conditions below.
Please read this Agreement carefully. By enrolling as an “Advertiser,” you agree to be bound by these terms and conditions and the terms and conditions of any insertion order that you complete, including all payment terms (collectively, the “Agreement”). In this Agreement, “you”, and “your” refers to the Advertiser. You agree that any of your agents, representatives, employees, or any person or entity acting on your behalf with respect to the use of The Performance Network, shall be bound by, and shall abide by, these Terms and Conditions. You further agree that you are bound by these Terms and Conditions whether you are acting on your own behalf or on behalf of a third party, including another advertiser.
2. The Network : The Performance Network is defined as The Performance Network’s branded web sites, newsletters, and various third party (Affiliates, Publishers, Partners) who may be authorized by The Performance Network to make advertisements available on or within web sites, newsletters, and/or applications that they control. (Affiliates, Publishers, Partners) are defined as companies or individuals that have an agreement with The Performance Network to carry your advertising campaigns on their websites or newsletters and are paid by The Performance Network a commission generated from your campaign.
3. Services . The Performance Network’s exclusive obligation is to make media advertisements, provided by You, available for distribution within The Performance Network and portions of The Performance Network according to the request(s) made by You (“Services”). In all cases, information and advertisements must be submitted in the form requested by The Performance Network and in accordance with the specifications and policies set forth by The Performance Network , in effect from time-to-time, prior to publication. The Performance Network will not be required to publish any advertisement that is not in accordance with our policies or specifications.
You are solely responsible for the content of your ads. The Performance Network is not responsible for anything regarding your web site(s) including, but not limited to, maintenance of your web site(s), order entry, customer service, payment processing, shipping, cancellations or returns.
a. Distribution. Positioning of the media advertisements within The Performance Network is at the sole discretion of The Performance Network and its third party (Affiliates, Publishers, Partners). You understand that your advertisement may or may not be placed in The Performance Networkor portion of The Performance Network that you indicate in your insertion order(s). The Performance Network does not guarantee that your advertisements will be available through any part of The Performance Network, when your advertisements will run, and/or the placement and positioning of your advertisements.
b. Rights Reserved. The Performance Network reserves the right to approve, omit, edit, for content or reject any advertisement for any reason at any time. In addition, we reserve the right, at any time to remove any of your advertisements if we determine, in our sole discretion, that the advertisement or any portion thereof, violates any of our policies or may result in liability to us. In addition, The Performance Network shall have the absolute right to reject any URL link embodied within any advertisement. The Performance Network’s failure to reject, cancel, approve, omit, edit, etc. shall not be construed as an acceptance of an advertisement nor would this negate other parts of this Agreement, specifically with respect to liability.
4. Non-Circumvent . You agree not to directly solicit (Affiliates, Publishers, Partners) away from The Performance Network, and you agree not to use reverse engineering or tracing of Affiliate traffic for means to directly solicit (Affiliates, Publishers, Partners) away from The Performance Network. If you are participating in the Select Advertiser program, you agree not to contact the list of (Affiliates, Publishers, Partners) that we make available to you. Failure to comply with this Section may, at our discretion, result in immediate termination of this Agreement and a fee to cover lost revenue and commissions from your future campaigns with that (Affiliates, Publishers, Partners).
5. Payment. You agree to;
a. Cost-Per-Thousand (“CPM”). You understand and agree that if you select a program and/or payment plan under the cost-per-thousand impressions model, that in addition to any applicable set-up fee, you will be charged for each time that your advertisement is delivered to an end-user, and that such charges will be based on the number of times all of your advertisements have been delivered, multiplied by the cost per impression, which shall be computed according to our rules applicable to the program that you selected. Impressions are unique deliveries of Your advertisements to people seeing Your advertisement.
b. Cost-Per-Click (“CPC”). You understand and agree that if you select a program and/or payment plan under the cost-per-click or cost-per-redemption model, that in addition to any applicable set-up fee, you will be charged for all click-throughs on your advertisements, and that such charges will be based on the number of click-throughs on all your advertisements, multiplied by the cost of each of your click-throughs, which shall be computed according to our rules applicable to the program that you selected. A click-through is defined as an occasion on which a person on the Internet clicks on the Your text advertisement, banner, coupon redemption, or link directing him/her to Your landing page or web site.
c. Cost-Per-Action/Acquisition, Cost Per Lead, Cost Per Sale (“CPA”, “CPL” & “CPS”) You understand and agree that in addition to any applicable set-up fee, you will be charged for all conversions (acquisitions, leads and/or sales) delivered by us or an authorized (Affiliates, Publishers, Partners) to you, and that such charges will be based on the number of conversions received from all of your advertisements, multiplied by the cost per conversion, which shall be computed according to our rules applicable to the program that you selected. For all conversions based programs (CPA/CPL/CPS), You agree to provide the number of monthly conversions generated by The Performance Network according to Your records (where applicable) within 5 business days of the following month. The Performance Network will invoice You based on the higher of Your numbers or The Performance Network’s numbers, and You agree to pay accordingly. Conversions are Internet users interested in Your promotion/advertisement/offer who have clicked-through to the Your landing page or web site, and have completed a commissionable action (ie. registration, sign up and/or sale). Conversions received after the campaign end date and within cookie duration must be honoured. The campaign will be considered as fully closed after the cookie expiry period has elapsed.
e. Import Program. From time-to-time, certain advertisers may be accepted into the Import Program, as determined by The Performance Network on a case-by-case basis. Participants in the Import Program shall send a report to The Performance Network on a daily basis with an accounting of the number of Leads received per Affiliate. The Performance Network reserves the right to audit your accounting during normal business hours at The Performance Network ’s discretion, and with prior notice to you. By participating in the Import Program, you are obligated to make payment for all Leads that you receive during the time period specified. Your Advertiser Account will be debited accordingly, and if the amount owed exceeds the amount in your Advertiser Account you will be obligated to pay the difference within 15 days of your receipt of notice from us. In addition, if there is a credit card, charge card, or debit card on file with us, then we have the right to charge your credit card, charge card, or debit card for amounts owed.
f. Method of Payment . You may pay The Performance Network by cheque or bank transfer. You agree and represent that all information you provide for the purpose of enrolling as an Advertiser will be accurate, complete, and current. Your right to access your account with The Performance Network is subject to any limits established by The Performance Network . Depending on the payment plan and/or program that you choose, you may be required to make a minimum deposit in your account (“Advertiser Account”). You understand and agree that when you make a deposit into your Advertiser Account, you are committing to the purchase of Services from The Performance Network equal to, at a minimum, the amount in your Advertiser Account, plus any minimum monthly usage fees that apply to the services or programs that you select. If payment cannot be charged to your credit/charge/debit card, for whatever reason, or if there is a charge-back for any reason, or if your financial institution does not honor your cheque, or if you do not maintain a positive account balance, The Performance Network reserves the right to either suspend or terminate your account with The Performance Network . Suspension or termination includes but is not limited to, removal of your advertisements from The Performance Network.
g. Claims or Disputes . Your sole remedy to claims or disputes is to submit any claims or disputes you may have with respect to any charge to your account in writing to The Performance Network within 60 days of such charge otherwise such claim or dispute will be waived and such charge will be final and not subject to challenge.
h. Failure to Make Payment . In the event of any failure by you to make payment, or if you charge-back, you will be responsible for all reasonable expenses (including legal and collection fees) incurred by The Performance Network in collecting such amounts plus interest at the rate of 10% per annum or the maximum amount permitted by law, whichever is greater.
i. No Refunds . 100% of all paid funds deposited into your Advertiser Account with The Performance Network are NON-REFUNDABLE.
j. Positive Balance . Each advertiser will be responsible for maintaining a positive account balance with The Performance Network at all times.
k. Minimum Usage Fee: If your campaign is converting at an eCPM (effective cost per thousand impressions) of less than NZD$0.20 to The Performance Network and its third party providers (Affiliates, Publishers, Partners), then a minimum CPM of NZD$0.20 will be charged to the campaign.
l. Rates . Pricing for our programs, payment plan terms, set-up fees, minimum costs, and minimum bids are subject to change by us from time-to-time. Support, training, ad loading, testing and consulting not directly related to deploying standard campaigns will be billed at NZD$165 per hour. You will be notified if a request or campaign is likely to attract a charge.
m. Tracking System . You agree, in cases of our tracking system for The Performance Network, that you will not remove or alter the location of the pixel or other tracking method deployed thereby effecting the The Performance Network tracking of leads or sales. If you do remove or move the pixel or tracking method thereby causing the The Performance Network system to not be able to track leads and sales – then you will be obligated to pay The Performance Network and its third party (Affiliates, Publishers, Partners) based on the conversion data provided by TPN CPA/CPL/CPS campaigns, or to The Performance Network $1 per every click-through sent to your landing page or web site or for the time frame that the pixel was removed or moved, whatever the case may be.
n. No Assignment or Resale . Except as otherwise indicated herein, you may not resell, assign, or transfer any of your rights under this Agreement, and if you attempt to resell, assign, or transfer your rights, we may immediately terminate this Agreement and your advertisements with out liability to us.
o. No Guarantees . You understand that The Performance Network DOES NOT GUARANTEE CLICK-THROUGHS, SALES OR SIGN-UPS. You understand that it is up to you, your marketing, your web site, and/or your product or service to entice a potential buyer. You understand that you WILL NOT receive a refund.
p. Fraud . You acknowledge that there is potential for fraud. The Performance Network enforces strict process to combat fraud, however without definitive proof of Fraud as determined by The Performance Network , You agree to pay The Performance Network in full for this Agreement.
6. ACCESS : For purposes of this Agreement, all web pages and applications that The Performance Network owns, operates or hosts are referred to herein as the “The Performance Network Web Site.” You are authorized to access The Performance Network Web Site solely to manage your advertising account(s). You agree that you will not use the site or any content therein for any other purpose and that you will not disseminate or distribute any of this information. Your right to access your account with The Performance Network is personal to you and non-assignable and is subject to any limits established by The Performance Network . You agree that you will not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access your account with The Performance Network or to monitor or copy The Performance Network ’s Web Site or the content contained therein except those automated means expressly made available by The Performance Network , if any, or authorized in advance and in writing by The Performance Network . You agree that you will not use any device, software, reverse engineering, or routine to interfere or attempt to interfere with the proper working of the The Performance Network Web Site, and/or the links or tracking methods deployed by The Performance Network for billing and reporting purposes.
7. Reporting : Counting and tracking of media advertisements shall be based on The Performance Network ’s internal reporting counting and/or tracking procedures only.
8. Limitation of Liability and Disclaimer of Warranties . In the event that we fail to publish any advertisement in accordance with the terms of this Agreement (or in the event of any other failure, technical or otherwise, of such advertisement to appear as provided in this Agreement), OUR SOLE LIABILITY TO YOU SHALL BE LIMITED TO, IN OUR DISCRETION, EITHER (I) A REFUND OF THE ADVERTISING FEE PAID BY YOU FOR THE SPECIFIC ADVERTISEMENT WHICH WAS NOT PUBLISHED ACCORDING TO THIS ADVERTISING AGREEMENT; OR (II) RE-CIRCULATION OF THE ADVERTISEMENT AT A LATER TIME IN A COMPARABLE POSITION. IN NO EVENT SHALL WE BE RESPONSIBLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS (EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).Without limiting the foregoing, we shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, Internet or communications failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown, or any other condition beyond our control affecting production or delivery in any manner. Furthermore, we do not represent or warrant that The Performance Network and any of our programs and/or payment plans will meet your objectives or needs.YOU EXPRESSLY AGREE THAT YOUR USE OF THE NETWORK IS AT YOUR OWN RISK. THE PERFORMANCE NETWORK IS AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY, ORIMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE OR COURSE OF CONDUCT AND WE DISCLAIM ANY WARRANTY REGARDING THE AVAILABILITY, ACCURACY OR CONTENT OF THE PERFORMANCE NETWORK , WEB SITE, AND/ OR INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH THE PERFORMANCE NETWORK , THE NUMBER OF VIEWS OF ANY ADVERTISEMENT OR ANY ECONOMIC BENEFIT YOU MAY GAIN FROM THE DISPLAY OR USE OF THE ADVERTISEMENT.
9. Your Representations; Indemnification. You represent and warrant that you have sufficient authority to enter into this Agreement. Your advertisements are accepted upon the representation and warranty that (i) you have the right to publish the contents of the advertisement, without infringement of any rights of any third party, including but not limited to copyright, patent, trademark, trade secret, confidentiality or other proprietary right; (ii) your advertisement complies with our advertising standards; (iii) the use, reproduction, distribution or transmission of the advertisement, including without limitation any hyperlinks in the advertisement, does not and will not violate any laws or any rights of any third parties, including but not limited to false or deceptive advertising or sales practices, unfair competition, antitrust, defamation, discrimination, pornography, or invasion of privacy; and (iv) your advertisement complies with all applicable laws. IN CONSIDERATION OF OUR PUBLICATION OF YOUR ADVERTISEMENTS, YOU AGREE TO INDEMNIFY AND HOLD US (AND OUR DIRECTORS, OFFICERS,EMPLOYEES AND AGENTS) HARMLESS AGAINST ANY AND ALL EXPENSES AND LOSSES OF ANY KIND (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) INCURRED BY US (AND OUR DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) IN CONNECTION WITH ANY CLAIMS OF ANY KIND ARISING OUT OF PUBLICATION OF THE ADVERTISEMENT, YOUR USE OF THE PERFORMANCE NETWORK AND/OR ANY OF YOUR MATERIAL TO WHICH USERS OF THE PERFORMANCE NETWORK CAN LINK THROUGH YOUR ADVERTISEMENT.
10. Notices. We will provide all notices to you to the contact person and at the address, email address, or fax number identified on your account. You must send all notices to us using the contact form or postal address published on our website.
11. No Agency. The parties to this Agreement are independent contractors and this Agreement does not create and shall not be construed to create an agency, partnership, joint venture or other association relationship between the parties.
12. Use of Advertisements. By submitting advertisements or offers to The Performance Networkyou are irrevocably granting The Performance Network , its licensees, and any entities in The Performance Network, the right to use all parts of the material, without limitation, including modifying it or using it commercially and authorizing others to do so.
13. Termination; Cancellation .
a. Your Right To Terminate . You may terminate this Agreement and your account at anytime without any charge, by providing written notice to us at least 30 days prior to the launch/deactivation date. If the notice is less than 30 days, there will be a cancellation fee: 14 days or more notice, a fee equivalent to 25% of the booking cost will be charged; less than 14 days, 50% of the booking cost will be charged; notice after the campaign’s activation, 100% of the booking cost will be charged.
b. Our Right To Terminate . Notwithstanding anything contained in this Agreement to the contrary, The Performance Network may, in its sole discretion, terminate your account, and discontinue your participation in The Performance Network. Reasons for The Performance Network ’s determination to so terminate or discontinue your account or participation as provided for above include, but are not limited to, failure to make payment in accordance with The Performance Network ’s terms, failure to maintain a positive account balance in your Advertiser Account, If you do not maintain any active advertising campaigns for a period of 12 months, if The Performance Network believes that you violated this Agreement or other policies or guidelines of The Performance Network or of an Affiliate, or if The Performance Network believes your conduct may be harmful to other consumers, advertisers or licensees who participate in The Performance Network. All decisions made by The Performance Network in this matter will be final and neither The Performance Network nor its licensees (or distributors) shall have any liability with respect to such decisions.
c. Effect of Termination . Upon termination, you will no longer be able to access your Advertiser Account, or The Performance Network. Regardless of which party terminates this Agreement, You will be responsible for all charges incurred up to and through the date of termination and you will be subject to a cancellation fee equal to the remaining balance of pre-paid funds in your Advertising Account.
d. Survival . Relevant Sections shall survive any termination of this Agreement.
14. Late Creative Policy: Creatives should be submitted by TPN deadline outlined in the creative specifications. Failure to submit the material before this deadline will change the campaign to no guaranteed if it was booked at guaranteed delivery rates. Refer to TPN Campaign Types & Rates for details.
15. CONFIDENTIALITY: “Confidential Information” means any information disclosed to you by The Performance Network , either directly or indirectly, in writing, orally or by inspection of tangible objects, other than information that you can establish (i) was publicly known and made generally available in the public domain prior to the time of disclosure to you by The Performance Network ; (ii) becomes publicly known and made generally available after disclosure to you by The Performance Network other than through your action or inaction; or (iii) is in your possession, without confidentiality restrictions, at the time of disclosure by The Performance Network as shown by your files and records immediately prior to the time of disclosure. You shall not at any time (a) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information, (b) use any Confidential Information, or© reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to you or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain The Performance Network ’s personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to The Performance Network immediately upon The Performance Network ’s request.
16. Construction. No conditions other than those set forth in this Agreement shall be binding on us unless we expressly agree in writing signed by an authorized representative of The Performance Network . The Performance Network may change this Agreement at any time upon notice published on The Performance Network web site or by e-mail notification to you. Any use of the The Performance Network after such notice shall be deemed to be continued acceptance of this Agreement including its amendments and modifications.The Performance Network reserves the right to discontinue offering The Performance Network at any time.
17. Miscellaneous. This Agreement (i) shall be governed by and construed in accordance with the internal substantive laws of Auckland New Zealand , without giving effect to its principles of conflicts of law; and (ii) constitute the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties concerning the subject matter hereof. You submit to jurisdiction and venue in the Auckland courts located in New Zealand and further agree that any cause of action you may bring arising under this Agreement will be brought by you exclusively in an Melbourne court located in New Zealand. Advertiser agrees to pay all legal expenses of The Performance Network including reasonable legal fees, should Advertiser be found in breach of this Agreement. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
18. Publicity. TPN may disclose your involvement with TPN unless you request for your involvement not to be disclosed publicly in writing.
“TPN” and “The Performance Network” is a trading name of Beyond D (NZ) Ltd