Trellian Direct Search Network Direct Navigation Redirect Agreement
This Trellian Direct Search Network Direct Navigation Redirect Agreement (the "Agreement") is between you the Advertiser (Advertiser) and Trellian Pty Ltd, an Australian company (Trellian).
WHEREAS, Trellian offers an Trellian Direct Search Network (defined below), which allows Domain Owners to monetize their traffic domain names; and
WHEREAS, Advertiser is interested in buying such domain traffic, subject to the terms and conditions set forth below;
NOW THEREFORE, in consideration of the mutual covenants contained herein, Advertiser and Trellian (collectively the "Parties") hereby agree as follows:
- 1.1. "Advertiser" means an advertiser, agency, or an ad network that has contracted with Trellian to receive Direct Navigation Traffic from Domains participating in the Trellian Direct Search Network.
- 1.2. "Agreement" means the Trellian Direct Search Network Direct Navigation Redirect Agreement.
- 1.3. "Audit" is defined as the act of conducting a review, examination and reconciliation of reportable data in order to ensure the accuracy.
- 1.4. "Confidential Information" shall mean any reportable data displayed in the Trellian Direct Search Network interface.
- 1.5. "Direct Navigation Redirect" means the act of redirecting website traffic from a Domain to the Advertiser.
- 1.6. "Domain" means a domain name that a Domain Owner has added to the Trellian Direct Search Network.
- 1.7. "Domain Owner" is the registrant or owner of a Domain name.
- 1.8. "End User Bid System" means the process of Advertisers competing for the Direct Navigation Redirect traffic from Domains. Advertisers have the ability to specify the amount that they are prepared to pay for the Domain traffic, where the highest bidder with a funded account at the time, receives the domain traffic.
- 1.9. "Trellian Direct Search Network" means Trellian's Direct Navigation Redirect service, whereby website traffic going to specific domains are redirected to Advertisers specified locations for a Unique Visitor Fee.
- 2.0. "Unique Visitor Fee" means the amount charged by Trellian for the each unique visitor redirected to the Advertisers specified website.
2. Term and Termination.
- 2.1. Term. This Agreement will continue in effect for one (1) year from the date hereof ("Initial Term") and shall renew for successive one (1) year terms (each, a "Renewal Term") unless terminated earlier in accordance with this Section. The Initial Term and each and every Renewal Term shall be referred to collectively as the "Term."
- 2.2. Termination. Advertiser may cancel advertising directly via the users account or if such online cancellation functionality is not available, with prior written notice to Trellian, including electronic mail. Trellian Direct Search Network will cease delivery of domain traffic shortly after cancellation. All other advertising may be subject to Trellian's ability to stop or change DNS and Redirects or cancel advertisements already in production. Trellian may cancel immediately any of its advertising Programs, or these Terms at any time with notice, in which case Customer will be responsible for any traffic already delivered.
3. Scope of Service, Fees, Payment Terms and Reporting.
- 3.1. This Agreement is concluded in order for Advertiser to purchase, for mutually agreed Unique Visitor Fees, Domain Navigation Redirect traffic via the Trellian Direct Search Network.
- 3.2. The Advertiser declares and guarantees to the Domain Owner that any domain participating in the Trellian Direct Search Network is held in good faith and does not involve any potential claim(s) resulting from unfair competition, intellectual property rights, cyber squatting laws or any other rights of any third party.
- 3.3. Direct Navigation Redirect Fees. Trellian shall charge Advertiser Unique Visitor Fees (defined as Unique Visitor Fees less any adjustments as applicable). Unique Visitor Fee are based on an End User Bid System where each Direct Navigation Redirect, the cost of such is deducted from the Advertisers account balance. Advertiser shall be responsible for all charges as set in an online account, and shall pay all charges in US Dollars or in such other currency as agreed to in writing by the parties. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes.
- 3.4. Reporting. Trellian will provide reporting of current Unique Visitor Fees and other reportable data in real time as available via the Trellian Direct Search Network online interface. The data available via in the online interface shall be deemed both Trellian's and Advertiser's Confidential Information.
- 3.5. Audits. Trellian reserves the right to perform Audits on all reportable data at and as when deemed required.
- 3.6. Refunds. Any cash advances, retainers or prepayments not used or allocated are fully refundable. Note that a 5 working day cooling off period applies before final refund amount is established. Refunds are made within 30 days, and where applicable via the same method as the original payment was received.
- 3.7. Trellian Direct Search Network policy forbids targeted URLs and advertising that perform forced downloads, phishing, malware, illegal content and the use of scare tactic. Any breach of this policy will result in an indefinite suspension.
4. General Provisions
- 4.1. Assignment. This Agreement may not be assigned by either party or by operation of law to any other person, persons, firms, or corporations without the express written approval of Trellian.
- 4.2. Notices. All notices and demands hereunder shall be in writing and shall be served by personal service or by mail at the address of the receiving party set forth in this Agreement (or at such different address as may be designated by such party by written notice to the other party). All notices and demands by mail shall be certified or registered mail, return receipt requested, or by nationally-recognized private express courier, and shall be deemed complete upon receipt.
- 4.3. Confidentiality. Each party will treat all information received or gained from the other party in confidence. Only by way of mutual agreement between the parties can information about any aspect of the agreements, pricing, relationships, products, services, plans or details of the other party's business be divulged to a third party. Information shall not be deemed confidential for the purposes of this Agreement that
- (i) is already known to the non-disclosing party at the time of disclosure;
- (ii) is or becomes publicly known through no wrongful act of the non-disclosing party, including by public announcement by the disclosing party;
- (iii) is received from a third party without similar restrictions and without breach of this Agreement; or
- (iv) is independently developed by the non-disclosing party;
- (v) is lawfully required to be disclosed by any governmental agency or otherwise required to be disclosed by law.
- 4.4. Ownership of Products. TRELLIAN warrants and represents that it owns, or has valid and current distribution licenses, to the Services and all sub-components thereof, and that no provision of this Agreement violates any prior agreements between TRELLIAN and any third parties.
- 4.5. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Victoria Australia.
- 4.6. Attorneys Fees. In any legal action between the parties hereto concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorneys fees and costs.
- 4.7. Relationship of the Parties. Except as provided in this Agreement, neither party shall have the right, power, or authority to act or to create any obligation, express or implied, on behalf of the other.
- 4.8. Survival of Certain Provisions. The following sections: 2 and 3 set forth in the Agreement shall survive the termination of the Agreement by either party for any reason.
- 4.9. Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of the provisions of this Agreement.
- 4.10. All Amendments in Writing. No provisions in either party's purchase orders, or in any other business forms employed by either party will supersede the terms and conditions of this Agreement, and no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.
- 4.11. Entire Agreement. The parties have read this Agreement and agree to be bound by its terms, and further agree that it constitutes the complete and entire agreement of the parties and supersedes all previous communications, oral or written, and all other communications between them relating to the license and to the subject hereof. No representations or statements of any kind made by either party, which are not expressly stated herein, shall be binding on such party.
- 4.12. Severability. If a court of law or other tribunal of competent jurisdiction finds any provision of this Agreement invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement as expressed herein.
- 4.13. Inconsistent terms. The parties agree that the terms and conditions of this Agreement shall prevail over any contrary or additional terms in any purchase order (unless agreed to in writing by both parties), sales acknowledgment, confirmation or any other document issued by either party.
- 4.14. Force Majeure. Neither party shall be liable for the failure to perform any of its obligations under this Agreement, except for payment obligations, if such failure is caused by the occurrence of any event beyond the reasonable control of such party, including without limitation, fire, flood, strikes and other industrial disturbances, failure of raw materials suppliers, failure of transport, accidents, riots, insurrections, acts of God or orders of governmental agencies.
- 4.15. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES AND PRODUCTS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
- 4.16. LIMITATION OF LIABILITY. EXCEPT FOR TRELLIAN'S OBLIGATIONS UNDER THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFIT OR LOST BUSINESS, COSTS OF DELAY OR FAILURE OF DELIVERY.
- 4.17. Representations and Warranties. Trellian represents and warrants that Trellian is not aware of any third party claims against the domain name; and (b) Trellian is not aware, prior to the effective date of the Agreement, the domain names were not registered or used in a manner which violated or infringed the intellectual property rights of any third party. Trellian shall indemnify, defend and hold harmless Advertiser and its officers, directors, employees, agents, successors and permitted assigns from and against any and all claims made or threatened by any third party and all related losses, expenses, damages, costs and liabilities, including reasonable attorneys' fees and expenses incurred in investigation or defense to the extent arising out of or related to Trellian's breach of representation or warranty contained in this agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of today's date.