(a) Payment Rate: Webhosting.Shopping Network reserves the right to set campaign rates, which may vary with market conditions. Do not invoice Webhosting.Shopping Network; all Publisher invoices are discarded. Publishers will be paid at the account level. All unpaid earnings will rollover to the next pay period. All payments are based on actuals as defined, accounted and audited by Webhosting.Shopping Network. Webhosting.Shopping Network reserves the absolute right to withhold payment from accounts or Publishers that violate any of the terms and conditions set forth herein. Webhosting.Shopping Network will determine, in its sole discretion, whether acts or omissions are deceptive, fraudulent or violate this Agreement. . Examples of such acts may include, without limitation, clicks without referring URLs, extraordinary high numbers of repeat clicks, and clicks from non-approved root URLs. (b) Breach or Fraud: If any Publisher violates or refuses to fulfill its responsibilities, or commits fraudulent activity, Webhosting.Shopping Network reserves the right to withhold payment and take appropriate legal action. (c) Calculation: Calculation of Publisher earnings, including Impressions and click through numbers, shall be in Webhosting.Shopping Networks sole discretion. In the event Publisher disagrees with any such calculation, Publisher shall immediately send a written request to Webhosting.Shopping Network detailing, with specificity, Publisher’s concerns. Thereafter, Webhosting.Shopping Network will provide Publisher with an explanation or, if such calculations are determined by Webhosting.Shopping Network to be incorrect, an adjustment. Webhosting.Shopping Networks calculations shall be final and binding.
Publisher is solely responsible for any legal liability arising out of or relating to (i) Publisher’s Website(s), (ii) any material to which Users can link through Publisher’s Website(s), and/or (iii) any consumer and/or governmental/regulatory complaint arising out of any campaign conducted by Publisher, including but not limited to any spam or fraud complaint and/or any complaint relating to failure to have proper permission to conduct such campaign to the consumer. Publisher shall indemnify, defend, and hold harmless Webhosting.Shopping Network and its officers, directors, employees, agents, shareholders, partners, affiliates, representatives, agents and Advertisers (collectively Webhosting.Shopping Network Parties) harmless from and against any and all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys fees, costs related to in-house counsel time, court costs and witness fees) (collectively Losses) incurred by, or imposed or asserted against, the Webhosting.Shopping Network Parties which, if true, would constitute or relate to any claims, suits, or proceedings for (a) libel, defamation, violation of rights 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 law, statute, ordinance, rule or regulation throughout the world in connection with Publisher’s Website(s); (b) any breach by Publisher of any duty, representation or warranty under this Agreement; (c) any breach by Webhosting.Shopping Network of any duty, representation, or warranty to provide Ad(s) for placement on Publisher’s Website(s) due to any breach by Publisher of this Agreement; (d) a contaminated file, virus, worm, or Trojan horse originating from the Publisher’s Website(s); or (e) gross negligence or willful misconduct by Publisher.
Limitations of Warranties and Liability
(a) Disclaimer of Warranties: ALL SERVICES PROVIDED BY THE Webhosting.Shopping Network ARE PROVIDED ON AN AS IS AS AVAILABLE BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, Webhosting.Shopping Network MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. Webhosting.Shopping Network IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. (b) Limitation of Liability: UNDER NO CIRCUMSTANCES SHALL Webhosting.Shopping Network BE LIABLE TO PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF Webhosting.Shopping Network HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL Webhosting.Shopping NetworkS TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR ONE THOUSDAND DOLLARS ($1,000.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST Webhosting.Shopping Network MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE. (c) Consideration: PUBLISHER ACKNOWLEDGES THAT Webhosting.Shopping Network HAS AGREED TO PRICING IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. PUBLISHER AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO PUBLISHER.