Terms & Conditions

Terms & Conditions for Advertisers

VIRALGAINS, INC.

TERMS OF USE

Last modified December 14, 2013
THESE TERMS OF USE ARE A LEGAL AGREEMENT (this “Agreement”) BETWEEN YOU AND VIRALGAINS, INC. (“ViralGains”). YOU SHOULD CAREFULLY READ THIS AGREEMENT, AND THEVIRALGAINS PRIVACY POLICY (the “Privacy Policy”), WHICH IS INCORPORATED INTO AND A PART OF THIS AGREEMENT. THIS AGREEMENT GOVERNS YOUR USE OF THE VIRALGAINS SERVICE (as hereinafter defined). BY USING OR ACCESSING THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SERVICE.

1. Services/Contract/Modifications.

1.1 ViralGains provides access through its website at www.viralgains.com (together with any related subdomains and associated and successor websites, the “Website”) to tools and services, including without limitation, ViralGains’ video advertising services (together with the Website, along with associated and successor tools and services, or any part thereof, the “Service”) that allow Advertisers to place marketing videos and other video content (each, a “Video Advertisement”) on third-party Publisher websites and other online channels, including without limitation, Facebook, Twitter, YouTube, and via email, and allow viewers of Video Advertisements (each, a “Viewer”) to view, and sometimes to interact with and share, Video Advertisements . As used herein, an “Advertiser” means an individual or entity that initiates the placement of an Advertisement; a “Publisher” means an individual or entity that publishes or otherwise makes available (including to another who will publish) a Video Advertisement and includes, without limitation, an advertising network. By using the Service, you agree to be bound by this Agreement; if you are using the Service on behalf of an entity, you represent that you have been authorized to accept this Agreement on behalf of such entity (in which event “you” and “your” shall refer to you and such entity). Any ViralGains Payment Addendum, price listing, and/or insertion order you or your entity has executed is incorporated into, a part of, and governed by this Agreement.

1.2 Certain Service features may require you to register separately or agree to additional or special terms of use, rules and fees. You agree to comply with these additional rules and terms of use, which are incorporated herein as to users of those certain features. By using the Service, you also agree to the terms of the ViralGains Privacy Policy, which is incorporated into, a part of, and governed by this Agreement. You can review the ViralGains Privacy Policy at the following link:http://www.viralgains.com/privacy-policy/

1.3 If you accept this Agreement on behalf of an entity for whom you are authorized to act, you may use the Service only on behalf of that entity. IF YOU ARE NOT SO AUTHORIZED OR DON’T AGREE TO THIS AGREEMENT, YOU MAY NOT USE THE SERVICE. By using the Service, you are creating a binding agreement between ViralGains and you, as well as any entity for which you are acting.

1.4 ViralGains reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement (including the Privacy Policy, which is incorporated into and a part of this Agreement) at any time, effective with or without prior notice; provided, however, that material changes (as determined in ViralGains’ sole and absolute discretion) will be disclosed as follows: ViralGains will provide you with notification of any such changes by email, postal mail, website posting, pop-up screen, or in-service notice. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must immediately stop using the Service. YOUR CONTINUED USE OF THE SERVICE FOLLOWING ANY REVISION TO THIS AGREEMENT CONSTITUTES YOUR COMPLETE AND IRREVOCABLE ACCEPTANCE OF ANY AND ALL SUCH CHANGES. IF YOU DO NOT AGREE WITH THE MODIFIED TERMS, YOU ARE NOT PERMITTED TO CONTINUE USING THE SERVICE.

The remainder of this Agreement is divided into three parts. Part I states general terms and applies to all users of the Service (including without limitation, Viewers, Advertisers and Publishers); Part II applies to Advertisers; and Part III applies to Publishers.

I. GENERAL TERMS APPLICABLE TO ALL USERS

1. License and Restrictions

Subject to your acceptance of and compliance with this Agreement, ViralGains grants to you a non-exclusive, non-transferable, and revocable right and license to access and use the Service. You agree that you may not sell, assign, sublicense, redistribute, resell, or otherwise transfer any right in our Service unless the same is expressly permitted or required by law or has been expressly authorized by ViralGains in writing.

2. Code of Conduct

2.1 You will not post or distribute any material, including without limitation any Video Advertisement, that is abusive, libelous, defamatory, vulgar, profane, or obscene; or that is fraudulent or deceptive; or that violates another’s rights (including without limitation copyrights or other intellectual property right); or that violates another’s confidentiality or privacy; or that harasses, threatens, annoys, or is otherwise inappropriate, all as determined by ViralGains in its sole discretion.

2.2 You will not post or transmit any improper advertising, including without limitation any Video Advertisement, such as chain letters and pyramid schemes; post or transmit any file that contains viruses, corrupted files, “Trojan Horses,” or other contaminating or destructive features that may damage someone’s computer; or take any action that imposes an unreasonably or disproportionately large load on our infrastructure or damages or disrupts the functioning of our systems or Service. We reserve the right to impose charges on any user or account holder whose use of our Service we deem to be excessive.

2.3 If you are accessing the Service on behalf of an entity, you will comply with such entity’s online conduct and privacy policies.

2.4 You will use the Service in compliance with all applicable laws, rules, regulations, and industry standards.

2.6 You will comply with the terms of service and policies of any online channel, including any social media outlet that you use in connection with the Service.

2.7 In no event will you upload or use our Service with respect to private or confidential information you are not authorized to use, or which use may violate any laws.

2.8 Unauthorized access to our Service is a breach of this Agreement and may also violate the law. You agree not to access our Service by any means other than through the interfaces we provide.

2.9 You will not falsely identify the source of any communications or materials, including without limitation any Video Advertisement, deliberately mislead anyone as to your identity (including impersonating a representative of ViralGains), use the Service to transmit unsolicited email, disclose material, non-public information about any company, or otherwise act contrary to law.

2.10 You agree that all user feedback, data, comments, suggestions, information, text, data, software, sounds, photographs, audio, audiovisual, video, artwork, graphics, messages and other content of any nature that are created, customized, or transmitted to, via, or in connection with the Service, including without limitation any Video Advertisement (“Content”) are the sole responsibility of the person from which the Content originated. This means that you, and not ViralGains, are entirely responsible for the Content you create, customize, or transmit through or in connection with the Service. You also understand that by using the Service you may be
exposed to Content that is offensive, objectionable or indecent and you agree not to hold us responsible.

3. Right to Terminate

We can terminate your access to the Service, at any time, without prior notice and at our sole discretion, (i) for failure to pay any fees or charges due us in accordance with any agreement you may have with us, including without limitation any price listing and/or insertion order (ii) for any actual, apparent, threatened, or accused misconduct, or (iii) any actual or alleged breach of this Agreement (which includes any price listing and/or insertion order you have with us and the ViralGains Privacy Policy) or any other agreement you may have with us.

4. Uploaded Materials

4.1 You represent that you will have the right to post or upload to our Service any Content that you do post or upload. You will indemnify us and any users who are sued, or who have claims made against them that they reasonably feel compelled to address, because you violate this representation or attempt to revoke this license.

4.2 We review applications or requests to post or upload any Video Advertisement, marketing content, or other uploadable content through the Service, and we reserve the right to turn down any application or request in our sole discretion.

5. Objectionable Content/Copyright Takedown

If you believe your rights have been violated by, or you otherwise object to, any posting, information or other Content on the Service, please contact us promptly so we can evaluate the claim and take appropriate action. If your objection relates to copyright infringement, please observe the following:
Copyright Policy: Without limiting the above, it is ViralGains’ policy to respond promptly to claims of copyright infringement, to remove, or disable access to, infringing material and to terminate use of our Service, or take other appropriate action, against repeat infringers.

Therefore, if you believe that any of the Content or materials appearing on or transmitted through the Service are infringing, please send a notice to us. Your notice should contain the following: a physical or electronic signature of a person (i.e., claimant) authorized to act on behalf of the copyright owner; identification of the copyrighted work claimed to be infringed; identification of the content or material claimed to be infringing; a reference or link to the infringing material or activity, or the subject of the infringing activity, including information to enable us to locate that material or reference; the address, telephone number or email address of the claimant; a statement that the claimant has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and a statement that the information in the notice is accurate and, under penalty of perjury, that the claimant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

ViralGains’ designated agent to receive notification of claimed infringement is Jay Singh, One Marina Park Drive, 14th Floor, Boston, MA 02210, email jsingh@viralgains.com phone: 800-501-2763. Please send a copy of all notices of claimed infringement to Jonathan Calla, Esq., Morse, Barnes Brown & Pendleton, P.C., CityPoint, 230 Third Avenue, 4th Floor, Waltham, MA 02451, emailjcalla@mbbp.com, phone: 781-622-5930. This contact information is only for notices relating to copyright infringement; all
other notices, comments, or other communications should be sent to the contact stated under “Communications” below.

6. Privacy Overview

ViralGains respects the privacy of visitors to, and users of, the Service. Information collected from you is subject to ViralGains’ Privacy Policy. Please see ViralGains’ Privacy Policy athttp://www.viralgains.com/privacy-policy/ for more information on ViralGains’ data collection and use practices. You acknowledge and agree that the ViralGains Privacy Policy, including, but not limited to, the manner in which ViralGains collects, uses and discloses your personally identifiable information and non-personally identifiable information, is incorporated into, a part of, and governed by this Agreement. By accepting this Agreement, you agree to all of the terms of the Privacy Policy. If you do not agree to each and every part of ViralGains’ Privacy Policy, then you should not use the Service.

7. Third Party Services and Products

We may include links to third party services or information about third party products or services, and our Service may contain third party software, components or features. You should check the terms of use and privacy policies of all websites and/or services you link to from our Service. WE DO NOT ENDORSE OR TAKE RESPONSIBILITY FOR THESE THIRD PARTY OFFERINGS; NOR DO WE VET OR TAKE RESPONSIBILITY FOR THE CONTENT OR POSTINGS OF OTHER USERS; NOR DO WE REVIEW OR TAKE RESPONSIBILITY FOR THIRD PARTY POLICIES ON DATA USE, DATA SECURITY, PRIVACY OR OTHER FEATURES OF THIRD PARTY SERVICES, PRODUCTS OR SERVICES.

8. Disclaimer and Limitation of Liability

8.1 EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN AN EXECUTED WRITTEN AGREEMENT YOU HAVE ENTERED INTO WITH VIRALGAINS, OUR SERVICE, AND ALL SOFTWARE, CONTENT, SERVICES, TOOLS, PRODUCTS, AND PROPERTIES ARE PROVIDED AS-IS AND NEITHER WE NOR ANY OF OUR AFFILIATES OR PARTNERS MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY OF THEM. WITHOUT LIMITING THE FOREGOING, NEITHER VIRALGAINS NOR ANY OF ITS AFFILIATES OR PARTNERS MAKE ANY WARRANTY THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, CONTENT OR RESULTS THAT YOU PURCHASE OR OBTAIN FROM THE USE OF OUR SERVICE WILL MEET YOUR EXPECTATIONS OR THAT ANY ERRORS WILL BE CORRECTED. YOU EXPRESSLY AGREE THAT YOU AND NOT VIRALGAINS ACCEPT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF OUR SERVICE AND THE ACCURACY, TIMELINESS OR COMPLETENESS OF OUR CONTENT.

8.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT VIRALGAINS DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, CONTENT, COMPLETENESS, RELIABILITY, OPERABILITY, OR AVAILABILITY OF INFORMATION, CONTENT OR MATERIAL IN OR ASSOCIATED WITH THE SERVICE; OR FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELEVERY OF ANY INFORMATION OR MATERIAL; OR FOR ANY HARM RESULTING, INCLUDING FROM DOWNLOWDING OR ACCESSING ANY INFORMATION, CONTENT OR MATERIAL THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION, FOR HARM CAUSED BY VIRUSES, OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, EXCEPT AS REQUIRED BY APPLICABLE LAW, VIRALGAINS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH THE SERVICE OR YOUR USE OF THEM.

8.3 You agree that ViralGains and its officers and employees will have no liability to you whatsoever, direct or indirect, for any damage, loss or expense you suffer as a result of your visiting our Website, using our Service or any software, viewing another website from ours, obtaining information, products or services from our affiliates and/or as a result of any Video Advertisement, or otherwise arising from your relationship with us, even if we have been advised of the possibility of such damages. This includes, but is in no way limited to, loss or injury caused in whole or in part by our negligence or by anything beyond our control in creating or delivering any of our Content or Service, unless caused by our willful misconduct. Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. In such states, our liability and that of our third party Content providers will be limited to the greatest extent permitted by law.

9. Indemnification

You agree to indemnify and hold harmless ViralGains and its affiliates, licensors or other partners, and our and their officers, directors, shareholders, employees, and agents, from any claim, demand, or investigation, including reasonable attorneys’ fees, made by any third party due to or arising out of your Content, your use of the Service, your conduct, your alleged violation of this Agreement and/or any applicable ViralGains policy, or your alleged violation of any law, rule, regulation, industry standard or right of another in connection with your Content or use of the Service. ViralGains reserves the right, at its own expense, to assume exclusive control of any matter otherwise subject to indemnification by you, but doing so will not excuse your indemnity obligations.

10. Account and Passwords

You are responsible for statements made and actions taken (including without limitation any Video Advertisement placed) on the Service by you and/or under your account and/or through the use of your password. You agree to immediately notify us of any actual or suspected unauthorized use of your user name, password, or account.

11. Data Storage

We will make reasonable attempts to backup data. However, because the success of this process depends on equipment, software and services over which we have limited control, you agree thatViralGains has no responsibility or liability for the deletion or failure to store any data or other Content or communications related to an advertisement or otherwise maintained or transmitted by or in connection with the Service. You acknowledge that ViralGains may have set no fixed upper limit on the number of transmissions you may send or receive through the Service or the amount of storage space used; however, we retain the right, at our sole discretion, to create limits at any time upon thirty (30) days notice.

12. Interruption

ViralGains may, from time to time, need to interrupt the Service for maintenance and other operational reasons, as determined in its sole discretion. You shall not receive any compensation or refund for such interruptions, and you hereby release and agree to defend, indemnify, and hold harmless ViralGains and its affiliates, and their respective officers, directors, employees, consultants, agents, representatives, professional advisors, and contractors, from and against any and all claims, costs (including without
limitation attorneys’ fees), injuries, losses, or damages arising in connection with such interruptions.

13. Termination

Upon written notice to ViralGains, you may discontinue your use of our Service.

14. Modification

We reserve the right at any time and from time to time to temporarily modify or discontinue, our Service (or any part of thereof) with or without notice. You agree that ViralGains shall not be liable to you or to any third party for any such modification, suspension or discontinuance of the Service.

15. Intellectual Property.

The Service is protected by our copyrights, trade secret rights and other intellectual property laws. We own or license all intellectual property associated with the Service, which you agree not to use without our consent, except solely in conjunction with your authorized use of the Service as permitted by this Agreement. If you create derivative works of our Service without our consent, you agree that we will own the intellectual property rights in those works and you hereby assign all such intellectual property rights to us.

16. Child Online Protection Act Notification. Pursuant to 47 U.S.C. § 230(d) as amended, ViralGains hereby notifies you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying providers of such protection is available on the websites StaySafeOnline (http://staysafeonline.org/stay-safe-online/), Who Is Hosting This (http://wiht.link/esafety_guide), and OnGaurdOnline (http://www.onguardonline.com/). Please note that ViralGains is not affiliated with the above listed websites, nor is the above intended as an endorsement of any of the products or services listed on such websites.

17. Feedback, Aggregate Data, and Use of Name and Marks: You acknowledge that any ideas, suggestions, concepts, processes or techniques which you provide to ViralGains related to the Service, or ViralGains or its business (“Feedback”) shall become the property of ViralGains without any compensation or other consideration payable to you by ViralGains, and you do so of your own free will and volition. ViralGains may, in its sole discretion, use or incorporate the Feedback in whatever form or derivative into the Site, Service, its business or other products. You hereby assign all rights in any Feedback to ViralGains and, as applicable, waive any moral rights. You further hereby grant ViralGains a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, fully paid up, sublicensable right and license to collect, retain, use, copy, modify, publicly perform, publicly display and create derivative works of all aggregate data concerning your activity (and that of your consumers and/or Viewers of your Video Advertisements) on or in connection with the Service (without reference to your name or the entity on whose behalf you are acting) for any lawful purposes, including without limitation, benchmarking, development of best practices, product and services development, and research and statistical purposes without reimbursement or notification to, or consent or authorization from you. You also hereby grant to ViralGains worldwide, perpetual, non-exclusive, royalty-free, fully paid up, sublicensable right and license to use, copy, publicly perform, and publicly display your trade name, trademark, and/or service mark in order to identify you on our website and in collateral marketing materials as a representative user of our Service.

18. Governing Law/Waiver of Injunctive Relief.

18.1 This Agreement and all aspects of the Service will be governed by and construed in accordance with the internal laws of the United States and the Commonwealth of Massachusetts governing contracts entered into and to be fully performed in Massachusetts (i.e., without regard to conflict of laws provisions) regardless of your location. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state or federal courts located in Boston, Massachusetts, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in Boston, Massachusetts.

18.2 You acknowledge that the rights granted and obligations made hereunder to ViralGains are of a unique and irreplaceable nature, the loss of which will irreparably harm ViralGains and which cannot be replaced by monetary damages alone so that ViralGains will be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for monetary damages (if any).

18.3 To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and ViralGains agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. You will send your notice to ViralGains, Inc., One Marina Park Drive, 14th Floor, Boston, MA 02210, ATTENTION: LEGAL DEPARTMENT, with a copy to Jonathan Calla, Esq., Morse, Barnes Brown & Pendleton, P.C., CityPoint, 230 Third Avenue, 4th Floor, Waltham, MA 02451.

18.4 If you and ViralGains are unable to resolve a Dispute through informal negotiations within 30 days, either you or ViralGains may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS, which is available at the JAMS website www.jamsadr.com. The determination of whether a Dispute is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation will be governed by the Rules. If such costs are determined by the arbitrator to be excessive, ViralGains will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and ViralGains may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

18.5 You and ViralGains agree that any arbitration will be limited to the Dispute between ViralGains and you individually. To the full extent permitted by law, (a) no arbitration will be joined with any other; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

18.6 You and ViralGains agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or ViralGains’ intellectual property rights; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for injunctive relief.

19. Waiver/Severability.

19.1 The failure of ViralGains to require or enforce strict performance by you of any provision of this Agreement or to exercise any right under them will not be construed as a waiver or relinquishment of ViralGains’ right to assert or rely upon any such provision or right in that or any other instance.

19.2 You and ViralGains agree that if any portion of this Agreement, except any portion of Section 18.6, is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision will, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of this Agreement, which will continue to be in full force and effect. If Section 18.6 is found to be illegal or unenforceable then neither you nor ViralGains will elect to arbitrate any Dispute falling within that portion of Section 18.6 found to be illegal or unenforceable and such Dispute will be decided by a court of competent jurisdiction within Boston, Massachusetts, and you and ViralGains agree to submit to the personal jurisdiction of that court.

20. Miscellaneous

ViralGains operates and controls the Service from its offices in the United States. ViralGains makes no representation that the Service is appropriate or available in other locations. The information provided on the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject ViralGains to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Service from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable. Neither the course of conduct between the parties nor trade practice will act to modify this Agreement. You may not assign this Agreement without ViralGains’ prior written consent. This Agreement (which includes any price listing and/or insertion order you have with us and the ViralGains Privacy Policy) contains the entire understanding of you and ViralGains, and supersedes all prior understandings between the parties concerning its subject matter, and cannot be changed or modified by you. The section headings used in this Agreement are for convenience only and will not be given any legal import. Upon ViralGains’ request, you will furnish ViralGains any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You agree that this Agreement will not be construed against ViralGains by virtue of having drafted it. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.

21. Statute of Limitations

You and ViralGains both agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement (including the Privacy Policy) must be filed within ONE (1) YEAR after such claim or cause of action arose or will be forever barred.

II. ADDITIONAL TERMS FOR ADVERTISERS

1. Compliance with Laws

1.1 You acknowledge and agree that the ViralGains Service merely helps you place your Video Advertisements on Publisher websites and other online channels, including Facebook, Twitter, YouTube, and via email and that, although our arrangements with Publishers may include requests concerning the placement location of your Video Advertisement, the Service does not guarantee that you operate (or that Publishers publish) your Video Advertisement properly or legally. You specifically acknowledge and agree that ALL TOOLS AND RESOURCES ARE MADE AVAILABLE THROUGH THE SERVICE FOR YOUR CONVENIENCE AND REFERENCE, BUT WITHOUT ANY WARRANTY THAT USING THEM WILL COMPLY WITH THE LAW. TO THE CONTRARY, THE LAWS REGARDING MARKETING AND ADVERTISING VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY; IT IS YOUR RESPONSIBILITY TO CONSIDER THE LAWS IN THOSE JURISDICTIONS IN WHICH YOU WILL PLACE YOUR VIDEO ADVERTISEMENT TO ENSURE THAT IT MEETS APPLICABLE LEGAL REQUIREMENTS.

1.2 You represent, warrant, and covenant that in using the Service and in creating and placing your Video Advertisement, you will comply with all applicable laws, rules, regulations, and industry standards, including without limitation the CAN-SPAM Act and the standards of the Mobile Marketing Association and the Interactive Advertising Bureau. You further acknowledge and agree that VIRALGAINS HAS NO RESPONSIBILITY WHATSOEVER REGARDING A VIDEO ADVERTISEMENT’S COMPLIANCE WITH THE LAW.

2. Additional Indemnity

You agree to indemnify, defend and hold harmless ViralGains and its affiliates, and their respective officers, directors, employees, consultants, agents, representatives, professional advisors, and contractors, from any and all third-party claims, losses, liability, damages and/or costs (including attorneys’ fees and costs) arising from your use of the Service, your violation of this Agreement or any other agreement between you and ViralGains, your actual or alleged violation of any law, rule, regulation, or industry standard associated with any Video Advertisement and/or infringement by you of any intellectual property or other rights of any person or entity. ViralGains will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable cooperation, at your expense, in defending any such claim, loss, liability, damage or cost.

3. Access to Information and Data:
By using the Service, you agree that ViralGains may share with the respective Publisher(s) associated with your account, your Video Advertisements and analytics and other information related to you and your Video Advertisements, including without limitation, target audience information and aggregate performance and Service-related information benchmarking vis-à-vis other Advertisers using the Service. To the extent that, in connection with the Service, you receive information and/or data from or concerning the activity of a Publisher (collectively, “Publisher Data”), you agree that you shall hold such Publisher Data in confidence and that you shall not disclose or use on another’s behalf such Publisher Data unless expressly permitted in writing by the Publisher as to which such Publisher Data relates. For the avoidance of doubt, any data or information provided, sourced, input, and/or created by ViralGains with respect to any Advertiser or Publisher may be freely shared and/or used by ViralGains.

III. ADDITIONAL TERMS FOR PUBLISHERS

1. Compliance with Laws and Advertiser Agreement(s)

1.1 You acknowledge and agree that the ViralGains Service merely helps you publish online the Video Advertisements of Advertisers and that the Service does not guarantee that Advertisers operate (or that you publish) a Video Advertisement properly or legally. You specifically acknowledge and agree that ALL TOOLS AND RESOURCES ARE MADE AVAILABLE THROUGH THE SERVICE FOR YOUR CONVENIENCE AND REFERENCE, BUT WITHOUT ANY WARRANTY THAT USING THEM WILL COMPLY WITH THE LAW. TO THE CONTRARY, THE LAWS REGARDING MARKETING AND ADVERTISING VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY; IT IS YOUR RESPONSIBILITY TO CONSIDER THE LAWS IN THOSE JURISDICTIONS IN WHICH YOU WILL PUBLISH A VIDEO ADVERTISEMENT TO ENSURE THAT IT MEETS APPLICABLE LEGAL REQUIREMENTS.

1.2 You represent, warrant, and covenant that in using the Service and in publishing any Video Advertisement, you will comply with all applicable laws, rules, regulations, and industry standards, including without limitation the CAN-SPAM Act and the standards of the Mobile Marketing Association and the Interactive Advertising Bureau. You further acknowledge and agree that VIRALGAINS HAS NO RESPONSIBILITY WHATSOEVER REGARDING A VIDEO ADVERTISEMENT’S COMPLIANCE WITH THE LAW.

2. Additional Indemnity

You agree to indemnify, defend and hold harmless ViralGains and its affiliates, and their respective officers, directors, employees, consultants, agents, representatives, professional advisors, and contractors, from any and all third-party claims, losses, liability, damages and/or costs (including attorneys’ fees and costs) arising from your use of the Service, your violation of this Agreement or any other agreement between you and ViralGains, your actual or alleged violation of any law, rule, regulation, or industry standard associated with a Video Advertisement which you are publishing and/or infringement by you of any intellectual property or other rights of any person or entity. ViralGains will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable cooperation, at your expense, in defending any such claim, loss, liability, damage or cost.

3. Access to Information and Data

By using the Service, you agree that ViralGains may share with the respective Advertiser(s) associated with your account, information concerning your websites and other online channels and aggregate performance and Service-related information benchmarking vis-à-vis other Publishers using the Service. To the extent that, in connection with the Service, you receive information and/or data from or concerning the activity of an Advertiser (collectively, “Advertiser Data”), you agree that you shall hold such Advertiser Data in confidence and that you shall not disclose or use on another’s behalf such Advertiser Data unless expressly permitted in writing by the Advertiser as to which such Advertiser Data relates. For the avoidance of doubt, any data or information provided, sourced, input, and/or created by ViralGains with respect to any Advertiser or Publisher may be freely shared and/or used by ViralGains.

Terms & Conditions for Publishers

VIRALGAINS, INC.

TERMS OF USE

Last modified December 14, 2013

THESE TERMS OF USE ARE A LEGAL AGREEMENT (this “Agreement”) BETWEEN YOU AND VIRALGAINS, INC. (“ViralGains”). YOU SHOULD CAREFULLY READ THIS AGREEMENT, AND THE VIRALGAINS PRIVACY POLICY (the “Privacy Policy”), WHICH IS INCORPORATED INTO AND A PART OF THIS AGREEMENT. THIS AGREEMENT GOVERNS YOUR USE OF THE VIRALGAINS SERVICE (as hereinafter defined). BY USING OR ACCESSING THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SERVICE.

1. Services/Contract/Modifications.

1.1 ViralGains provides access through its website at www.viralgains.com (together with any related subdomains and associated and successor websites, the “Website”) to tools and services, including without limitation, ViralGains’ video advertising services (together with the Website, along with associated and successor tools and services, or any part thereof, the “Service”) that allow Advertisers to place marketing videos and other video content (each, a “Video Advertisement”) on third-party Publisher websites and other online channels, including without limitation, Facebook, Twitter, YouTube, and via email, and allow viewers of Video Advertisements (each, a “Viewer”) to view, and sometimes to interact with and share, Video Advertisements. As used herein, an “Advertiser” means an individual or entity that initiates the placement of a Video Advertisement; a “Publisher” means an individual or entity that publishes or otherwise makes available (including to another who will publish) a Video Advertisement. By using the Service, you agree to be bound by this Agreement; if you are using the Service on behalf of an entity, you represent that you have been authorized to accept this Agreement on behalf of such entity (in which event “you” and “your” shall refer to you and such entity). Any ViralGains Payment Addendum, price listing, and/or insertion order you or your entity has executed is incorporated into, a part of, and governed by this Agreement.

1.2 Certain Service features may require you to register separately or agree to additional or special terms of use, rules and fees. You agree to comply with these additional rules and terms of use, which are incorporated herein as to users of those certain features. By using the Service, you also agree to the terms of the ViralGains Privacy Policy, which is incorporated into, a part of, and governed by this Agreement. You can review the ViralGains Privacy Policy at the following link:http://www.viralgains.com/privacy-policy/

1.3 If you accept this Agreement on behalf of an entity for whom you are authorized to act, you may use the Service only on behalf of that entity. IF YOU ARE NOT SO AUTHORIZED OR DON’T AGREE TO THIS AGREEMENT, YOU MAY NOT USE THE SERVICE. By using the Service, you are creating a binding agreement between ViralGains and you, as well as any entity for which you areacting.

1.4 ViralGains reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement (including the Privacy Policy, which is incorporated into and a part of this Agreement) at any time, effective with or without prior notice; provided, however, that material changes (as determined in ViralGains’ sole and absolute discretion) will be disclosed as follows: ViralGains will provide you with notification of any such changes by email, postal mail, website posting, pop-up screen, or in-service notice. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must immediately stop using the Service. YOUR CONTINUED USE OF THE SERVICE FOLLOWING ANY REVISION TO THIS AGREEMENT CONSTITUTES YOUR COMPLETE AND IRREVOCABLE ACCEPTANCE OF ANY AND ALL SUCH CHANGES. IF YOU DO NOT AGREE WITH THE MODIFIED TERMS, YOU ARE NOT PERMITTED TO CONTINUE USING THE SERVICE.

I. GENERAL TERMS

1. License and Restrictions

Subject to your acceptance of and compliance with this Agreement, ViralGains grants to you a non-exclusive, non-transferable, and revocable right and license to access and use the Service. You agree that you may not sell, assign, sublicense, redistribute, resell, or otherwise transfer any right in our Service unless the same is expressly permitted or required by law or has been expressly authorized by ViralGains in writing.

2. Code of Conduct

2.1 You will not post or distribute any material, including without limitation any Video Advertisement, that is abusive, libelous, defamatory, vulgar, profane, or obscene; or that is fraudulent or deceptive; or that violates another’s rights (including without limitation copyrights or other intellectual property right); or that violates another’s confidentiality or privacy; or that harasses, threatens, annoys, or is otherwise inappropriate, all as determined by ViralGains in its sole discretion.

2.2 You will not post or transmit any improper advertising, including without limitation any Video Advertisement, such as chain letters and pyramid schemes; post or transmit any file that contains viruses, corrupted files, “Trojan Horses,” or other contaminating or destructive features that may damage someone’s computer; or take any action that imposes an unreasonably or disproportionately large load on our infrastructure or damages or disrupts the functioning of our systems or Service. We reserve the right to impose charges on any user or account holder whose use of our Service we deem to be excessive.

2.3 If you are accessing the Service on behalf of an entity, you will comply with such entity’s online conduct and privacy policies.

2.4 You will use the Service in compliance with all applicable laws, rules, regulations, and industry standards.

2.6 You will comply with the terms of service and policies of any online channel, including any social media outlet that you use in connection with the Service.

2.7 In no event will you upload or use our Service with respect to private or confidential information you are not authorized to use, or which use may violate any laws.

2.8 Unauthorized access to our Service is a breach of this Agreement and may also violate the law. You agree not to access our Service by any means other than through the interfaces we provide.

2.9 You will not falsely identify the source of any communications or materials, including without limitation any Video Advertisement, deliberately mislead anyone as to your identity (including impersonating a representative of ViralGains), use the Service to transmit unsolicited email, disclose material, non-public information about any company, or otherwise act contrary to law.

2.10 You agree that all user feedback, data, comments, suggestions, information, text, data, software, sounds, photographs, audio, audiovisual, video, artwork, graphics, messages and other content of any nature that are created, customized, or transmitted to, via, or in connection with the Service, including without limitation any Video Advertisement (“Content”) are the sole responsibility of the person from which the Content originated. This means that you, and not ViralGains, are entirely responsible for the Content you create, customize, or transmit through or in connection with the Service. You also understand that by using the Service you may be exposed to Content that is offensive, objectionable or indecent and you agree not to hold us responsible.

3. Right to Terminate

We can terminate your access to the Service, at any time, without prior notice and at our sole discretion, (i) for failure to pay any fees or charges due us in accordance with any agreement you may have with us, including without limitation any price listing and/or insertion order (ii) for any actual, apparent, threatened, or accused misconduct, or (iii) any actual or alleged breach of this Agreement (which includes any price listing and/or insertion order you have with us and the ViralGains Privacy Policy) or any other agreement you may have with us.

4. Uploaded Materials

4.1 You represent that you will have the right to post or upload to our Service any Content that you do post or upload. You will indemnify us and any users who are sued, or who have claims made against them that they reasonably feel compelled to address, because you violate this representation or attempt to revoke this license.

4.2 We review applications or requests to post or upload any Video Advertisement, marketing content, or other uploadable content through the Service, and we reserve the right to turn down any application or request in our sole discretion.

5. Objectionable Content/Copyright Takedown

If you believe your rights have been violated by, or you otherwise object to, any posting, information or other Content on the Service, please contact us promptly so we can evaluate the claim and take appropriate action. If your objection relates to copyright infringement, please observe the following:
Copyright Policy: Without limiting the above, it is ViralGains’ policy to respond promptly to claims of copyright infringement, to remove, or disable access to, infringing material and to terminate use of our Service, or take other appropriate action, against repeat infringers.

Therefore, if you believe that any of the Content or materials appearing on or transmitted through the Service are infringing, please send a notice to us. Your notice should contain the following: a physical or electronic signature of a person (i.e., claimant) authorized to act on behalf of the copyright owner; identification of the copyrighted work claimed to be infringed; identification of the content or material claimed to be infringing; a reference or link to the infringing material or activity, or the subject of the infringing activity, including information to enable us to locate that material or reference; the address, telephone number or email address of the claimant; a statement that the claimant has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and a statement that the information in the notice is accurate and, under penalty of perjury, that the claimant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
ViralGains’ designated agent to receive notification of claimed infringement is Shawn Chase, 290 Congress St., Boston, MA 02210, email schase@viralgains.com phone: 800-501-2763. Please send a copy of all notices of claimed infringement to Jonathan Calla, Esq., Morse, Barnes Brown & Pendleton, P.C., CityPoint, 230 Third Avenue, 4th Floor, Waltham, MA 02451, email jcalla@mbbp.com, phone: 781-622-5930. This contact information is only for notices relating to copyright infringement; all other notices, comments, or
other communications should be sent to the contact stated under “Communications” below.

6. Privacy Overview

ViralGains respects the privacy of visitors to, and users of, the Service. Information collected from you is subject to ViralGains’ Privacy Policy. Please see ViralGains’ Privacy Policy athttp://www.viralgains.com/privacy-policy/ for more information on ViralGains’ data collection and use practices. You acknowledge and agree that the ViralGains Privacy Policy, including, but not limited to, the manner in which ViralGains collects, uses and discloses your personally identifiable information and non-personally identifiable information, is incorporated into, a part of, and governed by this Agreement. By accepting this Agreement, you agree to all of the terms of the Privacy Policy. If you do not agree to each and every part of ViralGains’ Privacy Policy, then you should not use the Service.

7. Third Party Services and Products

We may include links to third party services or information about third party products or services, and our Service may contain third party software, components or features. You should check the terms of use and privacy policies of all websites and/or services you link to from our Service. WE DO NOT ENDORSE OR TAKE RESPONSIBILITY FOR THESE THIRD PARTY OFFERINGS; NOR DO WE VET OR TAKE RESPONSIBILITY FOR THE CONTENT OR POSTINGS OF OTHER USERS; NOR DO WE REVIEW OR TAKE RESPONSIBILITY FOR THIRD PARTY POLICIES ON DATA USE, DATA SECURITY, PRIVACY OR OTHER FEATURES OF THIRD PARTY
SERVICES, PRODUCTS OR SERVICES.

8. Disclaimer and Limitation of Liability

8.1 EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN AN EXECUTED WRITTEN AGREEMENT YOU HAVE ENTERED INTO WITH VIRALGAINS, OUR SERVICE, AND ALL SOFTWARE, CONTENT, SERVICES, TOOLS, PRODUCTS, AND PROPERTIES ARE PROVIDED AS-IS AND NEITHER WE NOR ANY OF OUR AFFILIATES OR PARTNERS MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY OF THEM. WITHOUT LIMITING THE FOREGOING, NEITHER VIRALGAINS NOR ANY OF ITS AFFILIATES OR PARTNERS MAKE ANY WARRANTY THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, CONTENT OR RESULTS THAT YOU PURCHASE OR OBTAIN FROM THE USE OF OUR SERVICE WILL MEET YOUR EXPECTATIONS OR THAT ANY ERRORS WILL BE CORRECTED. YOU EXPRESSLY AGREE THAT YOU AND NOT VIRALGAINS ACCEPT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF OUR SERVICE AND THE ACCURACY, TIMELINESS OR COMPLETENESS OF OUR CONTENT.

8.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT VIRALGAINS DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, CONTENT, COMPLETENESS, RELIABILITY, OPERABILITY, OR AVAILABILITY OF INFORMATION, CONTENT OR MATERIAL IN OR ASSOCIATED WITH THE SERVICE; OR FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELEVERY OF ANY INFORMATION OR MATERIAL; OR FOR ANY HARM RESULTING, INCLUDING FROM DOWNLOWDING OR ACCESSING ANY INFORMATION, CONTENT OR MATERIAL THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION, FOR HARM CAUSED BY VIRUSES, OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, EXCEPT AS REQUIRED BY APPLICABLE LAW, VIRALGAINS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH THE SERVICE OR YOUR
USE OF THEM.

8.3 You agree that ViralGains and its officers and employees will have no liability to you whatsoever, direct or indirect, for any damage, loss or expense you suffer as a result of your visiting our Website, using our Service or any software, viewing another website from ours, obtaining information, products or services from our affiliates and/or as a result of any Video Advertisement, or otherwise arising from your relationship with us, even if we have been advised of the possibility of such damages. This includes, but is in no way limited to, loss or injury caused in whole or in part by our negligence

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