Publisher Terms of Use | Pluck On Demand

Effective Date: November 5, 2008

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE REGISTERING AS A PUBLISHER FOR THE PLUCK ON DEMAND SERVICE. THIS PLUCK ON DEMAND TERMS OF USE AND LICENSE AGREEMENT (THIS "AGREEMENT") IS A LEGAL AGREEMENT BETWEEN PLUCK CORPORATION ("PLUCK") AND YOU, WHETHER PERSONALLY OR ON BEHALF OF A CORPORATION OR OTHER ENTITY..

THE SERVICE
1. Description of Service. The Pluck on Demand service (the "Service") is a hosted solution, and includes delivery of the following assets to Internet publishers: (i) textual, audiovisual, and other content; (ii) social media applications enabling the creation of end user generated personas, comments, and reviews; and (iii) textual, graphical, rich media, video and other monetization and advertising elements. As a licensee of the Service (a “Publisher”), you may implement the Service through the use of Pluck's application programming interfaces ("APIs”), widgets, and other technologies (collectively, the "Technologies") to enhance your own Authorized Sites (as defined below). You may use the Service only on those web sites that have been expressly authorized for use of the Service by Pluck (your "Authorized Sites"). The Service is accompanied by Pluck's trademarks, logos, and other distinctive features (collectively, the "Pluck Brand Features"). This Agreement governs your use of the Service.
2. Eligibility. To participate in the Service, you must be a legal resident of the United States or a business entity organized and validly existing under the laws of the United States. In addition, if you are a natural person you must be at least 18 years old with a valid social security number. Pluck reserves the right to deny your access to or participation in the Service at any time in its sole discretion. Your participation in the Service is, at all times, subject to your full compliance with this Agreement and any guidelines or policies governing the use of the Services that Pluck may post to this website, http://ondemand.pluck.com, or provide to you from time to time (the "Service Policies").
3. Enrollment. To enroll in the Service, you must complete the Service enrollment process. You must provide accurate and complete information during the Service enrollment process including documents and information required for tax reporting and a valid PayPal account. You must update this information to ensure its accuracy and completeness at all times and so that we may contact you. Pluck has no liability for any failure to make payments because of inaccurate or incomplete information in your Service user account for your Authorized Sites (your "Account"). You may not share your Account password with anyone. Any use of the Service through your Account will be deemed as being used by you.
OPERATION OF SERVICE
1. Widgets. The Service may be implemented through the use of widgets, which are bits of software code that can be installed and executed within an HTML-based web page. The Service's widgets may include full web page widgets--such as the Article Page Widget and the Topic Page Widget--and partial web page widgets--such as the Tags Widget, the Related Content Widget, and the Article Widget. You can read a description of the widgets currently offered through the Service by going to the Service Starter Kit page.
2. Implementation. You must comply with the specifications provided by Pluck from time to time to enable proper delivery, display, tracking, and reporting of the Service in connection with your Authorized Sites, including by not modifying the Technologies other than as expressly authorized in the Services Policies. You can learn how to implement and customize the Service for your Authorized Sites by going to the Service Starter Kit page and the Reference page.
3. Grant of Limited License. Pluck hosts the Service and provides you with the ability to access and display the Service via the Technologies. Subject to this Agreement, Pluck hereby grants to you during the Term a non-exclusive, non-transferable, non-sublicensable worldwide right to use the Service to (i) use, reproduce, publicly display, distribute, perform, transmit, market, and promote the Service, in whole or in part, solely in electronic format on the Authorized Sites; (ii) to authorize end users of the Authorized Sites to access, view, reproduce or print for the end users' personal use only the Service, in whole or in part, from the Authorized Sites; (iii) use the Technologies solely to the extent necessary to implement and operate the Service on the Authorized Sites; and (iv) subject to your compliance with Pluck's trademarks guidelines located at http://www.demandmedia.com/copyright.asp, display the Pluck Brand Features in connection with the implementation, marketing, promotion, and advertising of the Service. All goodwill arising from use of the Pluck Brand Features inures to the benefit of Pluck.
4. Your Use of the Service and Monetization. Pluck hosts the Service and provides you with the ability to access and display the Service via the Technologies. Subject to this Agreement, Pluck hereby grants to you during the Term a non-exclusive, non-transferable, non-sublicensable worldwide right to use the Service to (i) use, reproduce, publicly display, distribute, perform, transmit, market, and promote the Service, in whole or in part, solely in electronic format on the Authorized Sites; (ii) to authorize end users of the Authorized Sites to access, view, reproduce or print for the end users' personal use only the Service, in whole or in part, from the Authorized Sites; (iii) use the Technologies solely to the extent necessary to implement and operate the Service on the Authorized Sites; and (iv) subject to your compliance with Pluck's trademarks guidelines located at http://www.demandmedia.com/copyright.asp, display the Pluck Brand Features in connection with the implementation, marketing, promotion, and advertising of the Service. All goodwill arising from use of the Pluck Brand Features inures to the benefit of Pluck.
5. Customer Licenses. Subject to this Agreement, you hereby grant Pluck the following nonexclusive, worldwide, royalty-free, fully paid up, nonexclusive licenses during the Term:
  1. to index, access, and integrate the Authorized Sites in order to deploy the Service, and the Pluck Brand Features and perform this Agreement;
  2. to use, copy and distribute the data collected by Pluck from end users' use of the Authorized Sites in accordance with the Service Privacy Policy, including for purposes of improving the operation of the Services, performing statistical analysis, delivering targeted advertising, and marketing and promoting the Service; and
  3. to use your name, logo, and images of the implementation of the Service on the Authorized Sites in presentations, marketing materials, investor information materials, customer lists, financial reports, and web site listings of customers in accordance with any written trademark guidelines provided by you to us in advance.
6. Submissions. If you submit ideas, suggestions, or proposals (collectively, "Submissions") to Pluck in connection with the Service, you represent, warrant, and agree that: (a) your Submissions do not include confidential or proprietary information; (b) if we so choose, Pluck may use and disclose your Submissions in any way, and you have all necessary rights to provide us with the foregoing permissions; and (c) Pluck has no obligation to pay or reimburse you or any third party for your Submissions or our use of your Submissions.
7. Reservation of Rights. Except for the limited license rights expressly granted in this Agreement, nothing in this Agreement grants to you any title or rights in the Service, the Technologies, or in any part of the Service, including all updates thereto. Pluck has the discretion to determine the functionality, content, advertisements, and all other elements that are made available to you through the Service, and may alter, modify, exchange, replace, limit, or substitute all or part of the functionality, content, advertisements, and all other elements of the Service made available to you from time-to-time.
THE AUTHORIZED SITES
1. Responsibility. You are solely responsible for your Authorized Sites, including all content and materials (other than the Service), maintenance and operation thereof, the proper implementation of Pluck's specifications, and adherence to applicable law, the terms of this Agreement, and the Service Policies. You represent and warrant that you will not permit end users under the age of 13 to use or register with your Authorized Sites. Pluck reserves the right to investigate, at its own discretion, any activity that may violate this Agreement. Pluck is not responsible for anything related to your Authorized Sites, including the receipt of queries from end users of your Authorized Sites or the transmission of data between your Authorized Sites and Pluck. In addition, Pluck is not obligated to provide notice to you in the event that the Service is not being displayed properly to end users of your Authorized Sites..
2. Publisher Privacy Policy. As a Publisher, you must ensure that each of the Authorized Sites feature an easy-to-understand privacy policy, linked conspicuously from each webpage within the Authorized Sites with a link that contains the word "Privacy," that discloses the use of the Service in accordance with applicable laws, rules and regulations, including that Pluck and third parties may be placing and reading cookies on your end users' browsers, or using web beacons to collect information, including in the course of advertisements being served on the Authorized Sites. Your privacy policy must also (a) include information about user options for cookie management and (b) offer the end user an opportunity to opt out from the collection of information from certain network advertisers via a live hyperlink to http://www.networkadvertising.org/managing/opt_out.asp. You must ensure that your use of the Service complies with all applicable privacy laws, rules and regulations. The Service Privacy Policy is a part of this Agreement. Pluck recommends that Publisher’s privacy policy contain a link to the Pluck End User Privacy Policy located at: http://ondemand.pluck.com/end-user-privacy-policy.aspx.
3. Copyright.
  1. Publisher Copyright Policy. You must prominently display in each Authorized Site’s user agreement, or within a separate copyright policy document, a notice and takedown policy in accordance with the provisions of 17 U.S.C. Section 512 (the "DMCA"). You must take all actions necessary to ensure that the procedures of the DMCA are properly implemented on the Authorized Sites to maintain limited immunity under the DMCA from claims of copyright infringement.
  2. Infringing and "Red Flag" Materials. Regardless of whether you receive a DMCA or other type of take-down notice, you must expeditiously disable access to or remove all material posted on your Authorized Sites that you know to be infringing as well as material where you have a reasonable awareness of facts and circumstances from which infringing activity is apparent (i.e., material that raises a “red flag”).
  3. Repeat Infringers. You must keep track of repeat infringers and block repeat infringers from using your Authorized Site.
  4. Copyright Notification Procedure. Upon receipt of notice of infringement from a copyright owner regarding the Service, Publisher must: (1) provide Pluck with a copy of the notice, including the Uniform Resource Locator of the content described in the notice, as soon as possible, but no later than twenty-four (24) hours after your receipt of the notice; (2) expeditiously disable access to or remove the allegedly infringing content from the Authorized Site; (3) send a response to the copyright owner who sent the original notice, notifying him or her that the allegedly infringing material has been removed as soon as possible but not later than twenty-four (24) hours after your disabling of access to or removal of the allegedly infringing content; and (4) provide Pluck with a copy of this response as soon as possible, but no later than twenty-four (24) hours after your delivery of the response.
  5. Counter Notice Procedure. If you receive a counter-notice regarding the Service, you must take all steps required by the DMCA, including providing a copy of the counter-notice to the person who sent the original notice. You must also promptly provide Pluck with a copy of (a) the counter-notice and (b) any subsequent information provided by the senders of the original notice and the counter-notice, within twenty-four (24) hours of your receipt of the applicable information.
  6. Control Rights. Pluck may, but is not obligated to, at any time with notice to you (e-mail being sufficient) assume control of any of the functions set forth in Section 3(c)(i)-(v).
4. Terms of Service
  1. Pluck's Ownership of Site Contents. As between you and Pluck, Pluck owns all end user content and data collected from Authorized Sites. You acknowledge and agree that as a Publisher you will not own, have a license to use or have access to any end user content or data collected from any of your Authorized Sites, including without limitation: (a) all information collected from end users at the time they register with the Service on any of your Authorized Sites; (b) information provided by end users during their use of the Service; (c) all comments, feedback and suggestions provided by end users by means of reporting features made available through the Service on your Authorized Sites; and (d) all information collected from end users from any and all features made available through the Service on your Authorized Sites. To the extent that Publisher acquires any rights in such content or data, Publisher hereby grants to Pluck an exclusive, fully paid-up, royalty-free, worldwide license to use, copy, display, modify, publicly perform such data or content and make, have made, sell and have sold goods using such data or content for any Pluck business purpose.
  2. Publisher Terms of Use Agreement. As a Publisher, you must ensure that each of the Authorized Sites features an easy-to-understand terms of use agreement, linked conspicuously from each webpage within the Authorized Sites with a link that contains the word "Terms of Use” that describes the terms of use for the Authorized Sites in accordance with applicable laws, rules and regulations. Publisher’s terms of use agreement must also (a) disclaim any and all warranties on behalf of Pluck, its distributors, advertisers, and licensors, including a disclaimer of the implied warranties of merchantability, fitness for a particular purpose and non-infringement of the Services provided by Pluck hereunder; (b) exclude liability to Pluck, its distributors, advertisers, and licensors for consequential, special, punitive, indirect and any other damages other than direct damages; and (c) prohibit users under the age of 13 from using or registering with any Authorized Site. You must ensure that your Publisher terms of use agreement complies with all applicable laws, rules and regulations and is enforceable against end users. Pluck recommends that Publisher’s terms of use contain a link to the Pluck End User Terms of Use located at: http://ondemand.pluck.com/user-terms-of-use.aspx
5. Advertisers. otherwise agreed by Pluck, you must direct to Pluck, and not to any advertiser, any communication regarding any advertisements provided through the Service. Advertisements and web sites made available through the Service by third parties may not be wholly accurate. Pluck is not responsible or liable for the availability or accuracy of such advertisements or websites or the content, products or services available from such sites or advertised in such advertisements. The inclusion of any link on the Service does not imply that we endorse the linked site.
6. Customer Service. Pluck will use commercially reasonable efforts to provide you with timely customer service regarding your use of the Service. You must submit your requests for customer service to ondemandsupport@pluck.com. Pluck does not provide customer service to the end users of the Authorized Sites and you must not direct the end users of the Authorized Sites to contact Pluck with customer service concerns.
PROHIBITED CONDUCT

As a Publisher, you represent, warrant and covenant that you will not, and that you will not permit or assist the Authorized Sites' end users or others to:
1. access or use the Services or your Authorized Sites, or post or display content, in any way that is defamatory or violates or is not in full compliance with any applicable local, state, national or international law, regulation, or statute (including export laws), contracts, intellectual property rights, publicity rights, privacy rights, or constitutes the commission of a tort or violates any provision of this Agreement;
2. use your Authorized Sites to post or transmit content that could reasonably be deemed to be misleading, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, pornographic, hateful, or racially or otherwise objectionable;
3. transmit any unsolicited commercial email, instant message or other electronic communication or advertising, "junk mail," "spam," or "chain letters" (“Unsolicited Communications”) to market, advertise or publicize the Authorized Sites or encourage or induce others to do so;
4. Use (or encourage others to use) the Service to transmit, initiate or send any Unsolicited Communications;
5. reverse engineer any aspect of the Service or do anything that might reveal its source code;
6. engage in "phishing" or use your Authorized Site or the Services to send to or otherwise impact anyone with harmful, illegal, deceptive or disruptive code such as a virus, "spyware," "adware" or other similar code;
7. use the Service in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, as determined by Pluck in its sole discretion;
8. use repeated manual clicks or impressions, robots, automated click and impression generating tools, third-party services that generate clicks or impressions such as paid-to-click, paid-to-surf, autosurf, and click-exchange programs, clicks solicited by payment of money, false representation or request for end users to click on ads, use of any deceptive software, clicks originating from your IP addresses or computers under your control, spamming tags or other manipulation of advertisements provided through the Service, any legitimate actions co-mingled with a significant number of any of the foregoing actions, or use of any other methods that artificially generate clicks or impressions associated with your Authorized Sites or increase the traffic or visitors to your Authorized Sites or any advertisements displayed through the Service on your Authorized Sites;
9. interfere with or, except as expressly permitted by the Service Policies, alter, amend or modify the (a) the Service, the Pluck Brand Features, the Technologies, or the advertisements provided through the Service; or (b) the manner in which we intend the Service, the Pluck Brand Features, the Technologies , or the advertisements provided through the Service to be displayed on your Authorized Sites; or
10. use the Service in a product or service that competes with products or services offered by Pluck or its affiliates.
VALUE EXCHANGE
1. Consideration. You acknowledge and agree that: (i) Pluck's license to you to use the Technologies and display the Service on the Authorized Sites under this Agreement is good, valuable, and sufficient consideration for the rights granted by you to Pluck under this Agreement; and (ii) the Service may include advertisements provided by Pluck and that Pluck has the right to retain the revenues related to those advertisements. If Pluck earns net revenues from the advertisements appearing on the Authorized Sites, we will pay you for your participation in the Service. The amount of your payment depends on several factors, including the number of times your Selected Web Pages are viewed and the number and type of advertisements displayed on those pages. Pluck does not guarantee the amount of the payment or that we will pay any minimum amount.
2. Payments. Any money you accrue during a calendar month as a result of your participation in the Service will be reflected in your Account within approximately one (1) month after the end of the calendar month in which it was accrued. For example, any money you accrue on June 30 and July 31 will be reflected in your Account by approximately July 31 and August 31, respectively.
  1. You are not eligible to receive any payments for the amounts reflected in your Account until your accrued balance is at least ten U.S. dollars (US$10). Subject to the terms of this Agreement, (i) we will distribute the amounts reflected in your Account during the 30 day period following the month in which both the amounts in your Account equal or exceed $10 and Pluck has actually collected payment from our advertising partners with respect to such amounts, and (ii) during January of each calendar year, we may distribute any amounts reflected in your Account at the end of the prior calendar year in excess of $1 and less than $10, minus a $1 nonrefundable processing fee. If the amounts reflected in your Account are less than $1 at the end of any calendar year, you will forfeit those amounts and we will reset your balance to $0 (zero dollars).
  2. All payments to you will be made in U.S. dollars to your designated PayPal account. You are not entitled to receive interest or late charges on any amounts or payments. To ensure proper payment, you are responsible for providing and maintaining accurate contact and payment information in your Account.
  3. Notwithstanding anything set forth in this Agreement, we will not pay you any amounts reflected in your Account or in any accounts you set up with Demand Media or our other affiliates (for example, those listed at www.demandmedia.com) and may deduct or withhold such amounts if we determine or reasonably suspect, in our sole discretion, that such amounts have resulted from any fraudulent activity or other activity that violates this Agreement.
  4. We reserve the right to withhold or deduct payments, if applicable, or suspend or otherwise disable your Account and access to the Service pending our reasonable investigation of any potential breach of this Agreement by you. We may audit and monitor your compliance with this Agreement, and evidence of a breach of contract may result in (a) immediate disqualification from participation in the Service; (b) termination of your Account; (c) prohibition of your use of any of the services of Pluck, Demand Media and their affiliates; and (d) forfeiture of any and all amounts in your Account.
  5. Any reports we provide to you in connection with your Account are subject to change in Pluck's reasonable commercial judgment. If we overpay you in any pay period, we may offset the overpayment against any future payments. An overpayment may result from, for example, a failure of one of our monetization partners to pay Pluck or from administrative error.
  6. If you dispute any payment made by us to you under the Service, you must notify us in writing within one hundred eighty (180) days of receiving such payment. Failure to notify Pluck in this manner will result in your waiver of any claim relating to such dispute.
3. Taxes. You are solely responsible for all applicable federal, state, local, and foreign taxes or charges imposed by any government entity, directly or indirectly, in connection with your enrollment and participation in the Service. We intend to file an IRS Form 1099 or other tax forms as required by the relevant governmental authorities, as applicable, for any year in which payments are made to you of at least ten U.S. dollars (US $10.00). In order to allow us to comply with U.S. federal income tax reporting requirements, when you enroll in the Service you must accurately complete an IRS Form W 9 or other applicable tax form(s) identified by us. If you do not provide complete and accurate information when enrolling in the Service, Pluck may, in its sole discretion, withhold payment or reduce amounts paid to you by appropriate amounts withheld for the payment of applicable taxes. You must maintain and update the tax-related information you provide in connection with your Account to ensure its accuracy at all times.
TERMINATION
1. Pluck's Rights. Pluck reserves the right to terminate, in whole or in part, or limit participation in the Service at any time and for any reason. Your participation in the Service will terminate upon your death or dissolution. Pluck has the right to terminate this Agreement and prohibit, at its sole discretion, your participation in the Service and any other services of Pluck, Demand Media and their affiliates, at any time if we believe that there is good cause for doing so. Good cause includes our belief or discovery that: (a) the information you provided during the Service enrollment process is misleading, incomplete, fraudulent or inaccurate; (b) you have breached any of your obligations under, or failed to comply with, this Agreement or any of the Service Policies; (c) your Account has become inactive for an extended period of time, (d) your use of the Service does not, in Pluck’s sole discretion, comply with any applicable law or (e) you have otherwise engaged in any activities that may harm or damage the reputation, rights, person, or property of Pluck or any other person. It is Pluck's policy to terminate in appropriate circumstances the accounts and deprive access to the Service of persons who are repeat infringers of the copyrights or other intellectual property rights of third parties, and we reserve the right to terminate an account and deprive access to the Service for even a single infringement.
2. Notice of Termination. If applicable law requires us to do so, we will give prior or subsequent notice of the termination of the Service or this Agreement by posting it on http://ondemand.pluck.com (the "Services Interface") and by sending a notification regarding such termination to the email address specified on your Account. Pluck will not be responsible for failing to notify you of the termination of the Service or Agreement where such failure is caused by an inaccurate email address, your failure to check your email online, or your failure to inform Pluck of a change in your email address.
3. Your Rights. You may terminate your participation in the Service and this Agreement at any time in accordance with the instructions provided on the Services Interface This Agreement will be deemed terminated within ten (10) business days of Pluck's receipt of your instructions. You may suspend your participation in the Service at any time simply by removing the Service widgets from your Authorized Sites.
4. Effect On Terminations Except where your Account is terminated by us due to your failure to comply with this Agreement or any Service Policies, Pluck will have ninety (90) days after your termination of this Agreement to pay the balance in your Account as of the applicable termination date. If your Account is terminated by Pluck due to your breach of this Agreement, Pluck may offset any damages incurred by it or any other person, including reasonable internal administrative expenses, against the accrued amount in your Account.
5. Effect On Your License. Any termination of this Agreement automatically terminates the licenses granted to you by Pluck under this Agreement, including your rights to access and use the Services and to display the Service. Upon request by Pluck, you will destroy or deliver to Pluck all copies of all elements of the Service, Pluck Brand Features, and Technologies in your possession.
WARRANTIES AND LIMITATIONS OF LIABILITY
1. DISCLAIMER OF WARRANTIES. PLUCK PROVIDES THE SERVICE "AS IS" AND "AS AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED BY LAW, NONE OF PLUCK, ITS SUBSIDIARIES, AFFILIATES (FOR EXAMPLE THOSE LISTED AT WWW.DEMANDMEDIA.COM), LICENSORS, VENDORS, SUPPLIERS, ADVERTISING PARTNERS (e.g., PROVIDERS OF DISPLAY, VIDEO, IN-TEXT AND ALL OTHER ADVERTISING), MONETIZATION PROVIDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, AND SUPPLIERS, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "PLUCK INDEMNIFIED PERSONS") MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICE, THE TECHNOLOGIES, THE SERVICE, OR THE ADVERTISEMENTS INCLUDED IN THE SERVICE. PLUCK MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, SECURE, OR TIMELY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PLUCK EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING, TRADE, USAGE OR PERFORMANCE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, AND THEREFORE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
2. EXCLUSION OF DAMAGES; LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NONE OF THE PLUCK INDEMNIFIED PERSONS ARE LIABLE TO YOU OR ANY OTHER PERSON FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, STATUTORY, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOSS OF PRIVACY, OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL THE AGGREGATE LIABILITY TO YOU OF THE PLUCK INDEMNIFIED PERSONS EXCEED, IN TOTAL, THE AMOUNTS PAID BY US TO YOU DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE DAMAGES..
CONFIDENTIAL INFORMATION

During the term of this Agreement and for one (1) year thereafter, each party must treat the other party's Confidential Information as confidential, and must not use such Confidential Information except as expressly permitted under this Agreement. Each party shall take reasonable measures to prevent the disclosure and unauthorized use of the Confidential Information of the other party; which shall be no less than the same degree of care that such party uses to protect its own like information. Neither party will use the other's Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Neither party will disclose to third parties the other's Confidential Information without the prior written consent of the other party. For purposes of this Agreement "Confidential Information" means any non-public information relating to either party's business, product plans, designs, costs, prices and names, finances, business opportunities, personnel, research development or know-how. "Confidential Information" does not include information that: (i) is or becomes publicly known or available through no fault of the receiving party; (ii) is already known by the receiving party at the time of disclosure; (iii) is independently developed or learned by the receiving party without reference to the other party's Confidential Information; or (iv) is lawfully obtained from a third party that does not have an obligation of confidentiality to the disclosing party. But is not a breach of this Agreement to disclose Confidential Information of the other party pursuant to an order or requirement of a court, administrative agency, other governmental body, or securities exchange.
REPRESENTATIONS AND WARRANTIES

You represent and warrant that (a) all of the information provided by you to Pluck in connection with the Service is true, correct and current; (b) you are the owner of each Authorized Site or you are legally authorized to act on behalf of the owner of such Authorized Site for the purposes of this Agreement and the Service; and (c) you have all necessary right, power, and authority to enter into and perform under this Agreement.
INDEMNIFICATION

Each party must hold the other party harmless from, and indemnify such other party for, all damages, costs, expenses and other liabilities, including reasonable attorneys' fees and expenses (collectively, "Losses"), relating to any third party claim arising out of or related to: (i) the indemnifying party's breach of any representation, warranty, or covenant set forth in this Agreement, any applicable law or the rights of another person or party; or (ii) the indemnifying party's negligence or willful misconduct. In addition, you indemnify and hold harmless the Pluck Indemnified Persons for all Losses relating to any third party claim arising out of or related to: (i) any portion of, or activity relating to, the Authorized Sites that does not arise out of the use of the Service; and (ii) any dispute with any end user and any dispute you have, or any end user has, related to any advertisement made available through the Service. Your indemnification of Pluck extends to the other Pluck Indemnified Persons, each of whom is an express third party beneficiary of your obligations under this section.
MISCELLANEOUS
1. Survivability. Upon termination, all rights and obligations created by this Agreement will terminate, except that that the parties will continue to be bound by those terms that would by their nature survive such termination, including those concerning disclaimers of warranties and limitations of liability (Section 7); indemnity obligations (Section 10); and jurisdiction and choice of law (Section 11).
2. Jurisdiction; Choice of Law; Export Limitations. This Service is controlled by us from our offices in the United States of America and is directed to U.S. users. If you access the Service from locations outside the U.S., you do so at your own risk and you are responsible for compliance with applicable local laws. You may not use or export anything from the Service in violation of U.S. export laws and regulations or this Agreement. This Agreement and all performances and claims of every nature between us are governed by the laws of the State of California, U.S.A., without regard to any conflicts of laws principles that would result in the application of the law of a different jurisdiction. You and Pluck submit to the exclusive personal jurisdiction and venue of the state and federal courts located within Los Angeles County, California..
3. No Waiver. The failure of any party to exercise or enforce any right or provision of these Terms, including any failure to act with respect to a breach, will not constitute a waiver of such right or provision or that party's right to act with respect to subsequent or similar breaches.
4. Limitation on Actions; Pre-Suit Negotiation. Any action concerning any dispute you may have with respect to the Services or this Agreement must be commenced within one year after the cause of the dispute arises, or the cause of action is barred. Prior to commencing any lawsuit against Pluck, you must provide Pluck with written notice of your intentions and detailing your complaint, proposed resolution, and current contact information, including full name, street address, and email address. For 30 days after Pluck's receipt of such notice, you must negotiate with Pluck in good faith to amicably resolve such dispute.
5. Entire Agreement; Amendments. This Agreement constitutes the entire agreement between Pluck and you concerning your access to and use of the Service. Pluck may modify this Agreement from time to time. If Pluck makes one or more material modifications to this Agreement, the modifications will become binding upon you 30 days after Pluck sends you notice by email that the Agreement has been modified and posts the revised Agreement to the Services Interface. Pluck may make nonmaterial modifications to this Agreement unilaterally by posting the revised Agreement to the Services Interface. In either case, your continued use of the Service will constitute your acceptance of the modified terms. If you do not agree with the modifications, you must terminate your Account.
6. Severability. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
7. Assignability and Delegation of Duties. This Agreement and all of your rights and obligations hereunder are not assignable or transferable by you without the prior written consent of Pluck. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. Pluck may contract with third parties to perform any or all of its duties in connection with this Agreement or the Services.
8. No Partnership. You and Pluck are independent contractors, and no agency, partnership, or joint venture relationship is created by this Agreement..
9. Rights Cumulative; Third Party Beneficiaries. The rights and remedies of the Pluck Indemnified Persons under this Agreement are cumulative and not exclusive. Except for the Pluck Indemnified Persons, each of whom has the right to directly enforce applicable provisions of this Agreement, there are no third-party beneficiaries to this Agreement.