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HOTWORDS IN-TEXT AGREEMENT

This In-Text Agreement (“Agreement”) is a legal agreement between you (herein “Publisher”) and Mediaresponse USA, Corp. (herein “Hotwords”). YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BEFORE YOU CAN IMPLEMENT AND BEGIN USING THE CONTEXT SERVICE. BY CLICKING ON THE “I ACCEPT” CHECK BOX AND CLICKING “SUBMIT”, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU SHOULD EXIT THIS PAGE. BY DOING SO YOU FOREGO ANY IMPLIED OR STATED RIGHTS TO RECEIVE THE CONTEXT SERVICE.

1. Definitions.

1.1. “ConTEXT Service” means Hotword’s platform for providing advertising services via the JavaScript Tag, including those products and services designed (i) to analyze Publisher Website pages to determine topics or keyword phrases to match and serve relevant sponsored advertising within the text of such Publisher Website pages (“In-Text Product(s)”), (ii) to serve various forms of in image advertising to Publisher Websites (“In Image Product(s)”), and (iii) to implement display advertising formats in the marging of the Publisher Website pages (“Lateral Bar”). For the avoidance of doubt, “Products” as used herein shall mean, collectively, the In-text Products, In Image Products, Audience Products, and the Lateral Bar.

1.2. “JavaScript Tag” means HTML code that a publisher implements on its website in order to participate in the ConTEXT Service.

1.3. “Net Revenue” means the revenue actually received by Hotwords resulting from the use of the ConTEXT Service through Publisher Websites less certain costs deducted in accordance with Hotwords’s then-current practices or policies (as may be changed from time to time without notice), including without limitation, transaction fees, bad debt, taxes, commissions, referrals fees and technology fees related to the ConTEXT Service.

1.4. “Publisher Websites” means the URL or URLs set submitted by Publisher during the application process and any other Publisher website that Hotwords approves pursuant to Section 3.1.

1.5. “Revenue Share” means the percentage of Net Revenue.

2. Products on the ConTEXT Service. To the extent that the Products are enabled for your Publisher account, you hereby acknowledge and agree to the terms and conditions with respect to such Products:

2.1 In-Text Program. To the extent that In-Text Products are enabled for your Publisher account, the following terms and conditions shall apply:

(a) In-Text Program. Hotwords will make available to Publisher, and Publisher agrees to participate in, the In-Text Program. The “In-Text Program” means the advertising services, which analyze Publisher Website pages to determine topics or keyword phrases to match and serve relevant sponsored advertising within the text of such Publisher Website pages.

(b) Fee. Hotwords will pay Publisher fifty percent (50%) Revenue Share.

2.2 In Image Program. To the extent that In Image products are enabled for your Publisher account, the following terms and conditions shall apply:

(a) In Image Program. Hotwords will make available to Publisher, and Publisher agrees to participate in, the In Image Program. The “In Image” means the program by which Publisher agrees to permit Hotwords to deploy and monetize advertising on image content existing on the Publisher Websites.

(b) Fee. Hotwords will pay Publisher fifty percent (50%) Revenue Share.

2.3 Lateral Bar Program. To the extent that the Lateral Bar is enabled for your Publisher account, the following terms and conditions shall apply:

(a) Lateral Bar Program. Hotwords will make available to Publisher, and Publisher agrees to participate in, the Lateral Bar Program. The “Lateral Bar Program” means the program by which Publisher agrees to permit Hotwords to deploy and monetize margin display advertising on the Publisher Websites.

(b) Fee. Hotwords will pay Publisher fifty percent (50%) Revenue Share.

2.4 Full Page Program. To the extent that the Full Page is enabled for your Publisher account, the following terms and conditions shall apply:

(a) Full Page Program. Hotwords will make available to Publisher, and Publisher agrees to participate in, the Full Page Program. The “Full Page Program” means the program by which Publisher agrees to permit Hotwords to deploy and monetize take over display advertising on the Publisher Websites.

(b) Fee. Hotwords will pay Publisher fifty percent (50%) Revenue Share

2.5 DHTML Program. To the extent that the DHTML is enabled for your Publisher account, the following terms and conditions shall apply:

(a) DHTML Program. Hotwords will make available to Publisher, and Publisher agrees to participate in, the DHTML. The “DHTML Program” means the program by which Publisher agrees to permit Hotwords to deploy and monetize small take over display advertising on the Publisher Websites.

(b) Fee. Hotwords will pay Publisher fifty percent (50%) Revenue Share

2.5 Social Bar Program. To the extent that the Social Bar is enabled for your Publisher account, the following terms and conditions shall apply:

(a) Social Bar Program. Hotwords will make available to Publisher, and Publisher agrees to participate in, the Social Bar. The “Social Bar Program” means the program by which Publisher agrees to permit Hotwords to deploy and monetize social bar display advertising on the Publisher Websites.

(b) Fee. Hotwords will pay Publisher fifty percent (50%) Revenue Share

3. Use of ConTEXT Service.

3.1. Site Approval. Implementation of the ConTEXT Service is subject to Hotwords’s prior approval of Publisher’s websites. Each additional website must be approved by Hotwords prior to Publisher placing the JavaScript Tag on such website. Hotwords reserves the right to deny or revoke participation of any website in the ConTEXT Service at any time in its sole discretion.

3.2. Publisher Websites. Publisher represents and warrants that (i) it maintains adequate rights in and to the Publisher Websites (including without limitation under the intellectual property rights in and to any third party content contained therein) in order to engage in the ConTEXT Service, including without limitation the right to modify and create derivative works of any materials on the Publisher Sites and (ii) the Publisher Websites do not portray illicit drugs; and do not contain pornography, adult or mature content; or any content that otherwise promotes violence, illegal activity or infringes on the rights of others. Publisher will indemnify, defend, and hold Hotwords harmless from and against all damages, liabilities, costs, and expenses (including, without limitation attorney fees) that Hotwords may incur as the result of any action brought against Hotwords arising out of the acts of Publisher in breach of this Section 3.2.

3.3. JavaScript Tag.

(a) License. Subject to the terms and conditions of this Agreement, Hotwords hereby grants to Publisher a non-exclusive, non-transferable, non-sublicensable license to use the JavaScript Tag on Publisher Websites for the sole purpose of participating in the ConTEXT Service.

(b) Delivery and Implementation. Hotwords will provide Publisher a JavaScript Tag and instructions to implement the JavaScript Tag on Publisher Websites in an email following the execution of this Agreement. Publisher shall follow such instructions in implementing the JavaScript Tag, and shall implement the JavaScript Tag on all Publisher Websites.

3.4. Restrictions.

(a) General. Publisher will not, and will not authorize or encourage any third party to (i) fraudulently or purposely manipulate the content of the Publisher Websites, including without limitation, “ghosting”, “cloaking” or providing misleading metatags in order to “fool” the ConTEXT Service so that it provides less contextually relevant results or (ii) generate fraudulent impressions of or fraudulent clicks on any advertisements served through the ConTEXT Service, including through repeated manual clicks, the use of robots or other automated tools or any other method that may lead to artificially high numbers of impressions, downloads, or clicks. Publisher agrees to refer to Hotwords, and not directly to any advertiser or advertising service provider, all communications regarding any matter arising out of Publisher’s use of the ConTEXT Service.

(b) License Restrictions. Publisher shall not use the JavaScript Tag for any other purpose other than that set forth in Section 3.3(a) above. Without limiting the foregoing, Publisher shall not: (i) use the JavaScript Tag for the purposes of developing a product that will be owned by a third party or that would compete with Hotwords’s products or services; (ii) sublicense, rent, lend, lease, permit third party access to, or use of, the JavaScript Tag; (iii) copy, distribute, reproduce, sell, use or allow access to the JavaScript Tag, except as explicitly permitted under this Agreement; (iv) modify, adapt, translate, or prepare derivative works from the JavaScript Tag; or (v) remove, obscure, or alter Hotwords’s copyright notice, trademarks, or other proprietary rights notices affixed to or contained within the JavaScript Tag. This is license, not a sale, so title to the JavaScript Tag shall not pass to Publisher under any circumstances. Hotwords does not grant to Publisher any license, express or implied, under the intellectual property of Hotwords or its licensors except as expressly stated in this Agreement.

3.5. Exclusivity. On all Publisher Websites, Publisher will ensure that Hotwords is the exclusive source of any advertising and/or external service, linked to and delivered through keyword links within the text of Publisher’s Website pages, for the term of this Agreement.

4. Publicity. Either party may make appropriate and truthful reference to the other party in its company and promotional literature; provided that such party properly attributes the other party’s trademarks and complies with the other party’s guidelines. No license is granted, express or implied, under either party’s trademarks, trade names or service marks. Under no circumstances shall either party attempt to disparage or discourage others from working with the other party, either during the term of this Agreement or at any time afterwards. Additionally, for clarification, Publishers shall be held to the Confidentiality terms as set forth in Section 8 of this Agreement. Furthermore, Hotwords’s express written permission must be obtained before issuing any press releases mentioning its name.

5. Financial Terms and Reports.

5.1. Revenue Share. Hotwords will pay Publisher the Revenue Share; provided, however that Hotwords may adjust Revenue Share as Hotwords deems appropriate in its sole discretion, including, without limitation by ignoring click-throughs and/or withholding payments or crediting back payments made to Publisher if Hotwords, in its sole reasonable discretion, believes that such click-throughs and/or payments are fraudulent or invalid in nature. If Publisher is dissatisfied in any respect with any payment hereunder, Publisher agrees that Publisher’s sole remedy is termination of this Agreement in accordance with Section 6.2(a).

5.2. Payment Terms. Hotwords shall pay Publisher the Revenue Share between the 20th and the last day of the next month in which such Revenue Share was generated. For example, Hotwords will pay Publisher the Revenue Share for May (if any) on any day between June 20th to June 30th. Further, if the Revenue Share for any given month is less than fifty dollars ($50), Hotwords will roll such amount over to the subsequent payment period, and shall not make any payment to Publisher until the accrued Revenue Share for a payment period is at least fifty dollars ($50). Any dispute regarding a payment from Hotwords hereunder must be submitted to Hotwords in writing within thirty (30) days of posting date of such payment or it shall be deemed waived. Payment shall be calculated and finally settled solely based on records maintained by Hotwords, and no other records will be deemed relevant for payment calculations or determinations. If Hotwords pays Publisher by check, Publisher must collect such payment within one hundred and eighty days of the date of the check; otherwise such check will be null and void.

5.2.1. Payment Methods. Hotwords offers two ways of cashing out your revenue: PayPal and Check. We’ve outlined each of the payment methods below:
1) Payment by PayPal:
a. It is necessary to have a PayPal account to do the payment.
b. Additional commissions/costs will be paid by the PUBLISHER.

2) Sending Checks/Bill Pay method:
a. The bank will send the check to the PUBLISHER.
b. The time it takes to receive a check payment can vary, and depends on the mailing system of the bank.
c. In case there is an additional commission/cost for the service this will be covered by the PUBLISHER.

We are unable to pay PUBLISHERS via wire transfers, bank account deposits, gift cards, and other various methods.

5.2.2. Payment requirements (sending an invoice). No matter the payment option, the PUBLISHER must send before an INVOICE of the amount to be paid to Hotwords everytime the PUBLISHER wants to retrieve his revenue, taking in count that the minimum amount to be paid is fifty dollars ($50).

5.2.3. Other payment terms. Payments corresponding to the PUBLISHER can only be done during the current year. In case that the PUBLISHER does not present to Hotwords the invoices which correspond to revenues from January to November of the current year before December 15, or at the latest on January 15 of the following year for the revenue generated during the month of December, these quantities will NOT be paid to the PUBLISHER. Therefore, from now PUBLISHER acknowledges and agrees not to submit any claim or complaint or to exercise any legal action if the corresponding invoices are presented extemporaneously.

5.3 Reporting. During the entire term of this Agreement, as the information is reasonably available, Hotwords will provide Publisher, solely for informational purposes, access to its on-line reporting system, on which Publisher may view number of views on ads delivered by the ConTEXT Service, and total revenues for each day. Hotwords shall use commercially reasonable efforts to display an accurate revenue projection in the Publisher reporting provided under this Section 5.3, but for the removal of doubt, Hotwords does not guarantee the amounts, if any, to be paid to Publisher as a result of this Agreement, and all Revenue Share paid to Publisher hereunder will be strictly based on Hotwords’s calculation of the Revenue Share at the end of each payment period.

6. Term and Termination.

6.1. Term. Unless earlier terminated as set forth herein, this Agreement is effective from the Start Date through the first anniversary of the Start Date. After such time, this Agreement will automatically renew for successive twelve (12) month terms unless either party notifies the other party that such party will not renew the Agreement within thirty (30) days written notice before the effective termination date.

6.2. Termination

(a) For Convenience. Hotwords may terminate this Agreement for any reason at any time notifying the Publisher about the Agreement termination. Publisher may terminate this Agreement for any reason upon thirty (30) days written notice to Hotwords.

(b) For Breach. Either party may terminate this Agreement effective immediately, if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach within thirty (30) days after receiving notice from the non-breaching party. Without limiting the foregoing, in the event that Publisher removes the JavaScript Tag from Publisher Websites or otherwise blocks the operation of ConTEXT Service, without giving Hotwords appropriate notice of termination, such action shall be deemed a material breach of Agreement. In addition to all of the other remedies available to it, Hotwords may withhold any and all payments due to Publisher under this Agreement for the two (2) months prior to such material breach and require Publisher to refund to Hotwords any payments already paid to Publisher by Hotwords for such two (2) month period.

© For Financial Reasons. Either party may terminate immediately upon written notice at any time if: (i) the other party becomes insolvent; (ii) the other party discontinues its business; or (iii) the other party is dissolved or liquidated.

6.3. Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Publisher’s right to use the JavaScript Tag and ConTEXT Service shall immediately terminate and Publisher shall immediately remove the JavaScript Tag from all Publisher Websites. The following provisions shall survive any expiration or termination of this Agreement: Sections 3.2, 3.4, 4, 5 (for amounts due as of the date of termination), 6, 7, 8, 10, 11, 12 and 13.

7. Ownership. As between Publisher and Hotwords, (i) Publisher retains all right, title and interest in and to the Publisher Website including content thereon and (ii) subject to the limited rights and licenses granted to Publisher pursuant to this Agreement, Hotwords retains all right, title and interest in and to the ConTEXT Service and the JavaScript Tag.

8. Confidentiality. “Confidential Information” means any information disclosed by Hotwords to Publisher, either directly or indirectly in writing, orally or by inspection of tangible objects which is either (i) designated or marked as “Confidential” at the time of disclosure, or (ii) disclosed under circumstances reasonably indicating that such information is confidential. Without limiting the foregoing, the JavaScript Tag, all information relating to the JavaScript Tag, and the terms and conditions of this Agreement shall be deemed the Confidential Information of Hotwords. During the term of this Agreement and for three (3) years following the expiration or termination of this Agreement, (i) Publisher agrees that it shall not use any Confidential Information other than as expressly permitted under the terms of this Agreement or as expressly authorized in writing by Hotwords, (ii) Publisher shall use the same degree of care to protect Confidential Information as it uses to protect its own most highly confidential information, but in no circumstances less than reasonable care, and (iii) Publisher shall not disclose Confidential Information to any person or entity other than its officers, employees and consultants who need access to such Confidential Information in order to effect the intent of this Agreement and who have entered into written confidentiality agreements with it consistent with this Section 8 or only extraordinarily disclose Information to the extent required by a law, always procuring to disclose the less information possible in order to protect Hotwords from irreversible damages. However, the Publisher will give Hotwords prompt notice to allow Hotwords a reasonable opportunity to obtain a protective order.

9. Changes of the Terms. Hotwords may make changes to this Agreement from time to time. When these changes are made, Hotwords will make a new copy of the Agreement available at http://publisher.hotwords.com and send a notice via e-mail to Publisher. Publisher understands and agrees that if Publisher continues to use or enjoy the benefits of the ConTEXT Service after thirty (30) days have elapsed from the date on which such notice is given, Publisher shall be deemed to have agreed to such changes and the new Agreement shall govern use of the ConTEXT Service thereafter.

10. Representations and Warranties.

10.1. By Hotwords. Hotwords represents and warrants that (a) Hotwords is the owner of or has the necessary licenses to provide the JavaScript Tag and the ConTEXT Service to Publisher for the purposes of this Agreement; and (b) Hotwords has all necessary right, power and authority to enter into this Agreement and to perform the acts required of Hotwords hereunder.

10.2. By Publisher. Publisher represents and warrants that (a) Publisher is the owner of or is legally authorized to act on behalf of the owner of all Publisher Websites for the purposes of this Agreement; and (b) Publisher has all necessary right, power and authority to enter into this Agreement and to perform the acts required of Publisher hereunder.

11. Disclaimer of Warranties. OTHER THAN THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 10, THE CONTEXT SERVICE (INCLUDING THE JAVASCRIPT TAG) IS PROVIDED “AS IS” AND WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OUT OF A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE, NON-INFRINGEMENT (INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF THIRD PARTY RIGHTS), QUALITY, PRODUCTIVENESS OR CAPACITY, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. HOTWORDS, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE CONTEXT SERVICE WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE CONTEXT SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. HOTWORDS MAKES NO GUARANTEE REGARDING THE NUMBER, QUALITY, OR CONTENT OF ANY ADVERTISEMENTS OR THE TIMING OF DELIVERY OF SUCH ADVERTISEMENTS. HOTWORDS SHALL NOT BE RESPONSIBLE FOR ANY ADS OR WEBSITES THAT ARE SERVED THROUGH OR LINKED FROM THE CONTEXT SERVICE. PUBLISHER UNDERSTANDS AND ACKNOWLEDGES THAT THERE IS NO GUARANTEE THAT ANY MINIMUM LEVEL OF REVENUE, OR ANY REVENUE, WILL BE GENERATED AS A RESULT OF THIS AGREEMENT. THE FOREGOING DISCLAIMER OF WARRANTY IS A FUNDAMENTAL PART OF THE BASIS OF HOTWORDS’S BARGAIN HEREUNDER, AND THAT HOTWORDS WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH DISCLAIMER.

12. Limitation of Liability. EXCEPT WITH REGARD TO A BREACH OR ANY ALLEGATION WHICH IF TRUE WOULD CONSTITUTE A BREACH OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 10 OR A BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 8, NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES NOR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, LOSS OF CLIENTELE, LOSS OF USE OR LOSS OR CORRUPTION OF DATA, WHETHER UNDER TORT, CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EXCEPT FOR A BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 8 OR FOR OBLIGATIONS AS SET FORTH IN SECTION 3.2, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID UNDER THIS AGREEMENT BY HOTWORDS TO PUBLISHER DURING THE THREE (3)MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

13. Miscellaneous. This Agreement is the entire agreement between the parties on the subject matter hereof. Except as set forth in Section 9, no amendment or modification hereof will be valid or binding upon the parties unless made in writing and signed by the duly authorized representatives of both parties. The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either party is the agent, employee, or joint venturer of the other. In the event that any provision of this Agreement is held to be unenforceable, the Agreement will continue in full force and effect without such provision and will be interpreted to reflect the original intent of the parties. This Agreement will be governed by the law of the State of Florida, without regard to its conflict of laws principles. The parties consent to the personal and exclusive jurisdiction of courts located in the Dade County in the State of Florida. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other, except that either party may assign any of its rights and obligations under this Agreement without consent of the other party in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets related to this Agreement or other similar transaction. This Agreement shall inure to the benefit of and shall be binding on each party’s permitted assignees, transferees and successors. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed to be a waiver of any subsequent breach of any right or as a waiver of any other right. Except for the payment of fees hereunder, nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, governmental acts or orders or restrictions, or any other reason when failure to perform is beyond the reasonable control of the nonperforming party.

Escritórios
Brasil
+55 11 3178 2500
Argentina
+54 11 4701 8637
Colômbia
+57 1 744 1796
Chile
+56 2 2955 7368
Peru
+51 1 242 9817
México
+52 55 1000 2602
Portugal
+351 21 413 5840
Espanha
+34 912 701 220
Estados Unidos
+1 305 423 1473