Terms and Conditions

LAST UPDATED APRIL 28, 2010

PLEASE READ THESE KITN MEDIA ULC (“KITN”) MERCHANT SERVICES TERMS AND CONDITIONS AND ANY POLICIES PROVIDED BY KITN MEDIA ULC RELATING HERETO (THE “AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN KITN AND THE ENTITY OR SOLE PROPRIETOR IDENTIFIED IN THE REGISTRATION FORM SUBMITTED TO KITN TO PARTICIPATE IN THE KITN ONLINE MERCHANT SERVICES PROGRAM (“MERCHANT”). IF THIS AGREEMENT IS UNACCEPTABLE TO YOU, OR IF ANY AMENDMENT TO THIS AGREEMENT IS UNACCEPTABLE TO YOU, YOU MUST NOT PARTICIPATE IN THE KITN ONLINE MERCHANT SERVICES PROGRAM.

1. Definitions

  1. “Action” means any action linked to an Ad, including without limitation any registration, form submission, offer response, or purchase.
  2. “Ad” means material that (i) promotes a brand, product or service, and (ii) is displayed by KITN to in connection with the Offer Page Service, and shall include without limitation ad banners, badges, buttons, links and other interactive or promotional features.
  3. “Advertiser” means any individual or entity having an agreement with KITN to serve Ads through the Platform.
  4. “Co-Branded Site” means a website maintained by KITN that displays Ads, and may contain tradenames, trademarks, service marks, copyrights, and logos of Merchant in a form approved by KITN.
  5. “Confidential Information” means (i) the Ads, prior to publication; (ii) the terms and conditions of this Agreement; (iii) any statistics or other data relating to the Platform; and (iv) any information provided by KITN to Merchant that is identified as confidential or can reasonably be regarded as confidential.
  6. “CPA” means cost per action and refers to the amount paid by Advertisers for each specific Action.
  7. “CPC” means cost per click and refers to the amount paid by Advertisers for each click or impression of an Ad.
  8. “Gross Revenue” means (a) the amount recognized by KITN with respect to Actions undertaken by Users (including, without limitation, amounts paid by Advertisers on a CPA or CPC basis) for which KITN has received a valid Advertiser tracking id, and, as applicable, (b) amounts paid directly by Users (via credit card, stored value or debit card, PayPal transfer, bank transfer, mobile billing, or other payment source) relating to a Product or Ads displayed on or in connection with receiving, gaining access to or downloading a Product, as applicable. Gross Revenue may be adjusted by KITN for any credits, credit card or other payment processing fees, agency commissions or discounts, chargebacks, bad debt expenses, refunds for undelivered or misdelivered impressions, taxes (excluding taxes assessed on the net income of KITN) and other governmental charges, adjustments made by KITN or its advertising partners to amounts paid or payable to Merchant based on the quality of Users and/or Actions, as determined by KITN in KITN’s sole and absolute discretion, and all amounts KITN is not obligated to pay pursuant to this Agreement.
  9. “License” means an alphanumeric key, code, login information or activation method that is used to activate, deliver, or enable access to the Product provided by Merchant to allow Users to activate and use a Product after an Action.
  10. “Merchant Website” means the website registered by Merchant with KITN.
  11. “Personally Identifiable Information” shall mean any data or other information that can be used to identify, contact or locate a natural person, including but not limited to a natural person’s name, address, telephone number, e-mail address or social security number.
  12. “Platform” means KITN’s proprietary technology with respect to the Offer Page Service and Direct Payment Product provided by KITN hereunder.
  13. "Product" means any goods, services, applications, software, content, credits, or coupons registered by Merchant with KITN.
  14. “Users” means human Internet users.
  15. “$” shall mean United States currency.

2. Scope of Services

  1. KITN Online Merchant Services Program. KITN’s online merchant services program consists of monetization services, including (a) offering functionality for Users to download applications, software or other digital goods and/or offering access to content, credits, coupons or other goods or services in exchange for signing-up for Ads shown to Users (the “Offer Page Service”) and (b) facilitating direct payments from Users via credit card, stored value or debit card, PayPal transfer, bank transfer, mobile billing, or any other payment source for such download software or accessed digital goods or services (the “Direct Payment Product”). KITN reserves the right to improve, modify, remove, suspend, or discontinue, temporarily or permanently, in whole or in part, the Platform or any data, information, content, software, technology, Ads, or features appearing on and/or offered through the Platform at any time at its sole discretion without notice and without liability. Merchant’s participation in KITN’s online merchant services program may be denied by KITN for any or no reason in its sole and absolute discretion.
  2. Integration with Merchant Payment Systems; Reporting Information. If KITN approves Merchant’s participation in the KITN online merchant services program, KITN shall (i) use commercially reasonable efforts to provide an integration with Merchant’s payment systems so that Merchant shall have reasonable access to the number of Licenses issued, or promised, to a User by KITN under this Agreement, and (ii) provide Merchant with access to reporting information about its aggregate Payment earnings and other activity as KITN determines from time to time. The reported earnings information will be a reasonable estimate by KITN, subject to final reconciliation by KITN.

3. Merchant Obligations and Materials

  1. If KITN approves Merchant’s participation in the KITN online merchant services program, Merchant shall implement (i) an html link from the Merchant Website to the Co-Branded Site (“HTML Link”) and (ii) the Platform, each of the foregoing (i) and (ii) in accordance with the terms of this Agreement and any placement requirements and reasonable technical specifications provided by KITN to Merchant. Merchant shall not modify the display, order, look and feel, or other attributes of the Direct Payment Product. Any exceptions must be approved by KITN, in advance, in writing.
  2. Merchant shall cooperate with KITN in good faith, on an ongoing basis, to implement the Co-Branded Site and the Platform.
  3. Merchant shall be solely responsible for (i) the download, marketing, and delivery of the Products, (ii) direct contact with Users of the Products having technical support issues relating to the download and/or usage thereof, and (iii) Licenses not being correctly awarded by Merchant as contemplated herein including, but not limited to, reimbursement to KITN for any damages to KITN resulting directly or indirectly therefrom. Merchant shall promptly respond to User support requests relating to the Products.
  4. Merchant agrees that any content displayed on or in connection with the Products shall not be, and Merchant shall not transmit any content that it knows to be, false, deceptive, misleading, fraudulent, abusive or obscene using a reasonable person standard, obscene, defamatory, illegal, violent or unethical, pornographic, gambling-related, hate speech or any other content which KITN reasonably deems objectionable
  5. Merchant shall not, and shall not authorize or encourage any third party to frame, minimize, remove or otherwise inhibit the full and complete display of the Co-Branded Website after a User click on the HTML Link
  6. Merchant shall make Licenses available, at all time at the request of KITN, as follows: (i) Merchant shall provide Licenses to Users as soon as practicable, and in no event later than two (2) business days, after KITN informs Merchant that a User has completed an Action, or (ii) Merchant shall provide KITN with the Licenses so that KITN may provide such Licenses to Users after completion of an Action, and Merchant shall thereafter provide additional Licenses to KITN within two (2) business days after request for such by KITN, or (iii) Merchant shall provide KITN with real time access to Licenses so that KITN may provide such Licenses to Users after an Action.

4. Proprietary Rights

  1. Subject to the terms and conditions of this Agreement, Merchant hereby grants KITN a limited, non-exclusive license during the term of this Agreement to (i) use and distribute Licenses to Users, and (ii) use Merchant’s tradenames, trademarks, service marks, copyrights, and logo on the Co-Branded Site
  2. Merchant shall use the Platform only as set forth in this Agreement.
  3. As between KITN and Merchant, KITN, its licensors, and/or Advertisers, as applicable, own and retain all rights, title, and interest in and to the Platform, the Offer Page Service, the Direct Payment Product, the Co-Branded Site, and the Ads. Merchant acknowledges that the Platform is copyrighted by KITN and a trade secret of KITN. KITN does not grant to Merchant any license, express or implied, to the Platform or any other right, title, or interest to any intellectual property. Any rights not expressly granted herein are deemed withheld. Merchant agrees not to copy, alter, modify, or create derivative works of the Platform or otherwise use the Platform in any way that violates the terms and conditions of this Agreement
  4. During the term of this Agreement and for a period of one (1) year thereafter, Merchant shall not develop, market, license to others, or sell, whether directly or indirectly, any software, technology, or other materials that are the same as, similar to, or competitive to the Platform

5. Payment

  1. During the term of this Agreement, KITN shall pay Merchant a payment, as determined by KITN in its sole and absolute discretion, relating to the Gross Revenue from the Offer Page Service and the Direct Payment Product (“Payment”). Payments will be determined by KITN based on a number of factors including, but not limited to, the quantity, quality, and validity of clicks on Ads, Ad impressions, and Actions, and User demographics such as the country of origin of a User’s IP address. KITN shall pay Merchant the Payments approximately thirty (30) days after the end of every calendar month. Payments shall be made to Merchant electronically to the bank account set forth in registration form provided by Merchant to participate in the KITN online merchant program (which bank account details may be changed by Merchant upon at least ten (10) days advance written notice to KITN). KITN shall not be responsible for any delays in Payments caused by incorrect banking information or other information supplied by Merchant. Merchant is responsible for maintaining current contact information including, but not limited to, bank account information, with KITN. Any Merchant banking fees, wire fees, and/or other charges for banking services incurred in connection with Payments shall be the sole responsibility of Merchant. Notwithstanding the foregoing, (i) amounts of less than one hundred dollars ($100.00) will be held by KITN until amounts due equal or exceed one hundred dollars ($100.00), and (ii) KITN shall not be responsible for any delays in Payments caused by incorrect banking information or other information supplied by Merchant. Merchant shall be solely responsible for the payment of, and shall pay when due and indemnify KITN against, all applicable federal and state taxes, including any sales, use, excise or transfer taxes and other taxes associated with Payments to Merchant under this Agreement (except for taxes assessed on KITN's net income).
  2. Notwithstanding anything else to the contrary set forth in this Agreement, KITN shall have no obligation to pay Merchant any Payments with respect to (i) any Licenses not being awarded by Merchant in a timely manner according to Section 3(f) of this Agreement, (ii) amounts generated based on Merchant’s breach of this Agreement, (iii) payments in respect of which KITN has not itself received payments from relevant third parties including, but not limited to, Advertisers, (iv) any fraudulent payments from Users or any fraudulent or invalid Actions or any fraudulent or invalid clicks or impressions on any Ads generated by any person, bot, automated program or similar device in connection with any Ads provided by KITN or the Platform, as reasonably determined by KITN, including, without limitation, any Actions, clicks or impressions (A) originating from Merchant’s IP addresses or computers under Merchant’s control, (B) solicited by payment of money, the exchange of goods or services, false representation, or request or incentive for Users to click on Ads, or any illegal or otherwise invalid request for Users to complete Actions, (C) pursuant to which Users were directly or indirectly mislead or falsely encouraged to complete Actions, including without limitation making it seem that a User is completing an Action other than the Action actually being offered, (D) pursuant to which a User provided false or misleading personal data, or (E) payments which represent net adjustments downwards for whatever reason to payments made by Advertisers, or legitimately withheld from payments due from Advertisers, and (v) fraudulent, illegal or invalid Products, as determined by KITN in its sole reasonable discretion.
  3. KITN may withhold a relevant portion of any Payment from Merchant to offset any portion of any Payment previously received by Merchant in respect of any matter under Section 5(b) above. Merchant understands that this may reduce the Payment owed to Merchant
  4. Merchant understands and agrees that KITN may offset from any Payment any amount owed by Merchant, or any parent, subsidiary, or affiliate of Merchant, to KITN or any parent or subsidiary company of KITN. As a result of administrative and other costs that KITN incurs in providing its services under this Agreement, in the event that the total Payment amount owed to Merchant upon termination of this Agreement is less than fifty dollars ($50), notwithstanding anything else set forth in this Agreement to the contrary, Merchant acknowledges and agrees that KITN is not obligated to send Merchant such Payment and that KITN may retain such amount as if the same had never been the subject of any obligation to be paid by KITN
  5. Payments under this Agreement shall be made in U.S. Dollars.

6. Termination

  1. Termination. KITN may suspend or terminate this Agreement at any time, for any or no reason, with or without notice to Merchant. Merchant may terminate this Agreement at any time, for any or no reason, upon notice to KITN.
  2. Effect of Termination. The terms and conditions of Sections 1, 4(c), 4(d), 5(b), 5(c), 5(d), 6(b), and 7 through 12 of this Agreement shall survive any termination or expiration of this Agreement.

7. Confidentiality

Merchant will not use or disclose any Confidential Information of KITN except as specifically contemplated herein. Merchant shall maintain the confidentiality of KITN’s Confidential Information and shall take precautions to prevent the unauthorized disclosure or use of KITN’s Confidential Information. The obligations of this clause shall not apply (a) to any disclosure required by law, (b) to information that is now or subsequently becomes generally available through no act of omission of Merchant, (c) to information that is known to Merchant at the time of disclosure without obligation to maintain its confidentiality, as evidenced by written documents or records, (d) to information provided to Merchant by a third party without restriction, or (e) to information independently developed by Merchant, its officers, employees, agents, or contractors, as evidenced by written documents or records. Merchant agrees and acknowledges that KITN Confidential Information includes, but is not limited to, Payments and reports provided by KITN.


8. Representations and Warranties

Merchant hereby represents and warrants to KITN that Merchant: (i) is the owner of the Products or is legally authorized to act on behalf of the owner of the Products for the purposes of this Agreement; (ii) shall not at any time provide to KITN or use in connection with the Platform any Personally Identifiable Information or any other information or data if the provision or use of such information or data violates any applicable law or regulation or the privacy policy of KITN, Merchant or any third party; (iii) shall ensure that the Licenses allow Users to activate Products according to the terms of use and privacy policy of such Products; (iv) has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations; (v) shall offer for download and/or access to and distribute the Products in accordance with all applicable laws, rules and regulations and industry-standard best practices; (vi) shall comply with all applicable local, state, national and international laws, rules and regulations relating to its performance of this Agreement, including without limitation any laws regarding the transmission of technical data exported from Merchant's country of residence and further including, without limitation, the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws; (vii) that it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; and (viii) that neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which it is bound.


9. Indemnification

Merchant shall indemnify, defend, and hold harmless KITN, its parent and subsidiary companies (including representatives, successors and permitted assigns thereof) from and against any and all claims, losses, expenses, damages, liabilities and costs, including reasonable attorneys' fees, arising out of or relating to (i) the violation of any patent, copyright, trademark, trade secret or other intellectual property or proprietary right of any third party by the Product, the Licenses, or the Merchant’s tradenames, trademarks, service marks, copyrights, and logos, or the use thereof; (ii) any slander, libel, or defamation contained on or within the Products; (iii) violation of any applicable laws, rules and regulations by the Product or the Licenses; (iv) any breach of a representation, warranty or covenant of Merchant contained in this Agreement; and (v) Merchant’s use of the Platform in a manner not contemplated by this Agreement. Merchant will not enter into any settlement or compromise of any claim subject to indemnification without KITN's prior consent.


10. Disclaimer

EXCEPT AS MAY BE EXPRESSLY STATED IN THIS AGREEMENT, KITN MAKES NO WARRANTIES OF ANY KIND, (INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE SERVICES PROVIDED OR THE PLATFORM), WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ANY WARRANTY OR CONDITION ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTRY. KITN MAKES NO GUARANTEE REGARDING THE VOLUME OR TIMING OF ACTIONS IN CONNECTION WITH THE SERVICES PROVIDED UNDER THIS AGREEMENT OR THE PLATFORM. KITN DOES NOT WARRANT THE RESULTS OF THE SERVICES PROVIDED UNDER THIS AGREEMENT OR THE PLATFORM, INCLUDING, WITHOUT LIMITATION, THE RESULTS OF ANY AD CAMPAIGN, THE NUMBER, TIMING OR COMPLETION OF ACTIONS OR THE TOTAL AMOUNT OF ANY PAYMENT TO BE MADE TO MERCHANT UNDER THIS AGREEMENT, AND MERCHANT ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. KITN DOES NOT WARRANT THAT THE PLATFORM OR SERVICES PROVIDED BY KITN ARE ERROR-FREE OR THAT MERCHANT WILL BE ABLE TO RECEIVE THE SERVICES WITHOUT PROBLEMS OR INTERRUPTIONS.


11. Limitation of Liability

  1. MERCHANT ACKNOWLEDGES AND AGREES THAT ADS MAY INCLUDE LINKS TO OTHER WEBSITES OR RESOURCES AND THAT KITN HAS NO CONTROL OVER (AND IS MERELY A PASSIVE CONDUIT WITH RESPECT TO) ANY ADS OR SUCH LINKS TO WEBSITES OR OTHER RESOURCES THAT MAY BE SUBMITTED OR PUBLISHED BY ANY ADVERTISER OR OTHER THIRD PARTY. KITN IS NOT RESPONSIBLE FOR THE AVAILABILITY OF SUCH THIRD PARTY WEBSITES OR RESOURCES AND DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH THIRD PARTY WEBSITES OR RESOURCES. MERCHANT ACKNOWLEDGES AND AGREES THAT KITN SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY CONTENT, GOODS OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH THIRD PARTY WEBSITE OR RESOURCE. ALL CORRESPONDENCE OR BUSINESS DEALINGS WITH, OR PARTICIPATION IN PROMOTIONS OF, ADVERTISERS FOUND ON OR THROUGH ANY AD, INCLUDING PAYMENT AND DELIVERY OF RELATED GOODS OR SERVICES AND ANY OTHER TERMS, CONDITIONS, WARRANTIES OR REPRESENTATIONS ASSOCIATED WITH SUCH DEALINGS, ARE SOLELY BETWEEN MERCHANT (OR THE USERS) AND SUCH ADVERTISER.
  2. TO THE MAXIMUM EXTENT ALLOWED BY LAW, IN NO EVENT SHALL EITHER KITN, ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, OR ADVERTISERS BE LIABLE FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR KITN, ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, OR ADVERTISERS HAVE BEEN NOTIFIED OR HAVE CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF THEREOF AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY
  3. THE AGGREGATE LIABILITY OF EITHER KITN, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, AND ADVERTISERS FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT (WHEN AGGREGATED WITH KITN’S LIABILITY FOR OTHER CLAIMS ARISING OUT OF THIS AGREEMENT) SHALL BE LIMITED TO KITN’S SHARE OF REVENUE DERIVED FROM THE PRODUCTS UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY.

General Provisions

  1. Notices. Notices to KITN under this Agreement shall be sent to the attention of General Counsel at KITN Media ULC, 52A Powell Street, Suite 200, Vancouver, British Columbia V6A 1E7, Canada.
  2. Force Majeure. Neither party will be liable to the other for any failure of performance under this Agreement (other than the obligation to make payments under this Agreement) due to acts of God; acts of the public enemy; strikes, lockouts, or other industrial disturbances; fires, floods, storms, droughts, or weather conditions; war, riots or terrorist acts; or, without limitation by enumeration, any other cause beyond the reasonable control of such party; provided, however, that such party shall promptly and diligently take such action as may be necessary and practicable under the then-existing circumstances to remove the cause of failure and resume performance at the earliest reasonable time and shall further give notice of such circumstance to the other party as soon as practicable
  3. Relationship of the Parties. The relationship between KITN and Merchant is one of independent contractors, and neither KITN nor Merchant shall be or construed to be a partner, joint venturer or employee of the other.
  4. Successors and Assigns. This Agreement shall be binding upon the successors and assigns of the parties, provided that Merchant may not assign this Agreement without the prior written consent of KITN. Any assignment or attempted assignment by Merchant in contravention of this provision shall be null and void. KITN may assign this Agreement without the consent of Merchant
  5. Jurisdiction and Venue; Enforcement. This Agreement shall be construed under the laws of the State of California, U.S.A., without regard to its conflict of laws rules, and each party agrees that any judicial proceeding brought to enforce any provision of this Agreement or to recover damages for its breach shall be brought exclusively in the state or federal courts located in Los Angeles County, California, U.S.A., and the parties respectively waive any objections to jurisdiction or venue of such court. KITN shall be entitled to all reasonable attorneys’ fees and costs in connection with enforcing this Agreement. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement
  6. No Waiver; Amendment. No waiver by either party of one or more breaches or defaults by the other in the performance of any provision of this Agreement shall operate or be construed as a waiver of any other or further breach or default whether of a like or different character. This Agreement may only be amended by KITN upon notice to Merchant, including through posting on the KITN website or email notification to Merchant, or by an agreement executed by both parties. Merchant’s continued participation in the online merchant services program as set forth in this Agreement after notice of an amendment from KITN will constitute Merchant’s acceptance of such amendment
  7. Severability. In the event any provision of this Agreement is declared to be void or unenforceable in whole or part, the other provisions of this Agreement and the remainder of the affected provisions shall continue to be valid; provided, however, that a court having jurisdiction may revise such provision to the extent necessary to make such provision valid and enforceable consistent with the intention of the parties
  8. Entire Agreement. This Agreement supersedes and excludes any prior agreements, representations, warranties or contracts between the parties relating to the subject matter hereof and contains all of the agreements of the parties with respect to the subject matter hereof.
  9. Section Headings. Section headings are purely for ease of reference and do not form part of or affect the interpretation of this Agreement