Terms And Conditions

blinkx Syndicated Publisher Program and AdHoc Video Advertising Program

Welcome to the blinkx Syndicated Publisher Program and the AdHoc Video Advertising Program. By enrolling in the blinkx Syndicated Publisher Program or the AdHoc Video Advertising Program ("blinkx Program"), you ("Customer" or "You" and "Your") are entering into a legally binding agreement with blinkx, Inc. ("blinkx" or "we", "our" and "us"). This agreement is comprised solely of these terms and conditions ("Agreement" or "Terms"), including anything explicitly incorporated by reference. If you do not agree to these Terms, please do not enroll in the blinkx Program.

PLEASE READ THIS AGREEMENT CAREFULLY. By registering, clicking "I Agree" or otherwise participating in the blinkx Program, You represent to blinkx that You are over the age of 18 and that You are legally capable of entering into and fulfilling Your obligations under this Agreement. If You do not accept any of the terms and conditions contained in this Agreement in full, please do not register for or participate in blinkx Program.

You and blinkx acknowledge and agree to the following:

1. blinkx Network. blinkx develops and maintains a network of sites that contain video content ("Syndicated Sites"). blinkx also owns related technologies that facilitate the distribution of advertisements ("Ad" or "Ads") through video content across its network of Syndicated Sites. You may participate in the blinkx Program by registering an account and either placing the blinkx advertising embedded code on Your site or entering the text Ad You wish to place. If You are placing an Ad, You agree that Your Ad may be placed on a blinkx website or through a Syndicated Site operated by a blinkx syndication partner ("Syndication Partner").

2. Registration. To participate, You must register online with blinkx at the blinkx site and create a unique, password-protected account ("Account"). If you are placing an Ad, You agree to a minimum campaign budget of US$10.00. You will be responsible for safeguarding Your password. You also take full responsibility for any actions under Your password and Account, whether authorized by You or not. You are responsible for keeping Your Account information current. You acknowledge and agree that blinkx has the right, in its sole and exclusive discretion, to accept or reject Your participation in blinkx AdHoc.

3. SYNDICATED PUBLISHER PROGRAM. If you are registering for the Syndicated Publisher Program, you agree to comply with the following terms and conditions which are applicable only to the Syndicated Publisher Program.

3.1 Subject to Your compliance with the terms and conditions of this Agreement, You have a limited, revocable, non-sublicensable right to use, reproduce, publicly perform, distribute and display for commercial purposes, solely via online distribution through Your website, a Syndication Site, blinkx advertisement made available to You by the blinkx technology. Upon termination of this Agreement or termination of your Account, Your rights the blinkx Program shall immediately cease.

3.2 Your Information. You authorize blinkx to use Your trademarks, service marks, trade names, proprietary logos, domain names, Your website usage statistics and any other source or business identifiers (collectively, "Your Information") in presentations, marketing materials, customer lists and financial reports, in connection with blinkx's marketing, distribution and provision of the blinkx Program and for soliciting other distributors, publishers, creators and advertisers to use the blinkx network. You acknowledge and agree: (i) that You understand that You may provide, and blinkx may collect, Your Information during Your participation; and (ii) that Your Information may be shared with blinkx's affiliates, business partners, sponsors, advertisers, employees, customers and distribution partners.

3.3 No Endorsement; No Publicity. blinkx does not endorse, verify, evaluate or guarantee the Ads or the video content embedded with advertisements provided by users, including You, and nothing shall be considered as an endorsement, verification or guarantee of any information or Ads. You shall not create or distribute information, including but not limited to Ads, press releases or other marketing materials, or include links to any sites which offer such information, (i) containing or suggesting an endorsement by blinkx or its advertisers of You or Your video content; or (ii) relating to this Agreement, without the prior review and written approval of blinkx.

3.4 Reserved Rights. You will not attempt to modify, prepare derivative works from, translate, adapt, edit, decompile, disassemble or reverse engineer any specifications, technology, applications or software programs provided or made accessible to You or used by blinkx in connection with the blinkx Program in any way, unless expressly authorized in writing by blinkx. blinkx may modify the format and look and feel of the blinkx Program from time to time. Excluding Your video content, You agree to assign and hereby do assign to blinkx and its licensors (as applicable) all right, title and interest in and to any part of the blinkx Program that You may have or acquire during Your participation. You will not delete, remove, obscure or in any manner alter the copyright, trademark, license or other proprietary rights notices affixed to or contained in the blinkx Program. Any rights not expressly granted herein are deemed withheld.

blinkx disclaims all liability relating to Your Syndication Sites. You are solely responsible for all maintenance and operation of Your Syndication Sites, and any materials or content therein. You may not display or distribute video content and Ads on any Syndication Site that contain any pornographic, infringing, hate-related, violent or illegal content. You agree to comply with any specifications provided by blinkx to enable proper use, delivery, display and distribution of Ads on Your Syndication Sites.

You agree that You will not:

  • modify any specifications, technology or application codes, including without limitation blinkx's technology as embedded in the video content in any way, unless expressly authorized in writing by blinkx;
  • disrupt, intercept or redirect an end user away from any Ad links or advertiser page or provide a version of the advertiser page that is different from the page an end user would access by going directly to the advertiser page; or
  • modify, add to, delete from or in any way alter the Ad.

3.5 Warranties and Representations. You represent and warrant to blinkx that: (i) You have all requisite power and authority, corporate or otherwise, to enter into this Agreement and to execute, deliver, and perform all of Your obligations under this Agreement; (ii) You have provided, and will continue to provide, information that is correct and current; (iii) You are the owner of Your Syndication Sites and have full technical and editorial control of the same; (iv) Your performance under this Agreement and/or the rights granted herein do not and will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any contract or agreement, to which You are currently bound or will become bound in the future; (v) Your performance under this Agreement will comply with all applicable laws, rules and regulations (including, without limitation, export control, privacy and obscenity laws), domestic or foreign; (vi) You have read and understand the terms and conditions of this Agreement and that your participation in the program is contingent on your compliance with this Agreement; and (viii) you are a US based business or individual and you are operating Your site solely for viewing and use by users within the US.

3.6 Your Materials. You represent and warrant that Your video content Your Syndication Sites or any other information or material You submit or make available to others during Your participation in the blinkx Program (i) do not and will not, directly or indirectly, violate, infringe or breach any duty toward or rights of any person or entity, including without limitation any copyright, trademark, service mark, trade secret, other intellectual property, publicity or privacy right; (ii) do not contain Adult Content, as defined herein; (iii) are not fraudulent, misleading, hateful, tortuous, defamatory, slanderous, libelous, abusive, violent, threatening, profane, vulgar or obscene; (iv) do not harass others, promote bigotry, racism, hatred or harm against any individual or group, promote discrimination based on race, sex, religion, nationality, sexual orientation or age, or otherwise interfere with another party's use of or participation in the blinkx Program; and (v) do not promote illegal or harmful activities or substances (including without limitation activities that promote or provide instructional information about activities such as making or buying illegal weapons or substances).

3.7 Indemnity. You will defend, indemnify and hold harmless blinkx and its advertisers ("Indemnified Parties") from and against any and all claims, liabilities, losses, costs, and expenses, including reasonable attorneys' fees, which the Indemnified Parties suffer as a result of claims that arise from or relate to Your activities (including any act or omission) under or in connection with this Agreement, including but not limited to claims that allege or arise from: (i) a violation a third party's right of privacy, or infringement of a third party's copyright, patent, trade secret, trademark, or other intellectual property rights, (ii) any breach of Your obligations, covenants, warranties or representations as set forth in this Agreement, including any breach of any applicable policies, (iii) any violation of applicable laws, rules, and regulations by You, including, without limitation, privacy laws, and (iv) any breach of this Agreement. You shall not enter into any settlement that affects any Indemnified Party's rights or interest, admit to any fault or liability on behalf of any Indemnified Party, or incur any financial obligation on behalf of any Indemnified Party without that Indemnified Party's prior written approval. You will reimburse blinkx for any reasonable payment made to its advertisers in settlement of costs, attorneys fees and damages incurred by such advertisers in connection with bona fide, non-frivolous investigations or claims against such advertisers, directly resulting from the actions or inactions of You, even if no formal claim has been brought against blinkx or its advertisers or tendered pursuant to the procedure set forth above; subject to blinkx providing You prior written notice. You will not enter into any settlement or compromise of any such claim without blinkx's prior consent, which will not be unreasonably withheld.

4. BLINKX ADHOC VIDEO ADVERTISING PROGRAM. If you are registering for the AdHoc Video Advertising Program, you agree to comply with the following terms and conditions which are applicable only to the AdHoc Advertising Program.

4.1 Placing Ads with blinkx AdHoc. In placing ads, You are responsible for providing blinkx with: (a) the title, (b) the URL, (c) the description, and (c) keywords. With respect to any Ad content You provide, You are solely responsible for and promise that:

  • all Ad content is accurate and complete;
  • You have all necessary rights, power and authority to publish the Ad content;
  • the Ad content:
    • complies with all applicable laws and regulations;
    • does not infringe, misappropriate or otherwise violate any copyright, patent, trademark, service mark, trade secret or other intellectual property right of any third party;
    • does not breach the rights of any person or entity, including rights of publicity or privacy, and is not defamatory; and
    • does not result in consumer fraud (including being false or misleading), product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity.
  • You possess documents which substantiate any and all claims, express and implied, contained within the Ad content.
  • You will comply with all applicable blinkx policies which may be posted on blinkx's website from time to time.

4.2 Consent to Placement of Ads. By opening an Account and placing the Ad, You understands and agree that Your Ads may be placed on any content or property provided by blinkx or a blinkx Syndicated Partner, in the manner specified by blinkx in its sole discretion. You authorize and consent to all such Ad placements. Your Account is deemed approved by You in all respects when submitted. You agree that all placements of Your Ads shall conclusively be deemed to have been approved by You.

4.3 Cancellation. You may cancel Your online Ads through Your Account by "pausing" Your Ad, or with prior written notice to blinkx, including without limitation electronic mail. Placement of Your Ads paused will cease serving shortly after pausing the Ad. blinkx may cancel immediately the blinkx AdHoc Program, this Agreement, one or more of Your Ads at any time with or without notice.

4.4. Prohibited Uses. You shall not, and shall not authorize any party to:

  • generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions, clicks or other actions
  • use any automated means or form of scraping or data extraction to access, query or otherwise collect blinkx Ads related information from any website or property except as expressly permitted by blinkx;
  • advertise anything illegal or engage in any illegal or fraudulent business practice.

4.5 License Grant, Warranties and Representations. You represent and warrant that You hold and hereby grants blinkx and any blinkx Syndication Partner all rights (including without limitation any copyright, trademark, patent, publicity or other rights) in Your Ad needed for blinkx to place Your Ad (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of Your Ad) in connection with this Agreement. You further represent and warrant that Your information is complete, correct and current; and any licensed use hereunder and Your Ads will not violate or encourage violation of any applicable laws, regulations, code of conduct, or third party rights (including without limitation intellectual property rights). Your violation of any of the foregoing may result in immediate termination of this Agreement or Your Account without notice and may subject You to legal penalties and consequences.

4.6 Indemnification. You will defend, indemnify and hold harmless blinkx, its Syndication Partners, agents, employees and licensors ("Indemnified Parties") from and against any and all third party claims and liabilities which the Indemnified Parties suffer as a result of claims that arise from or relate to Your Ads, the licensed use of Your Ads or any breach of Your obligations, covenants, warranties or representations as set forth in this Agreement, including any breach of any applicable policies. You shall not enter into any settlement that affects any Indemnified Party's rights or interest, admit to any fault or liability on behalf of any Indemnified Party, or incur any financial obligation on behalf of any Indemnified Party without that Indemnified Party's prior written approval. You will reimburse blinkx for any reasonable payment made to its Syndication Partners in settlement of costs, attorneys fees and damages incurred by such Syndication Partners in connection with bona fide, non-frivolous investigations or claims against such Syndication Partners, directly resulting from the actions or inactions of You, even if no formal claim has been brought against blinkx or its Syndication Partners or tendered pursuant to the procedure set forth above; subject to blinkx providing You prior written notice. You will not enter into any settlement or compromise of any such claim without blinkx's prior consent, which will not be unreasonably withheld.

6. Payment and Payment Terms.

6.1 If blinkx Pays You for Syndicated Publisher Program. Subject to Your compliance with the terms and conditions of this Agreement, blinkx will pay You fifty percent (50%) of the revenue payable to blinkx from the applicable Advertising as a result of valid Advertising actions generated in connection with Advertisements distributed by You through Content videos on Your Syndication Sites.

Amounts due to You, if any, in connection with Your participation as a Syndicated Partner, will be determined solely by blinkx based on advertising data regarding impressions, clicks, conversions and other applicable metrics collected by and/or supplied to blinkx. All payments will be made in U.S. Dollars. Generally, accrued payments will be available for withdrawal or transfer sixty (60) days after the end of the calendar month in which they accrued. Notwithstanding the foregoing, blinkx shall make no payments until such accrued payments total at least twenty dollars ($25). You will not be entitled to receive interest on any Account payments. If You dispute blinkx's payments made to You under this Agreement, You must notify blinkx in writing within thirty (30) days of blinkx sending payment to You. Failure to notify blinkx in this manner will result in Your waiver of any claim relating to such dispute. blinkx will use reasonable efforts to resolve any such dispute in good faith, but blinkx's resolution will be final. You are responsible for any and all applicable taxes or charges imposed by any government entity in connection with Your participation in the blinkx Program. blinkx may change its pricing and/or payment structure at any time, upon thirty (30) days' prior notice of any such change. All modified payment terms shall be effective thirty (30) days after notice has been provided to You by blinkx (or such other time period specified in such notice). If any such modified payment terms are not acceptable to You, Your only recourse is to cease participation in the blinkx Program. By continuing to participate following notice of any modified payment terms as set forth herein, You accept and agree to be bound by such modified payment terms. For the purposes of checking credit, effecting payment and/or servicing Your Account, blinkx may share with third parties, such as payment processors and/or credit agencies, any credit card and related payment information that You provide.

Exceptions. blinkx will have no obligation to pay any amounts, and is permitted to deduct or withhold any amounts from or posted to Your Account, determined or reasonably suspected by blinkx in its sole discretion to have resulted from: (i) breach this Agreement, including but not limited to the restrictions set forth in Section 6 ("Adult Content") and Section 10 (warranties); or (ii) fraudulent, misleading or false activities; (iii) shall not include clicks on the advertisement which are (a) reasonably likely to be fraudulent clicks as determined by blinkx (including, without limitation, clicks generated by software, robots, or users paid or otherwise incented to click without a bona fide intent to view the underlying content of the advertiser's destination page), (b) clicks with null referrers. blinkx reserves the right to withhold or deduct payment, if applicable, or suspend or otherwise disable Your Account, pending blinkx's reasonable investigation of any of the foregoing or any breach of this Agreement by You.

6.2 If You Pay blinkx for AdHoc Advertising. You shall be responsible for all charges incurred for Your Ad campaign. blinkx requires a minimum campaign budget of USD$10.00. You agree to pay for blinkx AdHoc through a secured PayPal account provided by blinkx in the registration process. Charges are exclusive of taxes. You are responsible for paying all taxes and government charges. To the fullest extent permitted by law, refunds (if any) are at the discretion of blinkx and only in the form of Ad credit for only blinkx sites. You are required to make a claim for a refund in the form of an Ad credit within 30 days of when such refund could have been claimed. blinkx shall not be liable for any use or disclosure of payment information by third parties. Your exclusive remedy, and blinkx's exclusive liability, for suspected invalid impressions or clicks is for You to make a claim for a refund in the form of Ad credits within the time period required hereunder. Any refunds for suspected invalid impressions or clicks are within blinkx's sole discretion.

Terms applicable to both blinkx Programs:

7. Confidentiality. You will not disclose or use blinkx's Confidential Information. "Confidential Information" means any information disclosed or made available to You by blinkx, directly or indirectly, whether in writing, orally or visually, other than information that: (a) is or becomes publicly known and generally available other than through Your action or inaction or (b) was already in your possession (as documented by written records) without confidentiality restrictions before you received it from blinkx. Confidential Information includes but is not limited to software, technology, services, algorithms, search engines and search indices, programs, specifications, materials, trade secrets, finances, this Agreement and other performance metrics and any other technical or programming information blinkx discloses or makes available to you.

8. Disclaimer and Limitation of Liability. Except as provided in this Agreement, Your participation in blinkx Program is at Your sole discretion and risk. blinkx Program, and all materials, information, products and services included therein, are provide on an "AS IS" and "AS AVAILABLE" basis without warranties of any kind.To the fullest extent permitted by law, BLINKX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR NONINFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. To the fullest extent permitted by law, blinkx disclaims all guarantees regarding positioning, levels, quality, or timing of: (i) costs per click; (ii) click through rates; (iii) availability and delivery of any Ads; (iv) clicks; (v) conversions or other results for any Ads; (vi) the accuracy of blinkx or Syndication Partner's data (e.g. reach, size of audience, demographics or other purported characteristics of audience); (vii) the amount of money you will earn through the blinkx Program and (viii) the adjacency or placement of Ads. You understand that third parties may generate impressions or clicks on Your Ads for prohibited or improper purposes, and You accepts the risk of any such impressions and clicks. EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES HEREUNDER AND YOUR BREACHES OF SECTION 3, TO THE FULLEST EXTENT PERMITTED BY LAW: (a) NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUE, INTEREST, GOODWILL, LOSS OR CORRUPTION OF DATA OR FOR ANY LOSS OR INTERRUPTION TO CUSTOMER'S BUSINESS) WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (b) EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER IS LIMITED TO AMOUNTS PAID OR PAYABLE TO BLINKX BY YOU FOR THE AD GIVING RISE TO THE CLAIM.

9. Term and Termination

9.1 Termination. blinkx reserves the right, in its sole and absolute discretion, for any reason or no reason, to immediately terminate this Agreement, or cancel the blinkx Program, or terminate, revoke or cancel Your participation in the blinkx Program for any reason at any time. You may terminate this Agreement at any time by disabling Your Account or providing notice to blinkx.

9.2 Cooperation. You agree to cooperate fully with blinkx to investigate any suspected or actual activity that is in breach of this Agreement. You acknowledge that any violation of your warranties is a material breach of this Agreement and that blinkx may pursue any and all applicable legal and equitable remedies against You, including an immediate suspension of Your Account or termination of this Agreement, and the pursuit of all available civil or criminal remedies. blinkx reserves the right to investigate, at its own discretion, any activity that blinkx suspects may violate this Agreement. blinkx may, as applicable, withhold payment, notify Your bank, the authorities, suspend or cancel Your Account and/or take appropriate actions at any time without notice to You if blinkx, in its sole discretion, (i) suspects that You have breached or failed to comply (in full or in part) with any provision of this Agreement or any policies or rules established by blinkx; or (ii) suspects that Your actions may be illegal or cause liability.

9.3 Effect of Termination. Upon termination or expiration of this Agreement, Your right to participate in the blinkx Program (including but not limited Your right to receive compensation, if any) will automatically terminate. In the event of termination, Your Account will be disabled and You may not be granted access to Your Account although residual copies of information may remain in the blinkx Program system. Upon termination: (i) all licenses granted to You hereunder will immediately terminate; (ii) You will promptly destroy all copies of blinkx content in Your possession or control; and (iii) blinkx will pay all undisputed amounts, if any, due to You within ninety (90) days from the last day of the month in which termination occurs. In no event, however, shall blinkx make payments for any earned balance less than twenty five dollars ($25). In the event that this Agreement or the blinkx Program expires or is terminated, blinkx shall not be obligated to return any materials to You. The follow sections shall survive the termination of this Agreement: 3, 4, 6.2, 7, 8, 9, 10, 11, 12 and 13.

10. No Guarantees. blinkx makes no guarantees: (i) regarding the availability, operation, maintenance, timing of blinkx Program; (ii) that participation will secure any success or generate any revenue or the amount of payment (if any) to be made hereunder; or (iii) regarding the relevancy of any Ads to the video content.

11. Adult Content. You will not use the blinkx Program in conjuncture with the display of any video content that is of, or is suggestive of a sexual, pornographic or erotic ("Adult Content"). Examples of content that blinkx, in its sole discretion, considers to be Adult Content include, but are not limited to material that is pornographic, obscene, indecent or profane in its use of sexual language or description or depictions of sexual acts. If blinkx finds video content that it determines, in its sole discretion, contains Adult Content, blinkx may, without notice, suspend or cancel at any time and without notice Your Account and participation in the blinkx Program, or deduct or withhold payments related to any advertisements, that blinkx, in its sole discretion, determines to be in violation of this Section. blinkx will take all appropriate steps with video content that blinkx believes violates applicable laws, including cooperation with any law enforcement investigation. If You see content that You believe is Adult Content or is in violation of law or this Section, You should contact blinkx immediately.

12. Modification of blinkx Program. blinkx, at any time and from time to time, may modify this Agreement and any policies, or may modify, suspend or discontinue, temporarily or permanently, the blinkx Program (or any parts thereof). Modifications to this Agreement and any policies will be posted on the blinkx website. Modifications to the blinkx Program will be effective upon posting to the blinkx website. You agree that blinkx shall not be liable to You or to any third party for any modification, suspension or discontinuance of this Agreement, the policies, or the blinkx Program. By continuing to participate after blinkx has posted any such modifications or provided any required notices, You agree to be bound by the modifications. Please review this Agreement and the policies regularly so that You will be apprised of any modifications. If any modification is not acceptable to You, Your only recourse is to cease participation in the blinkx Program.

13. Miscellaneous. blinkx reserves the right to refuse to provide services to anyone, for any reason or no reason, in blinkx's sole discretion. This Agreement will be governed by the laws of California, excluding its conflicts of laws principles. Any dispute or claim between You and blinkx, will be adjudicated in the state or federal courts in Santa Clara, California. Any claim against blinkx arising from the Agreement shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy of any other party. You agree to file any claim or cause of action against blinkx within one (1) year of the date that the claim or cause of action arises. This is the entire agreement between you and blinkx with regard to the subject matter covered herein. Any other terms and agreements (whether verbal, written or both) are superseded. A party can only waive rights under this Agreement by executing a written waiver signed by a duly authorized representative. No other action or inaction will constitute a waiver. The parties are independent contractors. This Agreement does not form any joint venture, partnership, agency or employment relationship. Except for your indemnity obligations, there are no third party beneficiaries to this Agreement. You may not assign, resell, or delegate this Agreement or any of your rights or duties under this Agreement, even if you sell or transfer Your Syndicated Site. Any attempted assignment, resale or delegation will be void. blinkx may assign this Agreement or delegate its responsibilities without your consent. Upon assignment, blinkx will have no further obligation or liability under this Agreement.