Service Agreement

Last updated on January 26th, 2010 by Cirius Technologies, Inc.

1 Parties and Scope

1.1 Parties to the Agreement

This is an Agreement between you, the Advertiser and/or the Publisher (sometimes also defined as "Company") and Cirius Technologies, Inc., the service provider of AdLocal. Cirius Technologies, Inc. is sometimes referred to as "Cirius", "we", "us" or "our".

1.2 Scope of the Agreement

This Agreement applies to the AdLocal service, AdLocal websites and any software and services related to AdLocal (collectively referred to as the "Service" or sometimes as “AdLocal Platform”). Please read this Agreement carefully, as it includes important confidentiality obligations, indemnity obligations, disclaimers, and exclusions and limitations of liability. By checking the box below and clicking the “Submit” button, you will be entering into this Agreement so that you can gain access to the Service provided by Cirius. By using the Service, you are agreeing to the terms of this agreement, as well as applicable policies, including, but not limited to AdLocal’s Privacy Policy, and AdLocal’s Ad Content Guidelines, both of which are incorporated herein as reference. The Agreement shall stay in effect continuously unless either party communicates intent to cancel or terminate to the other party. See section titled “Termination and Cancellation of Service.”

2 Definitions

2.1 “Ad” or “Advertisement” means text-based, graphical, audio, video, interactive, rich media advertisements or such other formats as may be approved by AdLocal, from time to time.

2.2 “Ad Inventory” means the inventory of a Publisher on Publisher’s Mobile Properties that such Publisher makes available to AdLocal through creation of Ad Units.

2.3 “Ad Unit” refers to an offer by Publisher which is posted by Company on the AdLocal Platform via Publisher Console and is available for resale by AdLocal to the Advertisers.

2.4 “Advertiser” refers to those customers of Cirius who have created Ads in AdLocal Platform with the intent to display on AdLocal’s network of Publishers.

2.5 “Advertiser Console” refers to AdLocal’s password-protected online environment where Advertisers may register to use the AdLocal Platform and it is where Advertisers will (i) create their Advertiser Profile and (ii) create and manage their Ads. The Advertiser Console is accessible at www.adlocal.biz or such other URL as Cirius may designate from time to time.

2.6 "Agreement" refers to the signing and/or otherwise acceptance by Cirius’ customers, of the Terms and Conditions as outlined in this document.

2.7 “Budget” refers to the amount that an Advertiser is willing to spend for a given Campaign.

2.8 “Campaign” refers to an advertising campaign that an Advertiser intends to run as per the various Targeting, Scheduling, Pricing and Budget constraints as specified by the Advertiser. This may also be referred to as ad-campaign.

2.9 “Click” refers to the User’s action of selecting an Ad that he or she is viewing and then interacting with it in a manner so as to be directed to Advertiser’s website, mobile website, or Landing Page. AdLocal Platform will charge for only the first Click on a given Impression.

2.10 “Company” means the individual or entity entering into this Agreement with Cirius Technologies.

2.11 “Impression” refers to the display of an AdLocal Advertiser’s Ad on an AdLocal Publisher’s Mobile Property, in response to such Publisher’s explicit electronic request for an Ad (also referred to as an ad call or an ad query). AdLocal Platform will only record and report an Impression as valid, each time it responds to Publisher’s ad call with an Ad and/or the reference to such ad content. Occasionally, AdLocal Platform may not have any Ads to display in response to a Publisher’s ad call; in such cases no Impression will be recorded.

2.12 “Landing Page” refers to the simple, mobile website created by Advertisers on AdLocal Platform and hosted by Cirius. This is what Users will see when they click on Advertiser’s Ads.

2.13 “Mobile Properties” refers to Publisher’s websites and/or applications created specifically for viewing and/or interaction on mobile devices by Users.

2.14 “Payment Rate” or “Revenue Share” refers to the figure that Cirius will use to calculate the amount that Cirius will pay Publisher for the resale of Publisher’s Ad Inventory.

2.15 “Publisher” refers to those customers of Cirius who have created Ad Units on AdLocal Platform with the intent of making available their Ad Inventory to AdLocal’s network of Publishers.

2.16 “Publisher Console” refers to AdLocal’s password-protected online environment where Publishers may register to use the AdLocal Platform and it is where Publishers will (i) create their Publisher Profile, and (ii) create and manage their Ad Units. The Publisher Console is accessible at www.adlocal.biz, or such other URL as Cirius may designate from time to time.

2.17 “User” shall refer to an individual consumer (sometimes also referred to as end-user) who views and interacts with Publisher’s Mobile Properties.

3 Company Obligations

3.1 Responsibilities of Company

In connection with your use of the Service, you agree to:

• obey the law;
• obey any codes of conduct or other notices provided by Cirius;
• keep your Service account password secret; and
• promptly notify Cirius if you learn of a security breach related to the Service.

3.2 Prohibited Uses

As a Company using this Service, you will not:

• engage in, facilitate or further unlawful conduct;
• use the Service in a way that harms us or our Advertisers, affiliates, resellers, distributors, Publishers, and/or vendors, or any customer of ours or our Advertisers, affiliates, resellers, distributors, Publishers, and/or vendors;
• use any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages;
• use any automated process or service or any other fraudulent means to generate ad clicks;
• use any unauthorized means to modify or reroute, or attempt to modify or reroute, the Service; or
• damage, disable, overburden, or impair the Service (or the network(s) connected to the Service) or interfere with anyone's use and enjoyment of the Service.

4 Description of Service

4.1 Advertisers

4.1.1 Ads and Cost Per Click (CPC)

• Advertisers may produce Advertisements for display on a Publishers' Mobile Properties. While creating Ads, Advertisers must adhere to AdLocal’s Ad Content Guidelines and Policies, incorporated herein by reference for all purposes.
• Advertisers further define ad campaigns by choosing target locations and setting a cost per click (CPC) for each target location.
• AdLocal delivers the Ads to Publishers' Mobile Properties, where the Ad is presented in a format that viewers (end users) can click through.

4.1.2 Advertiser Accounts

• Advertisers will establish their own accounts with AdLocal to manage funds for the ads they want to run with AdLocal.
• Advertisers must deposit (prepay) funds into their AdLocal accounts in order for AdLocal to start delivering their ads. Prepayments can be made via PayPal. Cirius is not responsible for any fees that may be charged by PayPal or Advertisers' credit card companies or banks in order to prepay funds.
• At all times, an Advertiser's account balance must be equal to or greater than the minimum CPC set by the Advertiser in order for AdLocal to continue ad delivery. AdLocal will not deliver an Ad for which the CPC is greater than the Advertiser’s account balance.

4.1.3 Click Counting and the Consumption of Ad Funds (Ad Spending)

• Each time an User clicks an Ad for the first time, the amount of money equal to the CPC set for the corresponding Ad is charged to the Advertiser.
• Each ad delivery can technically be clicked more than once by a single User, but only the first click will be charged a CPC. If a single User clicks an Ad two or more times, he or she will still be able to view and click through the Ad as long as the Ad is being run by the Advertiser, but the Advertiser will not be charged for such subsequent clicks.

4.1.4 Ad Charges

• Advertisers who desire to run Ads on AdLocal will need to start with a balance of at least $50. Cirius reserves the right to change the starting balance at any time. AdLocal uses an auction model for pricing the placement and serving of the Ads. Advertisers will need to place bids for their Ads to be shown in desired locations; AdLocal will use proprietary AdLocal Platform logic to pick the most relevant Ad to display to the Users. AdLocal reserves the right to determine the minimum bid. The bid needed to ensure that the Ad gets displayed will depend upon various parameters predetermined by Cirius. Such parameters may include (but may not be limited to) the location, the category of Advertiser’s business and the number of participants in that category, and may vary over time.
• Each time an User clicks on an Ad, the owner of the ad (the Advertiser) is charged a fee not to exceed the bid placed by the Advertiser. Advertisers hereby agree to pay for the clicks on their ads.
• Any ad spending will be counted against the Advertiser’s account balance. When an Advertiser exhausts the funds in his/her account, the Advertiser’s Ads will stop being delivered, and the Advertiser will need to add funds to his/her account in order to resume the Service. To ensure that there is no disruption in the AdLocal Service, Advertisers must maintain an account balance that exceeds the bids that they have placed for their Ads.

4.1.5 Termination and suspension of Ads

An Ad may be terminated or suspended for any of the following reasons:
• Ad spending reaches the limits set by the Advertiser;
• the Ad delivery schedule, set by Advertiser, ends;
• the Advertiser exhaust its advertising budget or account balance; or
• the Ad is stopped or deleted manually by Advertiser or by the administrator of AdLocal.

4.1.6 Over Deliveries and Expired Deliveries

Advertiser should understand that occasionally Ads may be clicked even after an ad delivery schedule set by the Advertiser ends. This may happen because an Ad can stay on a mobile handset screen for a few to several minutes. For example, if an Ad is scheduled to end at 11:59 p.m. on Monday and the Ad is delivered to a mobile handset at 11:59 p.m. but the screen is not refreshed for the following two minutes because the mobile user has not navigated away from the ad-page, the Ad could be clicked at 12:01 a.m., which is technically after the Ad was scheduled to end. Cirius has implemented technical measures in the AdLocal Platform to prevent Advertisers from being charged for clicks after unreasonably long display times.

4.1.7 Cancellation and Refunds

If an Advertiser terminates its ad-campaign or if an Advertiser's account is cancelled for any reason, any balances remaining in the Advertiser's account at the time of such termination or cancellation will not be refunded to the Advertiser.

4.2 Publishers

4.2.1 Use of the Service

In order to take advantage of the Service, Publishers must integrate AdLocal code into their existing applications and/or related systems to enable them to look up locations, send ad-requests to AdLocal's web API, and then display the Ads in a viewable format.

Publishers may list assets including but not limited to mobile sites and mobile applications (Mobile Properties) and make them available for advertisement. Publishers hereby grant Cirius the right to access, index and cache requests made from Publishers’ Mobile Properties to AdLocal, including by automated means.

Publishers shall not, and shall not authorize or encourage any third party to generate fraudulent impressions of or fraudulent clicks on any Advertisement, including but not limited to, through repeated manual clicks, the use of robots or other automated query tools and/or computer generated search requests, and/or the fraudulent use of other search engine optimization services and/or software.

4.2.2 Publisher Accounts

• Each Publisher will establish its own account to manage earnings from Ads. The accounts will be set up using AdLocal and earnings therein will be managed using PayPal.
• Cirius is not responsible for any fees that may be charged by PayPal in connection with Publishers' accounts.

4.2.3 Ad Earnings

• AdLocal delivers Ads to Publishers' Mobile Properties, where Ads are presented in formats that viewers (end users) can click through.
• Cirius sets a predetermined ad delivery fee for each Ad; each time an User clicks an Ad for the first time, a share (Revenue Share) of the predetermined ad fee is deposited to the corresponding Publisher account. The Revenue Share is calculated in real time by applying a Payment Rate of 60% to the amount charged to the Ad owner (Advertiser) by Cirius. Please review the details of Payment Terms in a subsequent section.
• Each Ad can technically be clicked more than once by a single User, but only the first click will be charged a CPC by AdLocal. If a single User clicks an ad two or more times, he or she still will be able to view and click through the Ad as long as the Ad is being run by the Advertiser, but the Publisher's account will only be credited with the predetermined ad fee once.

4.2.4 Payment Terms & Withdrawing Funds from Publisher Account

• Publishers shall receive a percentage of the Net Revenue of Advertisements associated with Publishers' use of AdLocal as solely determined by Cirius. "Net Revenue" shall mean revenues actually received by Cirius from the sale, use or other disposition of Advertisements displayed on Publishers' Mobile Properties less sales, use and excise taxes, less any agency commissions, carrier and/or partner fees, and less any allowances actually made or taken for returns, cash discounts or promotional allowances but excluding other revenues indirectly earned, if applicable, for consulting, planning and targeting, copywriting, site building, account management or technical modifications or technical innovations which may be charged by Cirius to third parties from time to time.
• Publisher agrees that any payments that may become due to Publisher are specifically conditioned upon Cirius’ receipt of full payment from the applicable Advertiser. If Cirius does not receive the applicable payment in full from any such Advertiser, Cirius shall have no liability or responsibility to Publisher (and Publisher hereby releases Cirius) with respect thereto. If Publisher disputes any payment made in connection with AdLocal, Publisher must notify Cirius in writing within thirty (30) days of any such payment. Failure to so notify Cirius shall result in the waiver by Publisher of any claims related to such disputed payment. Payment shall be calculated solely based on records maintained by Cirius. No other measurements or statistics of any kind shall be accepted by Cirius or have any effect under this Agreement. Cirius shall not be liable for any payment based on (i) any fraudulent impressions generated by any person, robot, automated program or similar device or for fraudulent impressions similarly generated on any Advertisements, as reasonably determined by Cirius; (ii) Impressions commingled with a significant number of fraudulent Impressions or fraudulent Clicks or (iii) any breach of this Agreement by Publisher. To ensure proper payment, Publisher is solely responsible for providing and maintaining accurate contact and payment information associated with Publisher's account. Publisher agrees to pay all applicable taxes or charges imposed by any government entity in connection with Publisher's use of the Service.
• Publishers can access their ad-earnings by withdrawing funds from their AdLocal account.
• Publishers can request a manual withdrawal of all or a part of the remaining balance in their account at any time. Such withdrawals will be subject to a manual transfer fee of $3.00 payable to Cirius; one such withdrawal may be requested free of charge per month.

4.2.5 Cancellation of a Publisher account

• Upon cancellation of a Publisher's account for any reason, Cirius will send the Publisher's remaining balance to the Publisher's PayPal account, less a $3.00 manual transfer fee.

5. Additional contents and features in the Service

Certain contents and features are provided under licenses from third parties.

• Your use of Google Maps is subject to the restrictions located at http://www.google.com/help/terms_maps.html

6 Termination and Cancellation of Service

Either party may terminate the Service at any time by notifying the other party by any means. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.

Cirius may change the Service or delete features at any time and for any reason. Cirius may cancel or suspend your Service at any time. Our cancellation or suspension may be without cause and/or without notice. Upon service cancellation, your right to use the Service shall cease immediately. Once the Service is cancelled or suspended, any data you have stored on the Service may not be retrieved later. Our cancellation of the Service will not impact your obligation to pay all charges to your account made prior to the date of cancellation or termination.

7 Disclaimers, Liability, Indemnity, Allocation of Risk

7.1 No Warranty

CIRIUS PROVIDES THE SERVICE "AS-IS," "WITH ALL FAULTS" AND "AS AVAILABLE." CIRIUS GIVES NO WARRANTIES, GUARANTEES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CIRIUS MAKES NO GUARANTEE OF AD PERFORMANCE (SUCH AS THE VOLUME OF AD IMPRESSIONS, AD CLICKS, AD EARNINGS OR COST PER IMPRESSION), SYSTEM PERFORMANCE (SUCH AS AVERAGE/MAXIMUM RESPONSE TIME OF OUR WEB API OR WEB SITES), OR SERVICE AVAILABILITY (SUCH AS MAXIMUM DOWNTIME IN A CERTAIN PERIOD OF TIME). DUE TO THE DYNAMIC NATURE OF THE SERVICE, CIRIUS DOES NOT GUARANTEE THE ACCURACY OF DATA FROM THE SERVICE.

YOU ASSUME ALL RISK ASSOCIATED WITH THE QUALITY, PERFORMANCE, INSTALLATION, AND USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, RISKS OF PROGRAM ERRORS, DAMAGE TO EQUIPMENT, LOSS OF DATA, OR UNAVAILABILITY OR INTERRUPTION OF OPERATIONS. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF THE SERVICE AND ASSUME ALL RISKS ASSOCIATED WITH ITS USE.

7.2 Limitations of Liability

NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE AGGREGATE LIABILITY OF CIRIUS FOR DAMAGES ARISING OUT OF THE FURNISHING OF THE SERVICE SHALL BE EQUAL TO THE AMOUNT OF YOUR SERVICE FEE FOR ONE MONTH. IN NO EVENT SHALL CIRIUS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER IN AN ACTION FOR CONTRACT OR TORT, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.3 Indemnity

You will indemnify, defend, and hold harmless Cirius, its affiliates, employees, officers, directors, successors, and assigns for, from, and against all claims or demands, including costs and attorneys' fees, made by any third party due to or arising out of your access to the Service, use of the Service, any violation by you of this agreement or your infringement of any third party right.

7.4 Risk of currency exchange

Cirius manages account balances of all Companies in U.S. dollars. Non-U.S. Companies recognize and accept the risk of possible loss in their AdLocal accounts due to changes to currency exchange rates. Cirius shall have no liability whatsoever for any such currency fluctuations.

8 Privacy

In order to operate and provide the Service, Cirius collects certain information about you. Cirius uses and protects that information. Cirius may access or disclose information about you, including the content of your communications, in order to comply with the law or respond to lawful requests or legal processes.

Cirius’ information collection and use policies with respect to such information are set forth in the Privacy Policy which is incorporated herein by reference for all purposes.

9 Changes to this Agreement

If Cirius changes this Agreement, Cirius will display the updated Agreement on our web site and will post a notice on the web site that changes have been made. If you do not agree to these changes, you must cancel and stop using the Service. If you do not stop using the Service, your continued use of the Service will constitute your acceptance of the changed terms and conditions of the Agreement which will be binding on you.

10 Miscellaneous

10.1 Governing Law; Dispute Resolution

This Agreement will be governed by and construed in accordance with the laws of the State of California, without regarding to its conflicts of laws principals. Any dispute arising out of or relating to this Agreement will be settled in the state and federal courts located in San Francisco, California, and you hereby consent to the exclusive jurisdiction thereof.

10.2 Publicity

Each party to this contract can use the names and logos of the other party in its PR/IR/marketing activities, materials, presentations, etc.

10.3 Entire Agreement

This Agreement is the complete and exclusive statement of the Agreement between the parties with respect to the subject matter hereof, and supersedes all written and oral contracts, proposals, and other communications between the parties relating to that subject matter.

10.4 Severability

Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement is invalid under applicable law, that provision will be ineffective to the extent of the invalidity, without affecting the remainder of that provision or the remaining provisions of this Agreement.

10.5 Assignment

Company may not assign any of its rights, nor delegate any of its obligations, under this Agreement without the prior, written consent of Cirius, which consent Cirius may withhold in its sole discretion.