Legal

DOMAIN PARKING TERMS OF SERVICE

This Domain Parking Terms of Service ("Agreement") is entered into by and between Smart Media Technology, Inc., with address of 1300 Bristol Street North, Suite 200, Newport Beach, CA 92660 ("Company") and you ("Client"). This Agreement shall govern participation in and/or use of the certain services or features of the Company domain parking program (the "CA Program"). The CA Program is offered to Client by Company. Company and Client may be referred to individually as a "Party" and collectively as the "Parties."

By continuing to use the CA Program and/or checking the box next to their affirmation that they have read and agree to the terms of this Agreement, Client confirms that they have read and agreed to this Agreement and the terms of any other information, policy and/or disclaimers referred to and/or linked to herein (e.g. Privacy Policy).

  1. PARTICIPATION IN THE PROGRAM

    1. The CA Program assists domain owners by generating earnings on the traffic generated to their domain names. By entering into this Agreement, Client acknowledges that it has read, understood, and agrees to accept and be bound by all the terms and conditions contained, referenced in, and/or incorporated in this Agreement (collectively "Provisions").

    2. The "Effective Date" of this Agreement shall be the earlier of the date Client starts to use the CA Program OR the date Client checks the box next to their affirmation that they have read and agree to the terms of this Agreement.

    3. Subject to the terms of this Agreement, Client may enroll any domain names it owns in the CA Program and such domain names using the CA Program are defined as "CA Domain Name(s)".

    4. The CA Program may display search links, links to third party websites, advertisements, and/or other content (collectively "Content") on websites associated with the CA Domain Name(s). Content shall be determined in Company's sole discretion and may be changed from time to time without advance notice to Client.

    5. Company may provide Content that Company, in its sole discretion, feels are relevant and/or beneficial. However, Company makes no representations whatsoever about Content, including, without limitation, other websites that Client or any third party may access through Company's website or any CA Domain Name. When a user accesses a third party website, it is separate from Company, and Company has no control over the content on that website. In addition, Content provided through the CA Program does not constitute any endorsement or acceptance by Company of the content, use, products and/or services made available through or advertised in such Content (collectively "Third Party Goods and Services") and Company explicitly disclaims any responsibility for the quality, acceptability, and/or functionality of any Third Party Goods and Services.

  2. OBLIGATIONS OF THE PARTIES

    1. Company shall have the right, but not the obligation, to provide Content and host CA Domain Name. Company reserves the right, at any time, to reject the entry or enrollment of any CA Domain Name(s) into the CA Program or to remove and/or blacklist CA Domain Name(s) which have already been entered or enrolled, without prior warning, at any time for any reason, including, without limitation, in the case of Client's violation of this Agreement, suspected violation of rights of a third party concerning a CA Domain Name, suspected violation of applicable laws or CA Domain Name(s) which, in Company's sole discretion, is inflammatory, offensive, or otherwise inconsistent with Company's general policies.

    2. Client is not obligated to enroll all domain names it owns in the CA Program. At all times during the Term, Client grants Company a worldwide, irrevocable, perpetual and royalty-free license to use the enrolled CA Domain Names and to supply Content for the enrolled CA Domain Names (and also has the right to sublicense such use) and Client shall not license, use or otherwise commercially exploit any other service in connection with any and all CA Domain Names that are enrolled in the CA Program without the express written consent of Company.

    3. Client shall be obligated to make changes in its operation, at its expense, as necessary to utilize all upgrades and needed information to allow CA Program to run on the CA Domain Names.

    4. To allow Company to provide Content for CA Domain Names, when using the CA Program, Client shall submit all data elements and domain information (e.g. changing nameservers for CA Domain Name) as specified by Company, using the appropriate protocols. Client acknowledges and agrees that Company shall have right, title, or interest in and to: (i) the data elements consisting of the IP addresses of the CA Program's nameservers and (ii) the Content provided on those nameservers by the CA Program.

    5. Client agrees to comply with any and all policies, terms and conditions of VeriSign, Inc., ICANN, or registrar of the CA Domain Names, including, but not limited to, those terms that will prohibit the registration of certain domain names.

    6. In each instance, Client agrees to use proper and legitimate contact information for the CA Domain Name(s) as required by the registrar of the CA Domain Name(s), in accordance with ICANN standards.

    7. Client agrees that in the event of any dispute concerning a CA Domain Name (e.g. cease and desist letter, e-mail notification, subpoena, lawsuit), Client will immediately notify Company and request a hiatus in the use of the CA Domain Name for the CA Program, and Company will thereupon immediately deactivate such CA Domain Name until written notice from Client that the dispute is resolved. Client is wholly responsible and will indemnify Company for any costs, including, but not limited to, reasonable attorneys' fees, incurred as a result of a dispute that impacts Company and/or Content provided by the CA Program.

    8. Company agrees to provide Client with an interface to the CA Program's statistical data on Client's CA Domain Name(s) in the CA Program. Any statistical data provided shall be treated as Confidential Information under this Agreement and shall not be disclosed by Client to any third parties without Company's express written authorization. Client agrees that Company may use the CA Program's statistical data from Client's CA Domain Name(s) for any purpose it chooses, including, but not limited to, enhancing the services offered by CA Program and for other business ventures. Client agrees that it has no interest in and is not owed anything from Company's use of the CA Program's statistical data for Client's CA Domain Name(s).

    9. Client must abide by the following set of rules and regulations for its CA Domain Name(s) in the CA Program:

      1. Client will not generate traffic to its CA Domain Name(s) or Company's Content by any of the following methods: listings on newsgroups, bulk e-mailing, ICQ postings, chatroom/IRC postings, iframes, zero pixel frames, hitbots, clickbots, spiders, cgi-scripts, java-scripts, click farms or any other similar method. Client may use organic search engine listings, link exchanges, or content development as sustainable traffic-building techniques.

      2. Client will not beg, ask, entice, pay to read ("PTR"), mislead, or give incentives to users/visitors to reach the CA Domain Name(s) and click on links in Company's Content. Client will not misguide traffic or indicate that users will receive anything other than an internet search or potentially relevant and/or beneficial information by clicking on a textlink or search box provided in Company's Content. Client will not directly or indirectly generate queries, or impressions of or clicks on search or advertising links, through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro programs, and Internet agents).

      3. Client will not be credited for traffic unless Company receives credit and payment for such traffic from its partners and/or advertisers affiliated with provided Content.

      4. Company reserves the right to terminate Client's status as a client, if the Client account is dormant or otherwise poorly performing, in Company's sole discretion, for more than one month.

      5. Client will not use any means whatsoever to automatically generate clicks on paid listings, page views, unique or non unique type-ins or impressions. Client will not display its parked page as a pop-under or pop-up window.

      6. Client will not at any time enroll any CA Domain Name(s) in the CA Program that infringe upon any intellectual property rights of any third party, including but not limited to, trademark rights, copyrights, patent rights, trade secret rights, or rights of publicity.

      7. All information provided by Client to Company, including, without limitation, information provided in Client's application, shall be complete, truthful, current, and accurate. Client shall maintain and promptly update any data provided to Company so that it is complete, truthful, current, and accurate.

      8. Client will not attempt to solicit any of Company's advertisers, owners or operators of third party websites or any other person affiliated or associated with Content provided through the CA Program during the Term of this Agreement and for one (1) year after termination of this Agreement.

      9. Client understands and will allow the CA Program to redirect its CA Domain Name(s) to websites of Company's selection, including without limitation, CA Program advertiser's listings or directly to the CA Program advertiser's website.

      10. Client will not misuse templates, modify its CA Domain Name(s), create content, or generate keywords for users on subjects that are not related to and/or do not have a logical and/or clear connection with CA Domain Name(s) (e.g. golfcountry.com using an adult template and/or mortgage keywords). Client acknowledges that the purpose of relevant traffic is that it could reasonably be expected that individual users/visitors that make up the traffic to the CA Domain Name(s) would be interested in the Content presented on the CA Domain Name(s).

      11. Client will not enter into any arrangement or agreement under which any third party pays fees or shares in any revenue payments and/or royalties from the CA Program.

      12. Client will not place on their CA Domain Name(s) a downloadable or internet accessible application while using the CA Program.

      13. Client will not: (i) edit, modify, filter, or change the order of the search results on park page; (ii) frame any park page; (iii) redirect any user/visitor of CA Domain Name(s) away from any of the search results on park page; or (iv) inhibit the view of the search results on park page or any corresponding website accessed by clicking on a search result on the park page.

    10. Client agrees to comply with all other reasonable terms or conditions established from time to time in Company's sole discretion, to assure sound operation of the CA Program by Company.

  3. TERM & TERMINATION

    1. This Agreement shall commence upon the Effective Date and will continue for one (1) year ("Initial Term"). This Agreement shall automatically renew for successive one-year terms ("Renewal Term"), unless this Agreement is terminated earlier in accordance with other provisions in this Agreement. The Initial Term and any Renewal Term may be referred to collectively herein as the "Term."

    2. Client's inability and/or refusal to comply with any of the Provisions of this Agreement will result in forfeiture of any unpaid earnings and may result in the termination of Client's status as a client. Further legal course of action may be considered to prosecute Client.

    3. Company may terminate this Agreement immediately at any time for any reason without notice.

    4. Client may terminate this Agreement for cause. Cause for termination shall occur if after five (5) business days' Notice from Client, Company has failed to cure any of the following situations:

      1. Company has filed a Petition for Bankruptcy;

      2. Company has become insolvent; or

      3. Company has breached any of the terms, or representations and warranties herein.

    5. Upon termination of this Agreement and/or Client's right to use the CA Program, Client will no longer have access to any data or information Client had previously created, maintained, managed, or stored in the CA Program. Company is under no obligation to maintain any such data or information during or after the Term

  4. REPRESENTATIONS & WARRANTIES

    1. Company represents and warrants that it has full power and authority to enter into this Agreement.

    2. Client represents and warrants that: (a) it is a corporation duly incorporated, validly existing and in good standing under the laws of the state in which it is formed and where it conducts business; (b) it has all requisite legal power and authority to execute, deliver and perform its obligations under this Agreement; (c) the execution, performance and delivery of this Agreement by its officers, employees and/or agents has been duly authorized by Client; (d) it will not place in the CA Program any CA Domain Name(s) which would violate the Provisions of this Agreement above; (e) no further approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by Client in order for it to enter into and perform its obligations under this Agreement; and (f) there is no pending or, to the best of Client's knowledge, threatened claim, action, or proceeding against Client, with respect to the execution, delivery, or consummation of this Agreement, or with respect to Client's trademarks, and, to the best of Client's knowledge, there is no basis for any such claim, action or proceeding.

    3. Client agrees to set up a user account and to fill out the registration form completely and accurately, as applicable.

    4. Client represents and warrants that each CA Domain Name it enrolls in the CA Program, and Company's use of such CA Domain Name in accordance with this Agreement, does not and will not violate, infringe or breach any rights, including, without limitation, any trademark rights, of any party. Client is solely responsible for conducting any due diligence, searches or other inquiries, including, without limitation, any trademark searches, necessary and/or appropriate to confirm that Company's use of any CA Domain Name parked with Company in accordance with this Agreement does not and will not infringe, violate or breach the rights of any party. Client shall promptly notify Company in writing of any products or services that it believes should not be advertised in connection with any CA Domain Name, which notice shall include a reasonably detailed explanation of the basis of Client's determination. Client shall notify Company in writing within ten (10) days of Client's receipt and/or notice of any claims pending or threatened against Client or any of its affiliates in connection with any CA Domain Name in the CA Program. Client shall comply with all applicable laws, rules, and regulations, if any, required in performing its obligations under the Agreement.

    5. Client also represents and warrants that: (a) Client has registered the CA Domain Name(s) with the appropriate registrar or other registration authority; (b) Client's registration of the CA Domain Name(s) is current and not subject to deletion, cancellation, rescission, or deactivation by the applicable registrar or other registration authority; (c) Client has not taken any action that would impair the ability or right to use the CA Domain Name(s) in the CA Program and no such action has been taken against Client; and (d) the CA Domain Name(s) is not the subject of any legal proceedings challenging Client's right to register or use the CA Domain Name(s). Client will not under any circumstances list or transfer the rights to any CA Domain Name(s) that it does not have sufficient rights to transfer or that is illegal to transfer under applicable law.

  5. PAYMENT AND TAXES

    1. The CA Program will pay Client, directly and/or via a payment processor, a monthly commission percentage as may be identified within their accountof Company's recognized and received gross revenue from its partner(s) for each approved click on a search result displayed through the Content associated with the aggregate of Client's CA Domain Name(s) ("Earnings").

    2. Client's Earnings will be paid via wire or other payment method agreed to by the Parties in writing, in U.S. currency only, for the applicable month's Earnings, after Company has been paid by its partner(s), if above the Minimum Payment amount discussed below, less any amount Company determines, in its sole discretion, was not validly earned from proper use of the Client's CA Domain Name(s) (e.g. low traffic quality). Such payment will be made: (i) within forty five (45)) days after the end of each month through the first two (2) whole months (e.g. if Agreement begins on the 15th of the month, such month will not be considered a �whole month') and (ii) within thirty (30) days after the end of each month thereafter, unless traffic quality has been determined to be low (e.g. traffic violates any provisions of this Agreement and/or Company partners clawback previous payments, deduct current or future payments and/or credit advertisers for low traffic quality associated with Client's CA Domain Name(s)), at which point Company, in addition to any other remedies within this Agreement, may revert to payments being made forty five (45) days after the end of each month until otherwise agreed to in writing by both parties. If invalid and/or low traffic quality (e.g. traffic obtained in violation of any provision of this Agreement, or as otherwise discussed in this provision) is not discovered immediately, an amount equal to what was previously paid for the invalid and/or low quality traffic will be deducted from Client's future Earnings, if any, and/or Client will repay Company any overpayment after Company's written request. In some cases, at Company's sole discretion, payment may be made utilizing either electronic or wire transfer services and Client agrees to cooperate with Company to facilitate such payment transactions. The cost of such transaction(s) will be deducted from Client's commissions.

    3. No monthly payment will be issued for any Earnings less than fifty U.S. Dollars ($50.00) ("Minimum Payment"). Earnings will accrue and be held until the next month in which the total accrued Earnings exceed the Minimum Payment amount.

    4. If the Agreement is terminated without cause and there are accrued Earnings at the time of termination less than the Minimum Payment amount, such Earnings shall be forfeited to Company. If Company terminates Client based on Client's failure to comply with the Provisions of this Agreement, Client forfeits all unpaid Earnings to Company. If, however, Client terminates this Agreement for cause, all accrued Earnings, if any, shall be paid to Client.

    5. Client understands and agrees that the CA Program shall not withhold taxes unless required to do so by law from any payments due to Client and that it is the responsibility of Client to pay all local, state, federal, and/or foreign taxes on Earnings and income received from the CA Program. Client agrees to indemnify Company from and reimburse Company for any claim or assessment of taxes by any foreign, United States, state, and/or local taxing authority, and any other costs and damages, arising from or in connection with the operation of this paragraph. Prior to any payment being issued, Client will be required to fill in the W-9 Federal Tax form, or other applicable form, to complete this Agreement.

  6. MODIFICATIONS

    1. Company reserves the right to change any of these terms and conditions, including the monthly commission percentage, at any time at its own discretion with Notice to Client. Client may not change any of the terms and conditions of this Agreement without written consent and approval from Company. Client is responsible for complying with any changes to the terms and conditions. If Client does not agree with any material revision to the Agreement within five (5) business days of receipt of such changes, Client may terminate this Agreement by providing Company with ten (10) days Notice. Notice of Client's termination under this paragraph will be effective on the tenth (10th) day after receipt and processing by Company, unless the material changes at issue are removed by Company or modified by mutual agreement. By failing to give such Notice of termination, and continuing to use the CA Program after any revision to this Agreement or change in service(s), Client agrees to abide by and be bound by any such revisions or changes.

  7. GENERAL

    1. Confidentiality. The Client acknowledges that in connection with this Agreement it may have access to certain commercially or personally valuable technical and non-technical confidential or proprietary information of Company ("Confidential Information"). Confidential Information includes all information, whether oral or written, via general methods of correspondence (e.g. phone, fax, e-mail, postal mail) and/or online within the Company account interface (e.g. statistical information) relating to Company's business that is not generally known or available to others, including, without limitation, source code and documentation for software, trade secrets, customer lists, pricing strategies, financial information, marketing and business plans, information concerning Company's vendors, and Company's contemplated plans, strategies and prospects. Client agrees to keep Confidential Information confidential and not to use such information except as authorized by this Agreement or otherwise authorized by Company, and to accord such information the same standards and protections that it uses to protect its own confidential business information. Client will limit dissemination of Confidential Information to its employees, contractors, or agents who reasonably require access in order to carry out the terms of this Agreement, who have been informed of an obligation to maintain confidentiality, and have entered into a confidentiality agreement of a similar nature with Client. Except for Confidential Information necessary to performance of obligations or exercise of rights under this Agreement, materials or documents containing Confidential Information shall be destroyed promptly following written requests thereof. Confidential Information will not include information: (i) that is now or becomes generally available to the public through no fault or breach by Client; (ii) that Client can document was already known to it prior to disclosure by Company; (iii) that was independently developed by Client without use of any of Company's Confidential Information; and (iv) that Client rightly obtained from a third-party who had the right to transfer or disclose it. If Client is subpoenaed or ordered by any court of governmental agency to disclose Confidential Information, it will provide prompt written notice to Company, prior to disclosure, so as to allow Company to seek a protective order to protect the confidentiality of such information.

    2. Intellectual Property/Publicity. Company and its partners, subsidiaries, parent companies, advertisers, service providers, and affiliates (collectively "IP Holders") will retain ownership of their intellectual property, including, but not limited to, all data, designs, text, images, photographs, illustrations, artwork, graphic content, or other copyrightable subject matter, in addition to the selection and arrangement thereof, as well as all patents, trademarks, service marks, and trade names ("Intellectual Property"). Except as expressly provided in this Agreement, Client is not authorized or licensed to use Company's, nor its IP Holders', Intellectual Property. Client will not (1) modify, adapt, translate, register, reproduce, sublicense, distribute or dispose of any Intellectual Property; (2) alter, create derivative works of, edit, modify or revise Intellectual Property; (3) reverse engineer, decompile, reverse compile, or disassemble Intellectual Property in whole or in part; (4) rent, sell, lease, loan, electronically transfer or otherwise make available Intellectual Property rights to another party; (5) crawl, spider, index or in any non-transitory manner store or cache information obtained from the CA Domain Names (including, but not limited to the search results and any other content); or (6) permit any other person or entity to do any of the foregoing. Client shall not create, publish, distribute, or permit any communication that makes reference to Company or any third-party beneficiary to this Agreement in connection with this Agreement, or use any of Company's trademarks or service marks without receiving prior written consent from a duly-authorized representative of Company. Client gives Company the right to disclose Client's identity in Company's marketing and promotion materials, both electronic and printed.

    3. NO WARRANTY. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY APPLICABLE LAW, ALL COMPANY SERVICES ARE PROVIDED "AS IS" AND "AS PROVIDED" WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WITH RESPECT TO CONTENT, ADVERTISEMENTS AND SEARCH RESULTS DISPLAYED ON DOMAIN NAME(S), THE PROGRAM, AND OTHER SERVICES. COMPANY EXPRESSLY DISCLAIMS THE WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE SERVICES OR COMPANY WEBSITE(S) ARE ERROR-FREE OR THAT THEY WILL OPERATE WITHOUT INTERRUPTION. COMPANY DOES NOT REPRESENT ANY SPECIFIC QUALITY, RELIABILITY, TIMELINESS OR SECURITY WITH RESPECT TO ITS SERVICES. FURTHERMORE, COMPANY MAKES NO REPRESENTATION ON WHETHER THE ACTIVITIES AND SERVICES PERFORMED REQUIRE A TAX IN THE UNITED STATES OR ANY FOREIGN COUNTRY.

    4. LIMITATION OF LIABILITY. CLIENT AGREES THAT COMPANY, ITS PARTNERS, SUBSIDIARIES, PARENT COMPANIES, SERVICE PROVIDERS, AND AFFILIATES WILL NOT BE LIABLE FOR ANY (A) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE DOMAIN NAME(S) AND/OR COMPANY WEBSITE(S); (B) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION, WITH ERROR OR OTHER MODIFICATION; (C) SUSPENSION OR LOSS OF THE DOMAIN NAME CONTENT; (D) USE OF CLIENTS' DOMAIN NAME(S) BY CLIENT OR OTHERS, WHETHER OR NOT AUTHORIZED BY CLIENT TO HAVE SUCH USE; (E) INTERRUPTION OF BUSINESS; (F) HARDWARE, SOFTWARE, OR OTHER ITEMS OR ANY SERVICES PROVIDED BY ANY OTHER PARTY (INCLUDING ADVERTISERS) THAT ARE NOT WITHIN THE REASONABLE CONTROL OF COMPANY; NOR (G) OTHER EVENTS BEYOND COMPANY'S REASONABLE CONTROL. COMPANY, ITS PARTNERS, SUBSIDIARIES, PARENT COMPANIES, SERVICE PROVIDERS, AND AFFILIATES WILL ALSO NOT BE LIABLE FOR ANY LOST PROFITS, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND FOR ANY USE OF THE PROGRAM OR COMPANY WEBSITE, OR ANY OTHER HYPERLINKED WEBSITE, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY'S MAXIMUM AGGREGATE LIABILITY EXCEED $100 U.S. DOLLARS. SOME STATES MAY NOT ALLOW SUCH A BROAD EXCLUSION OR LIMITATION OF LIABILITY FOR DAMAGES, AS CONTAINED HEREIN; IN SUCH STATES, COMPANY'S LIABILITY IS LIMITED TO THE FULL EXTENT PERMITTED BY LAW.

    5. Indemnification. Client and its owners, principals, managers, partners, members, shareholders, officers, directors, and employees ("Indemnifying Party") agrees that they will defend, indemnify, release and hold harmless Company, and its parent, subsidiaries and affiliated companies and their respective agents, directors, employees, members, officers, representatives, and shareholders ("Indemnified Parties") from and against any and all causes of action, claims, demands, investigations or other proceedings, including, but not limited to, costs, damages, expenses, judgments, losses, and liabilities (including reasonable attorneys' fees) related to or arising out of the Services and/or this Agreement brought by any third party against any of the Indemnified Parties (collectively, a "Claim"), to the extent that the Claim is related to: (i) claims made by third parties related to CA Domain Name(s); (ii) any false advertising; (iii) liability for information, materials, products or services provided under this Agreement; (iv) infringement, misappropriation, misrepresentation or violation of the rights of any third party, including, without limitation, intellectual property rights; (v) disruption or malfunction of the Services; (vi) a violation of any applicable law, rule or regulation; and/or (vii) a breach of any of the foregoing representations and warranties, arising from or by the Indemnifying Party. The Indemnifying Party further agrees to: (i) take all steps reasonably necessary to substitute the Indemnifying Party as the real party in interest and effectuate a dismissal of any Indemnified Parties that are named as parties in any third party claim, with the Indemnifying Party retaining the sole right and discretion to select counsel to conduct its defense; (ii) pay all reasonable attorneys' fees, costs, and expenses associated with the Indemnified Parties' defense unless and until they are substituted out, with the Indemnified Parties having the sole right and discretion to select counsel to conduct their defense; and (iii) assume full and sole responsibility and liability for any damages, costs, fees, settlements and/or judgments entered on any third party claim, with the Indemnifying Party retaining the sole right and discretion to enter into any settlement of any third party claim, except that the Indemnifying Party will not enter into any settlement that affects the Indemnified Parties' rights or interest without the Indemnified Parties' prior written approval. The Indemnified Parties assume no responsibility or liability for any damages, expenses, fees, or costs related to the defense of any third party claim. The foregoing obligations are conditioned on the prompt notification to Indemnifying Party in writing of any claim or threat thereof. Furthermore, Company may withhold (and deposit in an Escrow account), at Company's sole discretion, any payment of any Earnings against any money owed by the Indemnifying Parties to the Indemnified Parties, as determined by Company, until the resolution of the third party claim.

    6. Force Majeure. Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed for a reasonable period or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, or any other cause beyond the reasonable control of such Party.

    7. Notice. Any notice or other communication between the Parties required or permitted under this Agreement shall be in writing and shall be transmitted by electronic mail (with read receipt requested), facsimile (with delivery confirmation), delivered by hand, sent by first class mail (postage prepaid), or sent by a nationally recognized commercial courier addressed to the Party for whom it is intended, at the address noted on the first page of this Agreement. Either Party may notify the other in writing of a change in such Party's address, e-mail address and/or facsimile number for the purposes hereof. Any notice or other communication sent shall: (a) if delivered by hand or by nationally recognized commercial courier, be deemed to have been received on the date of delivery; (b) if sent by first class mail, be deemed to have been received on the third business day following the date of mailing; and (c) if sent by electronic mail or facsimile, be deemed to have been received on the date the sender transmitted the notice or other communication.

    8. Assignment. Company may assign this Agreement and/or its responsibilities under this Agreement at any time. Client may not assign this Agreement, in whole or in part, without Company's written consent. Any attempt by Client to assign this Agreement without such consent will be null and void and may result in this Agreement being void, at Company's discretion. In the event of sale/new ownership of Client's CA Domain Name(s), this Agreement shall follow and be binding upon the new owner of the CA Domain Name(s).

    9. Status of Parties. The relationship of the Parties in connection with this Agreement is that of an independent contractor relationship. Nothing in this Agreement shall be construed to make the Parties partners, in joint venture, representatives or agents of each other, nor shall either Party so represent to any third person.

    10. Governing Law. This Agreement, the Parties rights and obligations hereunder, and all actions contemplated by this Agreement shall be governed and construed in accordance with the laws of the State of California, without giving effect to principles of the conflicts of law provisions thereof, as if the Agreement was a contract wholly entered into and wholly performed within the State of California. Any action arising out of and/or related to this Agreement or any matter relating to Client's use of the CA Program (including class actions or individual suits, regardless of whether or not a similar action and/or comparable remedy could be pursued in a foreign state) shall be brought exclusively in the Superior Court in Orange County, California, or if there is no jurisdiction in such court, then in the United States District Court for the Central District of California. Any Client discovered committing fraud in connection with the CA Program or otherwise related to this Agreement may be prosecuted to the fullest extent of the law. The Parties consent to personal jurisdiction and venue in Orange County, California and to the jurisdiction of such courts as set forth in this paragraph. Further, the Parties hereby waive the right to and agree not to seek transfer to another court for forum non conveniens or any similar doctrine.

    11. Independent Counsel. The Parties acknowledge and represent that each has procured and been advised as to all aspects of this Agreement by independent counsel of its own choice. Each Party is satisfied that he/she/it has freely negotiated the contents hereof free from any improper persuasion or influence of the other or any third party. Therefore, the Parties agree that this Agreement shall be deemed to have been jointly drafted and shall not be construed in favor of or against either Party.

    12. Attorneys' Fees. If any legal action or other legal proceeding (including arbitration) relating to the performance under this Agreement or the enforcement of any provision of this Agreement is brought against any Party hereto, the prevailing Party shall be entitled to recover reasonable attorneys' fees, costs and disbursements (in addition to any other relief to which the prevailing Party may be entitled).

    13. Entire Agreement. This Agreement is the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. The terms and conditions of this Agreement will prevail over any contrary or inconsistent terms. Company is not bound by nor should Client rely on any representation by (i) any agent, representative or employee of any third party that Client may use to apply for Company's services; or in (ii) information posted on Company's website of a general informational nature.

    14. Severability. If any term or provision of this Agreement will to any extent be invalid or unenforceable, the remainder of this Agreement will not be affected thereby and each term and provision of the Agreement will be valid and enforced to the fullest extent permitted by law.

    15. Survival. All other terms of this Agreement, which by their nature extend beyond its termination, remain in effect until fulfilled and apply to respective successors and assigns.

  8. ACCEPTANCE OF AGREEMENT

    1. Each Party has independently evaluated the desirability of this Agreement and is not relying on any representation, agreement, guarantee or statement other than as set forth in this Agreement and the Provisions thereof.

Additional Terms and Conditions

Domainpark is a service that allows domain name owners to generate earnings based on appropriate incoming traffic to their domains. "Publisher" refers to any individual,party or entity participating in the "domain monetization" of the Platform. "Publisher" is also included in the definition of "User." The terms set are applicable to every User.

This Agreement governs your participation in and/or use of services or features of the Domainpark platform (the "Platform," "we" or "our") managed by the Smart Media Technology Inc. By participating in or using the services or features of the Platform, you ,an internet domain name owner ("you," "your," "User" or "Publisher") are agreeing to be bound by these terms of service ("Terms and conditions").

You must read, agree with and accept all of the terms and conditions contained in this Agreement and the Privacy Policy, which include those terms and conditions expressly set out below and those incorporated by reference, before you may use the Site or the Services or become a registered user of the Site

These Terms and Conditions apply to all Publishers, agents and other users using our services:

Definitions


  • "Agreement" means this agreement between you and Domainpark.com and which contains all of the terms and conditions of service that govern your use of our Service.
  • "Content" means all advertisements, hyperlinks, information, data, text, software, music, sound, photographs, graphics, video, messages or other materials, whether publicly posted or privately transmitted, on anything that we host including, but, not limited to our Domainpark.com web site or any domain name, name server, or IP address that we host.
  • "Publisher" refers to any individual or entity participating in the "domain monetization" portion of Domainpark.com and also means "User"
  • "We," "our," and "us" means Domainpark.com, Inc., the company providing the Service. And also included in the definition of "Program"
  • "You" and "your" means any person or entity that participates in our Service, as well as their agents, assigns, and successors.
  • "Excluded URL" means a Removed URL or an Inappropriate URL.
  • "Inappropriate URL" means a URL for which we have reason to believe or have been notified that:
    1. We do not have the right to use or associate data with that URL;
    2. We do not have appropriate rights to reproduce and distribute any of the content (other than licensed materials) available at that URL;
    3. The URL violates the trademark (or other related rights), copyright, trade secret, patent or other intellectual property right of any third party;
    4. The URL violates any applicable law or is subject to an injunction;
    5. The URL is libelous, defamatory or obscene;
    6. If the content available at the URL includes software, it contains a virus, worm or other code that could be damaging or harmful to a user's computer system or stored information;
    7. The URL was previously operated as an adult site; or
    8. The URL violates this Agreement or our policies for similar implementations of our Services.
  • "Our Site" means the URL address, Domainpark.com where our Service is offered.
  • "Parked Domains" means the domains we have accepted to be parked for you through our Service.
  • "Removed URLs" means URLs that we have removed from our System.
  • "Service" means the Domainpark.com service further described below and in which you are participating.
  • "URL" means a uniform resource locator and any content or information available at that uniform resource locator.
  • "Landing Page" is defined as an html page or a framed html page hosted by or on behalf of Domainpark.com displaying search links and/or other content from Domainpark.com servers or such servers as Domainpark.com uses.
  • "Revenue" is defined as revenue received in Domainpark.com from participation of Publisher in the Domainpark.com during the prior month less any amount Domainpark.com determines, in its sole discretion, was the result of improper use of the Publisher's website and as such revenue is otherwise calculated or adjusted by Domainpark.com to take into account any exclusions set forth in these Terms of Service and any other adjustments made by Domainpark.com in its sole discretion. Domainpark.com will exclude from Revenue monies from traffic that originates from countries where traffics, in the sole opinion of Domainpark.com, suspect or difficult to track in the normal course of business.

Payment.

We shall pay Publisher a percentage of the Revenues actually received by Our clients for legitimate use of Our Services. The amount to be paid shall be determined by Smart Media Technology Inc . We shall pay the Publisher 45 days following the last day of each calendar month.

  1. Any changes, including commission adjustments, terms of payment, payment dates and other payment related adjustments may be detailed in a separate contract or an additional agreement between Smart Media Technology Inc and the Publisher.
  2. Factors Affecting Payment. Publisher acknowledges and agrees that Smart Media Technology Inc agrees to make commission payments to Publisher pursuant to these Terms of Service based on the mutual understanding that Smart Media Technology Inc will be able to monetize the traffic through agreements with its upstream advertiser partners and that such agreements require that payment be made only upon appropriate traffic. As such, Publisher acknowledges and agrees that all traffic generated to domains participating in the Platform will be subject to review by Domainpark 's proprietary traffic quality scoring process which will not be disclosed to Publisher. If Smart Media Technology Inc is unable to collect revenues from any such third party partners due to any failure of Publisher to comply with the terms of these Terms of Service, any breach of Publisher's representations, warranties or covenants contained herein, the quality of the traffic which is being delivered to domains participating in the Platform or any other factor that would prevent Smart Media Technology Inc from earning Revenue on Publisher Sites, then commissions payable to Publisher hereunder shall be reduced accordingly. If the amount earned by Publisher hereunder is reduced to an amount less than the amount previously paid by Domainpark , then Publisher shall immediately pay the difference to Domainpark . Without limiting the generality of the foregoing, Publisher understands and agrees that in the event any payment is made by Smart Media Technology Inc to Publisher and Domainpark 's upstream advertiser partners subsequently denies payment to Publisher for Clicks generated from those Publisher Sites, Smart Media Technology Inc shall be entitled to repayment of any such amount whether through reduction of future payments to Publisher or Publisher's repayment to Smart Media Technology Inc of any such commissions based on such Clicks. Further, Publisher agrees that Smart Media Technology Inc may withhold payments (i) while Clicks are being reviewed in its traffic quality process or (ii) if Smart Media Technology Inc reasonably believes that Smart Media Technology Inc will not receive payment for such Clicks from its upstream advertiser partners.
  3. Taxes and Withholding. Publisher understands and agrees that taxes with respect to commissions or any other payments made by Smart Media Technology Inc to Publisher hereunder will not be withheld or paid directly or indirectly by Smart Media Technology Inc unless Smart Media Technology Inc determines in its sole discretion that Smart Media Technology Inc or its affiliates may be liable for any such taxes, in which case it shall withhold the estimated amount and notify Publisher of such withholding. Publisher understands and agrees that it is Publisher's responsibility to pay all local, state, federal, and/or foreign taxes on commissions and other income received from Smart Media Technology Inc pursuant to these Terms of Service. Publisher agrees to indemnify all the Platform parties. Please refer to our Privacy Policy for more details.
  4. Payment Disputes. Publisher understands and agrees to address any questions Publisher may have with any payment of commissions under these provisions to Smart Media Technology Inc within thirty (30) days of the date of such payment, in writing or by e-mail to info[at]domainpark[dot]com. Failure to notify Smart Media Technology Inc within such period will constitute an acceptance of, and agreement with, the payment.

Restrictions

THE FOLLOWING ACTIONS ARE PROHIBITED AND CONSTITUTES GROUNDS FOR IMMEDIATE TERMINATION FROM OUR DOMAINPARK.COM PROGRAM AND FORFEITS ANY / ALL EARNINGS WITHOUT PRIOR NOTICE.

  • Domain name owners are not allowed to click on any advertising links displayed on their own parking page / domain names, nor can they ask friends, family, co-workers, or any other party to do so.
  • Domain name owners are forbidden to ask, beg, entice, or provide any incentives for visitors to click on advertising links displayed on their own parking page / domain names.
  • Domain name owners are not allowed to redirect traffic to their parking page / domain name. This prohibition includes, but is not limited to, traffic redirection from other domain names, traffic originating from advertising, or purchased traffic such as pop-up, pop-under / exit traffic.
  • Domain name owners are not permitted to submit advertising keywords what are unrelated to the subject category / Industry of the domain name. The keywords must reflect the domain name area.
  • Domain name owners are not allowed to generate traffic to their parking page / domain name, or click on advertising links by using any of the following methods:
    • Discussion Boards
    • Hitbots
    • Social Networks
    • Spiders
    • News Groups
    • Clickbots
    • Bulk Emails
    • Chatrooms
    • Messenger Services
    • iFrames
    • Scripts
  • Or any other method which may be deemed as fraudulent. (Listing your domain name for sale is an exception). Smart Media Technology Inc reserves the right to terminate your parking account if it is idle for more than 60 days.
  • Those who fail to comply with the domainpark.com rules within this agreement will forfeit any unpaid monies and will have their account terminated immediately, with the possibility of legal action to be taken due to such violations.
  • All of the ABOVE terms and conditions must be adhered to and are legally binding, immediately upon acceptance of these Terms of Service
  • Domain Names & Intellectual Property Rights. Between domainpark.com and User, domainpark.com shall own all right, title and interest, including without limitation all Intellectual Property Rights, relating to the Services including but not limited to, all software, technology relating to the platform.

Representations & Warranties

All of the following terms and conditions must be adhered to and are legally binding immediately upon agreement. Smart Media Technology Inc represents and warrants that it has full power and authority to enter into these Terms of Service. Publisher represents and warrants that (i) it has full power and authority to agree to these Terms of Service, (ii) it owns or has the right to use all necessary rights, including all Intellectual Property Rights, to the domain names and Publisher Sites and (iii) it will not place in the Platform any domain names which would violate the terms above.

THE PLATFORM, THE SMART MEDIA TECHNOLOGY INC AND THEIR AFFILIATES AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, ADVISORS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, VENDORS, ADVERTISERS AND AGENTS ("PLATFORM PARTIES") ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES (INCLUDING ADVERTISERS). EXCEPT AS EXPRESSLY SET FORTH HEREIN, NONE OF THE PLATFORM PARTIES MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PLATFORM REMAINS WITH USER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE PLATFORM PARTIES SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING (A) THE SUCCESS OF THE PLATFORM, (B) THE NUMBER OF PERSONS, IF ANY, WHO MAY SEE ADVERTISEMENTS THROUGH THE PLATFORM, AND (C) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF THE PLATFORM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PLATFORM PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THE USE OF OR INABILITY TO USE THE PLATFORM, EVEN IF SMART MEDIA TECHNOLOGY INC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF ANY PLATFORM PARTY FOR ANY DIRECT DAMAGES SHALL NOT EXCEED FIVE DOLLARS ($5.00). BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO USER.

Intellectual Property

Between Smart Media Technology Inc and User, Smart Media Technology Inc (or others it so designates in writing) shall own all right, title and interest, including without limitation all Intellectual Property Rights, relating to the Platform (and any derivative works or enhancements thereof), including but not limited to, all software, technology, processes, materials, guidelines, documentation, relating in any way to the Platform.Please note User shall not, and shall not allow any third party to: (i) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any intellectual property in any way related to the Platform or Domainpark.com ; (ii) affix any unauthorized copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of any Platform, or any other technology, software, materials and documentation related to the Platform or the Domainpark ; (iii) crawl, index or in any non-transitory manner store or cache information obtained from the Platform; (iv) transfer, sell, lease, lend, disclose, or use for co-branding without explicit written permission from the Domainpark , timesharing, service bureau or other unauthorized purposes any aspect of the Platform or access thereto; (v) directly or indirectly access, launch and/or activate the Platform through or from any software application or means other than the Publisher Site; or (vi) engage in any action or practice that reflects poorly on the Platform, Smart Media Technology Inc or its vendors, or otherwise disparages or devalues the reputation or goodwill of the same.

Confidentiality

During the term of this Agreement and for one year after termination of this Agreement, User agrees to safeguard and, except for the benefit of domainpark.com, not to disclose to anyone outside domainpark.com.com any proprietary or confidential information acquired during this Agreement. Such information includes, without limitation, business plans, customer lists, operation procedures, trade secrets and programming code, know-how and processes, computer programs and inventions, discoveries, and improvements of any kinds

Modifications

Smart Media Technology Inc reserves the right to change any of these terms and conditions at any time without notice. Please refer to our websites for updates.

Indemnification

User shall indemnify, defend, and hold harmless the Platform Parties from and against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, attorney fees, accounting fees, and expert witness fees) incurred by the Platform Parties ("Losses"), known or unknown, contingent or otherwise, directly or indirectly arising from User's breach of any term or provision of these Terms of Service or any way related to User's use of the Platform.

Privacy Policy

We have created this policy as part of our commitment to protecting your privacy, while providing a valuable service to our customers/visitors. We want all the users of our site to feel confident about the privacy and the security of your personal information. This policy will apply whether you choose to register or not to register for our services.

We collect data from people / companies which add their information to our database, or buy advertising products, services and mailing lists as a business.

When you register with domainpark.com we only ask you for the details listed below, this is to ensure we can communicate directly with you either by phone, email, or mail. We try to ask for as little information as possible to keep the sign up process fast and painless. All information provided by the customer is then kept on record and stored in our database. You will from time to time receive emails notifying you of updates and bids which have been placed on your domains.

Stored Information:

  • Name
  • Password
  • Email
  • Telephone
  • Address
  • Payment Details

Other:

  • Access times
  • Browser type
  • IP address
  • referring URL

Smart Media Technology Inc may update, modify or amend the Privacy Policy from time to time.

Miscellaneous


  • Assignment/Change of Control. Neither party may assign these Terms, in whole or in part, without the other party's written consent (which will not be unreasonably withheld). In the event of a change of control, merger, reorganization or sale of all, or substantially all, of one party's assets to a third party, the other party may terminate the agreement upon 10 days' prior written notice at any time after the closing of such transaction. For the purposes hereof, a "change of control" shall mean a transaction in which the shareholders of a party prior to the closing do not retain majority ownership of the party after the closing of such transaction.
  • Governing Law/Venue. These Terms are governed by and construed in accordance with the laws of British Columbia, Canada , notwithstanding the actual state or country of residence or incorporation of the parties. The parties consent to the exclusive jurisdiction of British Columbia, Canada for all actions arising out of or related to these Terms.
  • Pre-Litigation Negotiations. The parties will use commercially reasonable efforts to resolve any controversy or dispute arising out of or relating to these Publisher Terms promptly by negotiations prior to the commencement of formal legal proceedings. Consequently, the parties agree to use the following alternative procedure prior to the commencement of any formal legal proceedings. At the written request of a party, each party shall appoint a knowledgeable, responsible representative to meet (either in person or by telephone) and negotiate in good faith to resolve any dispute arising under these Publisher Terms. The parties intend for these negotiations to be conducted by non-lawyer business representatives. The discussions will be left to the discretion of the representatives. Upon agreement, the representatives may utilize other alternative dispute resolution procedures such as mediation to assist in the negotiations. Discussions and correspondence among the representatives for purposes of these negotiations will be treated as confidential information developed for purposes of settlement and therefore be deemed inadmissible in any litigation that may ensue pursuant to the laws of Canada. Notwithstanding anything to the contrary, with respect to any dispute giving rise to a claim for injunctive relief, the provisions of this Section will apply only upon the written request of the party possessing such claim, and such Party may elect to commence legal proceedings regarding such claim at any time (and nothing contained in these Publisher Terms will be construed to require such party to provide any notice thereof).
  • Arbitration. The parties hereby agree to waive their right to a jury trial and agree to submit any dispute(s) that may arise in relation to these Publisher Terms to binding arbitration before a single arbitrator. The arbitration shall be conducted in accordance with British Columbia s Code of Procedure.

Notices. Any notice or other communication to be given hereunder will be in writing and will be (as elected by the party giving such notice): (i) personally delivered; (ii) transmitted by postage prepaid registered or certified mail, return receipt requested; (iii) deposited prepaid with a nationally recognized overnight courier service; or (iv) sent by facsimile. Unless otherwise provided herein, all notices will be deemed to have been duly given on: (a) the date of receipt (or if delivery is refused, the date of such refusal) if delivered personally or by courier; (b) three (3) business days after the date of posting if transmitted by mail; or (c) if transmitted by facsimile, the date a confirmation of transmission is received. Either party may change its address for purposes hereof on not less than three (3) business days prior notice to the other party.