Upward.net

Universal Terms and Conditions

 

  1. OVERVIEW
  2. This Universal Terms of Service Agreement (the "Agreement") is entered into by and between Upward.net, a California limited liability company, ("Upward.net", "we" or "us") and the person or entity agreeing to these terms ("you", "your" or "User") and is made effective as of the date you click the "I Accept" button below (the "Effective Date"). If you do not click "I Accept," but set up an account in the Upward.net User Interface and use this website ("Site") for seven (7) days, you will be deemed as having accepted the Agreement on the date of your account creation.

    This Agreement sets forth the general terms and conditions of your use of 'the Site' and the services purchased, accessed or supported through 'this' Site (individually and collectively, the "Services"). Additional terms applicable to specific Services can be found in Section 6 below.

    We may, in our sole and absolute discretion, change or modify this Agreement at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your continued use of this Site or the Services for seven (7) days after such changes or modifications have been made shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised, do not use (or continue to use) this Site or the Services. In addition, we may notify you of changes or modifications to this Agreement by email. Upward.net assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate an email address in your user account.

  3. ELIGIBILITY
  4. This Site and the Services are available only to Users who can form legally binding contracts under applicable law. By using this Site or the Services, you represent and warrant that you are at least eighteen (18) years of age or otherwise recognized as being able to form legally binding contracts under applicable law.

    If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you do not have the legal authority to bind your employer or the applicable entity, do not proceed with setting up an account in the User Interface. If, after your electronic acceptance of this Agreement, we find that you do not have the legal authority to bind such corporate entity, you will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. Upward.net will not be liable for any loss or damage resulting from our reliance on any instruction, notice, document or communication reasonably believed to be genuine and originating from an authorized representative of your corporate entity. You further agree to be bound by the terms of this Agreement for transactions entered into by you, anyone acting as your agent and anyone who uses your account or the Services, whether or not authorized by you.

  5. USER INTERFACE ACCOUNT
  6. In order to access the features of this Site and use our Services, you will have to create an Account in the User Interface. You represent and warrant that all information you submit when you create your Account is accurate, current and complete, and that you will keep your Account information accurate, current and complete. If we have reason to believe that your Account information is untrue, inaccurate, out-of-date or incomplete, Upward.net reserves the right to suspend or terminate your Account. You are solely responsible for the activity that occurs on your Account, whether authorized by you or not, and you must keep your Account information secure, including without limitation your User login information, password and payment information, if applicable. It is your responsibility to notify Upward.net, immediately, of any breach of security or unauthorized use of your Account. We are not liable for any loss you incur due to any unauthorized use of your Account, however, you may be liable for any loss we incur which is caused by your Account, whether caused by you, or by an authorized person, or by an unauthorized person.

  7. AVAILABILITY OF WEBSITE AND SERVICES
  8. Subject to this Agreement, we shall use commercially reasonable efforts to provide this Site and the Services on a twenty-four (24) hours a day, seven (7) days a week basis. You acknowledge and agree that from time to time this Site may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that we have no control over the availability of this Site or the Service on a continuous or uninterrupted basis, and that we assume no liability to you or any third party with regard thereto.

  9. RULES OF CONDUCT
  10. You represent and warrant that:

    1. Your use of this Site and the Services, including any User provided content, if applicable, will comply with this Agreement and all applicable local, state, national and international laws, rules and regulations.
    2. You will not use this Site or the Services in a manner, as Upward.net determines in its sole and absolute discretion, that:
      • Is illegal, or promotes or encourages illegal activity;
      • Promotes, encourages or engages in child pornography or the exploitation of children;
      • Promotes, encourages or engages in terrorism, violence against people, animals, or property;
      • Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
      • Infringes on the intellectual property rights of another User or any other person or entity;
      • Interferes with the operation of this Site or the Services found at this Site; or
      • Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware.
    3. You will not copy or distribute in any medium any part of this Site or the Services, except where expressly authorized.
    4. You will not modify or alter any part of this Site or the Services found at this Site or any of its related technologies.
    5. You will not resell or provide the Services for a commercial purpose without our express prior written consent.
    6. You agree to provide government-issued photo identification and/or government-issued business identification as required for verification of identity if requested.

      Upward.net reserves the right to modify, change, or discontinue any aspect of this Site or the Services at any time.

  11. SERVICES
  12. The following additional terms are specific to each of the Services listed here.
    1. Sponsored Ads
      1. License. User shall provide a direct posting feed, descriptions, service marks, GIF or JPEG images, trademarks, copyrighted materials, logos, or copy (the "Licensed Material"). User grants Upward.net the right to make these Licensed Materials available on its websites and to otherwise use such materials to generate clicks under this Agreement. User hereby grants to Upward.net, a non-exclusive, revocable, royalty-free, limited license to the intellectual property rights owned or controlled by User to the Licensed Materials and warrants that Upward.net's use of the Licensed Materials will not infringe on the intellectual property rights of any third party.
      2. Commissions. User shall pay Upward.net on a Cost-Per-Click ("CPC") basis. A CPC is the dollar value placed on each click-through; a click-through results when a job seeker clicks on a link in a Upward.net website or email alert and is taken to any job-related page or offer on User's website. The CPC, daily, and/or monthly cap shall be provided in Upward.net's User Interface All charges and click counts shall be based solely on the numbers recorded by Upward.net and available for view in the User Interface. If the Parties click counts differ by more than five percent (5%), each party agrees to take reasonable steps to reconcile the click count. CPC and the Monthly Cap may be adjusted in a writing, including by email, by the Parties. User may pause and resume their CPC flow, as well as change their budget and Monthly Cap, by logging into their Account.
      3. Payment. Payment terms are subject to credit approval and may change in Upward.net's discretion based on payment history or credit worthiness. User shall authorize payment to be made via automatic billing to a credit card which User has inputted into the User Interface. Your Account will display a recurring billing amount which will be automatically charged to the provided credit card once commissions reach the stated amount. You agree that you will not dispute the recurring billing with your credit card issuer so long as the amount in question was for services rendered prior to cancelling the termination of this Agreement. You may request an increase via email and we may comply at our discretion. User will pay all costs of perfection or collection (including court, mediation or arbitration costs and reasonable attorney fees) incurred by Upward.net. Overdue payments will accrue interest at a rate of 1.5% per month from the due date (or the highest rate permitted by law, if less). Charges are exclusive of taxes.'
      4. Limitation of Liability. In no event shall Upward.net or User be responsible for any consequential, special, indirect, incidental, lost profits, or other damages arising from this Agreement. Without limiting the foregoing, neither Upward.net nor User shall have any liability for any failure or delay resulting from conditions beyond its control. Except for indemnification and confidentiality obligations, neither party's liability (whether in contract, tort or otherwise) shall exceed lessor amount of (a) the revenue earned by Upward.net from Client in the previous three (3) months or (b) $300,000.00.
      5. Indemnification. Each Party (the "Indemnifying Party") shall defend, indemnify and hold harmless the other, its directors, officers, employees, affiliates and agents against (i) liabilities arising from the services provided by Indemnifying Party; (ii) any Licensed Material or other material provided by the Indemnifying Party that, actually or allegedly, infringes on the intellectual property or personal rights of a third party, is defamatory or illegal; and (iii) any breach by the Indemnifying Party of its obligations or representations hereunder. Each party agrees to promptly notify the other party in writing of any claim or potential claim; and to the extent applicable, to cooperate fully with the other party, at that other party's expense, in defending or settling such claim and reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification.
    2. Sponsored Job Feed
      1. License. User shall provide a direct posting feed, descriptions, service marks, GIF or JPEG images, trademarks, copyrighted materials, logos, or copy (the "Licensed Material"). User grants Upward.net the right to make these Licensed Materials available on its websites and to otherwise use such materials to generate clicks under this Agreement. User hereby grants to Upward.net, a non-exclusive, revocable, royalty-free, limited license to the intellectual property rights owned or controlled by User to the Licensed Materials and warrants that Upward.net's use of the Licensed Materials will not infringe on the intellectual property rights of any third party.
      2. Commissions. User shall pay Upward.net on a Cost-Per-Click ("CPC") basis. A CPC is the dollar value placed on each click-through; a click-through results when a job seeker clicks on a link in a Upward.net website or email alert and is taken to any job-related page or offer on User's website. The CPC, daily, and/or monthly cap shall be provided in Upward.net's User Interface All charges and click counts shall be based solely on the numbers recorded by Upward.net and available for view in the User Interface. If the Parties click counts differ by more than five percent (5%), each party agrees to take reasonable steps to reconcile the click count. CPC and the Monthly Cap may be adjusted in a writing, including by email, by the Parties. User may pause and resume their CPC flow, as well as change their budget and Monthly Cap, by logging into their Account.
      3. Payment. Upward.net will invoice Client monthly. Payment is due fifteen (15) days from the end of each calendar month for such month's clicks. Payment terms are subject to credit approval and may change in Upward.net's discretion based on payment history or credit worthiness. Client will pay all costs of perfection or collection (including court, mediation or arbitration costs and reasonable attorney fees) incurred by Upward.net. Overdue payments will accrue interest at a rate of 1.5% per month from the due date.
      4. Limitation of Liability. In no event shall Upward.net or User be responsible for any consequential, special, indirect, incidental, lost profits, or other damages arising from this Agreement. Without limiting the foregoing, neither Upward.net nor User shall have any liability for any failure or delay resulting from conditions beyond its control. Except for indemnification and confidentiality obligations, neither party's liability (whether in contract, tort or otherwise) shall exceed lessor amount of (a) the revenue earned by Upward.net from User in the previous three (3) months or (b) $300,000.00.
      5. Indemnification. Each Party (the "Indemnifying Party") shall defend, indemnify and hold harmless the other, its directors, officers, employees, affiliates and agents against (i) liabilities arising from the services provided by Indemnifying Party; (ii) any Licensed Material or other material provided by the Indemnifying Party that, actually or allegedly, infringes on the intellectual property or personal rights of a third party, is defamatory or illegal; and (iii) any breach by the Indemnifying Party of its obligations or representations hereunder. Each party agrees to promptly notify the other party in writing of any claim or potential claim; and to the extent applicable, to cooperate fully with the other party, at that other party's expense, in defending or settling such claim and reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification.
    3. Managed Mail
      1. License. User procures, compiles, owns and maintains a proprietary computerized database composed of opt-in consumer information (the "List"). User hereby grants and Upward.net hereby accepts a non-exclusive, revocable worldwide license to manage, make use and have access to the List pursuant to this Agreement. User hereby grants and Upward.net hereby accepts a non-exclusive, non-transferable, royalty-free license to reproduce and display User's trademarks, trade names and logos and any informational material relating to User solely in furtherance of this Service, provided pursuant to this Agreement. Such licenses will terminate automatically upon the date of expiration or termination of this Agreement.
      2. User Obligations. User shall deliver the List to Upward.net, which shall include information acquired when the member registered with User's website, including, but not limited to: (i) member Opt-In date, (ii) registration source, (iii) first name, (iv) last name, (v) address and (vi) email address. Ownership of the List shall at all times remain with User. Consumer information will be collected and delivered to us in real time. User represents and warrants that the provision of list member information to Upward.net complies with the registration source's applicable privacy policy and was obtained and collected with federal CAN-SPAM compliant practices, including affirmative consent, without employing email address harvesting, dictionary attacks and/or any other deceptive or illegal act or practice. You shall maintain records evidencing such consent including, without limitation, applicable IP addresses and/or time/date stamps, source, privacy policy, terms and conditions allowing transfer to 3rd party, and will supply such records if requested. User further warrants that the consumers on the List have consented to receiving commercial emails from User, and such consent includes the right to transfer their information to us for the use contemplated by this Agreement. You represent that the List does not include records of any person who has unsubscribed from the List at the time it is provided to us. We may, in its sole discretion, keep such copies of the List and records pertaining to the List as may be necessary to demonstrate compliance with laws with respect to its use of the List.
      3. Management and Delivery. Upon delivery of the List to Upward.net, we will import the List into the email delivery system (the "Upward.net Email System"), which will enable Upward.net and/or our partners to send commercial email to the consumers included within the List. We will use industry best practices to safeguard the List, but make no guarantee against criminal conduct. Except as necessary to perform the services and as may be required by law or necessary to prove compliance with laws, we shall not transfer, export, display, forward or otherwise share the List with any other party without your prior written consent. We will not distribute any obscene or unlawful Campaigns or anything containing or promoting: (i) the use of any illegal substance; (ii) pornography; (iii) expletives or inappropriate language; (iv) racism or racial hate; and/or (v) illegal activity including, without limitation, mail fraud, illegal advice, export violations, viruses, worms, and/or any Campaigns that contain or promote fraudulent activity, goods, services, schemes or promotions. We may send commercial emails under various brands (the "Brands") and have discretion with respect to the creation of the "subject" and "from" lines used in such emails, provided, however, that these actions shall be in accordance with all applicable laws and will not infringe on any third party's intellectual property rights.
      4. Upward.net Representations. We ensure that each email is sent in accordance with applicable laws, including the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the "CAN-SPAM Act of 2003") and acts amendatory thereto, provided we will not be liable or responsible for any issues arising from the List or the manner in which it was collected. Upward.net further ensures that: (i) the List is scrubbed against any "do not email" lists that may be applicable to any Campaign and (ii) each email includes the following: a valid unsubscribe link, applicable postal addresses, and identification of the email as a commercial email, if applicable. Each unsubscribe request shall be given effect in accordance with all applicable laws. Upon termination of this Agreement, you will cease providing us the List and within two (2) business days, we will cease sending emails to the List, however you acknowledge that once a consumer becomes a Upward.net active user, they will no longer be considered part of the list for purposes of this Agreement. We are responsible for the security of the List, which includes the security of the List provided to any third party email service providers. Notwithstanding any other provision herein, we are not responsible for the criminal acts of third parties not within its control.
      5. Commission and Payment. User shall receive a share of the cash collections actually received by Upward.net for Campaigns sent to the List. Cash collections is defined as the monies actually received from our advertisers. Payments shall be based solely on our measurements, which, along with a statement of estimated payment, are viewable in the User Interface. We shall remit payment no later than the 30th of each month for cash collections paid through the end of the preceding month. As a condition to our obligation to make payment, you must have on file with Upward.net a completed and accurate W-9. Payments will be withheld until we receive the appropriate tax documents. You are solely responsible for payment of all applicable taxes (other than those on our net income). If we refund fees to an advertiser for any reason, then you shall refund the corresponding commission to us, either by setoff against commissions not yet earned or paid or by prompt payment to Upward.net. Any violation of the User obligations and restrictions hereunder may result in forfeiture of commission, subject to our sole discretion. You are solely responsible for payment of all applicable taxes (other than those on our net income). If we refund fees to an advertiser for any reason, then you shall refund the corresponding revenue share to us, either by setoff against commissions not yet earned or paid or by prompt payment to Upward.net.
      6. Limitation of Liability. In no event will either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of this Agreement, even if such party has been advised of the possibility of such damages. Upward.net'S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF MONEY ACTUALLY PAID TO CLIENT BY Upward.net UNDER THIS AGREEMENT IN THE THREE (3) MONTHS PRECEDING THE CLAIM GIVING RISE TO ANY SUCH LIABILITY.
      7. Indemnification. User agrees to indemnify and hold Upward.net harmless from and against any and all claims, liabilities, costs, losses, damages, and expenses, including reasonable attorneys' fees, arising from or related to (i) a breach of User's obligations hereunder, including the representations and warranties contained herein, and (ii) any claim that provision of the List violates any law, statute or regulation, including but not limited to CAN-SPAM violations, and acts amendatory thereto. We agree to indemnify and hold User harmless from and against any and all claims, liabilities, costs, losses, damages, and expenses, including reasonable attorneys' fees, arising from or related to a breach of our obligations under hereunder, including the representations and warranties contained herein. if any action will be brought against either party (the "Indemnified Party") in respect to any allegation for which indemnity may be sought from the other party ("Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party.
    4. Syndicated Sponsored Ads
      1. The Service. User will supply impressions and clicks for Upward.net's Sponsored Advertisements as provided in this Section and in accordance with our Syndication Acceptable Use Policy. Users who qualify may integrate such content on their websites through the methods provided, in writing, by Upward.net. We may choose, in our sole discretion, to make available a subset of content for display on your website, for any reason, including, by way of example, orientation of the website or the preferences of the providers of such content. To the extent we identify a feature of the Program as "beta," "test" or otherwise provisional, you agree that use of such features, to the fullest extent permitted by law, is "AS IS," at your own risk, and you will not disclose to any third party any information regarding such features, their existence or your access thereto.
      2. User Obligations
        1. Content. User will display our Sponsored Advertisements, including without limitation search results, text, graphics, links, logos, and other data (collectively "Data"), only on the websites and in the placement that we have reviewed and approved in writing ("Approved Placements"). User grants us the right to serve Data on Approved Placements. Any changes to the content, layout, or orientation of any Approved Placements including, but not limited to, as it relates to the display of Data must be approved in writing prior to such change. Any unauthorized change from the Approved Placements may result in forfeiture of commissions, in our sole discretion.
        2. Fraud. User will cooperate with in any investigation of claims of illegal activity, suspected illegal activity, or violations of this Agreement, including, but not limited to, attempts to fraudulently inflate the volume of impressions or clicks from the Approved Placements. User will implement all reasonable corrective actions requested by Upward.net to correct and prevent such activities.
        3. Upward.net Rights. You acknowledge that Upward.net owns all right, title and interest in and to the Service (including Upward.net's ad serving technology, application programming interface ("API"), search technology, trademarks, logos, and Data), and that you do not acquire any right, title, or interest in or to the Service except as expressly set forth herein.
        4. User represents and warrants that: (a) they will comply with all applicable laws and regulations in its use of the Service and in its business operations, including without limitation laws regarding data privacy, unsolicited bulk email, and employment and employment discrimination; (b) User will not generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions, clicks or other actions, and will not use any automated means of scraping, data mining, reverse engineering or data extraction to access, query, store, or otherwise collect data from the Service, the API or any website of Upward.net or its advertisers; and (c) it will not distribute, share, syndicate or publish the Data through any channel or medium other than the Approved Placements.
      3. Commission and Payment. User shall receive a share of the cash collections actually received by Upward.net for valid clicks supplied by User from the Data served on Approved Placements. Cash collections is defined as the monies actually received from our advertisers. Click calculation and payments shall be based solely on our measurements, which, along with a statement of estimated payment, are viewable in the User Interface. In no event will you receive compensation for any clicks or other transactions generated by any party acting on your behalf or to the extent that incomplete or improper implementation on an Approved Placement prevents us from accurately tracking or reporting such transaction. We shall remit payment no later than the 30th of each month for cash collections paid through the end of the preceding month, provided the amount owing is at least one hundred US dollars ($100.00). If the amount owed is less than $100.00, the balance will carry over to until such time that the monthly balance is at least $100.00. As a condition to our obligation to make payment, you must have on file with Upward.net a completed and accurate W-9. Payments will be withheld until we receive the appropriate tax documents. You are solely responsible for payment of all applicable taxes (other than those on our net income). If we refund fees to an advertiser for any reason, then you shall refund the corresponding commission to us, either by setoff against commissions not yet earned or paid or by prompt payment to Upward.net. Any violation of the User obligations and restrictions hereunder may result in forfeiture of commission, subject to our sole discretion.
      4. Limitation of Liability. In no event will Upward.net, its representatives, successors or assigns, be liable for any punitive, exemplary, incidental or consequential damages in any action arising from or related to this Agreement or the Service, whether based in contract, tort (including negligence), intended conduct or otherwise, including without limitation, damages relating to the loss of profits, income or goodwill, regardless of whether such party has been advised of the possibility of such damages. In no event will Upward.net's liability for monetary damages related to this Agreement exceed the amount payable by Upward.net to the User over the three-month period immediately preceding the action. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
      5. Indemnification. User will indemnify, defend and hold Upward.net, its advertisers and their respective representatives harmless from and against any and all losses, liabilities and expenses (including reasonable attorneys' fees) suffered or incurred by reason of any claims, proceedings or suits based on or arising out of (i) any breach or alleged breach by User of its representations, warranties or covenants hereunder; or (ii) the Approved Placements and the products and services promoted therein, including without limitation claims for defamation, violation of rights of publicity and/or privacy, and intellectual property infringement.
    5. Syndicated Job Feed
      1. The Service. User will supply impressions and clicks for Upward.net's Job Feed as provided in this Section and in accordance with our Syndication Acceptable Use Policy. Users who qualify may integrate such content on their websites through the methods provided, in writing, by Upward.net. We may choose, in our sole discretion, to make available a subset of content for display on your website, for any reason, including, by way of example, orientation of the website or the preferences of the providers of such content. To the extent we identify a feature of the Program as "beta," "test" or otherwise provisional, you agree that use of such features, to the fullest extent permitted by law, is "AS IS," at your own risk, and you will not disclose to any third party any information regarding such features, their existence or your access thereto.
      2. User Obligations
        1. Content. User will display our Sponsored Advertisements, including without limitation search results, text, graphics, links, logos, and other data (collectively "Data"), only on the websites and in the placement that we have reviewed and approved in writing ("Approved Placements"). User grants us the right to serve Data on Approved Placements. Any changes to the content, layout, or orientation of any Approved Placements including, but not limited to, as it relates to the display of Data must be approved in writing prior to such change. Any unauthorized change from the Approved Placements may result in forfeiture of commissions, in our sole discretion.
        2. Fraud. User will cooperate with in any investigation of claims of illegal activity, suspected illegal activity, or violations of this Agreement, including, but not limited to, attempts to fraudulently inflate the volume of impressions or clicks from the Approved Placements. User will implement all reasonable corrective actions requested by Upward.net to correct and prevent such activities.
        3. Upward.net Rights. You acknowledge that Upward.net owns all right, title and interest in and to the Service (including Upward.net's ad serving technology, application programming interface ("API"), search technology, trademarks, logos, and Data), and that you do not acquire any right, title, or interest in or to the Service except as expressly set forth herein.
        4. User represents and warrants that: (a) they will comply with all applicable laws and regulations in its use of the Service and in its business operations, including without limitation laws regarding data privacy, unsolicited bulk email, and employment and employment discrimination; (b) User will not generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions, clicks or other actions, and will not use any automated means of scraping, data mining, reverse engineering or data extraction to access, query, store, or otherwise collect data from the Service, the API or any website of Upward.net or its advertisers; and (c) it will not distribute, share, syndicate or publish the Data through any channel or medium other than the Approved Placements.
      3. XML Feed. In order to permit User to display the Data on the Approved Placements, we may, but are not obligated to, make available an XML file containing job listings from our database (the "File"). If we do provide such File, you may use and access it solely for the purpose of searching the File for keywords in a search query initiated by a consumer on an Approved Placement and displaying the following Data from the results of such search to such consumer on the Approved Placement:
        1. the job title, linked to the corresponding URL, for each result.
        2. the company name for each result.
        3. the city and state, as provided, for each result.
        4. a description summary.
        You may not publicly display any information from the File other than the Data specified herein with regard to a specific consumer's search query. You are expressly prohibited altering the data contained in the File, other than shortening the job description. You must update the File at least daily, by downloading the latest version of the File via our designated file transfer mechanism. You must delete all versions of the File other than the most current version (and any copies of any outdated versions of the File), as you cannot display Data from outdated versions of the File. Additionally, you must destroy the File, and any copies thereof, immediately on termination of the Agreement, or upon our request.
      4. Commission and Payment. User shall receive a share of the cash collections actually received by Upward.net for valid clicks supplied by User from the Data served on Approved Placements. Cash collections is defined as the monies actually received from our advertisers. Click calculation and payments shall be based solely on our measurements, which, along with a statement of estimated payment, are viewable in the User Interface. In no event will you receive compensation for any clicks or other transactions generated by any party acting on your behalf or to the extent that incomplete or improper implementation on an Approved Placement prevents us from accurately tracking or reporting such transaction. We shall remit payment no later than the 30th of each month for cash collections paid through the end of the preceding month, provided the amount owing is at least one hundred US dollars ($100.00). If the amount owed is less than $100.00, the balance will carry over to until such time that the monthly balance is at least $100.00. As a condition to our obligation to make payment, you must have on file with Upward.net a completed and accurate W-9. Payments will be withheld until we receive the appropriate tax documents. You are solely responsible for payment of all applicable taxes (other than those on our net income). If we refund fees to an advertiser for any reason, then you shall refund the corresponding commission to us, either by setoff against commissions not yet earned or paid or by prompt payment to Upward.net. Any violation of the User obligations and restrictions hereunder may result in forfeiture of commission, subject to our sole discretion.
      5. Limitation of Liability. In no event will Upward.net, its representatives, successors or assigns, be liable for any punitive, exemplary, incidental or consequential damages in any action arising from or related to this Agreement or the Service, whether based in contract, tort (including negligence), intended conduct or otherwise, including without limitation, damages relating to the loss of profits, income or goodwill, regardless of whether such party has been advised of the possibility of such damages. In no event will Upward.net's liability for monetary damages related to this Agreement exceed the amount payable by Upward.net to the User over the three-month period immediately preceding the action. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
      6. Indemnification. User will indemnify, defend and hold Upward.net, its advertisers and their respective representatives harmless from and against any and all losses, liabilities and expenses (including reasonable attorneys' fees) suffered or incurred by reason of any claims, proceedings or suits based on or arising out of (i) any breach or alleged breach by User of its representations, warranties or covenants hereunder; or (ii) the Approved Placements and the products and services promoted therein, including without limitation claims for defamation, violation of rights of publicity and/or privacy, and intellectual property infringement.

  13. TERM
  14. The Term of this Agreement shall begin as of the Effective Date and shall continue until terminated by either of us upon three (3) days prior written notice to the other. User may also terminate this Agreement via the User Interface if such functionality is available. Either party may terminate or suspend this Agreement immediately if there is a good faith belief that it is necessary to prevent violation of state or federal law. The Sections regarding of User Obligations, Payment, Confidentiality, and Indemnification shall survive the termination.

  15. CONFIDENTIALITY
    1. This Agreement and any information provided by either party hereunder or in connection herewith shall be confidential. Without limiting the generality of the foregoing, confidential information shall include: the List, suppression and unsubscribe lists, and the Parties' business policies, practices, plans and methods. Neither party shall at any time disclose any of the terms of this Agreement, nor any information shared pursuant hereto, to any third party except to the professional advisors of either party as necessary to perform the services hereunder or as may be required by applicable law, during the term of this Agreement, and for a period of one (1) year thereafter.
    2. The provisions above do not apply where the receiving party can demonstrate that the information: (i) was previously known to the receiving party at the time of disclosure, free of any obligation to keep it confidential; (ii) became publicly known through no wrongful act of the receiving party; (iii) was rightfully received from a third party who was not bound under any confidentiality provisions; or (iv) was disclosed pursuant to judicial order, requirement or request of a governmental agency or by operation of law. We each acknowledge that the other may disclose this Agreement to the extent necessary to comply with filing requirements, if any, of the Securities and Exchange Commission.
    3. The Parties agree that monetary damages for breach of these restrictive covenants may not be adequate and that the non-breaching party shall be further entitled to injunctive relief.

  16. WARRANTIES; DISCLAIMERS
  17. OTHER THAN EXPRESSLY SET OUT IN THE AGREEMENT, WE MAKE NO PROMISE ABOUT THE SERVICES, THE CONTENT OR THER PROFITABILITY, RELIABILITY, AVAILABILITY OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE EACH SERVICE "AS IS."

    EXCEPT AS SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED HEREUNDER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

  18. MISCELLANEOUS
  19. Upward.net and User represent and warrant that they shall comply with all applicable laws, regulations and industry best practices in the performance of this Agreement. This Agreement shall be governed by and construed under the laws of the State of California without reference to its conflict of laws principles. User hereby consent to exclusive jurisdiction and venue in the state and federal courts in Oakland, California for such purpose. Failure by either of us to enforce any provision of this Agreement will not be deemed a waiver of future enforcement. If a provision of this Agreement is held to be invalid under applicable law, the remainder of the Agreement will continue in full force and effect and we shall replace the invalid provision with one that reflects the original intent. The Parties to this Agreement are independent contractors to each other. This Agreement has no third party beneficiaries. This Agreement may be amended, modified or waived only by (1) a posted of updated terms to the User Interface or (2) in a writing, signed or acknowledged by both Parties, specifically stating the term or condition to be amended, modified or waived. Each Party represents and warrants to the other that: (i) such Party has all necessary right, power and authority to agree to this Agreement and to perform its obligations hereunder; and (ii) nothing contained in this Agreement or required by such Party's performance hereunder will it in breach of any other contract or agreement to which it is bound or violate any applicable law, including obscenity, privacy and defamation laws and (iii) the performance of either Party's obligations shall not infringe or violate upon the Intellectual Property or privacy rights of any third party. This Agreement constitutes the entire and only understanding and supersedes any and all prior agreements, of the Parties with respect to the transaction set forth herein.