Terms of Service

Terms of Service

WHEREAS, Tomksoft S.A. (Tomksoft) is a joint stock company located and registered in Costa Rica and is engaged in the business of providing Pop-under advertising through Popads.net. Popads.net is owned and operated by Tomksoft S.A.

WHEREAS, Affiliate desires to participate in the Pop-under advertising network through Popads.net.

This Agreement shall govern participation in the Pop-under Advertising Network (Program) offered by Popads.net. By participating in the Program, you will be deemed to have agreed to these Terms and Conditions. Affiliate must complete and submit a Program application and registration form.

Affiliate must comply with the terms and conditions set forth in this Agreement.

Eligibility; Authority

Affiliate represents and warrants that they are (i) at least eighteen (18) years of age and/or (ii) otherwise recognized as being able to form legally binding contracts under applicable law. If Affiliate is a corporate entity, Affiliate represents and warrants that they have the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms "you", "your" or “User” shall refer to such corporate entity. If, after your acceptance of this Agreement, Tomksoft finds that Affiliate does not have the legal authority to bind such corporate entity, Affiliate will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. Tomksoft shall not be liable for any loss or damage resulting from Tomksoft’s reliance on any instruction, notice, document or communication reasonably believed by Tomksoft to be genuine and originating from an authorized representative of Affiliate’s corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, Tomksoft reserves the right (but undertakes no duty) to require additional authentication.

Payment Terms:

Payment will be sent within 30 business days from request. Affiliate must log into their account to request payment when they have accumulated the minimum payment amount. The current minimum payment amount is $5.00 USD. If the Affiliate request that payment by made through a third party payment source such as PayPal, AlertPay or a wire transfer, the minimum payment amount will be determined by such third party payment source. Tomksoft reserves the right to withhold payment from Affiliate if it violates any of the terms and conditions set forth herein.

Participation:

Tomksoft shall have absolute discretion as to whether or not it accepts a particular applicant or site for participation in the Program. The following sites are NOT allowed to participate in our Program:

• Any sites illegal in the United State or Costa Rica
• Sites displaying child pornography, bestiality or contain links to such content
• Libelous or defamatory sites
• Sites containing software piracy
• Sites containing, instructing or describing any form of illegal activity including but not limited to bomb building, hacking or phreaking
• Sites with gratuitous displays of violence; obscene or vulgar language; abusive content and/or content which endorses or threatens physical harm
• Sites promoting any type of hate-mongering based on race, politics, ethnicity, religion, gender or sexuality
• Sites that participate in or transmit inappropriate newsgroup postings or unsolicited email
• Sites promoting any type of illegal substance, paraphernalia and/or activity
• Sites with illegal, false or deceptive investment advice and/or money-making opportunities
• Sites with any type of content that the general public has deemed to be improper or inappropriate
• Sites spreading viruses or exploiting web browser vulnerabilities

It is the Affiliate’s sole responsibility to maintain acceptable content as outlined in this Agreement. Any violation of these rules will result in the Affiliate’s immediate removal from the Program, cancellation of your account and your payment will be null and void. Tomksoft shall not be responsible or liable for Affiliate’s advertisement content.

Affiliate may not artificially inflate traffic counts using any device, program or robot. In addition, Affiliate may not misuse Tomksoft’s ad codes to affect Affiliate’s earnings under this Agreement.

Each Affiliate may only hold one account with Tomksoft. Affiliates may have more than one URL in their account, each of which must be submitted for review prior to placing the ad code on each individual site.

Code Placement

Tomksoft ad codes may not be modified from its original format without prior written consent from Tomksoft. Affiliate agrees to use the ad code provided by Tomksoft not more than once per page view. Ad codes may only appear on root URLs that Tomksoft has reviewed and accepted for participation in the Program. Ad codes cannot be placed in email messages.

Data Reporting:

Tomksoft is the sole owner of all website, campaign and aggregate web user data collected by Tomksoft. Tomksoft shall also be responsible for collecting impressions and geographic statistics. Affiliate shall only have access to campaign data that is collected through the use of their inventory.

Fraud and Deception

Affiliate agrees not to artificially inflate traffic counts using any program, script, device or by any other means. Tomksoft will audit every Affiliate’s traffic on a daily basis. If Affiliate produces or commits fraudulent statistics Affiliate will have their account permanently removed from our Program and Affiliate will not be compensated for such fraudulent traffic. Additionally, Tomksoft reserves the right to register any fraudulent activities by Affiliate in a global advertisement network fraud database for usage by other advertisement networks. Excessive page reloading or any other abuse of our system may result in Tomksoft pursuing legal action against Affiliate.

Contact Information:

To insure timely payment, Affiliate is responsible for maintaining the correct contact and payment information including name, email address and mailing address. This must be done online using the Affiliate’s account. Any and all bank/service fees associated with returned or cancelled payments due to any error in the Affiliate’s contact or payment information shall be the Affiliate’s responsibility and will be deducted from any payment due to the Affiliate.

Removal from Program:

In order to protect our clients and third parties from any form of fraudulent activity, Tomksoft may, at our discretion, terminate any account that we believe violates one of our rules or that has very low conversion ratios. We reserve the right to request server logs from Affiliate for investigation. In the case of non-agreement between Tomksoft and Affiliate regarding fraudulent activity, the decision of Tomksoft shall be the final. Any account that has been cancelled due to fraudulent activities or due to low conversion ratios will not receive payment. In cases where fraud has occurred and payment has been made, Tomksoft may take legal action against the Affiliate in addition to closing the account.

Affiliate in violation of the Terms and Conditions set forth herein will be immediately deactivated. Tomksoft may deactivate Affiliate with no prior notice, although every effort will be made to notify the deactivated Affiliate via the email address provided by the Affiliate.

Upon termination of Affiliate from the Program the Affiliate shall immediately remove all HTML insertion codes and Tomksoft ad codes from any and all web pages where the Affiliate inserted such codes.

Representations and Warranties:

The Affiliate represents and warrants that it has full power and authority to enter into this Agreement. Tomksoft is not responsible for any content provided by third parties including advertisers. Tomksoft and its licensors make no warranty of any kind, whether expressed, implied, statutory or otherwise, including without limitation warranties of merchantability and fitness for a particular usage. Affiliate is solely responsible for any legal liabilities arising out of or relating to (i) the content and other material set forth on the Affiliate’s websites and/or (ii) any content or material to which users can link through the Affiliate’s websites other than through advertisement supplied by Tomksoft. Affiliate hereby agrees to indemnify, defend and hold harmless Tomksoft and its officers, directors, agents, affiliates and employees from and against all claims, suit, proceeding, assertion, actions, liabilities, losses, expenses, damages and costs including reasonable attorneys fees that may be incurred by reason of any claim arising from or connected with Affiliate’s content, website, commerce and/or business conducted by Affiliate or Affiliate’s misuse of the services provided herein or Affiliate’s breach of any of its representations and/or warranties provided to its customers or third parties.

Damages:

In no event shall either party be liable for special, indirect, incidental or consequential damages arising from services provided herein.

Under no circumstances shall Tomksoft, its employees, affiliates, or its contractors be liable for any direct, indirect, incidental, special, punitive or consequential damages that result in any way from Affiliate’s use of or inability to use the services provided herein or Affiliate’s (or Affiliate’s customers or authorized users’) reliance on or use of information, services or merchandise provided on or through the Affiliate’s website or advertisement.

Limitation of liability:

Neither Tomksoft nor its customers will be subject to any liability for (i) any failure to provide reference or access to all or any part of the website due to system failure or other technological failures of Tomksoft or the Internet; and/or (ii) delays in delivery and/or non-delivery of advertisement, difficulties with a customer or advertisement; difficulties with a third-party server; electronic malfunction and/or errors in content or omissions in any advertisement.

Audit:

Tomksoft shall have the sole responsibility for the calculation of Affiliate’s earnings.

Modifications:

Tomksoft reserves the right to change any of the terms and conditions herein at any time and such changes or modifications shall be effective immediately upon notification by Tomksoft to Affiliate via email advising of such change or modification. Affiliate is responsible for complying with any changes to the terms and conditions within 10 days of the date of change.

Publicity and Trademarks:

Affiliate hereby permits Tomksoft to identify Affiliate as a customer of Tomksoft and to display Affiliate’s logo in connection with identifying Affiliate as a customer of Tomksoft. Affiliate shall not release any information regarding any campaigns and/or relationship with Tomksoft or its customers in any press release, promotional materials or merchandising materials without the prior written consent of Tomksoft. No press release or general public announcements shall be made without the mutual agreement of Tomksoft and Affiliate.

Confidential Information:

All written information labeled as proprietary or confidential that is disclosed by either party to the other party shall remain the sole property of the disclosing party. Each party agrees that it shall not disclose, use, modify, copy, reproduce or otherwise divulge such confidential information other than to fulfill its obligations under the Agreement. The prohibitions contained in this section shall not apply to information (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party. Neither party shall disclose to third parties, other than its agents and representatives on a need-to-know basis, the terms of the Agreement without the prior written consent of the other party, except either party shall be entitled to disclose (i) such terms to the extent required by law; and (ii) the existence of the Agreement.

Dispute Resolution:

In the case of any disputes under this Agreement, the parties shall first attempt in good faith to resolve their dispute informally, or by means of commercial mediation, without the necessity of a formal proceeding.

Miscellaneous terms:

Affiliate may not, without the prior written consent of Tomksoft, assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a breach of this Agreement and shall be void. This Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies to any other person or entity.

The Agreement shall be interpreted according to the laws of Costa Rica without regard to or application of conflict-of-law rules or principles.

This Agreement shall constitute the entire agreement between Tomksoft and Affiliate with respect to the subject matter hereof and all prior agreements, representations, and statements with respect to such subject matter are superseded hereby.

No failure of either party to exercise or enforce any rights under the Agreement shall act as a waiver of subsequent breaches.

In the event any provision of the Agreement is for any reason held invalid, illegal or unenforceable, the parties will begin negotiations for a replacement provision and the remaining provisions of the Agreement will be unimpaired. The Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting the Agreement in construing or interpreting the provisions hereof. Except as provided herein, the rights and remedies of the parties set forth in the Agreement are not exclusive and are in addition to any other rights and remedies available to it at law in equity. The Agreement shall be binding upon and shall insure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns. Each party shall comply with all applicable laws, regulations and ordinances relating to their performance hereunder.

Headings:

Headings used herein are for the convenience of the reader, and shall not be deemed to limit or enlarge the substantive provisions hereof.