Shopzilla Publisher Program Terms and Conditions

Shopzilla (Europe) Ltd. ("Shopzilla", "we", "us" or "our") is pleased to provide you with the opportunity to participate in our Publisher Program ("Publisher Program"), subject to acceptance of your Registration Form by us, and your agreement to the terms and conditions of the Shopzilla Publisher Program, as amended by us from time to time ("Agreement" or "Terms and Conditions").

This Agreement explains our obligations to you, and your obligations to us, in relation to the Publisher Program. Other than our commitment to pay referral fees under Section 5, which will be fulfilled solely by us, we may cause any of our obligations under this Agreement to be performed by us or any of our affiliates. By completing and submitting your Registration Form or otherwise agreeing to participate in our Publisher Program, you agree to be bound by the terms and conditions of this Agreement and to observe the rules and guidelines of the Publisher Program as updated by us from time to time.

Our Service. We provide an online shopping search engine that assists consumers in shopping for products and services offered by third party merchants participating in our Listings Service ("Merchants") throughout the Shopzilla Network, among other things. Search results and certain other links on our web sites contain links to Merchant web sites. The Shopzilla Network includes www.shopzilla.co.uk, www.bizrate.co.uk, and equivalent domains in the United Kingdom, Germany and France, and all other web sites we operate or other media or services we may offer to consumers from time to time.
Your Participation. If you are accepted as a Publisher in the Publisher Program, we agree that you may present the Shopzilla and/or third party advertisements, content, creative, search queries or results that we provide you ("Sponsored Shopping Content") on the web site(s) you have enrolled in the Publisher Program (each, a "Site"), where such Sponsored Shopping Content links to Merchants in the Shopzilla Network as determined by Shopzilla in its sole absolute discretion. You are not allowed to place Sponsored Shopping Content on web sites that are not identified on the Registration Form or later accepted in the Publisher Program and you are not entitled to payment for traffic from such web sites. As a condition of your participation in the Publisher Program, you agree to (i) comply with applicable laws and use ethical and legal business practices, and (ii) maintain a privacy policy on your Site that is made available to users of your Site. We may reject your Registration Form and Site for any reason whatsoever in our sole absolute discretion.
Sponsored Shopping Content. You agree that you will present the Sponsored Shopping Content to users of your Site in a form and manner and using creative elements as specified by Shopzilla from time to time and as set forth in Schedule 1 hereto. You will direct the Sponsored Shopping Content to the location(s) indicated to you by Shopzilla and provide linked attribution to Shopzilla or Bizrate as the source of the Sponsored Shopping Content on each page of your Site displaying the Sponsored Shopping Content. You agree the Sponsored Shopping Content and related logo(s), creative, programming, Javascript and other information or materials provided by Shopzilla ("Shopzilla Materials") shall not be altered, modified, circumvented, impaired, disabled or otherwise interfered with by you, including with respect to any tracking code and/or other technology and/or methodology required or established by Shopzilla in connection with the Publisher Program. You further agree to make updates to the Sponsored Shopping Content or its implementation as and when requested by Shopzilla. You understand and agree that breach of the provision or any part hereof may result in immediate termination of your participation the Publisher Program.
Your Information and Representations About You. You represent and warrant that:
1. you have the necessary rights and authority to enter into and perform this Agreement and the person signing on your behalf has authority to enter into this Agreement;
2. you are the registered owner of your Site including its content and domain name;
3. you are over eighteen (18) years old; and
4. all information you provide to us, including but not limited to information provided in the Registration Form and all other information about your business provided in connection with the Publisher Program, will be accurate, complete and current, to the best of your knowledge, and kept up to date throughout the Term.
You grant to Shopzilla and its affiliates (which include but are not limited to our direct and indirect subsidiaries and parent company ("Affiliates")), the right to transmit, process and maintain the personal and business information that you provide to us via the Publisher Program, and you further agree and hereby grant Shopzilla and its Affiliates the right to use such information for Shopzilla's and its Affiliates' business purposes and share such information with selected third parties, including but not limited to Shopzilla's agents, accountants, attorneys and other representatives for Shopzilla's and its Affiliates' business purposes.
Your Information and Representations About Your Site. You represent and warrant that the content of your Site and all promotional means used by you:
1. do not violate any law or regulation;
2. do not infringe in any manner any copyright, patent, trademark, trade secret or other intellectual property right of any third party;
3. do not contain false, misleading or objectionable content (including but not limited to content that is obscene, containing excessive advertisements, defamatory, libelous, threatening, violent, hate-oriented, illegal or promoting illegal activities or goods); and
4. do not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, or has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity.
Any actual or suspected violation of this provision or any suspected fraudulent, abusive or otherwise illegal content or activity by you is grounds for immediate termination of your participation in the Publisher Program and this Agreement.
Payment and Reporting. You agree as follows:
1. For each month or portion thereof in which you participate in the Publisher Program, Shopzilla will make a payment to you based upon the Net Revenue received by Shopzilla from valid users' clicks on links containing the Sponsored Shopping Content on your Site in such period, as determined by Shopzilla's standard tracking method ("Publisher Payment"). "Net Revenue" shall mean revenue less an administrative fee no more than five (5) percent to cover collections, serving and administrative costs, among others. We will grant you access to an online reporting tool to view traffic activity and estimated Publisher Payments generated by Sponsored Shopping Content from your Site during this Agreement. You understand and agree that Shopzilla shall have the right in its sole discretion to credit, adjust or discount charges to Merchants based on its determination of quality of traffic or source (i.e., non-EU) generated via the Sponsored Shopping Content and to offset future payments to you based on such credits or adjustments to Merchants for traffic generated by your Site. You further agree that Shopzilla shall have no obligation to make payments to you where Shopzilla has not received payment from the relevant Merchant(s) of all monies due to Shopzilla. In the event of such non-payments or bad debts, Shopzilla reserves the right to offset future payments to you in its sole discretion. Your recourse for any such adjustment due to non-payment shall be to make a claim against the relevant Merchant(s), and Shopzilla disclaims any and all liability for such payments.
2. Shopzilla will pay the Publisher Payment for the previous month's activity within forty-five (45) days following the end of each month, subject to a minimum payment of £50.00 per month and provided that we have received a valid Value Added Tax invoice from you (if applicable) as directed by Shopzilla. Balances below £50.00 will roll over until a balance of £50.00 is met. Shopzilla will not honor invoices that are not received within ninety (90) days of the applicable month. Shopzilla will make one or more payment methods available to you, in our sole discretion. If your bank details are required for payment, and any bank details we hold are at any time incorrect, we will defer payment of your Publisher Payment until the payment period after which the bank details are corrected. All payments under this Agreement will be made in Great British Pounds sterling.
3. We reserve the right to withhold or adjust any payment to you in the event of any suspected or actual violation of these Terms and Conditions or part thereof, or other policy or guideline established by Shopzilla in connection with the Publisher Program, and in particular we reserve the right to withhold or adjust any payment based on any amounts which result from clicks generated by any person, robot, automated program or similar device in violation of these Terms and Conditions, as reasonably determined by Shopzilla, including without limitation any clicks co-mingled with invalid clicks. You agree to forfeit and/or have offset any payments made which are determined by Shopzilla (in our sole absolute discretion) to have been generated by you or from your Site in violation of these Terms and Conditions or other policy or guideline established by Shopzilla in connection with the Publisher Program.
4. Any sums payable under this Agreement are exclusive of Value Added Tax (if applicable) which the relevant party will pay at the applicable rate at the same time as payment of the sums due.
5. Any questions or claims regarding any charges or payments must be raised with us in writing within sixty (60) days after the date of such charges or payments, or else the charges or payments will be deemed final and will not be subject to any further claims or disputes. No refunds, credits or other billing adjustments will be made if a question or dispute is not asserted in writing within sixty (60) days of the applicable charges or payments. Payment shall be calculated solely based on records maintained by Shopzilla.
Right to Change or Cancel Program. We may, for any period of time, suspend the Publisher Program to undertake any routine or emergency work to the Publisher Program or the Shopzilla Network. We reserve the right, in our sole absolute discretion, to change all or part of these Terms and Conditions and/or other policies or guidelines related to the Publisher Program, including but not limited to prohibiting certain Site content, changing the basis of compensation and/or changing the payment schedule. We further reserve the right to change or discontinue the Publisher Program altogether. We may make these changes at any time, with or without notice to you. It is your responsibility to check for changes or updates to these Terms and Conditions or other guidelines of the Publisher Program, which we will make available in the Publisher Program portion of our web site. Changes or updates to the Publisher Program or these Terms and Conditions shall be effective immediately upon our posting such changes or updates. Your continued participation in the Publisher Program will constitute your acceptance of the then-current terms and conditions and any other policies or guidelines associated with the Publisher Program.
Prohibited Activities. You agree that you shall not engage in any of the following activities:
1. artificially inflate traffic counts to the Shopzilla Network or participating Merchants using any robot, automated program or similar device or other means, (including manual), or permit, allow or encourage anyone else to do so. You further agree not to place Sponsored Shopping Content in search engine advertising, newsgroups, unsolicited e-mail, banner networks, counters, chatrooms or guestbooks;
2. place Sponsored Shopping Content in a misleading way for any user, obscuring or partly obscuring the Sponsored Shopping Content from any user's view;
3. click on, or provide users of your Site or any other party any incentives or encouragement to click on the Sponsored Shopping Content (including but not limited to displaying "support this Site" content);
4. modify, alter, impair or disable or otherwise interfere with the Sponsored Shopping Content or the Shopzilla Materials any related tracking code or other application or process established by Shopzilla in connection with the Publisher Program, including display of any web page or other content as an alternative to the web page directed by Shopzilla for the Sponsored Shopping Content;
5. disparage the Publisher Program, Shopzilla, participating Merchants or other third parties, or otherwise make statements or take actions that would or might harm the business of Shopzilla or otherwise be detrimental to its interests; or
6. disclose or share with any third party any confidential or proprietary materials or information respecting Shopzilla's business affairs that you may have been given by reason of your participation in the Publisher Program. You further agree you will not disclose or use any such material or information for any purpose detrimental to Shopzilla and its interests. This Agreement is in addition to, and does not supersede or affect, any prior confidentiality agreement that may have been signed by you.
You acknowledge that a breach by you of the covenants contained in this Section 8 may not be properly compensated by monetary damages and therefore that Shopzilla may pursue all available equitable remedies, including injunctive relief.
Intellectual Property Rights. You acknowledge our exclusive right, title, and interest in and to the service marks "Shopzilla ©", "Bizrate.com ©", PrixMoinsCher, Spardeingeld, the flaming shopping cart and all other trademarks, service marks and trade names associated with the Shopzilla Network, including all content on our web sites ("Shopzilla Marks"). You acknowledge and agree that you shall not have or obtain any rights in any of the Shopzilla Marks, and that you will not adopt, use or attempt to register any trademarks or trade names that are confusingly similar to the Shopzilla Marks nor will you purchase or use in any manner any of the Shopzilla Marks in your search engine or other marketing activities. You further agree that you will not assert any copyright, trademark or other proprietary rights in any Shopzilla Materials, or any part of these items or in any derivative work of these items. Except for the right to use the Shopzilla Materials as set forth in this Agreement, nothing contained in this Agreement shall be construed to grant you any right, title or interest in or to any intellectual property of Shopzilla. You also acknowledge that all right, title and interest in and to the content provided to you by Shopzilla via the Publisher Program, including the Shopzilla Materials, are exclusively owned by Shopzilla and/or its licensors. We disclaim any and all implied licenses and reserve all rights not expressly granted herein.
Indemnification. You hereby agree to defend, indemnify and hold Shopzilla, its Affiliates and Merchants ("Indemnified Parties") harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys. fees and costs, that the Indemnified Parties may suffer as a result of claims that arise from or relate to your participation in the Publisher Program or any other Shopzilla service, any breach by you of the terms of this Agreement or of any representation made by you or obligation entered by you hereunder, any claim of violation of a third party's privacy rights, or any third party claim relating to your Site or any content thereon, including any claim of infringement of any other party's intellectual property or proprietary rights. You shall not enter into any settlement or admit any fault or liability that affects any Indemnified Party without that Indemnified Party's prior written consent.
Warranty Disclaimers. YOU EXPRESSLY AGREE THAT YOUR PARTICIPATION IN THE PUBLISHER PROGRAM IS AT YOUR OWN RISK. THE SERVICES OFFERED IN THE PUBLISHER PROGRAM ARE MADE AVAILABLE TO YOU ON AN "AS IS" BASIS, WITHOUT WARRANTY, CONDITION OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE. NEITHER SHOPZILLA NOR ANY OF ITS AFFILIATES, AGENTS OR MERCHANTS MAKES ANY WARRANTY, CONDITION OR REPRESENTATION WHATSOEVER REGARDING THE PUBLISHER PROGRAM, ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE SHOPZILLA NETWORK OR ANY SHOPZILLA SERVICE. SHOPZILLA HEREBY EXCLUDES TO THE FULLEST EXTENT PERMITTED BY LAW ANY AND ALL EXPRESS OR IMPLIED CONDITIONS, WARRANTIES OR REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, (1) AS TO THE AVAILABILITY, ACCURACY OR CONTENT OF THE SHOPZILLA NETWORK INCLUDING THE SPONSORED SHOPPING CONTENT OR THE SHOPZILLA MATERIALS, OR ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE PUBLISHER PROGRAM OR ANY OTHER SHOPZILLA SERVICE, OR AS TO THE CUSTOMERS, CLICKS, TRAFFIC OR OTHER BENEFITS TO BE GENERATED BY ANY SHOPZILLA SERVICE, OR THAT THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE; AND (2) ANY WARRANTIES OF TITLE OR WARRANTIES OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
LIABILITY LIMITATIONS. ANY LIABILITY OF SHOPZILLA OR ANY OF ITS AGENTS OR AFFILIATES INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION OR DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE STRICTLY LIMITED TO AN AGGREGATE AMOUNT EQUAL TO THE AMOUNT YOU HAVE BEEN PAID BY SHOPZILLA FOR YOUR PARTICIPATION IN THE PUBLISHER PROGRAM IN THE TWO (2) MONTH PERIOD IMMEDIATELY PRIOR TO THE LIABILITY OCCURRING. IN NO EVENT SHALL SHOPZILLA OR ANY OF ITS AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUES, COSTS OF PROCUREMENT OR SUBSTITUTE GOODS, LOSS OF GOODWILL, DEFAMATION OR LOSS OR DAMAGE TO DATA THAT ARISE FROM ANY ASPECT OF YOUR PARTICIPATION IN THE PUBLISHER PROGRAM OR ANY BREACH OR ERROR BY SHOPZILLA OR ITS AGENTS OR MERCHANTS, WHETHER OR NOT SHOPZILLA HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. This limitation on such damages shall apply whether or not Shopzilla is able to correct any problem or error, and whether or not Shopzilla has breached any warranty or obligation, or failure of the essential purpose of any other remedy, it being the intention of the parties to allocate the risk of such damages as provided herein in all circumstances, and you acknowledge that Shopzilla would not have entered into this Agreement but for this limitation on such damages. Nothing in this Agreement limits or excludes our liability for death or personal injury resulting from negligence or for any damage or liability incurred by you as a result of our fraud or fraudulent misrepresentation.
Termination. If you are dissatisfied with the Publisher Program or with any of the terms and conditions contained herein, your sole and exclusive remedy is to terminate your participation by giving us written notice as provided below and removing the Sponsored Shopping Content and Shopzilla Materials from your website. Notwithstanding anything contained in this Agreement to the contrary, we may, in our sole absolute discretion, terminate this Agreement or suspend or terminate your account and/or discontinue your participation in the Publisher Program or any other Shopzilla service at any time, effective immediately upon notice to you. All decisions made by us in this matter will be final and you agree that we shall have no liability with respect to such decisions. You do not have any vested right or enforceable interest to participate in the Publisher Program.
Effect of Termination. On termination of this Agreement, whether by you or us, you will receive payments owed to you up to the time of such termination. In addition, all license rights granted to you herein shall terminate immediately, and you shall immediately cease use of any Sponsored Shopping Content and Shopzilla Materials.
Notices. We may give general notices to participating Publishers by postings on the Publisher Program portion of our web sites (using commercially reasonable efforts to notify you via email of any such postings), and you agree to be bound thereby. Notices specific to you will be sent, if possible, by electronic mail to the email address you registered with your Publisher account, or otherwise by postal mail, overnight delivery service or in person. You may give notice to us by Contacting Us, or otherwise by postal mail or overnight delivery service to:
- Shopzilla (Europe) Ltd.
- Attention: General Counsel
- 4th Floor, Victoria Central
- 111 Buckingham Palace Road
- London, SW1W 0SR
Force majeure. We shall have no liability to you under this Agreement if we are prevented from, or delayed in performing, our obligations or from carrying on our business by acts, events, omissions or accidents beyond our reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of Shopzilla or any other party), failure of the Internet, a utility service, communications network or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
Confidential Information. You agree not to disclose the Sponsored Shopping Content and Shopzilla Materials and any other information which you receive and which is identified as confidential or proprietary by us or the nature of which is clearly confidential or proprietary ("Confidential Information") or make any use of any such Confidential Information other than as strictly necessary for the purposes of performance of this Agreement. The confidentiality obligations in this clause shall not apply to any information which is or subsequently becomes available to the general public other than through a breach of this Agreement or is already known to you before disclosure. Upon termination of this Agreement, you shall return or, at our option, destroy all Confidential Information and all copies thereof.
Press Releases. You will not issue any press release or make any other public statement regarding your participation in the Publisher Program or the terms of this Agreement without the prior written consent of Shopzilla.
General Provisions. We may modify this Agreement from time to time by posting a notice of such modification on the Business Services portion of our web sites (using commercially reasonable efforts to notify Publishers via email of any such new postings), and your continued use of the service following posting of such modification will be deemed to be your acceptance of the terms of such modification. This Agreement shall be governed by and construed in accordance with English law and the parties submit to the non-exclusive jurisdiction of the English Courts. Both parties agree that if a dispute arises in relation to this Agreement, representatives of each party shall negotiate promptly and in good faith in an attempt to resolve the matter between themselves. If the parties are unable to resolve the dispute by negotiation, either party may refer the dispute to mediation in accordance with the Centre for Effective Dispute Resolution ("CEDR") Model Mediation Procedure within thirty (30) days of giving notice to the other party that, in its reasonable opinion, no agreement will be reached between them. Mediation shall take place in London, England. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. If the parties are unable to resolve the dispute by mediation, either party may commence court proceedings. Notwithstanding any of the foregoing, any party may seek from a court any interim or provisional relief that may be necessary to protect the rights or property of that party, pending resolution of the dispute in accordance with the procedure set out above. Any failure by either party to insist upon or enforce strict performance of any provisions of this Agreement shall not be construed as a waiver of any provisions or right. Neither the course of conduct between any member nor trade practices shall act to modify any provision of this Agreement. This Agreement constitutes the entire agreement between us with respect to your participation in the Publisher Program and shall continue in effect with respect to all participation or transactions with us until expressly terminated as provided above. You shall not assign or sub-contract or purport to assign or sub-contract this Agreement or any of your obligations thereunder without our prior written consent. We may assign or sub-contract this Agreement or any of our obligations. If any term or condition of this Agreement shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable in any way, such invalidity or unenforceability shall in no way impair or affect any other term or condition all of which shall remain in full force and effect.

Schedule 1

Publisher Catalog API and FTP Data Feed Guidelines and Conditions of Use.

As a condition to your participation in the Publisher Program, you agree to abide by the Guidelines set forth below, in addition to any revisions thereto or other instructions provided to you by Shopzilla. You further agree to implement and update all tracking code, data feeds and/or any other technology required or Shopzilla Materials provided to you by Shopzilla in connection with the Publisher Program, and you agree to do so in the manner and time frame requested by Shopzilla. Violation of these Guidelines may result in termination of your participation in the Publisher Program.

If you are using the Catalog API or FTP Data Feeds, you must:

[1] Use direct merchant links for comparison shopping displays only. Prices and respective merchant names must be listed with each product displayed.

[2] Where you choose to display a product, you must display a minimum of three (3) merchant offers for such product. If there are less than three offers available for a product, all available offers must be displayed. When there are more than three offers available for a product, if all available offers are not displayed on the page, a "see all offers" link must be clearly available that either links to a page on the Site that shows all offers or links directly to the Bizrate.co.uk "Compare Stores & Prices" page for that product.

[3] Only use the Catalog API, FTP Data Feeds, and all other Shopzilla Materials and Sponsored Shopping Content on or in connection with the Sites unless we agree otherwise in writing.

[4] Limit calls to the Catalog API to a maximum of 200,000 calls per day. Traffic increases over 20% must be discussed with Shopzilla prior to such increase. In addition, you are required to refresh the cache of the Sponsored Shopping Content no less frequently than every six (6) hours.

[5] Update to refresh FTP Data Feeds within six (6) hours of the latest data feed published. Monetization of the FTP Data Feeds may be affected if you fail to update or if another technical issue arises. We will make commercially reasonable efforts to update the FTP Data Feeds at least once per day, but shall in no way be held liable if we fail to do so. Publishers are responsible for updating and refreshing their Sponsored Shopping Content, including product offer data within six hours of the latest FTP Data Feed being published to the FTP location.

[6] Keep all data and information available through the Catalog API and FTP Data Feeds, including API authentication key, FTP location, and FTP login information, strictly confidential. This also includes a prohibition on the sharing or distribution of any technical specification or documentation that we provide you.

This Shopzilla Publisher Program Participation Agreement was last modified on 30 April, 2009.