Effective: June 14th 2012
Pinbooster, Inc. (“Pinbooster”) provides you, and, if applicable, your Affiliates, access to its online marketplace at www.pinbooster.com (“Marketplace”), which allows Advertisers to compensate Pinterest users (“Pinners”) for posting content (the “Service”) subject to your acceptance of and compliance with these terms of service (the “Terms of Service” or the “Agreement”). If you do not agree to these Terms of Service, please do not use the Service. Each time you use the Service, the current version of the Terms of Service will apply. Accordingly, when you use the Service, you should check the date of the Terms of Service (which appears at the top of this document) and review any changes since the last version. The Terms of Service will be available at all times at www.pinbooster.com
In this Terms of Service, (i) “Advertiser” means collectively any person or entity who participates in the Service and deposits money into the Marketplace, (ii) “Pinterest” means the free social networking and online pinboard service Pinterest (www.pinterest.com) that enables users to post linked images, known as “PINS”, (iii) “PINNER” means collectively any person who participates in the Service and receives compensation for posting content in the Marketplace, and (iv) “Affiliate” means any entity or person that directly or indirectly controls any Advertiser or PINNER, and the term “control” with regard to this definition means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of voting securities, written voting rights agreement or other influence. These Terms of Service shall apply to all transactions conducted through the Service. The term of the Agreement will commence on the date you enroll as a PINNER or Advertiser and will end when terminated by either party in accordance with the terms of the Agreement (the “Term”).
Participating Advertisers create and list offers (“Offers”) in the Marketplace located on the www.pinbooster.com site, which offer PINNERS the chance to receive compensation from the Advertiser in exchange for posting PINS which comply with the requirements set forth in the Offer. Each Offer listing contains an image to be PINNED (herein referred to as the “Image”), a desired description of the PIN (herein referred to as the “Description”) and the compensation to be paid by the Advertiser. The Image and Description together is the PIN. The Advertisers are solely responsible for the content of their Offers listings and for the payment of any identified compensation to the PINNERS.
1.2. REVIEWS & APPROVALS.
While Pinbooster may assist in reviewing and identifying PINNER’s PINS that violate an Offer’s approved Image and Description and attempt to resolve disputes, it shall not be required to do so. Advertisers in their sole discretion shall determine whether a particular PIN is entitled to the set compensation so long as the Advertiser observes the requirements of Section 2.6 of this Agreement. PINS which do not comply with the approved Image and Description of the Offer will not be entitled to the compensation associated with such Offer. www.pinbooster.com is a Marketplace for Advertisers and PINNERS. Pinbooster does not review any PINS or Offers. Once a PIN to an offer has been agreed upon and submitted by a PINNER, an Advertiser has three (3) days to respond with any requested modifications or to reject the PIN. Failure to do so will result in automatic approval of the PIN and result in automatic, non-refundable payment to the PINNER. Final approval and payment to the PINNER will occur within twenty-four (24) hours from the successfully submitted PIN. Pinbooster will automatically check for the PIN and make payments on Advertiser’s behalf to PINNER.
2. ADVERTISER SPECIFIC TERMS.
This Section 2 applies only to Advertisers participating in the Marketplace.
2.1. TRANSPARENCY & DISCLOSURE.
Pinbooster requires full disclosure by all Marketplace participants. Any attempt to instruct, coerce or manipulate a PINNER into hiding the commercial relationship between you and the PINNER may result in removal from the system. Advertiser agrees to comply with such rules as Pinbooster publishes from time to time, the Federal Trade Commission’s Staff Opinion Letter dated December 7, 2006, and all applicable laws and regulations, including but not limited to Section 5 of the Federal Trade Commission Act and the Federal Trade Commission’s Endorsement Guidelines.
Advertiser agrees to pay Pinbooster all charges to Advertiser’s account for the Service in accordance with these Terms of Service. If Pinbooster does not receive timely payment or if Advertiser exceeds prepayment hereunder: (i) Advertiser will incur a debit balance for the value of any unpaid charges incurred under your account, (ii) Advertiser agrees to pay all amounts due on your account upon demand, and (iii) Pinbooster reserves the right to either suspend or terminate an Advertiser’s account with Pinbooster, including deletion of your Offers from the Services without notice to the Advertiser. Any fees or deposits are non-refundable. Advertiser agrees to submit any disputes regarding any charge to your account in writing to Pinbooster within thirty (30) days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge. In the event Advertiser’s account becomes inactive for six months a charge of $100.00 per month will be charged against the Advertiser’s balance and will continue to charge each month until the Advertiser’s balance reaches $0. In the event Advertiser’s account becomes inactive for nine months, the balance in the account will be charged as an inactive fee. The inactive period will begin upon the completion of an Advertiser’s post or PIN sponsorship Offer. If Advertiser fails to make payment as set forth herein, Advertiser will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Pinbooster in collecting such amounts. All prices are in United States dollars and do not include taxes that may be assessed by any jurisdiction. If withholding taxes or any other taxes are imposed by any jurisdiction on the transactions pursuant to this Agreement, Advertiser shall pay such taxes to ensure that Pinbooster receives the full amount invoiced to you without offset or deduction. Advertiser agrees to promptly (i) update all information to keep your account and credit card billing current, complete and accurate (such as a change in billing address or e-mail), (ii) notify Pinbooster in writing if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password, and (iii) notify Pinbooster in writing if your credit card is canceled. Upon termination, suspension or discontinuation of the Service or Advertiser’s participation therein, all outstanding payment obligations incurred by Advertiser under the Service will become immediately due and payable.
2.3. CREDIT CARD CHARGES.
Advertiser authorizes Pinbooster to charge Advertiser’s credit card (as provided by you) for all charges to your account. Advertiser’s non-termination or continued use of the Service reaffirms that Pinbooster is authorized to charge Advertiser’s credit card. Pinbooster may submit those charges for payment and you will be responsible for such charges. Pinbooster reserves the right to modify, suspend or terminate the required method of payment for use of the Service at any time without notice, although any pending Offers will be completed using the method current when you listed the Offer. If Pinbooster modifies the terms of the method of payment as outlined in this Section 2.3, the modifications will be reflected in an updated version of the Agreement posted on the Pinbooster website. If you do not consent to such modified terms, you must immediately discontinue use of the Marketplace. Advertiser’s continued enrollment after any modifications constitutes your acceptance of the terms of the method of payment as modified. Advertiser determines a maximum credit amount for charges to your account for each Offer subject to the provisions below. When you list an Offer, and for each Offer thereafter, Advertiser pre-authorizes Pinbooster to deduct account credits up to the maximum amount that you specify plus any overages. Notwithstanding the total amount you anticipate for an Offer, if PINS are properly made by PINNERS within the criteria specified in your Offers listing in excess of your anticipated amount, you also authorize Pinbooster to charge your credit card for the additional amount. Pinbooster will send Advertiser a notification to the e-mail address associated with your account after each pre-authorized transaction to notify you that your account has been replenished and your credit card charged. Such charges should appear on the periodic statement sent to you by the provider of your credit card. You understand that all of your Offers may be taken offline if your credit card does not allow additional charges or rejects any charges made to it by Pinbooster in which your account equals or exceeds your budget amount. Unless Advertiser or Pinbooster discontinues your enrollment or participation in this payment plan, you understand that this pre-authorization is valid until the termination of the Agreement. For your future reference, you agree to retain, either by printing or otherwise saving, a copy of the Agreement, which provides the terms of your pre-authorization.
2.4. APPROVAL OF PINNER’S PINS AND INAPPROPRIATE CONTENT.
Advertiser is required to review PINNER’S PINS for compliance with the criteria set forth in the Offer as set forth in Section 1.2, and has the sole responsibility for doing so. PINS may not include or support: excessive profanity, violence or racial intolerance, illicit drugs or drug paraphernalia, illegal pornography, or any other content that promotes intolerance, illegal activity, or infringes on the legal rights of others, or is otherwise deemed inappropriate or disreputable, in Pinbooster’s sole and unfettered discretion.
2.5. OPPORTUNITY AND PIN INFORMATION.
Advertiser agrees that Pinbooster is not responsible for any aspect of Advertiser’s content or product to be PINNED about by PINNERS. Advertiser represents, warrants and covenants that: (i) all information you provide or approve or that is provided on your behalf in connection with the Agreement and on your website is, and will be updated to remain, current and accurate, (ii) the website to which any links are included in a listed Offer will look substantially the same to all end users regardless of the end users’ location, (iii) your website does not contain any Pinbooster owned or licensed content, except pursuant to a separate signed agreement with Pinbooster. You acknowledge that Pinbooster PINNERS are independent third-parties and not directly controlled by Pinbooster. As a consequence, any PINS of your content or product(s) will inherently risk negative or unflattering comments about your content, product(s) or company. Advertiser specifically acknowledges and agrees that Pinbooster has no control over any PINS that may be available or published, and that Advertiser is solely responsible (and assumes all liability and risk) for determining whether or not such PINS are appropriate or acceptable to you.
2.6. PIN DISPUTES.
Advertiser agrees that so long as a PINNER has met the requirements as outlined in your Offer you will not deny payment. Advertiser may not discriminate based on the racial, physical, political, spiritual, age, gender or sexual orientation characteristics of the PINNER. Payment will be made to the PINNER unless the PINNER has violated the terms of this Agreement or the specific terms of your Offer as stated in writing.
3. PINNER SPECIFIC TERMS.
This Section 3 applies only to PINNERS participating in the Marketplace.
3.1. TRANSPARENCY & DISCLOSURE.
PINNERS participating in the Pinbooster Marketplace must clearly disclose in their PINS the relationship between themselves and the Advertisers in connection with Offer-related PINS. Pinbooster requires that disclosure be made in a meaningful way that makes clear to an ordinary consumer that there is a relationship between the PINNER and the Advertiser. Pinbooster reserves the right to review and monitor the disclosure practices of all PINNERS who participate in the Marketplace and to either require greater levels of disclosure (in the event that Pinbooster determines in its sole discretion that current disclosure practices are inadequate) or remove the PINNER from the Marketplace (in the event of inadequate disclosures). PINNER agrees to comply with all rules published by Pinbooster from time to time, the Federal Trade Commission’s Staff Opinion Letter dated December 7, 2006, and all applicable laws and regulations, including but not limited to Section 5 of the Federal Trade Commission Act and the Federal Trade Commission’s Endorsement Guidelines.
3.2. FULFILLMENT OF COMPENSATION.
PINNER acknowledges and agrees that the obligation to compensate PINNER for Offer-related PINS resides with the Advertiser, not Pinbooster. Pinbooster merely facilitates such compensation on behalf of the Advertisers. PINNER waives any and all claims or rights of action against Pinbooster relating to the failure of an Advertiser to compensate PINNER in connection with an Offer-related PIN. In addition, PINNER acknowledges that PINNER is: (i) not an employee of Pinbooster, (ii) responsible for the payment of all federal, state and local taxes on compensation received from an Advertiser, (iii) responsible for any reporting requirements imposed by the federal, state or local government, and (iv) responsible for compliance with all other applicable laws and regulations. PINNER further acknowledges that in the event PINNER’s account becomes inactive for six months a charge of $5.00 per month will be charged against the balance and will continue to charge each month until the balance reaches $0. This fee, if charged, is non-refundable.
3.3. PINNER AND PIN ELIGIBILITY.
In order to participate in the Pinbooster Marketplace, PINNER must register your Pinterest account with Pinbooster and meet the minimum eligibility requirements. Pinbooster will not accept certain PINNERS, and may reject certain PINNERS following acceptance, in each case as determined by Pinbooster in its sole discretion.
- Language. All PINS relating to Pinbooster Offers must be in language identified in the particular Offer.
- Approved Content. The Offer-related PINS must include Advertiser approved Description content either written or approved by Advertiser, unless otherwise specified in the particular Offer.
- Inappropriate Content. PINS may not include or support: excessive profanity, violence or racial intolerance, illicit drugs or drug paraphernalia, illegal pornography, or any other content that promotes intolerance, illegal activity, or infringes on the legal rights of others, or is otherwise deemed inappropriate or disreputable, in Pinbooster’s sole and unfettered discretion.
3.4. GRANT OF USAGE LICENSE.
PINNER grants Pinbooster and the specific Advertiser purchasing the content a worldwide, royalty-free, non-exclusive, sub-licensable, unconditional, perpetual and transferable license to use, display, perform, reproduce, republish, and distribute the content or any portion thereof in all forms of media and through any media channels (now known or hereafter developed), including but not limited to television, radio, print, Internet site and other electronic communications.
OTHER TERMS AND CONDITIONS
4. ADVERTISER AND PINNER ELIGIBILITY.
6. UNAUTHORIZED USE.
Any attempt to utilize automated programs, bots, screen scraping, database calls, human initiated data collection or any other means of gathering data, content or other information for the purpose of reverse engineering our platform for commercial gain is strictly prohibited.
7. PROVISION OF SERVICES.
Pinbooster is constantly innovating and changing its Service offering in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which Pinbooster provides may change from time to time without prior notice to you. You acknowledge and agree that Pinbooster may stop (permanently or temporarily) providing the Services (or any features or functionality within the Services) to you or to users generally at Pinbooster’s sole discretion, without prior notice to you. You and/or Pinbooster may terminate this Agreement and/or your participation in the Service at any time, for any reason or for no reason, and Pinbooster shall not have any liability regarding such decisions. Sections 2 through 16 of these Terms of Service shall survive any termination of the Agreement.
8. REPRESENTATIONS AND WARRANTIES.
PINNERS and Advertisers participating in the Marketplace each represent, warrant and covenant that (i) you have sufficient authority to enter into the Agreement; (ii) your use of Pinbooster’s services is solely for lawful commercial and business purposes; (iii) you have the necessary rights to provide all information provided under the Agreement (including all content, data, Offers, titles, URLs and descriptions) for use as described in this Agreement, and that all such information and all claims, statements, products and services contained or referenced herein and in the Website or PIN: (a) do not violate any law, statute, ordinance, treaty or regulation or Pinbooster policy or guideline; (b) do not infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (c) do not breach any duty toward or rights of any person or entity including rights of publicity or privacy, and have not otherwise resulted in or are not likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (d) are not false, deceptive or misleading; (e) are not defamatory, libelous, slanderous or threatening; (f) will be free of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any system data or personal information; and (g) comply with the applicable Master Agreement (if applicable); and (iv) you will not engage or cause others to engage in any form of spamming or improper or malicious, as determined by Pinbooster, clicking, impression or marketing activities through the Service, and you will comply with all applicable laws including complying with all applicable laws such as the CAN-SPAM Act of 2003.
All Pinbooster graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of Pinbooster in the U.S. and/or other countries. Pinbooster’s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion. The images and icons available on our media page may be used by partner and third party sites in connection with journalistic promotion of our services, commercial applications are forbidden except where pre-approved in writing.
PINNERS and Advertisers participating in the Marketplace each agree to indemnify and hold harmless Pinbooster, its parent and affiliates and their officers, directors, licensors, partners, licensees, consultants, contractors, agents, attorneys, employees, third party service providers and third parties authorized by Pinbooster to make your listings, results, and/or Services available in connection with third party websites, PINS, blogs, postings, content, applications and/or e-mails (“Third Party Products”), and their respective officers, directors, agents, affiliates, and employees (each, an “Pinbooster Entity” and collectively, the “Pinbooster Entities”) from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees (collectively, “Claim(s)”), that actually or allegedly result from your information, use of the Service, any PINS, your website, or your breach of the Agreement. You agree to be solely responsible for defending any Claim against or suffered by Pinbooster and/or any Pinbooster Entity, subject to Pinbooster and/or the Pinbooster Entity’s right to participate with counsel of its own choosing, and for payment of damages or losses resulting from all claims against Pinbooster, and/or any Pinbooster Entity provided that you will not agree to any settlement that imposes any obligation or liability on Pinbooster and/or an Pinbooster Entity without Pinbooster’s prior express written consent.
11. WARRANTY DISCLAIMER.
ADVERTISER AND PINNER EXPRESSLY AGREE THAT THE SERVICES ARE AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND THAT YOUR USE THEREOF IS AT YOUR OWN RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PINBOOSTER MAKES NO REPRESENTATIONS WITH RESPECT TO, AND WILL HAVE NO LIABILITY RELATING TO, ANY INFORMATION PROVIDED TO ADVERTISERS WITH RESPECT TO PINTEREST OR PINNERS, OR ANY PARTICULARS RELATING TO ANY OF THE FOREGOING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PINBOOSTER DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY (i) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (ii) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, (iii) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS IN THE SERVICE OR PINBOOSTER WEBSITE, OR ANY PART THEREOF, (iv) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE SERVICE OR THE PINBOOSTER WEBSITE, (v) WARRANTIES RELATING TO THE ACCURACY OR CORRECTNESS OF DATA, AND ANY OTHER WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS BY PINBOOSTER. FURTHER, AND WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, THERE IS NO WARRANTY THAT THE SERVICE OR THE PINBOOSTER WEBSITE WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT PINBOOSTER’S WARRANTY DOES NOT COVER TELECOMMUNICATIONS OR INTERNET OUTAGES CAUSED BY THIRD PARTIES OR OTHERWISE OUTSIDE OF PINBOOSTER’S CONTROL. SERVICES MAY BE LIMITED BY MANY FACTORS, INCLUDING INHERENT RISKS OF THE INTERNET. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES OR IMPLIED WARRANTIES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, PINBOOSTER’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
12. LIMITATION OF LIABILITY.
ANY LIABILITY OF PINBOOSTER TO AN ADVERTISER IN CONNECTION WITH THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, SHALL BE STRICTLY LIMITED TO TWENTY-FIVE PERCENT (25%) OF THE AMOUNT PAID BY ADVERTISER TO PINBOOSTER FOR THE SERVICES RELATED TO THE ADVERTISER’S MOST RECENT OFFER (EXCLUDING AMOUNTS PAID BY ADVERTISERS TO PINNERS). PINBOOSTER SHALL NOT BE LIABLE TO PINNERS FOR DAMAGES OF ANY KIND ARISING OUT OF PINNER’S USE OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL PINBOOSTER OR ANY PINBOOSTER ENTITY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ARISING OUT OF, OR IN CONNECTION WITH, THE AGREEMENT. ADVERTISER AGREES THAT ADVERTISER WILL NOT HOLD PINBOOSTER RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT, INCLUDING WITH RESPECT TO CLICKS BY ANY THIRD PARTY ON ADVERTISER’S LISTING(S) OF OFFERS, REGARDLESS OF THE INTENT OF SUCH THIRD PARTY. THE FOREGOING LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF PINBOOSTER OR ITS AFFILIATES OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, PINBOOSTER’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
Pinbooster may give general notices to you by posting on its Website, or by electronic mail to the e-mail address provided by you to Pinbooster. It is your responsibility to ensure that your e-mail address and any other contact information you provide to Pinbooster is updated, current and correct. All notices to Pinbooster shall be sent via recognized overnight courier or certified mail, return receipt requested, to: President, Pinbooster, 11232 Watermill Lane Silver Spring, MD 20902, USA
14. CHOICE OF LAW.
Any dispute referring or relating to the Agreement or between the parties shall be governed by the laws of the State of Delaware, without regard to its conflict of laws principles. You agree to submit to the exclusive jurisdiction of the state and federal courts located in Delaware. Any claim against Pinbooster arising from the Agreement shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy of any other party.
15. ELECTRONIC SIGNATURES EFFECTIVE.
(i) The Agreement is an electronic contract that sets out the legally binding terms of your use of the Service. You indicate your acceptance of the Agreement and all of the terms and conditions contained or referenced in this Agreement by clicking on the “I Accept” button in connection with your enrollment. This action creates an electronic signature that has the same legal force and effect as a handwritten signature. By clicking on the “I Accept” button, you accept the Agreement and agree to the terms, conditions and notices contained or referenced herein. When you click on the “I Accept” button during enrollment, you also consent to have the Agreement provided to you in electronic form. (ii) Please print a copy of the Agreement for your records. To retain an electronic copy of the Agreement, you may save it into any word processing program.