There’s a fair amount of buzz about PayPerPost, a service that links up bloggers and advertisers such that a blogger can make a specified amount of money for linking to an advertiser’s product or writing a post about it. Some advertisers have apparently included in their requirements that no mention of PayPerPost appear in such posts for them. This is a bit of an ethical problem, it seems to me. If a blogger is being paid or somehow compensated for their words, the readers should be told somehow. One blogger has set up a category, “Paid Posts”, to handle the job of conflict-of-interest notification.
Beyond the general issues, there are the specifics of the PayPerPost blogger agreement. This strays away from just what falls between PayPerPost and the blogger and into issues of content on the blogger’s site, including what is acceptable from commenters. It’s one thing to say that a blogger has to avoid being a foul-mouthed curmudgeon in order to be paid via PayPerPost, and another to say that a blogger has to adopt PayPerPost’s notions of comment moderation. I’ve put the PayPerPost blogger agreement text below the fold. Obviously, I have not entered into any agreement; part of PayPerPost’s conditions is that the blogger not reveal any communications from PayPerPost that aren’t available through public sources.
Blogger Terms and Conditions
PLEASE READ THESE TERMS AND CONDITIONS BEFORE REGISTERING FOR THE PAYPERPOST SERVICE. PARTICIPATION IN THE PAYPERPOST SERVICE INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER FOR OR PARTICIPATE IN THE PAYPERPOST SERVICE.
This agreement (“Agreement”) between you and PayPerPost, Inc. (“PayPerPost”) consists of these PayPerPost Service (the “Service”) standard Terms and Conditions (“Terms and Conditions”). The Service consists of opportunities to blog about advertiser provided topics with a link code (“Code”) that may be placed by participants in one or more blogs along with original content on the topic in exchange for a payment of product or money (“Posts” or “Postings”). “Blogger” or “you” means any person or entity identified in an enrollment form submitted by the same or affiliated persons, and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this Agreement.
1.Service Participation. Participation in the Service is subject to PayPerPost prior approval and your continued compliance with the Service Policies (“Service Policies”) located at http://payperpost.com/page/terms or such other URL as PayPerPost may provide from time to time. PayPerPost reserves the right to refuse participation to any applicant or participant at any time in its sole discretion. By enrolling in the Service, you represent that you are at least 16 years of age and agree that you will participate in the Service through responsible blogging on one or more sites using the Service provided topics and Code. Multiple accounts held by the same individual or entity are subject to immediate termination unless expressly authorized in writing by PayPerPost (including by electronic mail).
2.Implementation and Operation of Posts. You agree to comply with the specifications provided by PayPerPost from time to time to enable proper delivery, display, tracking, and reporting of Posts in connection with your Posts, including without limitation by not modifying the Code provided to you by PayPerPost in any way, unless expressly authorized in writing by PayPerPost (including by electronic mail). You agree to Post on reputable sites with non-defamatory or improper communications while participating in the Service and posting Service related content. All features of the Service are provided “as is” and your use of them shall be undertaken solely at your own risk.
3.Communications Solely With PayPerPost. You agree to communicate directly with PayPerPost, and not to any advertiser, with regard to any aspect of the Service which you desire to discuss.
4.Parties’ Responsibilities. You are solely responsible for your Posts and blog operations, including all content and materials, maintenance and operation thereof, the proper implementation of PayPerPost’s specifications, and adherence to the terms of this Agreement, including compliance with the Service Policies. PayPerPost reserves the right to investigate, at its own discretion, any activity that may violate this Agreement. PayPerPost is not responsible for anything related to your Posts, including without limitation the receipt of queries or responses from end users of your blog(s) or the transmission of data between your Blog(s) and PayPerPost. In addition, PayPerPost shall not be obligated to provide notice to you in the event that any Link is not being linked properly to your blog(s) or any blog to which you Post.
5.Prohibited Uses. You shall not, and shall not authorize or encourage any third party to: (i) directly or indirectly use defamatory language, pornographic pictures or references, curse words, hate words or other language or posts which would be deemed illegal, immoral or outside of general community standards, (ii) directly or indirectly use any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated language, the use of robots or other automated posting tools and/or computer generated blogging to Post; (iii) use identical or nearly identical Posts on the same or different blogs; (iv) act in any way that violates any Service Policies posted on the PayPerPost Website, as may be revised from time to time, or any other agreement between you and PayPerPost, or engage in any action or practice that reflects poorly on PayPerPost or otherwise disparages or devalues PayPerPost’s reputation or goodwill. You acknowledge that any attempted participation or violation of any of the foregoing is a material breach of this Agreement and that we may pursue any and all applicable legal and equitable remedies against you, including an immediate suspension of your account or termination of this Agreement, and the pursuit of all available civil or criminal remedies. PayPerPost shall have no obligation to provide payment to you for those or any of your Posts.
6.Termination; Cancellation. You may terminate this Agreement with or without cause at any time by sending written notice of your desire to cancel your participation in the Service to Support@PayPerPost.com. This Agreement will be deemed terminated within fifteen (15) business days of PayPerPost’s receipt of your notice. PayPerPost may investigate any activity that may violate this Agreement. PayPerPost may at any time, in its sole discretion, terminate all or part of the Service, terminate this Agreement, or suspend or terminate the participation of any participation in all or part of the Service for any reason. In addition, PayPerPost reserves the right to terminate without notice any account that has not generated a sufficient number of valid Posts (in each case as measured by PayPerPost) for a period of two (2) months or more. Upon termination of participation of any Site in the Service or termination of this Agreement for any reason, Sections 3, 6 through 10, and 14 through 17 shall survive termination.
7.Confidentiality. You agree not to disclose PayPerPost Confidential Information without PayPerPost’s prior written consent. “PayPerPost Confidential Information” includes without limitation: (a) all PayPerPost software, technology, programming, specifications, materials, guidelines and documentation relating to the Service; (b) statistics relating to usage or results of the Service provided to you by PayPerPost; and (c) any other information designated in writing by PayPerPost as “Confidential” or an equivalent designation. However, you may accurately disclose the amount of PayPerPost’s gross payments to you pursuant to the Service. PayPerPost Confidential Information does not include information that has become publicly known through no breach by you or PayPerPost, or information that has been (i) independently developed without access to PayPerPost Confidential Information, as evidenced in writing; (ii) rightfully received by you from a third party; or (iii) required to be disclosed by law or by a governmental authority.
8.No Guarantee. PayPerPost makes no guarantee regarding the opportunities, the amount of any payment to be made to you under this Agreement, or that any product provided will be in usable condition.
9.No Warranty. PAYPERPOST MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ADVERTISING, CODE, POSTS, BLOGS, OR OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE.
10.Limitations of Liability; Force Majeure. EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS RELATING TO THE SERVICE, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (ii) PAYPERPOST’S AGGREGATE LIABILITY TO PUBLISHER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY PAYPERPOST TO PUBLISHER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
11.Payment. You shall receive a payment in the form of products or money as offered for each particular opportunity related to the number of valid posts initiated through the Service with the proper use of the Code, in each case as determined by PayPerPost for participants in the Service. Unless otherwise agreed to by the parties in writing (including by electronic mail), payments to you shall be sent by PayPerPost within approximately thirty (30) days after the end of each calendar month that Posts are posted on Blogs solely via the PayPal service. You must have a valid and current PayPal account to receive payment. In the event the Agreement is terminated, PayPerPost shall pay your earned balance to you within approximately ninety (90) days after the end of the calendar month in which the Agreement is terminated by you (following PayPerPost’s receipt of your written request, including by email, to terminate the Agreement) or by PayPerPost. In no event, however, shall PayPerPost make payments for any earned balance less than the minimum amount allowable by the PayPal service. Notwithstanding the foregoing, PayPerPost shall not be liable for any payment based on: (a) any amounts which result from invalid, improper or illegal Posts, as reasonably determined by PayPerPost. PayPerPost reserves the right to withhold payment or charge back your account due to any of the foregoing or any breach of this Agreement by you, pending PayPerPost’s reasonable investigation, or in the event that an advertiser whose Code is used in connection with your Posts defaults on payment for such Posts to PayPerPost. In addition, if you are past due on any payment to PayPerPost in connection with the PayPerPost Service, PayPerPost reserves the right to withhold payment until all outstanding payments have been made or to offset amounts owed to you in connection with the Service by amounts owed by you to PayPerPost. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your account. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your participation in the Service. PayPerPost may change its pricing and/or payment structure at any time. If you dispute any payment made under the Service, you must notify PayPerPost in writing within thirty (30) days of any such payment; failure to so notify PayPerPost shall result in the waiver by you of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by PayPerPost. No other measurements or statistics of any kind shall be accepted by PayPerPost or have any effect under this Agreement. The payments made under this Agreement are for use by you only and may not be transferred or in any manner passed on to any third party unless expressly authorized in writing by PayPerPost (including by electronic mail).
12.Publicity. You agree that PayPerPost may use your name and blog site name in presentations, marketing materials, customer lists, financial reports and Website listings of customers.
13.Representations and Warranties. You represent and warrant that (a) all of the information provided by you to PayPerPost to enroll in the Service is correct and current; (b) you are the owner of each of your blogs or that you are legally authorized to Post to the blogs you will Post to for the purposes of this Agreement and the Service; (c) you have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of you hereunder; and (d) you have complied, and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in your performance of any acts hereunder. You further represent and warrant that each blog and any material displayed therein: (i) comply with all applicable laws, statutes, ordinances, and regulations; (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) are not pornographic, hate-related or otherwise violent in content.
14.Your Obligation to Indemnify. You agree to indemnify, defend and hold PayPerPost, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g., relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively “Indemnified Person(s)”) harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from your use of the Service, your Post(s), and/or your breach of any term or condition of this Agreement.
15.PayPerPost Rights. You acknowledge that PayPerPost owns all right, title and interest in and to the Service (including PayPerPost’s tracking technology and Brand Features, and excluding items licensed by PayPerPost from third parties), including without limitation all Intellectual Property Rights (as defined below), and that you will not acquire any right, title, or interest in or to the Service except as expressly set forth in this Agreement. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any PayPerPost services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Service or proprietary information related thereto. You will not remove, obscure, or alter PayPerPost’s copyright notice, Brand Features, or other proprietary rights notices affixed to or contained within any PayPerPost services, software, or documentation (including without limitation the display of PayPerPost’s Brand Features with Posts and Code, as applicable). “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
17.Miscellaneous. This Agreement shall be governed by the laws of Florida , except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Seminole County, Florida. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement must be made in a writing executed by both parties, by your online acceptance of updated terms, or after your continued participation in the Service after such terms have been updated by PayPerPost. The failure to require performance of any provision shall not affect a party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties’ intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to PayPerPost. Notwithstanding the foregoing, PayPerPost may assign this Agreement to any affiliate at any time without notice. The relationship between PayPerPost and you is not one of a legal partnership relationship, but is one of independent contractors.