DELUXEADS AFFILIATE TERMS OF USE AGREEMENT
This AFFILIATE TERMS OF USE AGREEMENT (“Agreement”) is entered into and sets forth the terms and conditions of the agreement between DeluxeAds PR LLC (“Company”) and the person or entity (“Affiliate”) that has submitted an application to participate as an affiliate in Company’s online advertising network (“Network,” as further defined below). Affiliate and Company may also be individually referred to herein as a “Party” and collectively as “Parties,”
This Agreement governs Affiliate’s participation in the Network and provides the terms and conditions under which Affiliate may earn payment for promoting offers for goods or services (“Campaigns”) made available by third-party advertisers (each, an “Advertiser”) participating in the Network.
This Agreement constitutes the entire and only agreement between Company and Affiliate, and supersedes all prior and/or contemporaneous iterations, agreements, representations, warranties and understandings, written or verbal, with respect to the subject matter of this Agreement. Affiliate agrees that Company shall not be subject to or bound by any Affiliate online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether Company “clicks through” or otherwise indicates its acceptance thereof.
The current version of this Agreement will be made available via: (i) login to a third-party affiliate tracking service designated by Company (“Dashboard”); and (ii) Company’s web site at http://deluxeads.com/tos/. Affiliate is required to affirmatively assent to and be legally bound by the current version of this Agreement available on the aforementioned Dashboard and Company website prior to using the Network. Affiliate agrees to use the Network only in accordance with this Agreement.
Through the Dashboard, Company will make uniform resource locators (“URLs”) available to Affiliate for use in conjunction with Campaigns placed and distributed on and/or via Affiliate’s media properties (“Media”).
While utilizing the Network, Affiliate shall only use Campaigns provided to it by Company unless Company provides prior written approval for use of other materials. Each Campaign Affiliate must place or distribute the Campaign through Affiliate’s Media in accordance with the Campaign Terms. The Campaign Terms will specify the amount and terms under which Affiliate may receive payment (“Payment Unit”) for placing or distributing the Campaign when the requirements set forth in the Campaign Terms are fulfilled. Payment Units are generated from specified events (each, an “Event”) as specified in the Campaign Terms, such as sales and/or leads, all of which much be viable and legitimate. Company and/or its Advertisers may change the Campaign Terms for any Campaign at any time upon notice to Affiliate, at which time Affiliate must promptly make any changes in Affiliate’s presentation or distribution of the Campaign to accommodate any such changes to the Campaign Terms, or immediately cease using the Campaign, within twenty-four (24) hours of receiving notice of the change.
Company’s tracking (or a third-party tracking platform designated by Company) shall be the sole and definitive tool used to measure the delivery of viable Events pursuant to this Agreement.
No other measurement or usage statistics (including those of Affiliate) shall be accepted by Company. Company reserves the right to remove non-viable and/or illegitimate Events from final calculation, in its sole discretion. Company shall not be responsible for any Events in excess of a designated quantity/cap.
Upon Company’s approval of Affiliate’s application, Affiliate will receive an account and password (“Account”) to access the Dashboard. The Dashboard will track all active Campaigns and compile, calculate and electronically deliver data required to determine the compensation that may be owed to Affiliate as a Payment Unit under this Agreement. Affiliate must submit any disputes to Company relating to Dashboard data and calculations, in writing, and contemporaneously include a detailed explanation for any such dispute along with all clear and convincing supporting documentation, within seven (7) calendar days, otherwise, Company’s figures and calculations shall be irrevocably deemed accurate and accepted as such by Affiliate.
Participation in the Network is subject to Company’s prior approval. Company reserves the right to refuse acceptance of Affiliate’s application, in Company’s sole discretion, with or without cause. Subject to terms set forth elsewhere herein, if Company accepts Affiliate’s application and later determines, at Company’s sole discretion, that acceptance was granted in error for any reason, Company may immediately terminate this Agreement upon notice to Affiliate, and without any further obligation or liability.
Affiliate has an ongoing responsibility to update any information provided to Company in its application or otherwise in order to ensure that Company’s files remain current. Affiliate acknowledges and agrees that Company may communicate with Affiliate regarding Affiliate’s participation in the Network and any other aspect of the Network via email, telephone, mail, or any other means. Company may, from time-to-time, send necessary communications relating to Campaigns and this Agreement to the email address then-currently associated with Affiliate’s Account.
Affiliate will be deemed to have successfully received all notifications, approvals, and other communications sent to that email address, even if the email address associated with Affiliate’s account is no longer current.
Upon termination of this Agreement for any reason, Company shall immediately disable Affiliate’s Account. Affiliate is solely responsible for all activities that occur under Affiliate’s Account. Affiliate is solely responsible for maintaining the security of its password. Affiliate may not disclose its password to any third-party for any reason (other than third-parties authorized by Affiliate to use its Account in accordance with this Agreement). If Affiliate’s password is compromised, Affiliate must immediately notify Company. Company will not be liable for any loss or damage arising from Affiliate’s failure to comply with the requirements of this Section 2..
If specified by Company, Affiliate may use other parties (“Sub-Affiliates”) to distribute Campaigns, provided that within thirty (30) days prior to such use, Affiliate has conducted a due diligence verification of each Sub-Affiliate which shall include, without limitation, verifying compliance with this Agreement, Campaign Terms and Applicable Laws, and that there are no prior, pending or threatened private lawsuits, formal or informal government investigations, inquiries, prosecutions, decrees, consent agreements and/or orders against and/or pertaining to any Sub-Affiliate by private parties, the Federal Trade Commission, any other federal, state or local governmental and/or regulatory agency, or any industry regulatory authority. Such due diligence review must be repeated every ninety (90) days.
If Affiliate or Sub-Affiliates that Affiliate engages to provide services under this Agreement violate this Agreement, Campaign Terms and/or Applicable Laws, and/or if either become involved or named in any action, investigation, inquiry, complaint or other proceeding by or before any federal or state governmental authority, industry regulatory authority, or any private entity or party, Affiliate shall provide written notice to Company within twenty-four (24) hours of actual or constructive notice thereof, as set forth elsewhere herein.
Affiliate shall contractually bind, to all terms of this Agreement (including all of Affiliate’s obligations), all of its Sub-Affiliates that perform services under this Agreement, treating all such obligations as their own. Affiliate shall require and confirm that such Third-Party Affiliates affirmatively accept, through verifiable means, terms at least as restrictive as those set forth herein, prior to obtaining access to Campaigns are contractually bound.
Affiliate shall be solely responsible and liable to Company and/or Advertiser(s), as applicable, for all of the actions (or failures to act) of any such Sub-Affiliates or any other parties working with, for, or under such Sub-Affiliates. Affiliate shall provide a unique identification reference for each Sub-Affiliate to permit Company to identify them. Affiliate shall keep records of all Sub-Affiliates and Campaigns distributed by Sub-Affiliates during the term that this Agreement and for a period of one (1) year thereafter. This retention obligation is in addition to any retention requirement imposed by any law or regulation on the Affiliate. Company shall have the right to monitor and audit any Sub-Affiliate with respect, but not limited to, compliance with the terms of this Agreement, Campaign Terms and/or Applicable Laws, and Affiliate shall promptly provide to Company all information requested by Company in connection with such monitoring and/or audit(s). Affiliate shall immediately comply with any demand made by Company to terminate any Sub-Affiliate from distributing Campaigns. Failure to comply immediately with this demand may result in Affiliate’s termination from the Network, loss of Payment Units, and/or any other remedy available to Company at its sole discretion, and Affiliate shall indemnify and defend Company for any resulting third-party claims against it as a result of a violation of this provision. Affiliate agrees that for the purposes of this Agreement, the acts and omissions of its Sub-Affiliates shall be deemed Affiliate’s acts and omissions regardless of whether such Sub-Affiliates are bound to this Agreement or any other agreement.
During the term of this Agreement, Company grants Affiliate and its Sub-Affiliates a non-transferable, non-exclusive limited license, to distribute the Campaigns and to use the Network, and any data, reports, information or analyses arising out of such use, subject to and solely in accordance with this Agreement.
Affiliate acknowledges and agrees that neither Affiliate nor its Sub-Affiliates have, nor will claim, any right, title or interest in Advertiser’s intellectual property and/or the Networks’ software, applications, data, customer lists, email addresses, methods of doing business or any elements thereof. No part of Advertisers intellectual property may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical, unless otherwise specifically set forth herein. Affiliate represents, warrants and covenants that it will not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer Advertiser’s intellectual property or any portion thereof, unless otherwise set forth herein.
Affiliate may only access the Network via web browser, email or in a manner approved by Company, in writing. Network integration tags must NOT be altered. Altering tags may jeopardize Affiliate’s ability to be paid for Events as Company may determine in its sole discretion.
Affiliate represents, warrants and covenants that it will not (or attempt to) use any device, software or routine to intentionally interfere or attempt to interfere with the proper working of the Network and/or Company’s infrastructure, and/or in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Network tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure advertising performance and provide applicable services.
Company reserves any and all rights not explicitly granted in this Agreement. Upon termination of this Agreement for any reason, Affiliate shall immediately destroy and discontinue the use of any Confidential Information and Advertisements.
Affiliate and Sub-Affiliates are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any Applicable Laws, or falsify information in connection with, but not limited to, Events, Payment Units, URLs, Campaigns, Campaign Terms, the Network, Network Offerings and/or Media.
Such acts include, but are not limited to, fraudulently adding Events and/or Payment Units; using automated means to increase the number of Events and/or Payment Units; using spyware; click-through or conversion rates that are much higher than industry averages or Company’s averages; generation of multiple Events from the same IP address; placement of the URLs on incentivized websites or using surveys without Company’s prior written consent; click programs generating clicks with no indication by website traffic that it can sustain the clicks reported; fraudulent Events and/or Payment Units as determined by Company; generation of Events using proxy servers; causing any referring URL to be suppressed or blank; paying consumers to complete leads, clicks, sales or conversions, and/or generation of traffic in a manner other than as set forth in the applicable Campaign Terms; use of any spawning process pop-ups or exit pop-ups; manually creating fraudulent Events and/or Payment Units; using fake redirects, automated software, or fraud to generate Events and/or Payment Unites; spoofing, redirecting, or using third-parties to relay traffic from other websites to generate Events and/or Payment Units; acting in any way to generate fake Events and/or Payment Units; cookie-stuffing and other deceptive acts or click-fraud; credit card fraud (“Carding”) to generate Events and/or Payment Units. “Carding” includes recommending and/or promoting affiliate links to friends, immediate and/or extended family, business associates and/or partners and/or any other individual considered by Company or Advertiser to be an illegitimate customer; and/or fraudulent activity, as determined by Company and/or Company’s Advertisers.
If Affiliate and/or Sub-Affiliates add(s) and/or inflate(s) Events and/or Payment Units through non-viable, illegitimate and/or fraudulent traffic generation, or any other form of fraud (or if Company suspects same, as determined solely by Company), without limitation, Affiliate will forfeit any/all payments for all Campaigns and Payment Units, and Company may investigate, suspend and/or terminate Affiliate and/or Sub-Affiliates, and/or terminate this Agreement, at Company’s sole discretion.
Affiliate agrees that Company has sole judgment in determining fraud, and viability and/or legitimacy of Events and/or Payment Units. It is the obligation of Affiliate to prove to Company and establish by clear and convincing evidence that Affiliate and/or Sub-Affiliates is/are not committing fraud and/or that Events and/or Payment Units are viable and legitimate, as set forth elsewhere herein above at Section 1.
Company may, at its sole discretion, hold Affiliate’s payment in “Pending Status” until Affiliate has properly and satisfactorily provided clear and convincing evidence, as determined solely by Company, that Affiliate and Sub-Affiliates have not generated non-viable and illegitimate Events and/or Payment Units, or otherwise defrauded the Company, the Network, Advertisers and/or consumers, or otherwise violated this Section 6, Section 9 and/or other terms of this Agreement.
Affiliate will be paid per the occurrence of a viable and legitimate Event delivered in accordance with the terms of this Agreement. Affiliate acknowledges that it shall not be compensated for non-viable and/or illegitimate Events. Company’s determination of whether an Event is viable and/or legitimate is presumptively valid, and at Company’s sole discretion.
Except as provided herein, the Parties understand and agree that payment for viable and legitimate Events will be owed to the Affiliate from the Advertiser via Company on terms net three (3) calendar days after the end of the pay period. The pay period runs weekly from Monday to Sunday. All accounts will be paid in US dollars ($US). No checks will be issued for any amounts less than fifty US Dollars ($50).
Every Affiliate account must have a unique, valid taxpayer identification number (TIN) or valid Social Security number (SSN) on file with Company except where the Affiliate is a Canadian citizen or business.Failure to provide such TIN or SSN to Company will result in Affiliate’s payment being held in “Pending Status.”
All payments are based on actual figures as defined, accounted and audited by Company. Company reserves the right to suspend payments to Affiliate without notice if payment is not received from the Advertiser. If Company does not receive payment from the Advertiser, Company is not obligated to make the payment to Affiliate. However, pending Affiliate payouts may be negotiated in good faith on a case-by-case basis as Company may determine. Company does not guarantee payments on behalf of the Advertiser.
Company will not pay for any Events that occur before a Campaign is initiated, after a Campaign terminates or for Events for a Campaign that the Affiliate was not invited to or is not assigned to promote. . Company will not be responsible to compensate Affiliate for Events that are not recorded due to Affiliate’s errors and/or omissions. Company reserves the right to offset the number of illegitimate and/or non-viable Events and/or Payment Units delivered under this Agreement, in whole or in part, at its sole discretion. In addition to any other rights and remedies available to Company under this Agreement and at law and in equity, Company reserves the right to withhold payment, claw back and/or charge back payments if Company determines that Affiliate and/or Sub-Affiliate has/have violated this Agreement, if Company receives any complaints about Affiliate’s or Sub-Affiliate’s conduct; or any Event and/or Payment Unit is later determined to have not met the requirements set forth in this Agreement, in Company’s sole discretion. Such withholding or freezing of payments, or claw backs/charge backs for payments, shall be without regard as to whether or not such payments were earned as a result of such breach/dispute.
This Agreement is effective as of the date that Affiliate electronically submits its application to participate in the Network, provided that this Agreement shall become null and void if Company denies Affiliate’s application for any reason. This Agreement may be terminated by either Party upon three (3) calendar days’ written notice, or without notice by Company in cases of an actual, threatened and/or suspected violation of any material term, restriction, representation, warranty, covenant and/or obligation set forth herein.
This Agreement shall terminate immediately upon the dissolution or insolvency of either Party or if Affiliate is sold, acquired, merged or otherwise becomes subject to the direction and/or control of another entity.
Company reserves the right, in its sole and absolute discretion, to terminate a Campaign and remove any Campaign at any time for any reason. Company also reserves the right to suspend or terminate Affiliate’s access to the Network at any time without notice. Termination notice may be provided via email, and shall be effective immediately upon dispatch.
All undisputed Payment Units due to Affiliate, subject to the terms of this Agreement, will be paid during the billing cycle following termination of this Agreement. If Affiliate or Sub-Affiliates engage or are suspected of engaging in fraud, , Affiliate’s right to all Payment Units is forfeited and this Agreement will terminate immediately, as provided herein above.. If Affiliate’s email address is not operative, Company’s actual attempt to send the termination notice email to Affiliate’s last known address provided by Affiliate to Company shall suffice as termination notice hereunder.
Each Party represents and warrants to the other Party that: (a) such Party has the full corporate right, power, and authority to enter into this Agreement, to grant the rights and licenses granted herein and to perform the acts required of it; (b) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties, do not and will not violate: any agreement to which such Party is a party or by which it is otherwise bound, any applicable governmental law or regulation to which it is subject, or any trademark, copyright, intellectual property, or other right of any third-party; (c) when executed and delivered by such Party, this Agreement will constitute the complete legal, valid, and binding obligations of such Party in accordance with its terms; (d) such Party will abide by the terms and conditions set forth in this Agreement; and (e) such Party has obtained all licenses, authorizations, approvals, consents or permits required to perform its obligations under this Agreement and to conduct its business.
Affiliate further represents, warrants and covenants that: (a) it shall fulfill the obligations under this Agreement in compliance with all applicable international, federal, state and local laws, regulations, guidelines and standards, including, without limitation, the CAN-SPAM Act of 2003 and California Business & Professions Code Section 17529.5 and other applicable anti-spam legislation, California Civil Code Section 1798.83, the Federal Trade Commission Act, the Federal Trade Commission Endorsement/Testimonial Guides, the Federal Trade Commission Dot Com Disclosure Guides, the Federal Trade Commission Guides Against Deceptive Pricing, the Federal Trade Commission Guides Concerning Use of the Word "Free" and Similar Representations, the California Online Privacy Protection Act, the Children’s Online Privacy Protection Act, the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act, the Restore Online Shoppers’ Confidence Act and all state laws relating to automatic renewal programs, and any other applicable international, federal, state and local privacy, data security and consumer protection laws, regulations, guidelines and standards (if any such laws, regulations, guidelines or standards are amended or modified, in whole or in part, then Affiliate shall comply fully with all applicable requirements thereof, on and after the effective date of any such amendment or modification (“Applicable Laws”); (b) where the Media includes a message that reasonable consumers are likely to believe reflects the unbiased opinions, beliefs, findings, or experiences of Affiliate or any other person or party (“Endorser”), other than the Advertiser, (including but not limited to consumer testimonials or celebrity or expert endorsements, blogs, and other statements), the message, without limitation: (i) must reflect the honest opinions, findings, beliefs and/or experience of the Endorser, and may not convey an express or implied representation that would be deceptive, misleading or otherwise unlawful if made directly by the Advertiser; (ii) must not be presented out of context or reworded so as to distort in a material way the Endorser’s opinion or experience with the Advertiser’s product, service, or brand; (iii) if it represents that the Endorser uses the Advertiser’s product, service, or brand, the Endorser must have been a bona fide user of it at the time the message was distributed and the message may remain possted only as long as Affiliate has good reason to believe the Endorser continues to subscribe to the views presented; (iv) must not expressly or impliedly represent that the experience is representative of what consumers will generally achieve (statements like “results not typical” or “individual results may vary” are insufficient); and (v) must include in the Advertisement a disclosure that the Endorser has been paid for his/her message or otherwise clearly and conspicuously disclose the material connection between the Endorser and the Affiliate or Advertiser, as appropriate and lawfully required; (c) it has disclosed in writing to Company, prior to executing this Agreement, the existence of any prior, pending or threatened private lawsuits, formal or informal government investigations, inquiries, prosecutions, decrees, consent agreements and/or orders against and/or pertaining to, Affiliate or any Sub-Affiliate that Affiliate engages to provide services under this Agreement by private parties, the Federal Trade Commission, any other federal, state or local governmental and/or regulatory agency, and/or any industry regulatory authority (if Affiliate or Sub-Affiliate becomes involved or named in any action, investigation, inquiry, complaint or other proceeding by or before any federal or state governmental authority, industry regulatory authority, or any private entity or party, Affiliate shall immediately provide written notice to Company of such action, investigation, inquiry, complaint or other proceeding, in which event Company may terminate this Agreement immediately and without notice to Affiliate); (d) it owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on all materials that Affiliate utilizes [that Company does not provide to Affiliate]; (e) it shall not use unfair, deceitful, misleading, untruthful, unsubstantiated or abusive tactics when marketing or distributing Advertisements, will not use any labels such as “official site” or similar designation, nor include any other designation indicating or implying that Media is an “official” advertisement of the Advertiser, and shall implement all reasonable and necessary protocols to preclude the use of unfair, deceitful, misleading, untruthful, unsubstantiated and abusive advertising/marketing practices; (f) it shall display Advertisements exactly as provided by Company, and Publisher shall not alter any Advertisements in any way, including, without limitation, resizing of Advertisements or in a manner that would affect Company’s ability to track Publisher’s actions without Company’s prior written approval; (g) all materials, including Advertisements, on Media or otherwise used in connection with performance of this Agreement: (i) shall not infringe upon the personal, patent, trademark, service mark, trade name, trade dress, logo, publicity, copyright, intellectual property, privacy, or any other rights of any third-party; (ii) shall not contain or link to any material which is harmful, threatening, defamatory, abusive obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal substances or activities (such as gambling, acts of terrorism or counterfeiting money), contains profanity, is political or otherwise contains materials that Company informs Affiliate that it considers objectionable; (iii) shall not include content that is deceptive or misleading or otherwise fails to comply with Applicable Laws; (iv) shall be content-based (not simply a list of links or advertisements), not include investment advice, money making opportunities or other advice not permitted under law, not be marketed towards earning money from Advertisers and not offer incentives, including but not limited to points, rewards, cash, contest entries, prizes and/or anything else of value, to consumers in return for, without limitation, clicking on ads, signing-up for offers and/or otherwise responding to Advertisements (unless approved by Company in writing); (v) shall not spawn malicious, false, or deceptive pop-ups or exit pop-ups; (vi) shall not generate proxy server traffic; (vii) shall not use offer walls of any kind; (viii) shall not use malware or anything that could reasonably be considered software pirating (e.g., Warez, Hotline); (ix) shall not serve Advertisements or drive traffic to Advertisements using any adware, spyware, plug-ins, pop-up, pop-under technologies or similar downloadable application, shall not fail to possess a top-level domain name, and shall not fail to be fully functional at all levels (“under construction” websites or sections are prohibited); (x) shall not use any methods to generate Events and/or Payment Units that are not initiated by the affirmative action of a consumer; (xi) shall not utilize any advertising or marketing methods that include facsimile or telemarketing (including, without limitation, by use of prerecorded or artificial voice messages); (xii) shall not utilize any advertising or marketing methods that involve use of wireless devices or portable electronic devices by text messaging in any form (including, without limitation, SMS, Smart Messaging, EMS and/or MMS); (xiii) shall not promote any illegal activity including without limitation the promotion of gambling, illegal substances, weapons, counterfeit money, software piracy, phreaking, or hacking; (xiv) shall not spoof, or redirect, traffic to or from any adult-oriented web sites or material appealing to the prurient interests; and (xv) shall not in any way whatsoever, directly or indirectly, expressly or impliedly, relate, refer and/or pertain to the to the coronavirus or COVID-19, including, but not limited to, to the coronavirus or COVID-19 treatments or cures, vaccinations, drugs, investigational products, pills, potions, lotions, lozenges, prescription or over-the-counter products, medical supplies, government payments, and/or information from or relating to the Centers for Disease Control and Prevention or experts claiming to have related information, or otherwise purport to sell items that provide “immunity” to the coronavirus or COVID-19 or allow individuals to test for the coronavirus or COVID-19 disease (e.g., “immunity packs,” coronavirus or COVID-19 testing kits and/or facemasks); (h) it shall not use or disseminate its own (i) it shall not attempt to or fraudulently/ improperly add Events; (j) it shall not engage in or promote any illegal activities of any kind in association with this Agreement; (k) it shall not make unlawful, unsupported or untruthful product performance, efficacy or attribution e claims concerning products/services sold by Advertisers, or any claims about Affiliate’s experience with products/services sold by Advertiser; (l) it shall not expressly or impliedly include representations about the efficacy or generally expected results of using any product/service unless Affiliate, at the time the claim is made, has in Affiliate’s possession competent, accurate, reliable, reasonable and legally adequate, sufficient and acceptable scientific evidence in the form of tests, analyses, research, studies that have been conducted and evaluated in an objective manner, based upon standards generally accepted in the relevant scientific field, when considered in light of the entire body of relevant and reliable scientific evidence, to fully substantiate that the representation(s) is/are true; (m) it shall not expressly or impliedly misrepresent that independent tests, analyses, research, studies or other evidence demonstrate the effectiveness of product/service, or any material aspect of the performance, efficacy or characteristics of a product/service; (n) it shall not make any representations, warranties or other statements concerning Company or Advertiser, or any of their respective products or services, except as expressly authorized herein; (o) it shall be solely responsible and liable for all aspects of Affiliate’s Media, including but not limited to the development, operation, and maintenance of Affiliate’s Media and all content that appears on or within Affiliate’s Media; (p) it shall comply with the lawful terms, conditions, guidelines and policies of any third-party services used by Affiliate in connection with its performance of this Agreement, including but not limited to, email providers, social networking services and ad networks (e.g., terms of service, privacy policy, promotions guidelines, advertising guidelines, copyright policy, branding and promotion policy, guidelines or principles and policies); (q) it shall not collect any information from persons or entities located outside of the United States; (r) it shall develop, implement and maintain reasonable data hygiene protocol for, without limitation, ensuring that no data is processed relating/no commercial electronic messages are sent to persons located in the European Union or Canada; (s) it shall implement such administrative, physical, and technical security measures, policies and procedures as required by Applicable Laws and as appropriate to the nature and size of the business and its operations, to ensure the secure handling, transmission, storage, and disposal of any/all information which it holds or handles; protect against any threats or hazards to the security and integrity of information; and protect against any unauthorized access to or use of such information (Affiliate shall also prominently post and make available to end-users any terms and conditions in connection with Advertiser’s products/services, or as required by Applicable Laws; (t) it shall not generate any Events in bad faith, wrongfully, illegitimately, deceptively or through fraudulent mechanisms, including, without limitation, via manual or automated processes); (u) it shall notify Company of any complaint received by Affiliate regarding any Advertisement and/or Media used in conjunction with this Agreement within twenty-four (24) hours or receiving such complaint; (v) it shall actively monitor its Sub-Affiliates and other applicable third-parties to ensure compliance with the term, obligations and restrictions set forth by this Agreement, and to prevent wrongful, deceptive, unfair, abusive and fraudulent activity, including, without limitation, unsubstantiated representations; (w) if it becomes aware of a breach of this Agreement by Affiliate or a Sub-Affiliate, Affiliate shall inform Company in writing within twenty-four (24) hours of each breach, and provide Company with detailed information of the breach and the corrective action taken to resolve the breach, as well as the identity of the Sub-Affiliate involved in the breach and any other requested information (without limitation, the foregoing, the failure to comply with any obligation of this Agreement shall, as determined by Company in its sole discretion, result in the loss of payment of Payment Units, suspension or termination from the Network, in addition to any other remedy available to Company at law or in equity); (x) it shall indemnify, defend and hold Company harmless from and against any/all actions arising from or Affiliate’s and/or Sub-Affiliate’s breach of this Agreement and such obligations shall not be limited by any other provision of this Agreement (e.g., no liability cap or other limitations); and (y) it shall have all creative materials and Media used in conjunction with any Campaign reviewed and approved by competent legal counsel prior to Campaign launch, and solely assumes all responsibility and liability therefor.
Affiliate represents, warrants, covenants and agrees that it: (a) is, and will maintain its status as, a “service provider” as defined by the California Consumer Privacy Act, as well as in the California Attorney General implementing regulations (collectively “CCPA”) and will comply with all of its obligations related thereto under the CCPA, and its obligations under other applicable laws and this Agreement; (b) will not “sell” end user “personal information” of California residents (as those terms are defined under the CCPA) (“PI”), which includes any personal information processed by Publisher in performing the services for Company hereunder; (c) will maintain reasonable security of PI consistent with the standards of reasonableness applicable to the CCPA and all other applicable laws; and (d) will respond to consumer rights requests in full conformance with the CCPA, including the identification, retrieval, copying and/or deletion of specific PI of specific data subjects.
Affiliate shall not assign, delegate, of subcontract any of its rights or obligations concerning PI, or otherwise disclose PI, to any other party, without Company’s written approval, and then only: (i) for the purpose of performing the services for Company; and (ii) as permitted by applicable law. If any such disclosure is approved, Affiliate shall obtain contractual commitments with the subcontractor or other recipient of PI that are substantially similar to those imposed on Affiliate hereunder.
It is understood and agreed that the CCPA has an effective date of January 1, 2020, that the CCPA remains subject to amendment and to implementing regulations that have not yet been promulgated, and that other state legislatures and the U.S. Congress are considering enacting similar laws (“New Privacy Laws”). Accordingly, Affiliate shall implement such additional policies and commitments as Company may reasonably request to ensure compliance with New Privacy Laws, (including, without limitation, providing CCPA-required commitments and certification), and undertaking reasonable commitments to otherwise address New Privacy Laws. Company and Affiliate will work together in good faith to amend this Agreement as Company deems appropriate to comply with the CCPA and applicable New Privacy Laws. If the Parties cannot agree to reach an amendment regarding additional compliance commitments within thirty (30) days, Company may terminate this Agreement.
In the event that Advertisements are authorized to be distributed via email campaigns, Affiliate represents, warrants and covenants that: (a) it shall not send any unsolicited commercial email or other unsolicited online communication, and that the recipients of all email addresses used in connection with this Agreement have manifested affirmative, direct consent to receive commercial emails (and none of the email addresses were obtained through email harvesting, scraping or dictionary attacks. “Consent” shall mean affirmative consent or consent granted through a posted privacy policy and conspicuous disclosures notifying the recipient of the use of his/her email address for commercial marketing and the recipient has not withdrawn permission to send commercial email marketing; (b) it shall maintain records evidencing such consent for no less than five (5) years, including, but not limited to, the Internet address of the registration source, the date of the user’s action, the privacy policy of the registration source at the time consumer data was collected, and appropriate disclosures and all other information collected; and (c) it shall provide Company with records verifying consent by users to receive email transmissions from third-parties, within forty-eight (48) hours of request.
In the event that Advertisements are authorized to be distributed via email campaigns, Publisher further represents, warrants and covenants that: (a) it shall provide clear and conspicuous notice of the recipient’s right to opt-out of receiving future emails from Advertisers; (b) it shall provide a functioning return email address or other Internet-based mechanism that a recipient may use to make such an “opt-out request;” (c) it shall provide the ability to click on a link to opt-out from receiving future emails from Affiliate, in addition to the link provided by Company to opt-out of receiving future emails from Advertisers; (d) it shall honor all unsubscribe requests within ten (10) days from their receipt and may not sell, lease or transfer an email address once someone has opted-out of receiving future communications; (e) it shall maintain electronic or tangible records confirming the removal of each such email address from any applicable email lists for verification by Company; and (f) all emails shall include a valid physical address of the “sender” (as that term is defined in the CAN-SPAM Act, 15 U.S.C. § 7701 et seq.), as provided by Company with the Advertisements, along with a functioning electronic mechanism by which the recipient of the message can opt-out from receiving future messages from the “sender” (any/all unsubscribe requests must be honored within forty-eight (48) hours of the request being submitted and such unsubscribe mechanism(s) must remain active for at least thirty (30) days after email delivery or the life of the offer, whichever is longer).
Company may request, prior to your sending emails, that you submit the final version to us for prior approval.
In the event that Advertisements are authorized to be distributed via email campaigns, Publisher further represents, warrants and covenants that: (a) “Subject” and “From” lines used in any email communications shall be truthful, non-deceptive and non-misleading; (b) only content remove or alter Advertisements, including, but not limited to, Subject lines or From lines (d) it shall not include deceptive, misleading or false header information, false registrations for domain accounts, email accounts, or IP addresses used in connection with email marketing nor retransmissions of an email advertisements for the purpose of concealing its origin. Proxy server traffic is strictly prohibited; (e) “To” lines shall contain the consumer’s email address; (f) it shall not send email messages to email addresses that fail to comply to Applicable Laws, or have been improperly obtained, including addressees harvested from the Internet without consent, through scripts or other automated means of registering for multiple email accounts, “scraping” of websites, or by harvesting addresses from the Internet; (f) it is solely responsible for knowing the source of its email list; (g) email addresses shall only be collected from websites and other online venues only in compliance with the applicable websites’ and/or other online venues’ privacy policies, provided that such privacy policies specifically allow for Affiliate to use such email addresses as contemplated hereunder and only to the extent permitted by Applicable Laws; (h) it shall not seek or obtain unauthorized access to computers for the purpose of sending out commercial email including, without limitation, use of an unauthorized open relay to facilitate distribution of emails; (i) it shall not use email accounts or domain names that were created using information that falsifies the identity of the registrant; (j) all emails shall include a clear and conspicuous identification that the message is an advertisement or solicitation; (j) it shall not send (or otherwise facilitate the sending of) emails to Canadian or European Union email addresses or email addresses corresponding to Canadian or European users; and (k) it is solely responsible to ensure that emails comply with all Applicable Laws and this Agreement;
Company will provide a regularly updated suppression list (“Suppression List/s”) to Affiliate containing current unsubscribe requests in conformance with Applicable Laws. In the event that Advertisements are authorized to be distributed via email campaigns, Publisher further represents, warrants and covenants that: (a) it shall implement the most recent Suppression List that Company has delivered and suppress all such email addresses prior to distributing any and all email campaigns (and update all mailing lists, accordingly) prior to each mailing, or as otherwise required by law; and (b) with respect to any Suppression List generated in connection with Affiliate’s performance of this Agreement, Affiliate shall (i) download Suppression Lists from Company’s tracking platform not less than every seven (7) days; (ii) suppress all email addresses within its database that are in the Suppression List; (iii) for any campaign that includes a domain suppression list, download the most recent domain suppression list prior to mailing the campaign (and in full compliance with Applicable Laws, as well as in accordance with all obligations set forth in this Agreement) and will suppress and refrain from sending emails to all domains found on such list; (iv) use any such Suppression List and associated data solely for suppression purposes; (v) not use any such Suppression Lists for purposes of email marketing; (vi) hold Suppression Lists in confidence; (vii) not retain a copy of any such Suppression List following the expiration or termination of this Agreement; and (viii) not disclose any such Suppression List to any third-party for improper purposes, including Sub-Affiliates, unless it ensures such third-party is verifiably and in writing, bound by terms no less restrictive than those set forth herein, in writing.
All Suppression Lists provided by Company are deemed to be Confidential Information of Company.
In the event that Advertisements are authorized to be distributed via email campaigns, Publisher further represents, warrants and covenants that: (a) prior to distributing any and all email campaigns, it shall download and remove domains located on the Federal Communications Commission’s (“FCC’s”) wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all new and current mailings - prior to emailing - used in connection with its performance of this Agreement; (b) domain names contained therein will be removed before disseminating any emails in connection with its performance of this Agreement; and (c) any new data that it acquires, regardless of its source, will be run against the FCC’s wireless domain names list and that domain names contained therein will be removed before sending any mailings.
Company retains the right to “seed” any/all suppression lists to ensure Affiliate’s compliance with this section.
Affiliate further represents, warrants and covenants that it shall independently create and maintain its own suppression list (“Affiliate Suppression List”) to ensure that offers are not emailed to persons that have unsubscribed or opted-out from receiving such offers. Affiliate shall remove all entries appearing on same. No emails shall be sent to any email address associated with any person on the Affiliate Suppression List.
Failure to adhere to the terms and obligations set forth herein, including, but not limited to, downloading the Company Suppression List, removing all emails from the database before mailing and other suppression-related obligations may result in payment withholdings, removal or suspension from all or part of the Network, possible legal action and any other rights or remedies available to Company pursuant to this Agreement or otherwise.
In order to ensure the highest quality of service and protect the rights of Advertisers and Publishers alike, Company has instituted a health and beauty “Best Practices” for all Affiliates to follow. These Best Practices, and representations, warranties and covenants related thereto, are in addition to, and shall in no way limit,any representations, warranties and covenants set forth elsewhere herein, as well as restrictions or requirements of individual Advertisers that may be imposed on a Program,.
Therefore, in the event that health/beauty-related Advertisements are authorized to be distributed, Affiliate also represents, warrants and covenants that: (a) it shall comply with Applicable Laws and these Best Practices; (b) all promotional efforts and material, including, but not limited to, express and implied claims contained therein, must be truthful, non-deceptive and non-misleading; (c) it shall not promote any product/service, expressly or impliedly, as a prevention, treatment or cure for any disease or health condition; (d) it shall not make any health/beauty claims whatsoever, express or implied, without competent and reliable scientific evidence, which shall consist of, without limitation, at least two (2) independent, reliable, reasonable, adequate, statistically/clinically significant, peer reviewed, randomized and well-controlled human double-blind human clinical studies (conducted independently from each other), conducted by different researchers, independently of each other, that conform to acceptable designs and protocols whose results, when considered in light of the entire body of relevant and reliable scientific evidence, are lawfully sufficient to substantiate that all representations are true; (e) it shall not make any health/beauty claims whatsoever, express or implied, unless experts in the field would generally agree that they are accurate and reliable, and, to the extent that Affiliate makes a health/beauty claim, Affiliate should cite the relevant competent and reliable scientific evidence that is substantiating and describing each express and implied health/beauty claim/benefit of the product/service [or ingredient] for which the health/beauty-related claim is made; (f) it shall clearly and conspicuously disclose, without limitation, if there is no data or inconsistent data, and consider the dose, dosage form, route of administration, formulation (studies should match the product exactly in terms of dosage and route of administration, and should be conducted on the final and combined production formulation with identical active ingredients, not just one or more ingredients), total length of exposure, frequency of exposure and study population; (g) it shall not fail to clearly and conspicuously disclose and note differences between populations (e.g., foreign research), such as differences in diet, general health, or patterns of use, which could confound results; (h) it shall not utilize express or implied guarantees or doctor-recommended claims; (i) it shall not make any express or implied weight-loss claims that a product/service causes weight loss of two pounds or more a week for a month or more without dieting or exercise, causes substantial weight loss no matter what or how much the consumer eats, causes permanent weight loss even after the consumer stops using product/service, blocks the absorption of fat or calories to enable consumers to lose substantial weight, safely enables consumers to lose more than three pounds per week for more than four weeks, causes substantial weight loss for all users, or causes substantial weight loss by wearing a product on the body or rubbing it into the skin; (j) it shall not use “before and after” photos that are not from and indicative of results from actual and verified users, that are deceptive or false, that fail to accurately depict and are representative of what typical and ordinary consumers will generally expect to achieve from using the product/service (l) it shall avoid using trademarks of competing products for comparison purposes without clear and conspicuous disclosure that the competing product is not associated with the promotional activities of the Affiliate or the product/service being promoted, and without otherwise ensuring that such promotional activities are truthful, accurate and not expressly or impliedly deceptive or defamatory; (m) it shall not create a “false sense of urgency” to promote products/services, or utilize tactics or “bait and switch” advertising to promote the sale of a product/service different from that which is advertised or promoted; (n) it shall not make any untruthful, deceptive, misleading, illegitimate, fictitious or unsubstantiated express or implied pricing representations, with respect, but not limited to, representations that a current price is a discount from a former price (e.g., a “sale” or “discount”), comparisons to others’ prices and/or to manufacturers’ suggested retail prices, and/or representations about special prices based on the purchase of other products. Affiliate shall at all times ensure that former prices are bona fide and genuine, bargain being promoted are a true and that products/services being promoted have been offered to the public on a regular basis at the price for a reasonably substantial period of time honestly and in good faith, and in the regular course of business, prior to promoting that different price as a discount from an original price; (o) it shall not fail to clearly and conspicuously disclose all material terms, conditions, limitations, exclusions and restrictions; (p) it shall not promote products/services to children under the age of 13 within the United States, or under the age of majority in any country that regulates the importation or sale of health or beauty supplements to customers under the age of 18; and (q) it shall clearly, conspicuously and prominently disclose all necessary and required Food and Drug Administration-related disclosures after consulting with independent compliance counsel.
Affiliate’s representations, warranties and covenants set forth in this Agreement shall in no way be construed as limiting Affiliates obligation to otherwise comply in full with Applicable Laws. Affiliate expressly acknowledges and agrees that nothing contained in this Agreement and/or with respect to any Campaigns shall/may be construed as legal advice and/or compliance with Applicable Laws. Affiliate expressly acknowledges and agrees not to rely upon Company’s approval of any
Compliance with all applicable representations, warranties and covenants set forth in this Agreement is the sole responsibility of Affiliate. Failure to abide by the foregoing is grounds for, without limitation, immediate termination of this Agreement, withholding and forfeiture of all Payment Units, as well as the exercise of any/all Company’s legal/equitable, at its sole discretion. If Affiliate has any questions or requires clarification with respect thereto, please do not hesitate to contact the Company representative assigned to Affiliate’s account prior to engaging in any promotional activities.
Except as otherwise provided in this Agreement, each Party agrees that all verbal and/or written information, including, without limitation, the existence and terms of this Agreement, business and financial information, identities of Advertisers, data, reports, research, product plans, products, services, business and financial information, mailing lists, marketing plans, opportunities, trade secrets, markets, software, developments, inventions, processes, designs, drawings, engineering, technical data, know-how, hardware configuration information, marketing or financial data customer and vendor lists, data developed pursuant to this Agreement, and pricing and sales information, concerning the disclosing Party or any of its corporate parents, subsidiaries and/or affiliates provided by or on behalf of any of them shall constitute the disclosing Party’s “Confidential Information” whether or not identified and/or designated as such, and shall remain strictly confidential and secret and shall not be used, directly or indirectly, by the receiving Party for any purpose other than performance of this Agreement, except and solely to the extent that any such information is generally known or available to the public through a source other than the receiving Party. The receiving Party shall not disclose to any third-party, or permit any other person or entity access to, the Confidential Information except as required by an employee, agent, officer, director, partner, or representative of the receiving Party in order to perform the obligations or exercise rights under this Agreement. The receiving Party shall use at least the same degree of care, but not less than reasonable care, to prevent disclosure of Confidential Information to third-parties. The receiving Party shall immediately notify the disclosing Party in writing of all circumstances surrounding any unauthorized possession, use, knowledge, or sharing of Confidential Information. If Confidential Information is required to be disclosed by operation of law via a third-party or court request such as a subpoena requesting the receiving Party to disclose such information, the receiving Party shall immediately inform the disclosing Party (if not otherwise restricted from doing so) in writing sufficiently in advance of disclosure to allow the disclosing Party to challenge disclosure, prior to the time commanded to produce or disclose such Confidential Information, and the receiving Party agrees to cooperate in whatever way the disclosing Party requests to attempt to protect that information from disclosure by operation of law. The receiving Party agrees that its obligations in this Section 10 are necessary and reasonable in order to protect the disclosing Party and its business, and the receiving Party agrees that the remedy of damages would be inadequate to compensate the disclosing Party for any breach by the receiving Party of its obligations set out under this Section 10. Accordingly, in addition to any other remedies that might be available, the disclosing Party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving Party, without limiting any other rights and remedies to which the disclosing Party may be entitled.
Without in any way limiting the restrictions in Section 10 above, all information about consumers (“Customer Information”) provided or made available to Affiliate during the term of this Agreement is proprietary to and exclusively owned by Company and/or its Advertiser(s).Such Customer Information is Confidential Information (as defined in Section 10) and may not be disclosed by Affiliate or any Sub-Affiliate to any third-party, or used for any purpose by Affiliate or Sub-Affiliate except as permitted by this Agreement or the Campaign Terms for any particular Campaign. Neither Affiliate nor Sub-Affiliates shall have a right to or interest in any Customer Information.
During the term of this Agreement and for one year thereafter, Affiliate agrees not to circumvent Company’s relationships with Advertisers, or otherwise solicit, purchase, contract for or obtain services similar to the services performed by Company hereunder from any Advertiser that is known, or should reasonably be known, by Affiliate to have such a relationship with Company. To the extent that Affiliate can show that it already provided services to Advertiser prior to the date of this Agreement, then Affiliate shall not be prohibited from continuing such relationship. Affiliate agrees that monetary damages for its breach, or threatened breach, of this sub-section will not be adequate and that Company shall be entitled to: (i) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (ii) liquidated damages from Affiliate in the amount equal to one hundred percent (100%) of the net profits resulting from fees paid to Affiliate by Advertiser for corresponding advertising or marketing efforts; and/or (iii) any and all other remedies available to Company at law or in equity. In the event an Advertiser of Company does contact Affiliate, Affiliate shall notify such Advertiser and Company immediately that it must work directly with Company. Affiliate agrees that during the term of this Agreement and for a period of one (1) year thereafter, it will not directly or indirectly solicit the employment of Company employees, officers or directors, provided, that employment solicitations directed to the general public shall not be prohibited pursuant to this sub-section. The Parties agree and understand that a material breach of this sub-section will cause Company to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, the Parties agree that in such event, Company will, in addition to all other remedies, may be entitled to preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond. The foregoing remedy is a material, bargained for basis of this Agreement and has been taken into account in each party’s decision to enter into this Agreement.
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM AFFILIATE’S USE OF THE NETWORK, OPERATION OF A CAMPAIGN, THE PRODUCTS OR SERVICES PROMOTED IN ANY CAMPAIGN, OR AFFILIATE’S DISPLAY OF ANY CAMPAIGN CREATIVE ON AFFILIATE’S MEDIA, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS OPPORTUNITY, OR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), EVEN IF SUCH DAMAGES ARE FORESEEABLE AND/OR IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AFFILIATE ACKNOWLEDGES THAT COMPANY MAKES NO REPRESENTAITONS, WARRANTIES OR AGREEMENTS RELATED TO THE SUBJECT MATTER HEREOF THAT ARE NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. UNLESS OTHERWISE SET FORTH HEREIN, THE CAMPAIGNS, NETWORK, AND THE INFORMATION, CONTENT AND SERVICES AVAILABLE ON AND THROUGH THE NETWORK AND ALL TECHNOLOGY, SOFTWARE, MATERIALS, DATA, OR IMAGES PROVIDED OR USED BY OR ON BEHALF OF COMPANY OR ITS LICENSORS IN CONNECTION WITH THE NETWORK (COLLECTIVELY, THE “NETWORK OFFERINGS”) ARE PROVIDED ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS. AFFILIATE USES THE NETWORK AND RUNS AND OTHERWISE PARTICIPATES IN CAMPAIGNS AT AFFILIATE’S OWN RISK. UNLESS OTHERWISE SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE NETWORK OFFERINGS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, USAGE OR TRADE USAGE. COMPANY DOES NOT REPRESENT OR WARRANT (OR MAKE ANY EXPRESS OR IMPLIED PROMISES OR REPRESENTATIONS AS TO THE SUCCESSFUL OUTCOME OF ANY CAMPAIGNS. SHOULD ANY ERRORS OR UNDESIRABLE RESULTS OCCUR FROM AFFILIATE’S USE OF THE NETWORK, COMPANY SHALL NOT BE RESPONSIBLE THERFOR AND AFFILIATE SHALL NOT BE ENTITLED TO COMPENSATION THEREFROM, AT COMPANY’S SOLE DISCRETION. THAT THE INFORMATION ON NETWORK OR PROVIDED BY COMPANY OR ADVERTISERS IS ACCURATE, COMPLETE OR CURRENT. COMPANY WILL NOT BE HELD RESPONSIBLE FOR: (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO, OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE OR LOSS OF, ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. COMPANY MAY DISCONTINUE THE NETWORK OR NETWORK OFFERINGS, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE OR OPERATION OF THE NETWORK OR NETWORK OFFERINGS, AT ANY TIME AND FROM TIME TO TIME. COMPANY SHALL NOT BE LIABLE FOR ANY ACTS OR OMISSIONS OF ADVERTISERS (OR, THEIR PRODUCTS OR SERVICES) OR OTHER CONTENT PROVIDERS WHOSE CONTENT OR OFFERS APPEAR ON THE NETWORK AND/OR IS MADE AVAILABLE TO AFFILIATE THROUGH THE NETWORK, NOR THE CONTENTS OF ANY OTHER ADVERTISEMENTS, WEB SITES, OR WEB PAGES. COMPANY’S CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY COMPANY IN COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
Affiliate agrees to defend, protect, indemnify and hold harmless Company, its Advertisers and their respective subsidiaries, affiliates, partners and licensors, directors, officers, shareholders, managers, successors, owners, assigns, employees and agents (“Indemnified Parties”) from and against any and all actions, claims, demands, allegations, liabilities, losses, damages, fines, judgments, settlements, penalties, costs and expenses, including reasonable attorneys’ fees and related costs (collectively, “Claims”), that arise from or are related to Affiliate’s or Sub-Affiliate’s: (a) improper use of the Network; (b) improper operation of a Camaign; (c) breach or violation of this Agreement, Campaign Terms or any representation, warranty or covenant contained herein/therein; (d) Media, including but not limited to, the content contained thereon; (e) negligence, willful misconduct, fraud or a violation of any Applicable Laws; and/or (f) act or omissions.
If any Claim is or shall be brought against an Indemnified Party in respect to any allegation for which indemnity may be sought from Affiliate, the Indemnified Party shall notify Affiiate of any such Claim of which it becomes aware and shall: (a) provide reasonable cooperation to Affiliate at Affiliate’s expense in connection with the defense or settlement of any such Claim; and (b) be entitled to participate, including in the selection of legal counsel, in the defense of any such Claim. Affiliate shall not agree 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.
Affiliate shall provide a meaningful opportunity for internet users to opt-out from data collection and targeting by Affiliate and its affiliates, including without limitation, through the Network Advertising Initiatives’ Compliance Program. Provider shall further ensure that it will clearly and conspicuously include in its public privacy notice and related disclosures, pursuant to CCPA and other Applicable Law, that (a) Affiliate will share, without limitation, real names, aliases, postal addresses, unique personal identifiers, online identifiers, Internet Protocol addresses, or email addresses collected from Company to service providers such as fraud prevention companies; and third-party partners, such as advertisers.
Affiliate acknowledges that it has read this Agreement, and that it has consulted or had the ability to consult with legal counsel before entering into this Agreement. Affiliate has independently evaluated the desirability of entering into this Agreement, and is not relying on any representation, guarantee or statement other than as set forth in this Agreement, or otherwise.
This Agreement shall be exclusively construed and governed by the law of Puerto Rico, without regard to its conflict of law provisions, principles or doctrines. If any dispute arises under this Agreement, the Parties agree to submit the dispute to binding arbitration in the State of Florida, conducted under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. Notwithstanding the foregoing, Company may initiate a dispute either by submitting it to binding arbitration or by filing in a state or federal court located in the State of Florida, or any other state where personal jurisdiction exists over Affiliate, at Company’s sole discretion. In the event of a dispute arising out of performance of this Agreement, the substantially prevailing party shall be entitled to the payment of reasonable attorney’s fees and expenses incurred by the substantially prevailing party to enforce the terms of this Agreement.
Company may assign this Agreement to a subsidiary or business successor. Affiliate may not assign this Agreement without the prior express written consent of Company. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the Parties hereto.
If any provision of this Agreement is held to be invalid, inoperable, void, voidable, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement. This Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein,
Neither Party shall be liable to the other by reason of failure, omission or delay in the performance of its obligations hereunder on account of, without limitation, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters, interruption in internet service or any other cause which is beyond the reasonable control of such Party.
This Agreement contains the sole and entire agreement and understanding between the Parties relating to the subject matter herein, and supersedes all prior representations or discussions, whether by or through officers, directors, salespersons, employees or consultants.
Each Party is an independent contractor and not an agent, partner, joint venturer or employee of the other in relation to the other Party with respect to all matters arising under this Agreement.
Any and all provisions of this Agreement which are reasonably intended to survive termination of this Agreement. This Agreement may not be modified without the prior written consent of both Parties.
Unless otherwise set forth herein, nothing in the Agreement is intended or shall be construed to give any person other than the Parties hereto, their respective successors and assigns, any legal or equitable right, remedy or claim under or in respect of the Agreement or any provision contained herein.
Neither course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.
By seeking to join the Network, Affiliate agrees to be bound by all of the terms and conditions this Agreement. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.
All notices, demands and other communications provided for or permitted under this Agreement shall be made in writing and sent to Affiliate to the addresses submitted by Affiliate on its application to participate in the Network by certified mail, overnight service (e.g., Federal Express), fax, email or courier, any or all of which shall be deemed effective notice under this Agreement.
This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together shall constitute one and the same agreement.