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 and applicable Campaign
Terms 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 in the
aforementioned Dashboard and on the Company website prior to using the Network.
Affiliate agrees to use the Network only in accordance with this Agreement.
Affiliate
acknowledges and agrees that by clicking on a button and/or checking a box on
the Company’s website and/or in the Dashboard indicating assent or such similar
links/functionalities as may be designated by Company to accept the terms and
conditions of this Agreement, Affiliate is submitting a legally binding
electronic signature, attests that it has authority to bind the party on whose
behalf it is signing, and is entering into a legally binding contract.
Affiliate acknowledges that its electronic submission constitutes its intent to
be bound by this Agreement and all terms contained herein. Affiliate hereby
waives any rights or requirements under any statutes, regulations, rules,
ordinances or other laws in any jurisdiction which require an original
signature or delivery or retention of non-electronic records.
1. Use of the Network.
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 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. Specific
terms governing Affiliate’s use thereof (“Campaign Terms”), which are incorporated by reference into this Agreement,
are contained within the Network dashboard or communicated directly to in
writing to Affiliate. 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 from the end of the week within which the disputed
Event and/or Payment Unit was generated (i.e., the following Sunday) or
within seven (7) days of Company notifying Affiliate of a fraudulent,
non-viable and/or illegitimate Event and/or Payment Unit (whichever is later), otherwise,
Company’s figures and calculations shall be irrevocably deemed accurate and
accepted as such by Affiliate.
2. Application to Participate.
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.
3. Use of Sub-Affiliates.
If specified by Company in writing to Network, 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, decisions,
rulings, judgments, 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.
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 the applicable limitations period. 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.
4. Limited License & Intellectual Property.
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.
5. Fraud.
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 Units; 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.
Without limiting terms set forth elsewhere herein, 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 Events, 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.
Without limiting terms set forth elsewhere herein, 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.
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 fraudulent, non-viable and/or illegitimate
Events and/or Payment Units, or otherwise defrauded the Company, the Network, Advertisers
and/or consumers, or otherwise violated this Section 5, Section 8 and/or other terms
of this Agreement.
6. Payment.
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 fraudulent, non-viable
and/or illegitimate Payment Units and/or Events. Without limiting terms
set forth elsewhere herein, Company’s determination of whether a Payment Unit
and/or Event is viable and/or legitimate is conclusive, and at Company’s sole
discretion.
Except as provided herein, the Parties understand and agree that
payment for viable and legitimate Payment Units and 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). No wires will be issued for any amounts less than five hundred US
Dollars ($500).
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 from Advertiser.
Company will not pay for any Payment Units and/or Events that
occur before a Campaign is initiated, after a Campaign terminates or for Payment
units and/or Events for a Campaign that the Affiliate was not invited to or is
not assigned to promote. Invoices submitted to Company and payments made to Affiliate shall
be based on the Events and corresponding Payment Units as reported by Company. Company
will not be responsible to compensate Affiliate for Payment Units and/or Events
that are not recorded due to Affiliate’s errors and/or omissions. Without
limiting terms set forth elsewhere herein, Company reserves the right to offset
the number of fraudulent, illegitimate and/or non-viable Events and/or Payment
Units delivered under this Agreement, in whole or in part, at its sole
discretion.
Without limiting terms set forth elsewhere herein, 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, charge
back payments and suspend or terminate Affiliate from the Network (in addition
to any other remedy available to Company at law or in equity) 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 Payment Unit and/or Event 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.
7. Termination.
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 Affiliate for convenience upon thirty (30) calendar days’ written
notice. This
Agreement may be terminated by Affiliate in the event of an actual violation of
any material term, restriction, representation, warranty, covenant and/or
obligation of Company set forth herein, provided however that if the foregoing
is curable in nature, then prior to termination, Affiliate must provide Company
with written notice thereof and an opportunity to cure same within fifteen (15)
days of the notice. If the breach is not curable in nature, then Affiliate may
terminate immediately with written notice. This Agreement may be
terminated by Company for convenience (i.e., without cause) at any time and/or
in the event of an actual, threatened and/or suspected violation of any
material term, restriction, representation, warranty, covenant and/or
obligation of Affiliate set forth herein, without prior notice thereof.
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.
Termination notices may be provided via email, and shall be
effective immediately upon dispatch.
All undisputed Events and Payment Units due to Affiliate, subject
to the terms of this Agreement, will be paid during the billing cycle following
termination of this Agreement. Without limiting terms set
forth elsewhere herein, if Affiliate or Sub-Affiliates engage or are suspected of engaging
in fraud or other illegitimate activity, Affiliate’s right to all Events and 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.
Sections 6, 8, 9, 10, 11, 12, 14, 15, 16 and 17, in addition to
any/all other terms and provisions of this Agreement which by their nature are
reasonably intended to survive termination, shall remain in full force and
effect after termination of this Agreement for any reason.
8. Representations and Warranties.
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; (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; and (f) the execution,
delivery and performance of this Agreement will not constitute a breach or
violation of any judgment, decision, ruling, consent agreement, order or
decree.
Affiliate further represents, warrants and covenants that: (a) it
shall ensure the fulfillment of the obligations under this Agreement in
compliance with all applicable international, federal, state and local laws, statutes,
regulations, guidelines, best practices and standards, including, without
limitation, the CAN-SPAM Act of 2003 and California Business & Professions
Code Section 17529.5 (and all 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 (“.com Disclosures: How to Make Effective Disclosures
in Digital Advertising), 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
Negative Option Rule, the Restore Online Shoppers’ Confidence Act and all state
laws relating to automatic renewal programs, the Electronic Funds Transfer Act,
Regulation E, and any other applicable international, federal, state and local
privacy, data security and consumer protection laws, statutes, regulations, guidelines,
best practices and standards (if any such laws, statutes, regulations,
guidelines, best practices and/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) 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, decisions, rulings, judgments, 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 must ensure that Company is immediately
provided written notice of such action, investigation, inquiry, complaint or
other proceeding, in which event Company may terminate this Agreement
immediately and without notice to Affiliate); (c) it shall ensure ownership or
has the legal right to use and distribute all content, copyrighted material,
products, and services displayed on all promotional materials utilized in
conjunction with Campaigns, including, without limitation, Media; (d) it shall
ensure that no unfair, deceitful, misleading, untruthful, unsubstantiated or abusive
tactics are used when marketing or distributing Campaigns, that Campaigns are
only marketed and distributed to persons that are at least 18 years of age, that
no 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 are used, and that all reasonable and necessary protocols to
preclude the use of unfair, deceitful, misleading, untruthful, unsubstantiated
and abusive advertising/marketing practices are implemented; (e) it shall
ensure that materials and activities, including Media or otherwise used in
connection with performance of this Agreement: (i) do 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) do 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) do not include content that is
deceptive or misleading or otherwise fails to comply with Applicable Laws; (iv)
is/are 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 media (unless approved by Company in writing); (v) do not spawn
malicious, false, or deceptive pop-ups or exit pop-ups; (vi) do not generate
proxy server traffic; (vii) do not use offer walls of any kind; (viii) do not
use malware or anything that could reasonably be considered software pirating (e.g.,
Warez, Hotline); (ix) do not drive traffic to promotional materials using any
adware, spyware, plug-ins, pop-up, pop-under technologies or similar
downloadable application, do not fail to possess a top-level domain name, and do
not fail to be fully functional at all levels (“under construction” websites or
sections are prohibited); (x) do not use any methods to generate Events and/or
Payment Units that are not initiated by the genuine and legitimate affirmative
action of a consumer; (xi) do not utilize any advertising or marketing methods
that include facsimile or telemarketing (including, without limitation, by use
of prerecorded or artificial voice messages); (xii) do not utilize any
advertising or marketing methods that involve use of email marketing and/or wireless
devices or portable electronic devices by text messaging in any form
(including, without limitation, SMS, Smart Messaging, EMS and/or MMS); (xiii) do
not promote any illegal activity including without limitation the promotion of
gambling, illegal substances, weapons, counterfeit money, software piracy,
phreaking, or hacking; (xiv) do not spoof, or redirect, traffic to or from any
adult-oriented web sites or material appealing to the prurient interests; and
(xv) do 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, the treatment, cure, prevention, mitigation, or diagnosis,
a government benefit and/or payment related thereto, , vaccinations, drugs,
investigational products, pills, potions, lotions, lozenges, prescription or
over-the-counter products, medical supplies, 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
and/or support “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); (f) it shall ensure
that no attempts are made to fraudulently and/or improperly add Payment Units
and/or Events; (g) it shall ensure that no illegal activities of any kind are
engaged in or promoted in association with this Agreement; (h) it shall ensure
that no unlawful, unsupported or untruthful product performance, efficacy or
attribution claims concerning products/services sold and/or offered by
Advertisers are made and/or disseminated, or any claims about Affiliate’s experience
with products/services sold and/or offered by Advertisers are made and/or
disseminated; (i) it shall ensure that no expressly or impliedly, directly or
indirectly, make and/or disseminate representations about the efficacy or
generally expected results of using any product/service/program, unless, at the
time the claim is made, there exists and is possessed competent, accurate, reliable,
reasonable and legally adequate, sufficient and acceptable evidence (e.g.,
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 field (e.g., scientific field), when
considered in light of the entire body of relevant and reliable evidence (e.g.,
scientific evidence) to fully substantiate that the representation(s) is/are true;
(j) it shall ensure that a reasonable basis and evidence supporting
express and implied advertising claims is possessed prior to dissemination
thereof; (k) it shall ensure that at least the advertised and communicated
level and type of substantiation is possessed prior to disseminating express
and/or implied advertising claims; (l) it shall ensure awareness of reasonable
interpretations of advertising claims, including, but not limited to, implied
claims, and shall ensure that substantiation prior to the dissemination thereof
is possessed; (m) it shall ensure that the adequacy of substantiation possessed
is thoroughly and responsibly evaluated prior to disseminating express and/or
implied claims; (n) it shall ensure that there are no express
or implied misrepresentations that independent tests, analyses, research,
studies or other evidence demonstrate the effectiveness of an Advertiser’s product/service/program,
or any material aspect of the performance, efficacy or characteristics of an
Advertiser’s product/service/program; (o) it shall ensure that no representations,
warranties or other statements concerning Company or Advertiser are made, or
any of their respective products or services, except as expressly authorized
herein; (p) it shall be solely responsible and liable for all aspects of Media
(including, but not limited to, Affiliate and Sub-Publisher’s Media), including,
but not limited to, the development, operation, and maintenance of such Media
and all content that appears on or within such Media; (q) it shall ensure
compliance with the lawful terms, conditions, guidelines and policies of any
third-party services used 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); (r) it shall ensure that no
information is collected from persons or entities located outside of the United
States; (s) it shall ensure the development, implementation and maintenance of reasonable
data hygiene protocols for, without limitation, ensuring that no data is
processed relating/no commercial electronic messages are sent to persons located
in the European Union, or to or from persons located in Canada (it shall
neither send or cause or permit to be sent any commercial electronic messages,
as such term is defined under Canada’s Anti-Spam Legislation (Statutes of
Canada 2010, c 23) and its associated regulations (collectively, “CASL”), to or
from persons where it is reasonable to believe that such persons are located in
Canada, nor install or cause to be installed a computer program on another
person’s device that is reasonably believed to be located in Canada, on behalf
of Company or otherwise in connection with the Agreement without the express
prior written consent of Company. Company will only provide such consent
after Publisher and Company mutually agree on written protocols and additional
terms governing the sending of such commercial electronic messages or
installation of computer programs); (t) it shall ensure the implementation of such
administrative, physical, and technical security measures, policies and
procedures as required by Applicable Laws and as appropriate to the nature and
size of applicable business and operations, to ensure the secure handling,
transmission, storage, and disposal of any/all information which is held or
handled; to protect against any threats or hazards to the security and
integrity of information; and to protect against any unauthorized access to or
use of such information (it shall also ensure the clear, conspicuous and
prominent posting and availability to end-users any terms and conditions in
connection with Advertiser’s products/services, or as required by Applicable
Laws; (u) it shall ensure that Payment Units and/or Events are not generated
(or attempted to be generated) in bad faith, wrongfully, illegitimately,
deceptively or through fraudulent mechanisms, including, without limitation,
via manual or automated processes); (v) it shall ensure that Company is
notified in writing within twenty-four (24) hours of the receipt of any
complaint (e.g., by Affiliate and/or Sub-Affiliate) regarding any Media,
URLs, Campaign, the Network, products and/or services promoted in any Campaign,
Network Offerings and/or related promotional materials used in conjunction with
this Agreement; (w) it shall actively monitor Sub-Affiliates and other
applicable third-parties to ensure compliance with the terms, obligations and
restrictions set forth by this Agreement, and to prevent wrongful, deceptive,
unfair, abusive and fraudulent activity, including, without limitation,
unsubstantiated representations; (x) if Affiliate 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 actual or constructive notice 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; (y)
it shall indemnify, defend and hold Company harmless from and against any/all
actions and/or omissions arising from or related to 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 (z) it shall have all Media and promotional content used in
conjunction with Campaigns reviewed and approved by competent legal counsel
prior to Campaign launch date, and solely assumes all responsibility and
liability therefor.
Affiliate’s Additional CCPA
Warranties
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 Affiliate
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.
Affiliates Additional Email Marketing
Warranties
DISTRIBUTION OF CAMPAIGNS VIA EMAIL IS EXPRESSLY PROHIBITED. In the
event that Campaigns are authorized by Company in writing to be distributed via
email, Affiliate also 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 Campaigns are authorized by Company in writing to
be distributed via email, Affiliate 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,
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).
In the event that Campaigns are authorized by Company in writing
to be distributed via email, Affiliate 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 (e.g.,
“Subject” and “From” lines) provided in the Campaign Terms shall be used; (c)
it shall not remove or alter URLs (and, if applicable, without limitation,
email Subject lines and/or From lines) provided by Company or approved by Company
in writing; (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 Campaigns are authorized
to be distributed via email, Affiliate 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 Campaigns are authorized by Company in writing to
be distributed via email, Affiliate 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 Campaigns. 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.
Affiliate’s Additional Health
& Beauty Best Practice-Related Warranties
In order to ensure the highest quality of service and protect the
rights of Advertisers, Affiliates and consumers alike, Company has instituted health
and beauty “Best Practices” for all Affiliates (and Sub-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 in this Agreement, Applicable Laws, and/or obligations,
limitations, restrictions or requirements (for example and without limitation, of
Company and/or individual Advertisers) that may be imposed on a Campaign.
Therefore, in the event that health and beauty-related Campaigns
are made available, authorized to be distributed, Affiliate also represents,
warrants and covenants that: (a) it shall ensure compliance with this Agreement,
Applicable Laws and these Best Practices; (b) it shall ensure that all advertising,
marketing and promotional efforts and materials, including, but not limited to,
express and implied claims and representations contained on and/or disseminated
via Media, are reasonably based, truthful, non-deceptive, non-misleading and
lawfully substantiated; (c) it shall ensure the non-promotion of any product/service/program,
expressly or impliedly, as a prevention, treatment or cure for any disease or
health condition; (d) it shall ensure that no health/beauty claims are made whatsoever,
express or implied, without reasonable, adequate, 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 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 ensure that no health/beauty claims are
made 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/program or
ingredient for which the health/beauty-related claim is made; (f) it shall ensure
the clear and conspicuous disclosure of, without limitation, whether there is
no data or inconsistent data, and that consideration is paid to 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 ensure
that differences between populations (e.g., foreign research), such as
differences in diet, general health, or patterns of use, which could confound
results are clearly and conspicuously disclosed and noted; (h) it shall ensure
that express or implied guarantees or doctor-recommended claims are not utilized
of disseminated; (i) it shall ensure that no express or implied weight-loss
claims that a product/service/program 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/program, 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 are used or disseminated; (j) it shall ensure that “before and after”
photos: (i) that are not from and/or indicative of results from actual and verified
users; (ii) that are deceptive or false; (iii) that fail to accurately depict and
are representative of what typical and ordinary consumers in similar
circumstances will generally expect to achieve from using the product/service/program
or ingredient being promoted; and/or (iv) that fail to clearly and
conspicuously disclose any/all material and lawfully required information,
including, but not limited to, the time elapsed between any before/after images
and whether the reported result may be attributable to other factors, such as
diet, exercise, or lifestyle changes are not used/disseminated; (k) it
shall ensure that any images for which there are no verifiable commercial
rights possessed, as well as an affidavit and a release to use in conjunction
with promotional efforts, are not used/disseminated; (l) it shall ensure the
non-use of trademarks of competing products for comparison purposes without
clear and conspicuous disclosure that the competing product is not associated
with the applicable promotional activities , and without otherwise ensuring
that such promotional activities are truthful, accurate and not expressly or
impliedly deceptive or defamatory; (m) it shall ensure that no “false sense of
urgency” to promote products/services is created, or tactics or “bait and
switch” advertising to promote the sale of a product/service/program different
from that which is advertised or promoted is utilized; (n) it shall ensure that
no 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 are made/disseminated; (o) it
shall ensure that former prices are bona fide and genuine, bargains 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; (p) it
shall ensure that all material terms, conditions, limitations, exclusions and
restrictions are clearly, conspicuously and prominently disclosed; (q) it shall
ensure that products/services to children under the age of 18 are not promoted;
and (r) it shall ensure all necessary and required Food and Drug Administration-related
disclosures are clearly, conspicuously and prominently disclosed after
consulting with independent compliance counsel.
Affiliate’s Additional Endorsement
& Testimonial Best Practice-Related Warranties
In order to ensure the highest quality of service and protect the
rights of Advertisers, Affiliates and consumers alike, Company has instituted
endorsement and testimonial “Best Practices” for all Affiliates (and
Sub-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 in
this Agreement, Applicable Laws, and/or obligations, limitations, restrictions
or requirements (for example and without limitation, of Company and/or individual
Advertisers) that may be imposed on a Campaign.
Affiliate also represents, warrants and covenants that;: (a) it
shall ensure compliance with this Agreement, Applicable Laws and these Best
Practices, including, but not limited to, the Federal Trade Commission
Endorsement/Testimonial Guides (the “Guides”); (b) it shall ensure the clear,
conspicuous and prominent (e.g., close to the claim to which they
related) disclosure (with plain and unambiguous language and contrasting
backgrounds that make them stand out, make them easily noticed and read, and
make them easily understood) of direct/indirect relationships (“material
connections”) with Advertisers – and someone working for and/or on behalf of an
Advertiser (if there is a direct/indirect connection between an
endorser/testimonialist and the Advertiser – and/or someone working for and/or
on behalf of an Advertiser) that consumers would not expect and it would affect
how consumers evaluate the endorsement/testimonial (for example and without
limitation, a personal, family, employment or a financial relationship – such
as being paid or provided free or discounted products/services); (c) it shall
ensure that all disclosures are not hidden or buried in footnotes, in blocks of
text people are not likely to read, or in hyperlinks, and are worded in ways
that are understandable to the ordinary reader – for video ads, on the screen throughout
the entire video in a manner long enough to be noticed, read and understood (including
disclosures in the description uploaded with the video, alone, is
insufficient), and, for audio disclosures, read at a cadence that is easy for
consumers to follow and in words consumers will understand); (d) it shall ensure that endorsements and testimonials
are truthful, not misleading, reasonably based and are accompanied by an
appropriate affidavit and release; (e) it shall ensure that endorsements and
testimonials are not used without written consent of the
endorser/testimonialist, and that they reflect and represent the honest and
accurate opinions, findings, beliefs and/or experiences of the endorser/testimonialist
and are not used to: (i) falsely claim, expressly or implicitly, that they reflect the
independent opinions of impartial users; (ii) convey an express or implied
representation that would be deceptive, misleading or otherwise unlawful if
made directly by the Advertiser; and/or (iii) make a claim that requires proof
that the Advertiser does not possess and thus, could not legally make (for
example and without limitation, an endorser/tetimonialist cannot talk about
experience with a product/service/program if the endorser/testimonialist has
not tried it); (f) it shall ensure that the endorsement/testimonial is not
presented out of context or reworded so as to distort in a material way the
endorser/testimonialist’s opinion or experience with the Advertiser’s product,
service, program or brand (g) it shall ensure that if proof is not possessed that
the endorser/ testimonialist’s experience represents what consumers will
generally achieve using the product/service/program as described in the
advertisements (including, but not limited to, “before” and “after” photos),
then an advertisement featuring, that endorser/testimonialist shall clearly,
conspicuously and prominently inform consumers what the generally expected
results are in similar circumstances (if such information does not exist, the endorsement/
testimonial shall not be used - merely stating “Results not typical” or
“Individual results may vary” are alone insufficient); (h) it shall
ensure that “before” and “after” photos are verified users of the
product/service/program, are considered endorsements/testimonials, and that
they are true, and are not deceptive or false; (i) it shall ensure that using
social media to click on a “like” button, pin a picture, share a link or other
similar features depicting positive comments about a particular business,
product, website or service as part of a sponsored brand campaign include an
appropriate, clear, conspicuous and prominent disclosure, and shall not use
features that do not permit for such disclosures; (j) it shall ensure that if
an Instagram post includes an
endorsement/testimonial through the picture or the beginning lines of the
description, required disclosures shall be presented without having to click
“more;” (k) it shall ensure that reliance is not placed or made upon a
disclosure placed after a “click more” link or in another easy-to-miss location,
and shall ensure that objective viewing habits (e.g., on social media)
are considered at all times; (l) it shall ensure that built-in features/tools
on social media platforms that permit disclosure of paid
endorsements/testimonials are not, alone, relied upon as being effective and
that it shall ensure the responsible and reasonable evaluation of, including,
but not limited to: (i) context and whether the disclosure attracts viewers’
attention, taking into account where people are likely to look on a particular
platform (it shall ensure that no assumptions are made regarding whether a
platform’s disclosure tool is sufficient; (ii) whether the applicable tool
satisfies Applicable Laws, including, but not limited to, the Guides; and (iii)
whether the tool clearly, conspicuously and prominently discloses required
information (including, but not limited to, material connections); (m) it shall
ensure that disclosures on Snapchat or Instagram stories and image-only
platforms are superimposed over images, and be easy to notice and read in the
time that followers have to look at the images in a clear font that contrasts
sharply with the background – factors to be considered include, but are not
limited to, how much time followers are given to look at the images, how much
competing text there is to read, how large the disclosures are, and how well the
contrast against images; (n) it shall ensure that disclosures on Twitter
provide consumers with easily noticed and understood information they need to
evaluate sponsored statements; (o) it shall ensure that sponsored tags and pins,
including tags in pictures, are treated like any other endorsement/testimonial,
and that the use of endorsements/testimonials, including in social media, avoid
ambiguous disclosures like #thanks, #collab, #sp, #spon or #ambassador (clarity
counts); (p) it shall ensure that the names of sponsored provider(s) is/are
clearly, conspicuously and prominently disclosed so that ordinary, reasonable
consumers will notice and understand; (q) it shall ensure that reasonable training,
monitoring and compliance programs are in place to train and monitor
Sub-Affiliates which include, without limitation, explaining to Sub-Affiliates
what they can and cannot say about Advertiser’s products/services (with
instructions not to go beyond such claims), instructing Sub-Affiliates on their
responsibilities for disclosing direct and/or indirect connections to the
Advertiser – and someone performing services for and/or on behalf of an
Advertiser, periodically
searching for what Sub-Affiliates are saying and taking remedial action if
questionable practices are found; (r) it shall ensure that employees that use
social media to endorse Advertiser’s products/services/programs clearly,
conspicuously and prominently disclose relationships to Advertiser – or someone
performing services for and/ on behalf of an Advertiser; (s) it shall ensure
that if the endorsement/testimonial represents that the endorser/testimonialist
uses the Advertiser’s product, service, program or brand, the
endorser/testimonialist is a bona fide user of it at the time the message was
distributed and the message remains posted only as long as there exists good
reason to believe the endorser/testimonialist continues to subscribe to the
views presented; (t) it shall ensure that if promotional material states or implies that an
endorser/testimonialist currently uses the product/service/program in question,
the endorsement/testimonial shall only be used so long as good reason to
believe the endorser/testimonialist still uses the product/service/program; (u)
it shall ensure that disclosures are placed with endorsement/testimonial
messages themselves, and that they are not mixed into a group of hashtags or
links; and (v) it shall ensure that expert or professional
testimonials/endorsements, including, but not limited to, those of non-licensed
medical professionals, are not used.
Affiliates are solely responsible for determining the accuracy and
source of any endorsement/ testimonial used in promotional activities.
Affiliate’s
representations, warranties and covenants set forth in this Agreement and
throughout these Best Practices shall in no way be construed as limiting
Affiliates obligation to otherwise comply in full with this Agreement, Applicable
Laws and/or obligations, limitations, restrictions or requirements (for example
and without limitation, of Company and/or individual Advertisers) that may be
imposed on a Campaign. Affiliate expressly acknowledges and agrees that
nothing contained in this Agreement, these Best Practices and/or any
communications from Company, its employees and/or its contractors shall/may be
construed as legal advice. Affiliate expressly acknowledges and agrees not to
rely upon Company’s approval of any advertising creative material including,
but not limited to, URLs, emails or portions thereof for compliance with
Applicable Laws, or assert any claim that Affiliate is in compliance with
Applicable Laws based upon Company’s approval or non-objection.
Compliance
with all applicable representations, warranties and covenants set forth in this
Agreement and these Best Practices, as well as compliance with Applicable Laws,
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 and equitable rights, at its sole discretion.
9. Confidentiality.
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 9 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 9. 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.
10. Customer Information, Non-Circumvent &
Non-Solicit.
Without in any way limiting the restrictions in Section
9 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 9) 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.
11. LIMITATION
OF LIABILITY; DISCLAIMER OF WARRANTY.
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, CAMPAIGN TERMS, THE URLs, THE PRODUCTS OR SERVICES
PROMOTED IN ANY CAMPAIGN, OR AFFILIATE’S DISPLAY/PROMOTION OF ANY CAMPAIGN 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 REPRESENTATIONS,
WARRANTIES OR AGREEMENTS RELATED TO THE SUBJECT MATTER HEREOF THAT ARE NOT
EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. UNLESS OTHERWISE SET FORTH HEREIN, THE URLs,
CAMPAIGNS, CAMPAIGN TERMS, NETWORK, PRODUCTS AND SERVICES PROMOTED IN ANY
CAMPAIGN, 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 AND AFFILIATES’ MEDIA, 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 NETWORK
OFFERINGS, INFORMATION ON NETWORK OR PROVIDED BY COMPANY OR ADVERTISERS IS
ACCURATE, COMPLETE OR CURRENT. COMPANY WILL NOT BE
HELD LIABLE OR RESPONSIBLE FOR: (A) ANY ERRORS, INACCURACIES, OR TECHNOLOGY
AND/OR SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, TRACKING PLATFORM
AND/OR DATA CENTER TECHNOLOGY DISRUPTIONS, 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 , PROMOTIONAL MATERIAL, 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.
12. Indemnification.
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 and/or operation of the Network, URLs, Media, Campaigns and/or Network
Offerings; (b) breach or violation of this Agreement, Campaign Terms or any
representation, warranty, covenant, obligation, restriction or Best Practice(s)
contained herein/therein; (c) Media, including
but not limited to, the content contained thereon; (d) negligence, willful
misconduct, fraud or a violation of any Applicable Laws; and/or (e) acts
or omissions in violation of this Agreement, including, but not limited to,
acts of omissions of Sub-Affiliates. 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 Affiliate 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.
13. Additional Affiliate Obligations
Affiliate shall provide a meaningful opportunity for internet
users to opt-out from data collection and targeting by Affiliate and its
Sub-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 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.
14. Disputes and Assignment.
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
laws of Florida, 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 or a
jurisdiction chosen by the Company, 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 and/or to enforce the terms of this Agreement this Agreement, solely
the Company shall be entitled to the payment of reasonable attorney’s fees,
costs and expenses incurred in the event that Company is adjudicated the
substantially prevailing party.
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.
15. Severability.
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, and his Agreement shall be construed as if such invalid, illegal or
unenforceable provision had not been contained herein,
16. Force Majeure.
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, pandemic, epidemic, 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.
17. Miscellaneous.
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. This
Agreement may not be modified without the prior written consent of both
Parties.
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.
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 Company at
info@deluxeads.com, and 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. In the event that no
such information is submitted by Affiliate, Company agrees to make reasonable
efforts to contact affiliate via its preferred method of communication as
established by Affiliate during the term of this Agreement.