DIRECT AD SALES LLC Affiliate Agreement
This Affiliate Agreement (“Agreement”) governs the relationship between DIRECT AD SALES LLC, with its principal business location at 72 North 300 East, Suite A (123-13) - Roosevelt, UT 84066 (“Company”), and you, the company or the individual listed on the last page of this Agreement as an affiliate (“Affiliate” or “you”) for your use of the affiliate network owned by Company (“Network”). Company, at its sole discretion, can change this Agreement and your continued use of the Network thirty (30) days after notification of such modification constitutes your consent to such changes.
YOU AGREE TO THE TERMS OF THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST AGE 18 (OR THE AGE OF MAJORITY IN YOUR STATE OR COUNTRY OF RESIDENCE) AND ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS. IF YOU ARE SIGNING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS AGREEMENT.
Additional terms and conditions may apply to your participation in the Network, which Company may publish and update from time to time, which are incorporated and made a part of this Agreement.
Any advertising or services Affiliate performs for Company, whether or not explicitly identified within any insertion order (“Insertion Order” or “IO”), is subject to this Agreement (collectively, the “Agreement”), except in cases where an Insertion Order conflicts with this Agreement, in which case the Insertion Order shall prevail.
This Agreement is effective as of the date it is executed by both parties. Company reserves the right to deny your Application, in its sole discretion, with or without cause. Participation in the Program is subject to Company’s prior approval. If we accept your Application and later determine that acceptance was granted in error or for any reason at our discretion, we may immediately terminate your participation in the Program upon notice to you.
1. Network. Affiliate agrees to provide the services identified and set forth in this Agreement (“Services”). For the Services, Company shall grant to Affiliate a non-exclusive, non-transferable, revocable and limited license to: (i) Participate in marketing campaigns offered through the Network (“Campaigns”); and (ii) Use the Creative Materials (as defined below) provided via the Network solely and exclusively for Affiliate’s efforts to market to consumers to cause valid sales, or other compensable activities (“Compensable Transactions”) for such Campaigns.
2. Creative Material.
2.1 Use. Company may provide Affiliate with access to advertisements on the Site for download, use, and publication by Affiliate (“Advertising”), subject to the license set forth above and the other provisions of this Agreement. These advertisements may include: (i) consumer information forms (the “Form Creative”); (ii) Text links, banner ads, pop-ups, and other material (“Banner Ads”); and (iii) Email Creatives (with the Form Creative and Banner Ads, the “Creative Material”). Company may terminate Affiliate’s license to use the Creative Material, with or without notice, in its sole discretion. Company may change or revise the Creative Material made available, in its sole discretion, and Affiliate agrees to use only the most recent version of the Creative Material posted on the Site. Affiliate may not alter, modify or otherwise change the Form Creative in any manner. Except with Company’s prior express written consent, Affiliate may not alter, modify the Banner Ads or Form Creatives, or use other Creative Material than that which is supplied by Company and posted on the Site. For clarity, Affiliate may not add its own unsubscribe link to any Email Creatives and must use the unsubscribe link on provided by Company as part of the creative. Any such actual or attempted alteration, modification, or use will cause the immediate termination of this Agreement, without notice. Company retains full right, ownership, and interest in all Creative Material, and in any copyright, trademark, or other intellectual property rights in the Creative Materials and other information developed by Company and supplied to Affiliate from time to time with this Agreement.
2.2 Placement. Affiliate agrees that Company may direct the placement of Creative Material. Unless such direction is given, and subject to the terms and conditions of this Agreement, the Campaign, and all laws, rules, and regulations, Affiliate may display the Form Creative and Banner Ads: (i) often and in as many areas of the websites owned, operated, or controlled by Affiliate (“Affiliate Websites”); and/or (ii) in creative for distribution to those email addresses in the e-mail databases owned, operated, or controlled by Affiliate (“Affiliate Databases”), assuming that the e-mail creative has been approved by Company, assuming all relevant Affiliate emails and websites are compliant with all applicable laws and this Agreement. Notwithstanding the foregoing, Affiliate must immediately comply with all directions by Company to modify, alter, or otherwise adjust the placement, frequency, and/or other editorial decisions related to the Creative Material. Affiliate must place or use Creative Material only intending to deliver valid Compensable Transactions. Affiliate must immediately remove Creative Material upon receiving notice from Company or upon the termination or expiration of this Agreement or any Campaign.
2.3 Restrictions. Affiliate is solely responsible for the development, operation, and maintenance of Affiliate Websites and all materials that appear thereon. In connection with or arising from Affiliate’s performance, Affiliate shall not (nor permit or encourage any person or entity to): (i) Inflate the Compensable Transactions through any misleading or deceptive practice, method, or technology (including, without limitation, through any spyware, adware, device, program, robot, redirects, spiders, computer script or other automated, artificial, or fraudulent methods designed to appear like an individual, real live person performing a Compensable Transaction); (ii) Accept Compensable Transactions generated from public or open proxy servers, IP addresses that have bot activity, or from pay-per-view or pay-per-surf programs; (iii) Install or execute on another's computer one or more additional software program(s) without consent of the user, or if such program(s) are installed with the consent of the user, Affiliate must provide instructions to disable the software, such that the software is easily identifiable and the removal can be performed without undue effort or knowledge by the user of the computer, and assistance to remove such programs as required by applicable law; (iv) Take control of a user’s computer by delivering advertisements that a user of a computer cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; (v) Violate or infringe any intellectual property or proprietary right of any third party (e.g., trademarks, service marks, brand names, copyrights, etc.); or (vi) Promote any Creative Material that: (a) contains pornographic or other sexual material; (b) contains gratuitous displays of violence or obscenity; (c) promotes hate-mongering in any form (e.g., racial, political, ethnic, etc.); (d) contains incentivized offers (or the appearance thereof) that induce or attempt to induce users to click on any Creative Material; (e) defames, misrepresents, abuses, or threatens physical harm to others; (f) promotes any illegal substance or activity; (g) is unfair, deceptive, misleading, or otherwise fraudulent; or (h) misrepresent an affiliation with a person/entity, including, without limitation, an affiliation with a credit union.
2.4 No legal advice. Company’s specifications and/or recommendations regarding, without limitation, the Services, Campaigns, Creative Materials, consumer information, Compensable Transactions, Affiliate Websites and/or Affiliate Databases (the “Specifications”) should not, under any circumstances, be construed and/or relied upon as legal and/or regulatory compliance advice. In consideration for your use of the Network, you agree to discharge, release and waive all claims, disputes, grievances, and causes of action, whether asserted or unasserted, and whether known or unknown, which you might have against Company arising out of the Specifications. This release and discharge specifically includes, but is not limited to, all claims arising under the Laws (defined below) that you may have or that may arise regarding the Specifications. Contact your attorney to obtain advice regarding any advertising issue and the Specifications. You expressly consent that this Affiliate Agreement and the releases set forth shall be given full force and effect according to each and all of their express terms and provisions, including those relating to unknown and unsuspected Specification related claims, demands and causes of action. You acknowledge these releases and waivers are essential and material terms of this Affiliate Agreement.
3. Tracking. Company shall include in each of the Creative Materials a special transaction tracking code (the “Transaction Tracking Code”). Affiliate shall not modify, circumvent, disable, impair, or otherwise interfere with any Transaction Tracking Code and/or other technology or methodology required or provided by Company for all Creative Materials. All determinations made by Company for the Creative Materials and Compensable Transactions shall be final and binding on Affiliate. Company expressly reserves the right to seed data to monitor Affiliate’s compliance with this Agreement and applicable laws, rules, and regulations.
4.1 Calculation. Company shall calculate Affiliate Commissions based on Compensable Transactions recorded by the Transaction Tracking Codes. Company shall compile, calculate, and post on the Site data derived from the Transaction Tracking Codes and supplementary sources used by Company to determine Commissions due to Affiliate (“Data”). Questions or disputes regarding the Data must be submitted in writing to Company within three (3) business days of the date that the Data is posted on the Site; otherwise, the information contained will be deemed accurate and accepted by Affiliate. Company will investigate and resolve any Data-related questions or disputes in its sole discretion. If, (including, without limitation, impairment of the Transaction Tracking Codes), Company is unable or fails to provide Affiliate with accurate and/or complete Data, Company shall calculate Compensable Transactions (“Projected Compensable Transactions”), based upon: (i) Affiliate’s average bi-monthly Compensable Transactions recorded by Company for the Campaign, prorated for any shorter or longer while, where Data needed to calculate such a bi-monthly average is available; or (ii) such amount that Company reasonably determines is due and owing, in its sole discretion, where Data needed to calculate such a bi-monthly average is unavailable. Commissions will not be "earned" until Company receives corresponding payment from its clients and/or third party marketing partners. You agree that payment for Commissions will be owed to you from the Company client and/or third party marketing partner, and that corresponding payments shall be made by Company to you out of the funds collected by Company from the Company client and/or third party marketing partner. Company shall have no payment obligation to Affiliate where a Company client and/or third party marketing partner has not remitted sufficient payments to cover the Commissions otherwise due and owing Affiliate. Instead, Affiliate may pursue all legal remedies directly against any Company client and/or third party marketing partner that has not provided funds to pay sums due and owing to Affiliate for Commissions it claims to have earned. Company’s obligations do not involve investigating or resolving any claim or dispute between you and any Company client and/or third party marketing partner. All determinations made by Company for the Transaction Tracking Codes, Compensable Transactions, Projected Compensable Transactions, and any associated Commissions due to Affiliate shall be final and binding on Affiliate.
4.2 Validation of Compensable Transactions. Company reserves the right to monitor your activities regarding your participation in the Affiliate Program, including but not limited to web sites or other media properties displaying Advertising, including monitoring for false creation of Compensable Transactions and for marketing practices that violate the terms and conditions of this Agreement and/or any laws and/or regulations. Company reserves the right to evaluate all data received by Affiliate to determine, in the sole discretion of Company, that the data constitutes a “Valid Compensable Transaction.” A “Valid Compensable Transaction” means a transaction by an individual person that: (a) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial, or fraudulent method designed to appear like an individual, live person, (b) as submitted information that meets all of Company’s criteria. Company shall have no obligation to pay for any data it determines, in its sole discretion, constitutes no Valid Compensable Transaction (“Invalid Compensable Transaction”) If, after paying for data, Company determines that the data does not constitute a “Valid Compensable Transaction,” Company reserves the right to (a) Receive a refund for the amount paid for the “Invalid Compensable Transaction” or (b) Reduce or withhold any future payment to Affiliate up to the amount paid for any previous Invalid Compensable Transactions. If Company suspects fraud or unlawful conduct you acknowledge that it is your responsibility to prove to the satisfaction of Company that no fraudulent or unlawful activity has occurred. If Company detects fraud or unlawful conduct, your account will be made inactive pending further investigation and all commission payments will be held until Company determines that no fraudulent activity has occurred. If you fraudulently or unlawfully create Compensable Transactions as determined by Company in our sole discretion, you will forfeit your entire commission for all Valid Compensable Transaction and this Agreement will be terminated. You acknowledge that if you receive notice from or on behalf of Company that fraudulent or unlawful activity may occur on your web sites or emails displaying Advertising, or any other marketing activity, and you take no or inadequate actions to stop such fraudulent or unlawful activity, then you shall be solely responsible for all associated costs and legal fees resulting from the fraudulent activity. Company reserves the right to report all known and/or suspected fraudulent or unlawful conduct by any Affiliate to interested parties and to make such conduct public. You agree not to hold Company liable for any consequences of such reports. You acknowledge that it shall be in Company's sole discretion to determine whether fraudulent conduct has occurred or is suspected and to whom the conduct may be reported. Company may audit Compensable Transactions submitted by you, at your expense, if Company suspects that you are submitting fraudulent or unlawful Compensable Transactions.
4.3 Timing. Company shall pay Commissions on a net thirty (30) basis, for Commissions earned during the prior calendar month. Such payments shall only be made to Affiliate provided the Affiliate account has reached a minimum of Five Hundred Dollars ($500.00) (“Payment Threshold”) in accrued Commissions. Affiliate accounts that have accrued a balance below the Payment Threshold shall continue to roll over to the next payment period until an amount equal to or greater than the Payment Threshold has been met. Notwithstanding the foregoing, if Affiliate has accrued less than the Payment Threshold and has not accrued any new commissions for a period of ninety (90) days, then Company’s obligation to make any payments of such previously accrued commissions is erased. Company will only pay Affiliates that provide payment information via the affiliate panel. If Affiliate does not provide valid payment information to Company within ninety (90) days a Commission being earned, then Company will have no obligation to pay Affiliate for that Commission. All payments shall be in U.S. Dollars. Affiliate shall pay all applicable taxes (if any) due to all taxing authorities arising from, or in connection with, Affiliate’s participation in the Network. Affiliate acknowledges that for certain types of payments, including but not limited to international wire transfers and international PayPal payments, additional fees may be charged by Company to cover the additional costs associated with these forms of payments. For international wire transfers this fee is generally $50 USD and for international PayPal payments this fee is generally a 3% fee capped at $30 USD; however these costs may vary. Company may require Affiliate to provide a W-9, or similar tax identification information, as a condition precedent to receiving any Commission payments. Company may withhold payments until an applicable Advertiser has paid Company for a corresponding Campaign. Company reserves the right to reduce all payments owed to Affiliate where a Company client and/or third party marketing partner has offset payments owed to Company. Company shall not be obligated to pay Affiliate for Commissions where, in Company’ sole discretion, Company believes that Affiliate: (i) is in breach of this Agreement; or, (ii) has violated any law, rule, or regulation in connection with or arising from performance. Upon termination of this Agreement, Company shall pay Affiliate Commissions, even amounts below the Payment Threshold, during the next payment period, subject to Company’s right to withhold and/or cancel Commission payments to Affiliate as set forth elsewhere. Company shall not pay Affiliate any Commissions that arise: (i) before Affiliate is accepted into the Network; or, (ii) after termination of this Agreement or any Campaign. If the Affiliate has a negative account balance because Affiliate’s account has been charged back certain compensation and Affiliate’s account balance is not sufficient to cover the charge back amounts, the Affiliate shall immediately remit payment to Company in an amount sufficient to bring Affiliate’s account balance to zero. Negative account balances are subject to 1.5% interest per month, or the highest amount allowed by law, whichever is higher, compounded monthly.
5. Sub-Affiliates. For this Agreement, any partner, associate, contractor, representative, or agent of Affiliate that participates in or performs any activities for Affiliate as a part of the Network shall be deemed to be a “Sub-Affiliate.” Company reserves the right to require pre-approval of all Sub-Affiliates. Company reserves the right to withhold or refuse approval of any Sub-Affiliate for any reason or no reason, and Company may revoke its approval of any Sub-Affiliate, with or without notice or reason. An Affiliate shall be responsible for the acts and/or omissions of its Sub-Affiliates. Affiliate shall require its Sub-Affiliate to comply with all applicable laws, rules and regulations. Affiliate shall obligate Sub-Affiliates to comply with the same obligations as required of the Affiliate under this Agreement. Affiliate agrees to monitor its Sub-Affiliates’ use of the Network to ensure that Sub-Affiliate is complying with the obligations as required of the Affiliate under this Agreement. Affiliate agrees to indemnify, defend and hold harmless Company and its directors, officers, shareholders, employees, agents and affiliates from and against any and all third party actions, claims, liabilities, damages, losses and expenses, including reasonable attorneys’ fees and costs arising out of or related to the acts, errors or omissions of the Affiliate, its Sub-Affiliates, or any of the Affiliate’s or Sub-Affiliates’ officers, directors, employees, agents or affiliates, or any third party acting on behalf of any of the foregoing, in connection with the performance of its obligations under this Agreement, any applicable insertion order, any applicable Advertising Campaign, or any breach of this Agreement.
6. Data Ownership. Company shall have sole ownership of and full right to use any and all consumer information generated by Affiliate in connection with this Agreement. Neither Affiliate nor any of its Sub-Affiliates shall have any rights in and to any such consumer information or data behind the consumer information. Without limiting the generality of the foregoing, Affiliate shall not: (i) transfer, export, display, forward, or otherwise share any such consumer information or data contained therein to or with any third party; or, (ii) use any such consumer information or data contained therein on Affiliate’s own behalf in any manner not expressly authorized by Company. Affiliate acknowledges that transfer, export, display, forward, or otherwise share any such consumer information or data contained therein to or with any third party or, the use any such consumer information or data contained therein on Affiliate's own behalf in any manner not expressly authorized by Company will cause Company to incur substantial economic damages and losses of types and in amounts which are impossible to compute and ascertain with certainty as a basis for recovery by Company of actual damages, and that liquidated damages represent a fair, reasonable and appropriate estimate thereof. Accordingly, in lieu of actual damages for such delay, Affiliate agrees that liquidated damages may be assessed and recovered by Company as against Affiliate and without Company being required to present any evidence of the amount or character of actual damages sustained by reason thereof. Therefore if Affiliate violates Section 6 (Data Ownership) of this Agreement ("Data Ownership Violation"), as determined solely by Company, Affiliate shall be liable to Company for payment of liquidated damages in the amount of $1,000.00 for each Data Ownership Violation, and Company may terminate this Agreement immediately without notice at its sole discretion. Such liquidated damages are intended to represent estimated actual damages and are not intended as a penalty. Company may apply Affiliate's entire commission for all Valid Compensable Transactions owing and pending under this Agreement to pay for all liquidated damages provided for herein. If this amounts to less than the total of all liquidated damages, Affiliate agrees to pay Company the difference within ten (10) business days. At Company's sole discretion, Affiliate may continue operating under this Agreement and under revised terms set solely by Company, until all Data Ownership Penalties are paid in full, at which point Company may terminate this Agreement immediately at it sole discretion without notice.
8. Affiliate shall and conspicuously post a Electronic Consent policy to Affiliate Websites (“Affiliate E-Consent Policy”). Affiliate must obtain consent to provide required disclosures, documents and information to their users electronically.
9. SMS Marketing & Autodialers. Company does not permit or authorize any Affiliate, Sub-Affiliate, or other third party to send text messages as part of Affiliates performance under this Agreement. Company will not make payment to any Affiliate that sends text messages to generate Compensable Transactions. Company reserves the right to monitor all Affiliate and Sub-Affiliate activities to ensure compliance with our SMS marketing policies, as described herein and otherwise communicated to Affiliate(s) and Sub-Affiliate(s). Company reserves the right to terminate immediately and without notice any agreement, arrangement, or relationship with any party that violates our SMS marketing policies. All Affiliates and Sub-Affiliates are responsible for complying with all federal, state, and local locals, rules, and regulations governing all of their marketing activities, including but not limited to the Telephone Consumer Protection Act (“TCPA”) and Federal Communications Commission rules implementing the TCPA. Affiliate hereby understands and agrees that the TCPA makes it unlawful to use any automatic telephone dialing system to make any call or send any text message to any telephone number assigned to a cellular telephone service, unless the call is made for emergency purposes or with the prior express consent of the called party. See 47 USC § 227(b)(1)(a); 47 C.F.R. § 1200(a).Affiliate is solely responsible for ensuring that each Sub-Affiliate complies with this Section 9. Affiliate agrees to indemnify, defend, and hold Company harmless against all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to your breach of this Section 9 or arising out of or related to any breach of this Section 9 made by any Sub-Affiliate working with or under you.
10. Suppression Lists.
10.1 Affiliate Use. Regarding any list of suppressed e-mail addresses used by e-mail senders to comply with the CAN-SPAM Act or any other relevant law or regulation (“Suppression List”) generated in connection with, or provided through the Network, Affiliate shall: (i) use such Suppression List, and the individual customer records contained, solely for the suppression purposes set forth, even after any termination of this Agreement; (ii) regularly use such Suppression List to remove all e-mail addresses, telephone numbers, or domains contained from future commercial e-mail mailings; (iii) not use the Suppression List for e-mail, or provide the Suppression List to any third party for the purposes, and not send, or cause to be sent, any commercial e-mail to an e-mail address, telephone number, or domain appearing on any Suppression List; (iv) not use any Suppression List for e-mail appending in any manner; (v) hold any Suppression List provided by Company in trust and confidence and use same solely for the suppression purposes set forth; (vi) not retain a copy of any Suppression List provided by Company following termination of this Agreement, unless such Suppression List is actively being used by Affiliate; and (vii) not disclose any Suppression List provided by Company to any employee, consultant, subcontractor, third party individual, corporation or entity without first ensuring said party’s written agreement to be bound by the terms regarding Suppression Lists. Such agreement shall be immediately forwarded to Company, upon request. Company reserves the right to withhold its consent to such disclosure and may within its sole discretion, accordingly bar the disclosure of all Suppression Lists provided by Company or any Advertiser.
10.2 Affiliate’s Suppression List. If relevant, Affiliate shall upload its own list of suppressed e-mail addresses and telephone numbers to the area of the Site (“Suppression List Upload Section”), if such a Suppression List Upload Section is provided by Company. If the Suppression List Upload Section is provided by Company, and no such e-mail addresses or telephone numbers are supplied by Affiliate, Company may conclude that no such addresses exist. Affiliate further agrees and acknowledges that: (i) Affiliate has downloaded and removed the domains on the Federal Communications Commissions (“FCC’s”) wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from all current data used in any commercial e-mail marketing campaigns with this Agreement; and (ii) all new data that Affiliate acquires, regardless of its source, will be scrubbed against the FCC’s wireless domain names list and that the domain names contained will be removed before sending any commercial e-mail marketing campaigns under this Agreement. Affiliate shall maintain electronic or tangible records evidencing the removal of any email addresses or telephone number from Affiliate’s lists for verification by Company as required or requested.
11. E-mail Marketing.
11.1 Compliance. Attached to this Agreement as Schedule A is Company's Email Publishing Guideline Addendum, which is a material part of this Agreement. Affiliate shall perform under this Agreement, including without limitation, email marketing, in accordance with Schedule A and this Agreement. In the event of any inconsistency between the terms of Schedule A and the terms of this Agreement, the terms of the Schedule A will prevail.
When performing e-mail marketing of any kind relating in any way to your participation in the Network, Affiliate represents and warrants that Affiliate shall transmit commercial e-mail only to those recipients that have given Affiliate affirmative consent to receive e-mail advertising from Affiliate and have not revoked such consent as of the date the commercial e-mail was transmitted to such recipient. Affiliate must (i) not falsify e-mail header and transmission information (including, without limitation, source, destination and routing information); (ii) not use any "subject" or "from" line materially false or misleading; (iii) not seek or obtain unauthorized access to computers to send any and all commercial e-mail; (iv) include within all commercial e-mail sent: (a) a valid street address for both Affiliate and/or any other relevant party, excluding Company; (b) a clear and conspicuous opt-out notice and functional opt-out mechanism provided solely by Company that must remain active for at least thirty (30) days from the date the subject e-mail was transmitted; (c) clear and conspicuous language in the body of the email identifying the message as an advertisement or solicitation by either header or footer information which states the message is an advertisement or solicitation; and (d) process unsubscribe requests within three (3) days of receipt of same; (v) comply with all legal obligations and best practices regarding unsubscribing consumers from the Affiliate’s e-mail mailing lists; and (vi) at least once each week or prior to any email drop, scrub the Affiliate email database against the relevant suppression lists provided by Company.
11.2 CAN-SPAM Act Compliance Policy. You must comply with the Federal CAN-SPAM Act as well was Federal Trade Commission regulations implementing the CAN-SPAM Act and any Federal, state or local laws or regulations governing electronic mail. If you receive a complaint regarding an email you sent under this Agreement from a consumer, regulatory authority, or any other source, you must notify Company within 24 hours after receipt and include a copy and the following information: (i) The web site or other means by which the recipient of email in question agreed to receive such email messages; (ii) The date the recipient provided such consent (and the time if available); and the I.P. address from which the recipient signed up and provided said consent. Company may terminate this Agreement at its sole discretion without notice, if Affiliate violates Company’s CAN-SPAM Act compliance policy as defined herein, and any commission fees pending will be forfeited. All decisions by Company are final. You acknowledge that it is Company's policy to comply with investigations under the CAN-SPAM Act and other applicable laws, rules and regulations. E-mail marketing campaigns by or on behalf of Affiliate for this Agreement may only be undertaken with Company’s prior express written consent. Affiliate represents and warrants that all commercial e-mails sent by or on behalf of Affiliate for this Agreement will: (i) comply with all applicable local, state, and federal laws, rules, regulations and ordinances primarily pertaining to e-mail marketing, and short messaging service, telephone and any other similar telecommunication marketing campaigns with this Agreement. Affiliate is solely responsible for all consumer complaints relating to e-mail campaigns conducted by or on behalf of Affiliate. Affiliate shall respond to all consumer complaints within forty-eight (48) hours of notification and notify Company of all consumer complaints. Besides all other available remedies, Company retains the right to withhold and/or cancel Commission payments unless all such consumer complaints are resolved to Company’s satisfaction. Affiliate acknowledges that any failure to comply with this section may result in the immediate termination of this Agreement and the forfeiture of all rights to any Commissions otherwise owed to Affiliate by Company.
12. Data Security. Affiliate agrees to: (i) protect the security and confidentiality of consumer information with administrative, technical, and physical safeguards; (ii) secure the collection and transmission of consumer information with an encrypted SSL connection; (iii) employ reasonable measures to detect unauthorized access to consumer information; (iv) take steps to ensure third-party providers used by Affiliate safeguard consumer information in a manner at least as stringent as the requirements set forth herein; (v) notify Company immediately upon discovering any actual or suspected misuse of or unauthorized access to consumer information; and (vi) provide reasonable assistance to Company in the investigation and prosecution of any misuse of or unauthorized access to consumer information.
13. Trademarks and Keyword Bidding. Company maintains a list of banned keywords on is affiliate network website. Affiliate shall not and shall ensure that its Sub-Affiliates do not, (a) bid on any of the keywords contained in this list or any variations of these keywords or (b) use the keywords in ad copy during the term of this Agreement. Company may modify this list from time to time in its sole discretion with or without notice to Affiliate.
14. Term. The term of this Agreement will begin upon Company’s acceptance, in Company’s sole discretion, of Affiliate’s Application to join the Network and will end when terminated by either party as set forth herein.
15. Termination. Affiliate may terminate this Agreement, upon three (3) days’ prior written notice to Company. Company may suspend this Agreement and/or terminate Affiliate’s participation in the Network, with or without reasonable notice, in Company’s sole discretion. Grounds for suspension and/or termination shall include, without limitation, failing to adhere to state and federal fair trade practice laws, rules, regulations and ordinances, such as false advertising, trademark infringement, unlawfully modifying ad copy, misrepresentation of affiliation with person/entity, and/or representing an affiliation with a government entity and/or credit union. Upon suspension and/or termination of this Agreement for any reason:(i) Affiliate shall immediately cease to use and remove from the Affiliate Websites all Creative Material and/or other materials provided to Affiliate for affiliate’s participation in the Network; (ii) Affiliate shall immediately cease and desist from transmitting or causing to transmit all e-mails with any Campaign; (iii) all licenses and rights granted to Affiliate for this Agreement shall immediately cease and terminate; and (iv) all Confidential Information (as defined below), Creative Material, or proprietary information of Company in Affiliate’s possession or control must be immediately returned or destroyed. If requested, Affiliate or an authorized officer of Affiliate shall certify in signed writing that all such confidential and/or proprietary information has been returned or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive suspension/termination of the Agreement shall survive and remain in effect under their terms.
16. Representations and Warranties. Affiliate represents and warrants that: (i) this Agreement has been duly and validly executed and delivered by Affiliate and constitutes Affiliate’s legal, valid and binding obligation fully enforceable against it under its terms; (ii) Affiliate’s performance will comply with this Agreement and all laws, rules and regulations including, without limitation, the Gramm-Leach Bliley Act, 15 U.S.C. §§6801-6809, Regulation P, 12 C.F.R. pt. 1016, Regulation Z, 12 C.F.R. 1026, the Electronic Transfer Act, 15 U.S.C §1693, Regulation E, 12 C.F.R. pt. 205, the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§6101-6108, the Telemarketing Sales Rule, 16 C.F.R. pt. 310, the Fair Credit Reporting Act (U.S.C. §1681m(a)), Regulation V, 12 C.F.R. pt. 1022 the Federal Trade Commission Act, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act (42 U.S.C. 227), provisions relating to the National Do Not Call Registry ((16. C.F.R. Part 310) and applicable state Do Not Call List requirements), the Truth-in-Lending Act (15 U.S.C. 1601 et seq.), the Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.), the Fair Debt Collection Practices Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act including but not limited to Section 1031 and 1036, 12 U.S.C §§5531, 5536, Section 5 of the FTC Act, the Home Mortgage Disclosure Act, the Real Estate Settlement Procedures Act, the Secure and Fair Enforcement for Mortgage Licensing (SAFE) Act, the Fair Debt Collection Practices Act, the Federal Communications Act, the California Financial Privacy Act and any other relevant local, state, federal or international laws (collectively, “Laws”); (iii) Affiliate’s performance will not violate or infringe any intellectual property or proprietary right of any third party; (iv) Affiliate understands and agrees that Company will contract with other Company affiliates in direct competition with Affiliate; (v) Affiliate will maintain all documents and records to demonstrate compliance with Laws, and it will provide evidence of such upon reasonable request; (vi) Affiliate will not engage in any SMS, email, phone and similar telecommunication marketing campaigns under this Agreement without the prior express written consent of Company; (vii) if applicable to Affiliate’s participation in the Network, Affiliate also undertakes, warrants and represents that it will comply with all international legislation, including, without limitation, all provincial and federal consumer protection and financial regulation legislation, CASL, the National Do Not Call List Rules (“DNCL”), the Personal Information Protection and Electronic Documents Act (“PIPEDA”) and provincial privacy legislation; (viii) Affiliate has obtained all necessary permits, licenses, or other authorizations required by any law, regulations, or government or regulatory authority for your business as conducted or as conducted during the term of this Agreement; (ix) unless otherwise disclosed to Company, Affiliate is not the subject of any investigation or prosecution by the Federal Trade Commission or any other federal or state governmental or regulatory body or agency for your products or services and, to the best of your knowledge, no such investigation or prosecution is threatened; (x) Affiliate has disclosed the existence of any past federal or state decrees, orders, or consent agreements, and any pending formal or informal government or private investigations or lawsuits involving you and/or the officers, directors, or principals of your company to Company prior to completing your online application via the Affiliate Admin Site; (xi) Affiliate will promptly notify Company if it becomes the subject of any investigation or prosecution by the Federal Trade Commission, Consumer Financial Protection Bureau or any other federal or state governmental or regulatory body or agency; and (xii) Affiliate has security policies in place to ensure the security, integrity, and confidentiality of non-public customer information, protecting it against anticipated threats, and guarding it against unauthorized access or use, including administrative, technical, and physical safeguards used in the collection, distribution, processing, protection, storage, use, transmission, handling, or disposal of non-public customer information.
17. DISCLAIMERS/LIMITATION OF LIABILITY. THE NETWORK, COMPANY WEBSITE, ANY PRODUCTS AND SERVICES OFFERED THROUGH Company OR THE NETWORK, THE OFFERS, THE COMPANY DOMAIN NAME, OUR TRADEMARKS AND LOGOS, AND ALL TECHNOLOGY, SOFTWARE, MATERIALS, DATA, OR IMAGES PROVIDED OR USED BY OR ON BEHALF OF US OR OUR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE “NETWORK OFFERINGS”) ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE NETWORK OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THE NETWORK OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. 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. WE MAY DISCONTINUE THE PROGRAM OR PROGRAM OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF THE PROGRAM OR OTHER OFFERINGS, AT ANY TIME AND FROM TIME TO TIME. WE DO NOT WARRANT IN ANY WAY THAT THE PROGRAM OR OTHER OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS. COMPANY SHALL NOT BE LIABLE FOR ANY ACTS OF ADVERTISERS, CONTENT PROVIDERS, AFFILIATES AND/OR ANY OTHER THIRD PARTIES WHOSE CONTENT OR OFFERS APPEAR ON COMPANY’S WEB SITES AND/OR IS MADE AVAILABLE TO YOU THROUGH OUR SERVICES, NOR THE CONTENTS OF ANY OTHER ADVERTISEMENTS, WEB SITES OR WEB PAGES. IN NO EVENT SHALL COMPANY BE RESPONSIBLE FOR ANY LOST PROFITS OR LOST REVENUE, OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, COMPANY SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM CONDITIONS BEYOND COMPANY’S CONTROL AND IN ANY EVENT, COMPANY’S LIABILITY TO AFFILIATE UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNTS PAID BY COMPANY TO AFFILIATE UNDER THIS AGREEMENT IN THE THREE (3) MONTHS PRIOR TO ANY SUCH CLAIM OF LIABILITY.
18. Confidentiality. As used, “Confidential Information” shall mean: Either party's proprietary information; Information marked or designated by either party as confidential; Information otherwise disclosed by either party in a manner consistent with its confidential nature; The terms and conditions of this Agreement; and Either party's information conveyed to the other party, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by the other party to be treated as confidential. The parties acknowledge that, because of the provision of services under this Agreement, one party (“Disclosing Party”) may disclose Confidential Information to the other party (“Receiving Party”). Therefore, the Receiving Party agrees that it will make no disclosure of the Disclosing Party's Confidential Information without obtaining the Disclosing Party's prior written consent. The Receiving Party will restrict disclosure of Confidential Information to its employee(s), authorized agent(s) and/or independent contractors to whom disclosure is reasonably required, and such employee(s), authorized agent(s) and/or independent contractor(s) shall be explicitly bound by these confidentiality obligations and will use reasonable care, but not less care than they use regarding their own information of like character, to prevent disclosure of any Confidential Information. This Section shall survive any termination of this Agreement for three (3) years thereafter. The Receiving Party agrees that monetary damages for breach of confidentiality under this Section may not be adequate and that the Disclosing Party shall be further entitled to injunctive relief. Notwithstanding anything contained to the contrary, confidentiality provisions shall not apply where the Receiving Party can demonstrate with clear evidence that the information: (a) was previously known to the Receiving Party at the time of disclosure, free of any obligation to keep it confidential; (b) became publicly known through no wrongful act of the Receiving Party; (c) was rightfully received by the Receiving Party from a third party not bound under any confidentiality provisions; or (d) was disclosed under judicial order, requirement of a governmental agency or by operation of law. Notwithstanding the foregoing, Company shall be permitted to disclose information to government regulators during ordinary regulatory inspections, investigations and/or enforcements actions without providing notice to Affiliate.
19. Indemnification. Affiliate (the “Indemnitor”) shall indemnify, defend, and hold harmless Company, its parents, affiliates and/or subsidiaries, and each of their respective officers, directors, partners, members, managers, employees, agents and attorneys (collectively, the “Indemnitee”) against all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs, or settlement costs) arising from or related to: (i) Indemnitor’s participation in the Network; (ii) any breach or alleged breach of this Agreement or any representation or warranty contained by Indemnitor, its Sub-Affiliates, or each of their respective officers, directors, partners, members, managers, employees, agents and attorneys; or (iii) any violation or alleged violation of any law, rule, or regulation by Indemnitor, its Sub-Affiliates, or each of their respective officers, directors, partners, members, managers, employees, agents and attorneys. Indemnitee shall promptly notify the Indemnitor in writing of any such claim (although failure to provide such notice shall not relieve the Indemnitor of its liability or obligation). Indemnitor shall have reasonable control of the defense and settlement of any such claim and the Indemnitee shall cooperate with all reasonable requests of the Indemnitor (at the Indemnitor’s expense) in defending or settling a claim. Subject to the foregoing clause, the Indemnitee may join in the defense or settlement of any such claim with counsel of its choice, at its own expense. All costs and expenses incurred by the Indemnitor in providing the foregoing indemnity shall be paid by the Indemnitor.
20.1 Relationships. Affiliate recognizes that Company has proprietary relationships with affiliates, Advertisers, and other third-parties that participate in the Network. Affiliate agrees not to circumvent Company’s relationship with such affiliates, Advertisers, and third-parties, or otherwise offer, provide, contract for, or perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by affiliates in the Network for any affiliate, Advertiser, or third-party publisher known, or should reasonably be known, by Affiliate to participate in the Network, during the term of this Agreement and for the one (1) year period following termination or expiration of this Agreement. Notwithstanding the foregoing, if Affiliate can show that any such affiliate, Advertiser, or third-party already obtained such services from Affiliate prior to this Agreement, Affiliate shall not be prohibited from continuing such relationship. Affiliate agrees that monetary damages for its breach, or threatened breach, of this 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 fees paid to Affiliate for the prior twelve (12) month period; and/or (iii) all other remedies available to Company at law or in equity.
20.2 Technology. Affiliate shall not modify, circumvent, disable, overburden, impair, or otherwise interfere with any technology or methodology provided by Company with relation to the services performed under this Agreement.
21. Other Provisions.
21.1 Status of the Parties. Company and Affiliate are independent contractors. This Agreement shall not be construed to create any employment, partnership, joint venture, agency, franchise, or sales representative relationship between the Parties. Affiliate shall have no authority to bind Company into any agreement, nor shall Affiliate be an agent of Company.
21.2 Force Majeure. Affiliate agrees that Company will not be liable, or be in breach of this Agreement, for Company’s delay or failure to perform as required under the terms as a result of any causes or conditions beyond Company’s reasonable control which Company cannot overcome through exercising commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, Company will give Affiliate notice and will use commercially reasonable efforts to minimize the impact of any such event.
21.3 Choice of Law/Venue. This Agreement shall be governed by and construed under the laws of the State of Utah, without giving effect to any choice of law or conflict of law rules or provisions. Should a dispute arise between the parties (the “Dispute”), the Dispute shall be referred by each party to an officer/manager of their respective companies with authority to settle the Dispute and shall meet to settle the Dispute. If the officers/managers cannot resolve the Dispute, the Dispute shall be settled by arbitration as provided. Any Dispute must be arbitrated individually, and must not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted by a single arbitrator under the then-current commercial arbitration rules of the American Arbitration Association, provided that the arbitrator shall be chosen from a panel of arbitrators knowledgeable in the law. The decision and award of the arbitrator shall be final and binding, and the award so rendered may be entered in any court having jurisdiction thereof. The arbitration must be conducted in Utah and judgment on the arbitration award may be entered into any court having jurisdiction thereof. If arbitration of a Dispute occurs, each party will pay its own attorney’s fees and other costs associated with arbitrating the Dispute. Nothing contained shall be construed to preclude Company from seeking injunctive relief to protect its rights pending an outcome in arbitration, nor limit any legal remedies available to Company. Company may elect to sue in any court of competent jurisdiction in Utah, in lieu of and despite the alternative dispute resolution provision above. Company shall be entitled to an award of its reasonable costs and expenses (including, without limitation attorneys’ fees), in any action or proceeding in connection with, arising out of, or under the Agreement. Any claim under this Agreement, other than for indemnity and defense must be filed within one (1) year of the time such claim arose, regardless of any law to the contrary, otherwise such claim will be forever barred. To the extent permitted by law, Affiliate agrees that Affiliate will not bring, join or participate in any class action lawsuit on any claim, dispute or controversy that Affiliate may have against Company and its employees, officers, directors, members, representatives and assigns. Affiliate agrees to the entry of injunctive relief to stop such a lawsuit or to remove Affiliate as a participant. Affiliate agrees to pay the attorney's fees and court costs that Company incurs in seeking such relief.
21.4 Assignment. Affiliate may not assign, transfer, or delegate any of its rights or obligations under this Agreement without the prior written consent of Company, and any attempts to do so shall be null and void. Subject to the foregoing limitation, the Agreement will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns.
21.5 Entire Agreement. This Agreement and all IO(s) represent the complete and entire expression of the agreement between the parties, and shall supersede all other agreements, whether written or verbal, between the parties. Any amendment or modification to this Agreement must be in writing signed by both parties.
21.6 Non-Waiver; Severability. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision in this Agreement is determined to be invalid, illegal, or unenforceable under any law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
21.7 Audit Rights. Affiliate shall maintain true and correct books containing a record of all information pertinent to its participation in the Network during the term of this Agreement and for any statute of limitations period. Company or its agent may review, at Company’s expense, during regular business hours and upon not less than five (5) days' written notice, such relevant books and records to verify Affiliate’s compliance with this Agreement and all laws, rules, and regulations. Any such review will be made not more than twice in each calendar year during the term of the Agreement unless a prior audit has disclosed a breach of this Agreement or violation of any laws, rules, or regulations. If Company discovers any breach of this Agreement or violation of any laws, rules, or regulations, then the audit shall be at the sole cost and expense of Affiliate.
Email Publishing Guideline Addendum
Only Our Email Creatives (“Email Ads”) May be Used
- The most up to date Email Ads may be found in the affiliate panel.
- Email Ads may not be modified, altered, or added to in any way.
Only Our Unsubscribe Links May be Used
- Each approved Email Ad supplied by us contains an unsubscribe link. Only our unsubscribe link shall be used with our Email Ads. Our unsubscribe link may not be modified.
- Only one unsubscribe link may appear per Email Ad, which is supplied by us.
- We prohibit any other unsubscribe links that are added to an email with or without affiliate’s knowledge.
- The “rewriting” of our supplied unsubscribe link by affiliate, an email service provider (ESP), or any other third party is prohibited.
Our Suppression List Must be Used
- Prior to any email “drop” the affiliate must use our most up to date suppression list to identify any email recipients in the “drop list” that may be in our suppression list.
- Affiliate may not send email to any email addresses that are in our suppression list. If we detect that Affiliate has sent email to any email address on our suppression list, we reserve the right to suspend Affiliate’s account.
Pre-Drop Approval Must be Made
- Prior to any email drop, Affiliate must send a test email to email@example.com with the subject line “TEST EMAIL FROM AIDXXX” (where XXXX is the affiliate ID number – e.g., AID1234).
- Upon receipt of test email, we will evaluate the content of the test email. We will reply to the email with a response of “APPROVED” or “NOT APPROVED” in the body of the email.
- If Affiliate receives an APPROVED response, the Affiliate may commence the email drop. If Affiliate receives a NOT APPROVED response, the Affiliate is prohibited from sending any email and we encourage the Affiliate to contact their respective Affiliate Manager to resolve the issue.
- You must comply with the Federal CAN-SPAM Act of 2003, as well as Federal Trade Commission (FTC) regulations implementing the CAN-SPAM Act and any other applicable laws, rules and regulations, including without limitation, Federal, state or local laws and regulations governing electronic mail.
- Don’t use false or misleading header information. Your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message.
- Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message.
- You honor all unsubscribe requests, and immediately remove the user from your mailing list, and also cease sharing the user’s address with anybody, even with previously agreed-to partners.
- You may not “repurpose” a subscriber’s email address once they unsubscribe by adding it to a different mailing list, or sharing it with someone else.
- When email recipient unsubscribes, do not sell, share, or use our unsubscribe list for any reason other than to comply with the law.
Violations of the Email Publishing Guideline Addendum
- Any violation of the above guidelines will result in a temporary suspension of Affiliate’s account and a subsequent review and/or termination of this relationship.
- Upon suspension of Affiliate’s account, Affiliate must stop all email activity to any and all of our offers.
- In the case of any violation of the above terms, Affiliate earnings may be withheld and/or forfeited at our sole discretion.