Direct Ad Sales LLC Affiliate Agreement
This Affiliate Agreement (“Agreement”) sets forth the terms and conditions pursuant to which you (“Affiliate” or “you”) may participate in the affiliate network (the “Network”) operated by Direct Ad Sales LLC (“Company,” “we” or “us” and together with Affiliate, the “Parties). The Parties may also enter one or more insertion orders (“IOs”) describing in more detail Affiliate’s participation in the Network. Any services Affiliate performs for Company, whether or not explicitly identified herein or within any IO, is subject to this Agreement. Where the terms of this Agreement and an IO differ, the terms of the IO shall prevail.
Company may modify the terms of this Agreement by posting an updated version on the Site (defined below), with such modification effective the sooner of (a) Affiliate electronically accepting the updated version on the Site or (b) thirty (30) days after Company provides reasonable notice to Affiliate.
This Agreement acts as an application to participate in the Network (“Application”) and this Application is not deemed accepted and the Agreement is not effective until an Insertion Order referencing this Agreement is executed by both parties. Company reserves the right to deny your Application, in its sole discretion, with or without cause. 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 Network upon notice to you.
1. NETWORK. Affiliate agrees to provide the services identified and set forth in this Agreement and any applicable IO (the “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 In General. Company may provide Affiliate with access to advertisements on the Company’s website (“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.
2.2 Use. 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. Any actual or attempted unauthorized alteration, modification, or use of Creative Material will cause the immediate termination of this Agreement, without notice. Company (or its licensors) retain full right, ownership, and interest in all Creative Material, and in any copyright, trademark, or other intellectual property rights in the Creative Material 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 applicable laws, rules, and regulations, Affiliate may display the Form Creative and Banner Ads: (i) as 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 under this Agreement, 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, compliance of 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 the Specifications. You expressly consent that this Agreement and the releases set forth herein shall be given full force and effect according to each and all of their express terms and provisions. You acknowledge these releases and waivers are essential and material terms of this Affiliate Agreement.
4. TRACKING. Company may 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.
5. PAYMENT. Unless an IO states otherwise, payment terms shall be as follows.
5.1 Calculation. Company shall calculate commissions owed to Affiliate under this Agreement (“Commissions”) based on the Compensable Transactions recorded by the Transaction Tracking Codes or by other commercially reasonable means given the nature of the specific Services provided by Affiliate hereunder. 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 (“Commission Data”). If 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 Commission 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 Commission Data needed to calculate such a bi-monthly average is unavailable.
5.2 Disputes. Questions or disputes regarding the Commission Data must be submitted in writing to Company within three (3) business days of the date that the Commission Data is posted on the Site; otherwise, the information contained will be deemed accurate and accepted by Affiliate. Company will investigate and resolve any Commission Data-related questions or disputes in its sole reasonable discretion.
5.3 Earning Commissions. 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, Commission Data, projected Compensable Transactions, and any associated Commissions due to Affiliate shall be final and binding on Affiliate in Company’s reasonable discretion.
5.4 Transaction Validation; Monitoring. Company reserves the right to monitor your activities regarding your participation in the Network. Company reserves the right to evaluate all data received by Affiliate to determine, in its sole reasonable sole discretion, that the data constitutes a “Valid Compensable Transaction.” A “Valid Compensable Transaction” means a transaction by an individual person that: (a) is from an actual consumer, (b) is not from 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, (c) is not fraudulent, as determined by Company in its reasonable discretion, (d) contains submitted information that meets all of Company’s stated criteria from this Agreement or any applicable IO, and (e) is not otherwise in violation of this Agreement.
5.5 Invalid Compensable Transactions. Company shall have no obligation to pay for any Commission Data that it determines, in its sole reasonable discretion, is not a Valid Compensable Transaction (“Invalid Compensable Transaction”). If, after paying a Commission, Company determines that the Commission payment included payment for Invalid Compensable Transactions, Company reserves the right to (a) Receive a refund for the amount paid for any Invalid Compensable Transactions or (b) Reduce or withhold any future payment to Affiliate up to the amount paid for any previous Invalid Compensable Transactions.
5.6 Fraud. 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 its sole reasonable discretion, you will forfeit all unpaid Commissions and this Agreement will be terminated. You acknowledge that you shall be solely responsible for all costs and legal fees resulting from any fraudulent or unlawful activity related to your use of the Network. Company reserves the right to report all known and/or suspected fraudulent or unlawful conduct to interested parties and to make such conduct public. Notwithstanding anything to the contract in this Agreement, you agree not to hold Company liable for any consequences of such reports. You acknowledge that it shall be in Company's sole reasonable discretion to determine whether fraudulent conduct has occurred or is suspected and to whom the conduct may be reported.
5.7 Payment Timing. Unless otherwise specified in an applicable IO, Company shall pay Commissions on a net thirty (30) basis, for Commissions earned during the prior calendar month.
5.8 Payment Threshold. Company reserved the right to only make Commission Payments if the Affiliate account has reached a minimum of Five Hundred Dollars ($500.00) for non-wire payments and One Thousand Dollars ($1,000.00) for payment by bank wire (the “Payment Thresholds”) in accrued Commissions. Affiliate accounts that have accrued a balance below the applicable Payment Threshold shall continue to roll over to the next payment period until an amount equal to or greater than the applicable Payment Threshold has been met. Notwithstanding the foregoing, if Affiliate has accrued less than the applicable 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.
5.9 Payment Information; W9. Company will only pay Affiliate using the payment information provided via the affiliate panel on the Site. If Affiliate does not provide valid payment information to Company within ninety (90) days of a Commission being earned, then Company will have no obligation to pay Affiliate for that Commission. Company may require Affiliate to provide a W-9, or similar tax identification information, as a condition precedent to Affiliate receiving any Commission payments
5.10 Denomination; Taxes; International Payments. 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.
5.11. Payment after Breach by Affiliate. Company shall not be obligated to pay Affiliate for Commissions where, in Company’ sole reasonable 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 its participation in the Network.
5.12. Payment after Termination. 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.
6. SUB-AFFILIATES. 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 Affiliate’s Sub-Affiliates in connection with Affiliate’s use of the Network. A tracking code mechanism must be used which permits Company to distinguish traffic generated from each Sub-Affiliate.
7. DATA OWNERSHIP.
7.1 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.
7.2 Restrictions. 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.
7.3. Data Ownership Violations. 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 this Section 7 (each a "Data Ownership Violation"), Affiliate shall be liable to Company for payment of liquidated damages in the amount of One Thousand Dollars ($1,000.00) for each Data Ownership Violation. 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 its sole discretion without notice.
8. SMS MARKETING & AUTODIALERS. Company does not permit or authorize any Affiliate, Sub-Affiliate, or other third party to send text messages or use any auto-dialer as defined by the TCPA (defined below) as part of Affiliates performance under this Agreement. Affiliate is solely responsible for ensuring that each Sub-Affiliate complies with this Section 8. Affiliate agrees to indemnify, defend, and hold Company and its directors, officers, shareholders, employees, and agents harmless against all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to Affiliate’s or any Sub-Affiliate’s breach of this Section 8.
9. EMAIL MARKETING. If Affiliate engages in any email marketing as part of its participation in the network, it shall fully comply with the terms of the Email Marketing Addendum included with this Agreement as Schedule B. Affiliate agrees to indemnify, defend, and hold Company and its directors, officers, shareholders, employees, and agents harmless against all liability, loss, expenses, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to Affiliate’s or any Sub-Affiliate’s breach of this Section 9 or the Email Publishing Guideline Addendum.
10. TRADEMARK AND KEYWORD BIDDING. Company maintains a list of banned keywords on the Site. 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 notice to Affiliate.
11. 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.
12. 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.
13. 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. Upon 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 as part of any email 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.
14. 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 all applicable laws, rules and regulations including, without limitation the Gramm-Leach Bliley Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission Act, the CAN-SPAM Act, the Telephone Consumer Protection Act, the Truth-in-Lending Act, the Equal Credit Opportunity 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, consents, and records necessary to demonstrate compliance with the 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 its products or services and, to the best of its 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 Affiliate to Company prior to completing your Application for the Network; (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 and procedures in place to ensure the security, integrity, and confidentiality of non-public customer information generated by its performance under this Agreement.
15. DISCLAIMERS; LIMITATION OF LIABILITY. THE NETWORK, SITE, 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 WEBSITES AND/OR IS MADE AVAILABLE TO YOU THROUGH OUR SERVICES, NOR THE CONTENTS OF ANY OTHER ADVERTISEMENTS, WEBSITES 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.
16.1 Definition. As used herein, “Confidential Information” shall mean: (a) Either Party's proprietary information; Information marked or designated by either party as confidential; (b) Information otherwise disclosed by either Party in a manner consistent with its confidential nature; (c) The terms and conditions of this Agreement; and (d) 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.
16.2 Disclosure. 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. Notwithstanding the foregoing, Company shall be permitted to disclose Affiliate’s Confidential Information to government regulators during ordinary regulatory inspections, investigations and/or enforcements actions without providing notice to Affiliate.
16.3 Survival. This Section shall survive any termination of this Agreement and for three (3) years thereafter.
16.4 Injunctive Relief. 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.
17. INDEMNIFICATION. Affiliate (in this section, the “Indemnitor”) shall indemnify, defend, and hold harmless Company, its parents, clients, 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.
18.1 Relationships. Affiliate recognizes that Company has proprietary relationships with affiliates, advertisers, clients and other third parties that participate in the Network. Affiliate agrees not to circumvent Company’s relationship with such affiliates, clients, 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, client or third-party publisher known, or which 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, client 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.
18.2 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.
19. GENERAL PROVISIONS.
19.1 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.
19.2 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.
19.3 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.
19.4 Disputes. 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 below
19.5 Arbitration. Any Dispute not resolved as set forth above shall 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.
19.6 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. Company may assign its rights and obligations under this agreement upon prior written notice to Affiliate. Subject to the foregoing limitations, the Agreement will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns.
19.7 Entire Agreement. This Agreement and all applicable addenda and IOs 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.
19.8 Modification. Company may modify the terms of this Agreement by posting an updated version on the Site, with such modification effective the sooner of (a) Affiliate electronically accepting the updated version on the Site or (b) thirty (30) days after Company provides reasonable notice to Affiliate.
19.9 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.
Direct Ad Sales LLC Affiliate Agreement Data Security Addendum
This Direct Ad Sales LLC Affiliate Agreement Data Security Addendum (“Addendum”) applies to any Affiliate that collects Consumer Data (defined below) for or delivers Consumer Data to Direct Ad Sales LLC (“Company”) pursuant to the Direct Ad Sales LLC Affiliate Agreement (“Principal Agreement”). In case of a conflict between this Addendum and the Principal Agreement, this Addendum will govern. Capitalized terms used but not defined within this Addendum shall have the meaning given in the Principal Agreement.
(a) “Company” means Direct Ad Sales LLC
(b) “Covered Consumer” means any consumer whose Consumer Data is submitted by Affiliate to Company.
(c) “Data Breach” means any security incident if there is a reason to believe Consumer Data has been or may have been accessed by or disclosed to an unauthorized party.
(d) “Disclosure” means disclosure language provided by Company to Affiliate in writing or otherwise Company Approved that is Clearly and Conspicuously displayed or read to a Lead.
(e) “Consumer Data” means PII or Sensitive PII provided by Affiliate to Company pursuant to the Principal Agreement.
(f) “Personally Identifiable Information” or “PII” means information provided to Company by Affiliate, or to which access was provided to Company by or at the direction of Affiliate, that: (i) identifies or can be used to identify a consumer (including names, signatures, addresses, telephone numbers, e-mail addresses and other unique identifiers); or (ii) can be used to authenticate a consumer (including, government-issued identification numbers, passwords or PINs, financial account numbers, credit report information, health data, answers to security questions and other personal identifiers). In case of both subclauses (i) and (ii), PII may include all Sensitive PII. Affiliate’s business contact information is not by itself deemed to be PII.
(g) “Principal Agreement” means an agreement between Affiliate and Company pursuant to which Affiliate delivers Consumer Data to Company.
(h) “Sensitive PII” means (i) a consumer’s government-issued identification number (including social security, driver’s license or other state-issued identified number); (ii) financial account number, credit or debit card number or credit report information; or (iii) health or medical data.
2. CONSUMER DATA RESTRICTIONS. Unless otherwise explicitly approved in writing by Company, all Consumer Data must be: (a) collected within the United States, (b) submitted directly by the consumer associated with the Consumer Data and not by a third party on the consumer’s behalf, (c) submitted directly to Affiliate and not to an affiliate or other third party; and (d) delivered to Company in as close to “real time” as commercially possible, but in no event later than fifteen (15) minutes following collection from the consumer (except in the event of technical issues that are notified to Company). Unless otherwise approved in writing by Company, Affiliate may not resell, redistribute or remarket to any Consumer Data transferred to Company under the Principal Agreement.
3. CONSENT AND DISCLOSURES.
(a) Approved Consents and Disclosures. Prior to the delivery of any Consumer Data to Company, Affiliate must make all of its consents and disclosures on the websites it collects Consumer Data on available to Company for Company to approve.
(b) Modification to Approved Disclosures. Affiliate must submit to Company for approval any proposed material modifications to any previously approved disclosures no later than three (3) business days prior to the proposed launch of such modifications. Affiliate shall timely implement any reasonable edits or modifications to the consents or disclosures requested by Company.
(c) Consent. Affiliate shall ensure that each Covered Consumer has given their prior express written consent to each of the following, and any other consent that may be required by applicable law:
i. Consent to Data Sharing. Each Covered Consumer shall have expressly consented to have their Consumer Data shared with third-party marketing partners of Affiliate and for such third-party marketing partners Company to further share such Consumer Data for the purpose of identifying products or services that may be available to the Covered Consumer.
ii. Consent to be Contacted. Each Covered Consumer shall have provided their prior express written consent as required by all applicable laws, rules or regulations so that Company and Company’s clients and third-party marketing partners may email the Covered Consumer at the email address provided, in each case for marketing purposes.
iii. FCRA Consent to Obtain Credit Report (applicable only for Personal Loans). Each Covered Consumer seeking a Personal Loan shall have provided their written instruction as required under the Fair Credit Reporting Act for lenders in Company’s network clients to obtain the Covered Consumer’s consumer credit report from a credit reporting agency.
iv. E-Consent. Each Covered Consumer shall have expressly consented to receive, use and accept electronic signatures, records, disclosures and communications in accordance with applicable law.
(d) All Consents Clear and Conspicuous. Each consent covered under this addendum shall be “clear and conspicuous” as that term is interpreted under applicable law and best industry practices.
(e) Affirmative Consent. Affiliate shall obtain a Covered Consumers Consent as required herein by ensuring the consumer to either affirmatively check a box to demonstrate the consumer’s affirmative consent.
(f). Recordkeeping. Affiliate will use record keeping systems that can establish that the consents for Covered Consumers can be evidenced under applicable laws. Unless another time frame is specified in an IO, Affiliate will maintain such records, and make such records available to Company upon request, for no less than three (3) years from the date of the collection.
5. INFORMATION SECURITY
(a) Affiliate represents and warrants that it has implemented appropriate administrative, physical and technical safeguards to protect Consumer Data. Such safeguards must be part of a written information security program against which they can be audited.
(b) In assessing the appropriate level of security for Consumer Data, Affiliate shall take account in particular of the risks that are presented by the acquisition and use of the data and from a possible Data Breach.
(b) At a minimum, Affiliate’s safeguards for the protection of Consumer Data must include: (i) limiting access of Consumer Data to employees who have a need to know or otherwise access Consumer Data to enable Affiliate to perform its obligations pursuant to the Principal Agreement; (ii) implementing authentication and access controls within media, applications, operating systems and equipment; (iii) implementing appropriate physical controls to prevent unauthorized physical access to Consumer Data; (iv) implementing and following procedures to add new users, modify access levels of existing users, and removal of users who no longer need access consistent with the principle of “least privilege”; (v) requiring the encryption of Sensitive PII stored by Affiliate; (vi) encrypting Sensitive PII transmitted over public or wireless networks; (vii) taking reasonable measures to ensure that Consumer Data is not stored on any portable removable media; (viii) performing a network-level vulnerability assessment based on recognized industry best practice no less than annually; (ix) setting forth procedures to detect actual and attempted attacks into systems and proactively testing them; (x) providing appropriate privacy and information security training to Affiliate’s employees; (xi) maintaining a documented incident response plan, (xii) only receiving and transferring Consumer Data using appropriate encrypted protocols (e.g., SSL).
(d) The following only applies to the extent Affiliate provides Sensitive PII as part of the Consumer Data:
i. Affiliate shall not log, store or retain Sensitive PII included in Consumer Data and must delete all such Sensitive PII from its systems following delivery to Company;
ii. All transfers of Sensitive PII must take place via secured transmissions;
iii. Affiliate must maintain SSL certificates so that new valid certificates are installed before old ones expire.
iv. Affiliate must regularly test the effectiveness of the key safeguards protecting Sensitive PII.
vi. Affiliate shall not use any Sensitive PII in a development or test environment.
6. DATA BREACH PROCEDURES. Affiliate will notify Company of a Data Breach as soon as practicable, but no later than forty-eight (48) hours after Affiliate becomes aware of it, by e-mailing Company with a read receipt at email@example.com, with a copy by e-mail to Affiliate’s primary business contact within Company. Affiliate shall reimburse Company for actual reasonable costs incurred by Company in responding to, and mitigating damages caused by, any Data Breach, including all costs of notice and/or remediation.
(a) If Affiliate uses any vendors to perform its obligations under the Principal Agreement (each a “Vendor”), it may only do so in accordance with this section and any restrictions in the Principal Agreement.
(b) With respect to each vendor, Affiliate shall:
i. before the Vendor first has any access to any Consumer Data, carry out adequate due diligence to ensure that the Vendor is capable of providing the level of protection for Consumer Data required by the Principal Agreement and as required of Affiliate by this Addendum;
ii. ensure that the arrangement with Vendor is governed by a written contract including terms which offer at least the same level of protection for Consumer Data as those set out in this Addendum;
iii. provide to Company for review such copies of the Affiliate’s agreements the Vendor (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum) as Company may reasonable request from time to time.
iv. Affiliate shall ensure that each Vendor performs all relevant obligations under this Addendum as they apply to the use of Consumer Data carried out by that Vendor, as if it were party to this Addendum in place of Affiliate.
Email Marketing Addendum
This Direct Ad Sales LLC Affiliate Agreement Email Marketing Addendum (“Addendum”) applies to any Affiliate that sends emails pursuant to its performance under the Direct Ad Sales LLC Affiliate Agreement (“Principal Agreement”). In case of a conflict between this Addendum and the Principal Agreement, this Addendum will prevail. Capitalized terms not defined within this Addendum shall have the meaning given in the Principal Agreement.
1. EMAIL MARKETING CAMPAIGNS
1.1. Campaigns. Affiliate may only conduct email marketing campaigns (“Campaigns”) as part of its participation in the Network if authorized by a properly executed IO.
1.2 Direct Access. Affiliate shall only execute Campaigns as part of its participation in the Network using email data to which Affiliate has Direct Access. “Direct Access” means data that Affiliate owns or has been granted custody of under a list management agreement (or similar) and includes prompt access to all properly obtained consents, records and unsubscribe requests for all managed email addresses. Affiliate represents and warrants that it has the ability to manage directly all unsubscribe requests.
1.3 Timing. Affiliate shall not email more than one Network offer to each email address within Affiliate’s then current managed mailing list every seven (7) calendar days, unless otherwise approved in writing by Affiliate.
2. CONSUMER CONSENT.
2.1 Email Consent. All email addresses used for Campaigns must have been collected by Affiliate with the applicable express written Consent and such Consent shall not have been withdrawn. If a complaint is made to Company contending that an email address owner has not given its Consent or has withdrawn its Consent, Affiliate will provide, in a timely manner, relevant information to Company, as reasonably requested, to prove that the complaining owner’s Consent was obtained and not withdrawn. Affiliate agrees that it shall not send any emails to email recipients whose email address was obtained through any form of incentivization.
3. EMAIL CREATIVE.
3.1 Only Email Creative supplied by Company on the affiliate panel on the Site may be used.
3.2 Email Creative may not be modified, altered or added to in any way.
3.3 Emails shall use only from lines, and subject lines provided or approved by Company in writing.
3.4 Affiliate shall not remove or alter subject lines or from lines provided by Company.
4. UNSUBSCRIBE LINKS
4.1 Each approved Email Creative supplied by us contains an unsubscribe link. Only our unsubscribe link shall be used with our Email Creative. Our unsubscribe link may not be modified.
4.2 Only one unsubscribe link may appear per email. No other unsubscribe links may be added to an email.
4.3 The “rewriting” of our supplied unsubscribe link by affiliate, an email service provider (ESP), or any other third party is prohibited.
5. PRE-DROP APPROVAL. Prior to any email drop, Affiliate must send a test email to firstname.lastname@example.org with the subject line “TEST EMAIL FROM AIDXXX” (where XXXX is the affiliate ID number – e.g., AID1234). Upon receipt of test email, Company will evaluate the content of the test email and 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 affiliate manager to resolve the issue.
6. SUPPRESSION LISTS.
6.1. Company shall make available to Affiliate the suppression list consisting of email addresses of consumers who have requested to be unsubscribed from emails from Company or Company’s Clients (“Suppression List”).
6.2 Affiliate warrants that it will not send any e-mail pursuant to the Agreement or on behalf of Company or its Clients to any of the e-mail addresses set forth on the Suppression List.
6.3 Affiliate shall use the most current Suppression List provided to obtain unsubscribe information and shall remove emails on the Suppression List within twenty-four (24) hours prior to any email drop.
6.4 Regarding any 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) 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; (iii) hold any Suppression List provided by Company in trust and confidence and use same solely for the suppression purposes set forth herein; (iv) 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 (v) otherwise treat the Suppression list as Confidential Information under the Agreement.
6.5 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.
7. UNSUBSCRIBE REQUESTS. If relevant, Affiliate shall promptly honor all consumer requests to unsubscribe from its list(s). All e-mail addresses collected must be from sites that honor consumer requests in a timely manner and in accordance with applicable laws. Affiliate agrees to scrub its address list against its most recent list of consumers who have requested to be removed from e-mail solicitation lists prior to sending marketing emails. Affiliate further warrants that it will not send email to, or sell, lease, exchange, or otherwise transfer or release the email address of any consumer known to have made a request to be unsubscribed from Affiliate’s list or any lists under management of Affiliate.
8. ADDITIONAL LEGAL COMPLIANCE
8.1 Affiliate shall comply with all applicable laws, rules and regulations including but not limited to, CAN-SPAM, California Business & Professions Code Section 17529.1 et seq., the Federal Trade Commission Act, and any other applicable laws, rules and regulations. This also includes all state laws governing unsolicited commercial emails.
8.2. Affiliate is prohibited from using “subject” lines that contain “Re:…”, “Fwd:…” or other similar short-hands that obscure the email as an original advertising communication from the Affiliate.
8.3. Affiliate shall not send email messages from accounts obtained using scripts or other automated means of registering for multiple email accounts.
8.4. Affiliate shall immediately stop sending any email campaigns upon written notice from Company.
8.5 Affiliate shall also: (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.
9. COMPLAINTS. 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 website 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. You acknowledge that it is Company's policy to comply with investigations under the CAN-SPAM Act and other applicable laws, rules and regulations. 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 receipt and notify Company of all consumer complaints as described above.