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AFFILIATE AGREEMENT

Terms & Conditions 

The following are the terms and conditions governing your (hereinafter “Affiliate”) relationship with Greyrock Digital Ventures, LLC (hereinafter “Company”) and the use of the LeadDesktop platform services (hereinafter “Platform”).

 

Affiliate agrees to use the Platform and any additional services offered by Company only in accordance with these Terms and Conditions and the posted Acceptable Use Policy and Privacy Policy.  Company reserves the right to make changes to the Platform and these Terms and Conditions at any time in its sole discretion.  Amended versions of this Agreement will be effective upon posting on the Platform website.  Affiliate’s continued use of the Platform and Services shall constitute Affiliate’s consent to such modification.

 

1. Approval of Affiliate.

Registration with Company shall not confer any right on Affiliate to market or promote any Programs (as defined under section 2) made available by Company on the Platform website on behalf of its clients (the “Advertisers”).  Participation by Affiliate in the Platform website and Services is subject to review and approval by Company.  Company must approve all prospective Affiliates before they can become an Affiliate.  Company reserves the right to withhold or refuse approval for any reason or for no reason.  Once approved, Affiliate’s continued right to participate is conditioned upon Affiliate’s ongoing compliance with the terms and conditions of this Agreement and the Company’s posted policies.  Failure of the Affiliate to observe the terms and conditions of this Agreement, the privacy policy or acceptable use policy posted on Company’s Website will disqualify Affiliate from participating in the Program.  Affiliate shall promptly notify Company in the event of a material change in its business practices or strategy.  Company may withdraw approval, at any time for any reason.

 

            1.1. Minimum Media Requirements.

All Affiliate’s websites, affiliated websites and e-mail distribution lists (collectively the “Media”) must continually meet the following criteria, at a minimum:

 

     • All Affiliates that wish to send advertisements via email, must have the consent of the consumer to send such email and each Affiliate shall maintain records evidencing such consent including, without limitation: (a) Member opt-in date; (b) Registration source; (c) First name; (d) Last name; (e) Mailing Address; (f) Email address; (g) Privacy Policy of Source Site; (h) Any other information collected; and will supply such records to Company within one (1) business day of request therefore;

     • Unless otherwise approved in writing by Company, Affiliates may not offer incentives to users as means to enhance the performance of any Program (as defined below); incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.;

     • Affiliate’s websites must be fully functional at all levels and in compliance with state and federal rules, regulations and statutes pertaining to Internet marketing;

     • Affiliate’s policies must be compliant with state and federal laws and regulations including but not limited to the CAN-SPAM Act of 2003;

     • spawning process pop-ups are prohibited; and

     • such other criteria as Company may from time to time determine, in its sole discretion.

     • Affiliates cannot drop traffic on Fridays for the weekend unless approved in advance, in writing (email) by Company.

 

            1.2. Affiliate Website Content.

The content of Affiliate’s Media shall be subject to Company’s subjective approval and must comply with all applicable laws and regulations (including all laws respecting intellectual property rights) and, in any event, shall not include the following:  (a) Pornographic material, including any material appealing to the prurient interests; (b) Racial, ethnic, political, hate-mongering or otherwise objectionable content; (c) Investment, money-making opportunities or advice not permitted under law; (d) Gratuitous violence or profanity; (e) Material that defames, misrepresents, abuses, or threatens physical harm to others; (f) Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.; (g) Software Pirating; (h) Hacking or Phreaking; (i) Obscenity and any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic; (j) infringement or violations of the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party; (k) Any illegal activity whatsoever.

 

2. Use of the Platform.

 

            2.1.            The Platform allows Company to post offers of advertising programs sponsored by Company or its affiliates on the system ("Program(s)").  The Program(s) will specify the amount and terms under which Affiliate will receive payment when the applicable Program's requirements are fulfilled. Compensation is derived from a specified event ("Event") identified in a Program, such as such as impressions, clicks, calls, leads and conversions.  If Affiliate accepts a Program, Affiliate agrees to place that Program's advertising creative (including the subject and from lines, the Advertiser CAN-SPAM disclosures and any other disclosures provided therein) ("Ad") on Affiliate’s Media.  Affiliate shall display the Ad exactly as it appears on the Platform and will not alter it in any way.  Failure to adhere to this requirement may, in addition to all other remedies available to Company, result in termination of Affiliate and loss of commission.  Company may change a Program at any time, upon reasonable advance written notice to Affiliate.  Company is responsible for displaying and administering all active Programs and tracking the payments owed.

 

            2.2.            Special Rules Governing Email Campaigns. 

 

            2.2 (a).  In the event that Company or Affiliate receives a complaint from any recipient of a Program transmitted by Affiliate, upon Company’s request, Affiliate will immediately provide Company with appropriate records verifying that recipient’s consent to receive email transmissions from Affiliate.  Such records include, but may not necessarily be limited to, the Internet address of Affiliate’s opt-in/opt-out website, the date of the recipient’s action, and Affiliate’s privacy policy.

 

            2.2 (b).  Unless such email is pre-approved by Company and its advertiser, Affiliate may not use an advertiser’s name (including any abbreviation thereof) in the originating email address line or subject line of any email transmission. 

 

            2.2 (c).  No Misleading Headers or Other Masking of Email Origin.  An email may not include falsification of header information, false registrations for domain accounts, email accounts or IP addresses used in connection with email ads, and retransmissions of an email ad for the purpose of concealing its origin.  Affiliate and/or their email delivery providers are prohibited from relaying or retransmitting emails from a computer or computer network that was accessed without authorization.

 

            2.2 (d).  Subject lines may not be false or misleading such that it would likely mislead a reasonable recipient as to the contents or subject matter of the message.  Affiliate may only use approved Subject Lines available provided by Company or Subject Lines for which Affiliate has documented approval from Company. 

The subject line must accurately represent the product or service depicted within the email.

 

            2.2 (e).  Email Ads Must Contain Clear Identification.  Messages containing advertisements or solicitations must identify themselves as such, and do so by “clear and conspicuous” means.  Further, the sender must identify itself as the initiator and sender of the email including company name, email and physical address.

 

            2.2 (f).  Effective Method of Opting Out of Future Mailings.  Senders of commercial emails must give recipients an effective means of requesting not to receive future email ads from that sender.  At a minimum, the Affiliate must give the recipient the ability to send a reply message to unsubscribe, opt-out via postal letter and provide a functioning unsubscribe link that must remain in operation for thirty (30) days from the date of the original email transmission and within the body of the email, include a valid physical street address associated with the sending party that received the opt-in. Affiliate must provide opt-out notice by consumer to Company upon request.

 

            2.2 (g).  All unsubscribe requests must be adhered to within ten (10) days from their receipt.  You may not sell or transfer an email address once someone has opted out of receiving future communications, whether from only the advertiser or globally.

 

            2.2 (h).  No Random or Invalid Generation of Email Addresses.  Affiliate is responsible for knowing the source of its email list.  Email addresses may not be obtained by the use of a program for random generation of email addresses, and/or “scraping” websites or online services.  Affiliate must have full opt-in data for all recipients in its database.

 

            2.2 (i).  Use only email addresses with the name of the sending party that received the opt-in, and not use the non-sending party’s name in any mail-from or reply-to email addresses (e.g. “from” lines need to accurately identify the sender of the email); and reply-to address must be a functioning email address where sender can be contacted.

 

            2.2 (j).  Affiliate agrees that prior to mailing any campaign, it will download the most recent suppression file(s) for any particular campaign and, for that campaign, will suppress all email addresses within its database that are found on such list.  In addition, for any campaigns that include a domain suppression list, Affiliate agrees that prior to mailing the campaign, it will download the most recent domain suppression list for any particular campaign and, for that campaign, will suppress all domains within its database found on such list. If collecting your own opt-out list, Affiliate will provide to Company regularly for the purpose of updating Company's Global Suppression list.  Affiliate agrees that it will download and remove the domains located on the FCC's wireless domain names list http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from all current data used in all mailings. Affiliate further warrants that any new data that it acquires, regardless of its source, will be run against the FCC's wireless domain names list and that domain names contained therein will be removed before sending any mailings.

 

        Providing Traffic.

            2.3.            Company offers advertising Programs sponsored by Company or its affiliates (Program). The Program(s) will specify the amount and terms under which Affiliate will receive payment when the applicable Program's requirements are fulfilled. Compensation is derived from a specified event ("Event") identified in a Program, such as clicks, click-through, sales, registrations, impressions and leads.  If Affiliate accepts a Program, Affiliate agrees to place that Program's advertising creative (including the subject and from lines, the Advertiser CAN-SPAM disclosures and any other disclosures provided therein) ("Ad") on Affiliate’s Media.  Affiliate shall display the Ad exactly as it appears on the Platform and will not alter it in any way.  Affiliate shall maintain TCPA compliance for any offers hosted by Affiliate, and shall provide proof of such TCPA compliance through Trusted Form. Failure to adhere to this requirement may, in addition to all other remedies available to Company, result in termination of Affiliate and loss of commission.  Company may change a Program at any time, upon reasonable advance written notice to Affiliate.  Company is responsible for displaying and administering all active Programs and tracking the payments owed.  Affiliate will not drop (launch) media on any Friday, unless approved in writing by Company in advance of such media drop. Any leads/clicks from Friday media drops without written permission shall be considered invalid.

 

3. Monitoring.

Company may monitor, on its own or with the assistance of third parties, the Affiliates for compliance with these Terms and Conditions, without limiting the generality of the foregoing:

 

            3.1.            All Affiliates monitored by Company (or a third party retained by Company for such purposes) for compliance with applicable legal requirements, with respect to honoring unsubscribe requests.  If the monitoring is done by a third party, such third party will share all such information with Company.

 

            3.2.            Each unsubscribe list furnished to a Affiliate shall be separately and technologically identified so that Company will be able to ensure that each Affiliate is not disseminating or otherwise using the unsubscribe list other than in a manner required by applicable law.  Affiliate must not send further emails to names already on or newly added to the unsubscribe list.  Affiliate must scrub against unsubscribe list at least every three (3) days.

 

4. Services and License.

Company grants Affiliate a revocable, non-transferable, non-sub licensable, non-exclusive limited license to use the Platform (including any Ads posted thereon) and any data, reports, information or analyses arising out of such use (the “Platform Data”) solely for the purpose of marketing or promoting the Programs hereunder and subject to these Terms and Conditions and the applicable Program Terms.  If a Affiliate also maintains its own network of Affiliates, it is authorized to distribute company’s offers to sub-Affiliates provided that Affiliate shall ensure and require that all sub-Affiliates comply with the material terms of this Agreement and further provided that such sub-Affiliate has represented to Affiliate that: (i) the content of its site(s) are not libelous, defamatory, infringing, pornographic, or offensive to the general public; (ii) all right, title and interest in the Offer is exclusively owned by Company and that sub-Affiliate has no right other than the limited right to display the Offer and Creative as sublicensed by Affiliate; and (iii) such sub-Affiliate will not modify or alter the Offer or Creative in any manner.  If a Affiliate or sub-Affiliate fails to adhere to the foregoing requirement, in addition to any other remedies available to Company, Affiliate shall forfeit its rights to any amounts owed by Company to Affiliate.  Affiliate acknowledges and agrees that Affiliate does not have, nor will it claim any right, title or interest in the Platform software, applications, data, methods of doing business or any elements thereof, or any content provided on the Platform (including the Ads).  Affiliate may only access the Platform via web browser, e-mail or in a manner approved by Company.  Affiliate will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Platform tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service.  In addition, Affiliate acknowledges that all non-public information, data and reports received from Company hereunder or as part of the services hereunder is proprietary to and owned by Company.  If instructed to do so by Company and/or if Affiliate shall be terminated by Company, Affiliate will immediately destroy and discontinue the use of any Company data, including Platform Data, and any other material owned by Company or the Advertisers.

 

            4.1.            Links.  Affiliate agrees to use the Links in the exact form delivered to Affiliate.  Affiliate agrees not to modify, alter, delete, or adapt the Links in any manner without Company’s written approval.  Links must be served from Company server.  Affiliate shall not take any actions to impede the action of or to disable any such links.  Affiliate agrees, if requested by Company, to modify or alter Links or Tracking devices in the manner requested by Company.  Affiliate further agrees that it shall in no event modify or interfere with Tracking devices unless specifically instructed to do so by Company in accordance with the previous sentence.

 

            4.2.            Ownership. Company owns all rights, title, and interest to Links and user data collected and derived through the activities countenanced pursuant to this Agreement.  Company may choose to imbed certain data mining tools within Links from time to time (“Data Miners”).  Any data derived by any such Data Miner shall be the sole property of Company.  Company may, from time to time, opt to share data derived from Data Miners with Affiliate to help Affiliate optimize the quality of leads generated from Affiliate’s activities or to otherwise improve the quality, functionality and mutual profitability of the activities of the parties under this Agreement.  If Company does share data derived from Data Miners with Affiliate, Affiliate agrees that this data will be used solely by Affiliate for the purposes for which it is provided to Affiliate and will not be shared by Affiliate with any other third party or entity without the written approval of Company.  Should Company choose to provide advertising creative content, web design services or other web content of any type (“Web Content”) to Affiliate, Affiliate shall use such Web Content:  (i) in exactly the form that it is delivered to the Affiliate by Company without modification unless approved by us in writing; (ii) only in the manner expressly permitted by Company in writing and only until Company shall request that Affiliate discontinue its use of such advertising creative, at which time Affiliate shall discontinue such use within two (2) business days of being requested by Company to do so.

 

            4.3.            Confidential Information. Each party agrees to use the other party's Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party's Confidential Information to any third-party, unless: (i) any disclosure is necessary and permitted in connection with the receiving party's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (ii) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (iii) any disclosure is made with the consent of the disclosing party.  For the purposes of this Agreement, “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, Advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services.  Notwithstanding the foregoing, Affiliate agrees that Company may divulge its personal and/or otherwise Confidential Information to an Advertiser, agency, legal or regulatory authority, person or entity relating to investigations, claims or actions that Affiliate has violated this Agreement or any applicable law or regulation.  Neither party may divulge Confidential Information to a government entity unless and until notice is provided to other non-disclosing party in sufficient time to seek injunctive relief or protective order from the appropriate legal institution. 

 

5. Non-Solicitation.

Affiliate agrees that neither Affiliate nor any sub-Affiliates will approach or attempt to engage in a contract with any of Company’s clients (each such client, individually a “Client” and all such clients, collectively “Clients”, and, and/or any Client of any Reseller, Broker, or Intermediary, directly or indirectly via a Client’s Ad agency, broker or any other person or entity.  Affiliate will proactively notify Company in writing within 72 hours (3 days) of any inquiries received from, or contact made with Advertiser or intermediary of Advertiser, regarding any advertising campaign, to aid Affiliate in its efforts to comply with the non-solicitation provisions of this Agreement.  Because Company will be irreparably harmed by Affiliate’s conduct, and because the true extent of such harm will be impossible to quantify, monetary damages will not be an adequate remedy for any such conduct.  Affiliate agrees that Company shall be entitled to injunctive relief precluding Affiliate from taking or continuing any action or conduct in violation of this provision, to be issued by any court of competent jurisdiction upon a showing of any such violation by Affiliate without posting bond or required demonstration of monetary damages.  Such injunctive relief is in addition to and not exclusive of all other rights and remedies available to Company.  The ability to seek and obtain injunctive relief is a bargained for provision of this Agreement.

 

6. Fraud.

            6.1.            Monitor and Inactivation.  Company actively monitors traffic for fraud.  If fraud is detected, Affiliate’s account will be made inactive pending further investigation.  Fraud traffic includes but is not limited to, click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of Company; ONLY click or lead generation programs generating clicks or leads with no indication by site traffic that it can sustain the clicks or leads reported; fraudulent leads as determined and reported by Advertisers; used any incentives to procure clicks or leads; provided leads obtained other than through intended consumer action without prior written approval of Company.  (For instance, use of phone books, or similar such compilations of personal data, to complete lead generation forms shall be considered fraudulent behavior.); use of fake redirects, automated software, and/or other fraudulent mechanisms to generate Events from the Programs. If Affiliate fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre- population of forms or other methods or mechanisms not approved by Company or use of sites in co-registration campaigns that have not been approved by Advertiser), as determined solely by Company, Affiliate will forfeit its entire commission for all programs and its account will be terminated.  In addition, in the event that Affiliate has already received payment for fraudulent activities, Company reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Affiliate.

 

            6.2.            Adware and Spyware prohibited.  Affiliate shall at no time, engage in, disseminate, promote or otherwise distribute, any Company Affiliate marketing campaign through the use of contextual media, specifically downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable).  This prohibition applies equally to Affiliate and any of its business Affiliates, Affiliates, etc.  In the event that Company discovers that Affiliate is engaging in, disseminating, promoting or otherwise distributing, any Company Affiliate-related contextual marketing campaign which results in a violation of the Agreement, then Company may, in its sole discretion, terminate this Agreement and immediately halt any and all Company Affiliate-related contextual marketing campaigns, making payment only on legitimate earnings of Affiliate as accrued through the date and time of termination.  Affiliate agrees and acknowledges that if it violates its obligations under this Addendum and/or the Agreement, Company shall be entitled to seek: (i) injunctive relief without the requirement of posting a bond; and/or (ii) any and all other remedies that Company may have at law or in equity.

 

7. Payment.

Affiliate will be paid per the terms of each Program. Unless otherwise noted on page one of the Insertion Order, Company shall pay any amounts due approximately thirty (30) days after the end of each month, less any taxes required to be withheld under applicable law, provided that Company may, in its discretion, withhold payments until such time as the Advertiser has paid Company for any Program.  In addition to any other remedies that may be available to Company, in the event of any breaches by Affiliate of these Terms and Conditions, Affiliate shall forfeit its rights to any amounts owed by Company to Affiliate.  Company reserves the right to reduce any payments owed to Affiliate as a consequence of any offsets taken by Advertisers for invalid leads, fraudulent Events, technical errors, tracking discrepancies and the like.  Company shall compile, calculate and electronically deliver data required to determine Affiliate’s billing and compensation via the Platform.  Any questions or disputes regarding the data or payout provided by Company needs to be submitted in writing within five (5) business days of receipt, otherwise the information will be deemed accurate and accepted as such by Affiliate.  Company will not pay for any Events that occur before a Program is initiated, or after a Program terminates.  Invoices submitted to Company and payments made to Affiliate shall be based on the Events as reported by Company.  Company will not be responsible to compensate Affiliate for Events that are not recorded due to Affiliate’s error.  Company will require an Affiliate to provide a W-9, and similar such information, as a condition to payment.ition to payment.

 

8. Special Terms for Co-Registration Campaigns.

Co-registration campaigns are globally prohibited, unless otherwise contracted. With respect to contracted Affiliates who are running co-registration campaigns to generate leads ("Leads") for Advertisers, the following specific terms and conditions shall apply:

 

            8.1.            Approval of Affiliate’s Site(s). No Program may go live until such time as Company, and if necessary the applicable Advertiser, have approved, in writing, (a) all sites to be used by the Affiliate for each Program and (b) the transfer of leads in the form of either a successful post for real-time transfer or approval of the test file for batch or FTP files.

 

            8.2.            Affiliate’s Privacy Policy. Affiliate represents and warrants that Affiliate’s privacy policy permits the collection, use and transfer of data as contemplated hereby and the Program Terms.

 

            8.3.            Scrubbing Leads. Scrubbing Leads. Each Program shall have its own criteria for determining the validity of a lead (the “Lead Requirements”). Company may use third party data, and other manual and automated processes, to detect, track, reject or scrub Invalid Leads, many of which are determined on a real-time basis.  Invalid leads include, but not limited to, any lead that contains fake, fictitious, inaccurate and invalid data, or that otherwise doesn't meet the Company's Lead Requirements.  Company shall only pay for leads deemed valid by this process, less lead returns submitted by Advertisers and approved by Company.  At the sole discretion of Company, leads may also subsequently be deemed invalid for: (i) fraudulent activities including but not limited to changing approved lead generation forms, publishing an offer on an unapproved site, utilizing automated software or manpower to complete co-registration forms, incentivization of co-registration forms and/or a Affiliate's inability to provide the user IP and time/date stamp for each lead; or (ii) non-compliance with co-registration programs including but not limited to exceeding lead caps as communicated by a Company Manager and/or going live with a co-registration offer prior to written approval of a creative and data transfer by an Company Manager.

            8.4.            Use of Leads. Affiliate hereby acknowledges that the collection of the Leads is being done solely for the benefit of Company or its Advertiser.  Therefore, other than providing the Leads to Company for delivery to the Advertisers, Affiliate may not use, sell, transfer or assign or attempt to monetize the Leads for its own purposes.  All right, title and interest in the Leads shall vest exclusively in Company or its Advertisers.

 

            8.5.            No Alteration of Approved Forms or Creative(s). Affiliate may not, in any way, alter or modify the   Forms or Creative materials, without the prior written consent of Company.

 

9. Term and Termination.

Either party may terminate this Agreement on three (3) business days’ advance notice to the other party. In the event either party in good faith believes that the other party is in violation of applicable law or in breach of any terms of this Agreement, such party shall have right to terminate the Agreement immediately upon written notice to the other party.  Company further reserves the right to terminate this Agreement and Affiliate’s participation in the services hereunder without prior notice to Affiliate. 

 

Termination notice will be provided via e-mail and will be effective immediately, meaning, among other things, that Affiliate must immediately cease all advertising activities.  All monies then due to Affiliate will be paid during the next billing cycle.  The representations, warranties and obligations contained in paragraphs, 10, 13, and 14 shall remain in full force and effect after termination of this Agreement.  In addition, all payment obligations accruing prior to the termination date shall survive until fully performed.

 

10. Representations and Warranties/Covenants.

            10.1.            Mutual Representations. Each party represents and warrants that: (i) it has the right to enter into and fully perform the services contemplated herein, consistent with these Terms and Conditions; (ii) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with these Terms and Conditions; and (iii) at all times while any Program remains in effect, it shall comply with all applicable laws and regulations.  Neither party makes any guarantee, representations nor warranties express or implied, as to the level of consumer response that will result from the Programs.

 

            10.2.            Affiliate Representations. Affiliate represents and warrants as follows:

•            Affiliate’s Media is currently in compliance with all applicable State and Federal laws (including without limitation the CAN-SPAM Act, effective January 1, 2004 (the "CAN-SPAM Act");

•            Affiliate’s Media does not contain or promote, nor links to another website that contains or promotes, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content, product, service or activity;

•            Affiliate’s database consists of only permission based opted-in e-mail addresses; and

•            Affiliate owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on Affiliate’s Media.

•            If Affiliate is providing leads in a "Host & Post" data delivery method, Affiliate will maintain TCPA compliance, the proof of which shall be documented by Trusted Form http://trustedform.com/ , or comparable methodology, if approved in writing by Company.

 

            10.3.            Affiliate Covenants. Affiliate covenants that it shall not:

•            Send unsolicited commercial e-mail (SPAM) (i.e., it will send commercial e-mails in connection with any Programs to only those e-mail addresses that have consented to receive such commercial e-mails);

•            Post any specific messages to newsgroups, chat rooms, bulletin boards or any other places regarding any Programs unless expressly approved in writing from Company;

•            Promote via website or link to websites containing any pornographic, racial, ethnic, political, software pirating or hacking, hate-mongering, or otherwise objectionable or illegal content, or any other content referenced in paragraph 1.2;

•            Offer the Program in any manner other than that which is specifically contemplated herein;

•            Engage in any kind of deceitful, misleading or other unfair trade practices, or fraudulent or other unlawful practice when marketing any Programs; and

•            While an approved Affiliate and for twelve (12) months thereafter, participate in any performance based advertising relationship with any Advertiser within Company’s network, unless a previously existing business relationship between Advertiser and Affiliate can be demonstrated to the reasonable satisfaction of Company.  In this connection, both parties agree and acknowledge that if Affiliate violates its obligations hereunder, Company will be entitled to damages in the amount of forty-five percent (45%) of the gross revenues resulting from sales conducted by Advertiser through the advertising or marketing efforts of Affiliate; 

•            Affiliate shall at no time, engage in, disseminate, promote or otherwise distribute, any Company marketing campaign through the use of contextual media, specifically downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable).  This prohibition applies equally to Affiliate and any of its business affiliates, Affiliates, etc.  In the event that Company discovers that Affiliate is engaging in, disseminating, promoting or otherwise distributing, any Company Affiliate-related marketing campaign which results in a violation of the Agreement, then Company may, in its sole discretion, terminate this Agreement and immediately halt any and all Company Affiliate-related contextual marketing campaigns, making payment only on legitimate earnings of Affiliate as accrued through the date and time of termination. Affiliate agrees and acknowledges that if it violates its obligations under this Addendum and/or the Agreement, Company shall be entitled to seek: (i) injunctive relief without the requirement of posting a bond; and/or (ii) any and all other remedies that Company may have at law or in equity;

•            Use the Site in any manner other than that which is specifically contemplated herein;

•            Place an Offer with inappropriate content, which includes, but is not limited to, content that: (i) promotes the use of alcohol, tobacco or illegal substances, nudity, sex, pornography, adult-oriented content such as phone sex or escort services, expletives or inappropriate language; (ii) promotes gratuitous violence, abuses or threatens physical harm; (iii) promotes illegal or unethical activity, racism, hate, "spam," mail fraud, gambling, sweepstakes, pyramid schemes, investment and money-making opportunities or illegal advice; (iv) promotes use of illegal substances or activities such, how to build a bomb, counterfeiting money and software pirating (e.g., Warez, Hotline); (v) is libelous, defamatory, infringing, false, misleading or contrary to public policy; (vi) is otherwise prohibited by Federal or state law; and/or (vii) may bring Company and/or its associated Advertisers negative publicity;

•            Engage in any spoofing, redirecting or trafficking from adult-related websites in an effort to gain traffic or websites that are point, lottery or rewards based and encourage users to click on Offers or use Offers to generate revenue for users to win points, get rewards, or other incentives are prohibited unless expressly approved in writing from Company;

•            Violate any third party terms and conditions, which includes, but is not limited to (i) unauthorized use of a third party web site for commercial gain or post bulletins to non-owned account;

•            Use deceptive or misleading practices such as the use of spyware, adware, devices, programs, robots, iframes, hidden pictures, redirects, spiders, computer scripts or other automated, artificial or fraudulent methods designed to appear as if a consumer is generating a lead; and

•            Any deceptive form of advertising which includes, but is not limited to, phishing, sending an email to an individual falsely claiming to be an established legitimate enterprise in an attempt to scam or defraud the user into surrendering private and personal information that can be used for identify theft of other activity.

Affiliate covenants that it shall:

•            Conduct the web advertising campaign for Advertiser in accordance with the highest industry standards;

•            Provide within one (1) business day after request there from, the IP Information, together with such other related information that Company may request.  Failure to provide such information may result in termination or suspension of the Affiliate and/or the deactivation of all links in any Programs downloaded by Affiliate.

Affiliate acknowledges that breaches of any of the foregoing representations and covenants may, in the sole discretion of Company, result in the immediate suspension or termination of Company’s relationship with Affiliate and Affiliate shall forfeit all rights to any compensation theretofore owed to it by Company.  The foregoing rights shall be in addition to any other remedies available to Company. Affiliate acknowledges and agrees that Company shall not be responsible for the Advertisers violation of any applicable laws or regulations, including, without limitation, the CAN-SPAM Act.

 

11. Privacy Policy.

Affiliate shall maintain and post in a conspicuous manner on all its websites involved in the Programs, a privacy policy that clearly and adequately describes how consumer information is collected and used.

 

12. Customer Information; Non-Disclosure; Confidentiality.

All information submitted to Affiliate by an end-user customer pursuant to a Program, is proprietary information of Company, its affiliates, Affiliates and/or the Advertisers.  Such customer information is confidential and may not be disclosed by Affiliate.  Affiliate agrees not to reproduce, disseminate, sell, distribute or commercially exploit any such proprietary information in any manner.  Affiliate shall maintain such data in a secure manner, consistent with industry standards.  All information provided to Affiliate hereunder shall be kept strictly confidential.

 

13. Limitation of Liability; Disclaimer of Warranty.

Unless otherwise provided in this agreement, in no event shall Company or any Affiliate be liable to the other for any lost profits or any special, incidental, consequential, exemplary, punitive or other indirect damages of any nature, for any reason, whether based on breach of contract, tort (including negligence), or otherwise and whether or not either has been advised of the possibility of such damages.

 

DUE TO THE NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY, COMPANY CANNOT GUARANTEE THAT THERE WILL BE NO DOWNTIME OR OTHER INTERRUPTIONS IN SERVICE REGARDING THE LINKS OR OUR SERVICES.  WITHOUT LIMITING THE ABOVE, THE LINKS, OUR CLIENT SITES AND ANY OTHER MATERIALS PROVIDED TO AFFILIATE ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY OF ANY KIND, AND COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NONINFRINGEMENT, and: (A) MERCHANTABILITY, CLIENTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS THEREIN; (C) THAT A PARTY’S SECURITY METHODS EMPLOYED WILL BE SUFFICIENT IN ALL CIRCUMSTANCES OR IN THE FACE OF ALL ATTACKS; (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY OF ANY INFORMATION SET FORTH THEREIN OR THEREON; OR (E) AGAINST INTERFERENCE WITH ENJOYMENT OF A PARTY’S “INFORMATION” (WEB SITE).  ALL INFORMATION AND COMPUTER PROGRAMS PROVIDED IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK, AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER.  SOME STATES LIMIT THE ABILITY TO DISCLAIM ALL WARRANTIES, SO THIS CLAUSE OR SOME PORTIONS OF IT MAY NOT APPLY TO YOU.

 

Company makes no representations and warranties whatsoever, and disclaims any responsibility and liability, regarding the content or nature of any Ad or Program made available on the Platform, or any product or service advertised in connection therewith.  Company has no liability to Affiliate for unapproved materials, including all copy, images, URL names, and search terms used by Affiliate to promote the client partner.  Company makes no representations whatsoever about any other website which Affiliate may access through the service.  When Affiliate accesses a website that is not associated with and independent from Company, Affiliate acknowledges that Company has no control over the content of that website.  Furthermore, a link to a non-Company website does not mean that Company endorses or accepts any responsibility for the content or the use of such website.  It is Affiliate’s sole responsibility to take precautions to ensure that websites, downloads, attachments, and other such files are free of such items as Trojan horses, worms, viruses, and other items of a destructive nature.

 

14. Indemnification.

            14.1.            Affiliate will defend, indemnify, and hold harmless Company, the Advertisers, and their affiliates, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney’s fees and expenses) (collectively “Claims”) arising from any breach of any of these Terms and Conditions or any Program Terms.  Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder. Affiliate hereby acknowledges that the Advertisers are intended third party beneficiaries of the foregoing indemnification obligation.  No settlement may be consummated without Company’s express written authorization, which shall not be unreasonably withheld.

 

            14.2.            Company will defend, indemnify, and hold harmless Affiliate from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney’s fees and expenses) (collectively “Claims”) arising from Company's breach of any of these Terms and Conditions or any Program Terms.  Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder. Affiliate hereby acknowledges that the Advertisers are intended third party beneficiaries of the foregoing indemnification obligation.  No settlement may be consummated without Company’s express written authorization, which shall not be unreasonably withheld.

 

            14.3.            Notification of Legal Action. Affiliate will immediately notify Company of any current, impending, or potential legal action against it by a third party for matters relating to email, email complaints, email deployment, and violations of CAN-SPAM when the same arise.

 

15. Force Majeure.

Neither party shall be deemed in default of these Terms and Conditions to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.

 

16. General.

            16.1.            Entire Agreement. These Terms and Conditions, together with the terms for each of the Programs constitute the entire agreement between the parties and supersede all prior agreements or understandings between the parties.

 

            16.2.            Dispute Resolution. This Agreement shall be governed by the laws of the United States and the State of Wyoming without respect to choice of law rules.  The Parties consent to have all disputes regarding this agreement resolved by binding arbitration before the American Arbitration Association, Commercial Division.  The parties agree to conduct the arbitration in county of Company’s principal business and each party shall bear the costs of such arbitration.  The parties specifically waive any international treaties or other international law, which may govern the court or location of resolution of any dispute between them.  This provision was a bargained for relinquishment of both parties rights to jurisdiction in their respective states or countries. The Parties waive the personal service of any process upon them and agree that service may be completed by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement.  Company shall be entitled to recover all reasonable costs of collection (including attorney’s fees, in-house counsel costs, expenses and costs) incurred in attempting to collect payment from Advertiser.  The prevailing party in any Arbitration shall be entitled to an award of attorney fees and costs for such arbitration.

 

            16.3.            Waiver. No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.

 

            16.4.            Assignment. Affiliate may not assign any of its rights hereunder without the prior written consent of Company, which may be withheld for any reason.

 

            16.5.            Severability. In the event that any provision of these Terms and Conditions is found invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be deemed to apply only to the maximum extent permitted by law, and the remainder of these Terms and Conditions shall remain valid and enforceable according to its terms.

 

            16.6.            Relationship. The parties agree that Company is acting as an independent contractor in performing the Services and that the relationship between the Company and Affiliate shall not constitute a partnership, joint venture or agency.  Neither Company nor any of Company’s employees or agents (collectively referred to herein as the “Employees”): (i) is an employee, agent or legal representative of Affiliate, or (ii) shall have any authority to represent Affiliate or to enter into any contracts or assume any liabilities on behalf of Affiliate. Company retains all the rights and privileges of sole employer of its Employees, including, without limitation, the right to control, hire, discipline, compensate and terminate such Employees.  Neither Company nor any of its Employees shall have any right to receive any employee benefits as are in effect generally for Affiliate employees.

 

            16.7.            No Publicity. Affiliate may not make any mention of Company or any Company client in any publicity materials advertising or otherwise presenting information on your company and your services, including without limitation listing Company or any of its clients in your customer lists, without the written consent of Company, whose consent may be withheld for any reason or for no reason.

 

            16.8.            Notice. Any notice, communication or statement relating to these Terms and Conditions shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission or verified e-mail; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to (a) Affiliate at the address provided in the registration, and (b) Company at 412 N Main St #100, Buffalo, WY 82834