Markeing Partners Program Agreement
This Partners Program Agreement ("Agreement") is made by and between MOAR OFFERS ("Company" "we," or "us")
and the applicant signing up to our Marketing Partners Program (“Publisher" or “you”).
The Effective Date of this Agreement shall be the date of which Company receives Publisher’s sign-up form (“Application”).
Company has been appointed by certain relevant Advertisers to manage and administer their digital marketing rights and activities.
Company will (i) serve as the data interchange between you and Advertiser; (ii) be responsible for collecting applications to each
relevant Program (as referenced below) and Agreements; and (iii) track your performance in the Program.
Company’s role in the Program means that both we and the relevant Advertiser of each Program will have access to a great deal of information about you,
including the personal information contained in the Application, Agreement and the performance data associated with your participation in the Program.
By submitting your Application, you consent to Company and Advertiser’s role in the Program,
including the collection and use of the information gathered in order to manage and administrate the Program.
This Agreement describes the terms and conditions of our business relationship and your involvement with Marketing Partners Program(s)
offered by Company in connection to certain Advertisers (each individually referred to as “Program”).
The Program entitles Publisher to promote certain Advertiser’s products and/or services through marketing campaigns (the “Service”).
The details of each specific marketing campaign and Program shall be set forth in a separate Insertion Order (“IO”) executed by Company and Publisher.
The parties agree that this Agreement shall be deemed to be incorporated into any IO.
This Agreement supersedes any and all other agreements between the parties and shall prevail in the event of any conflicting terms.
By applying to and participating in our Program, Publishers acknowledge that they have read and understand this Agreement
and agree to be bound by these terms throughout Publisher’s participation in the Program.
- By submitting your Application, you may apply to any of the Advertiser Programs offered by Company
for the opportunity to earn payouts by promoting Advertisers’ products and services in accordance with the Advertiser's Program terms
and complying with this Agreement.
- Upon approval by the Advertiser for acceptance into its Program (to be managed and confirmed by Company,
and which shall solely apply to you, the entity or individual entering this Agreement), Company shall grant Publisher the nonexclusive right to direct,
refer, or send visitors to websites owned, operated, or controlled by Advertiser. Advertiser, through the Program managed by the Company,
grants a limited, nonexclusive, nontransferable, and revocable license to access, download, and use promotional banners, hyperlink texts,
and other promotional materials created by Advertiser for the purpose of advertising, marketing, or promoting Advertiser’s websites, and/or products
and services provided through Advertiser’s websites subject to the Program. The license granted herein shall automatically
and immediately cease upon the termination or breach of any term of this Agreement.
- Publisher may use third-parties from its network of independent marketers (“Marketing Affiliates”) to provide the Service
if the use of such Marketing Affiliates is affirmatively authorized on the IO. If Publisher is using Marketing Affiliates,
Publisher must provide a unique identification reference for each Marketing Affiliate so that Company can identify the Marketing Affiliate based on this reference.
Publisher agrees that for the purposes of providing the Service under this Agreement, the acts and/or omissions of Marketing Affiliates
shall be deemed Publisher’s acts and/or omissions and Publisher shall be jointly and severally liable for any such acts and/or omissions.
- Company shall provide to Publisher advertising and marketing copy and creative materials (collectively “Creative Materials”) to be used to promote Advertiser’s products and services. Company, as agent of Advertiser, hereby grants to Publisher a limited, nontransferable, revocable, nonexclusive, worldwide, fully paid license to use, perform, reproduce, display, transmit, and distribute Advertiser’s Creative Materials to the extent deemed necessary for Publisher to provide the Service under this Agreement.
- Publisher shall not edit, copy, modify, alter or change the Advertiser’s Creative Materials in any way. If any such change or modification is necessary, it must be authorized by Company in writing.
- Similarly, if Publisher wants to use any Creative Materials which are not provided by Company, Publisher must receive Company’s express written consent and approval of the material.
- Notwithstanding the preceding, to the extent that Company requests that Publisher create or assist in creating additional advertising materials for Advertiser, including but not limited to any links, html and text creatives, advertising graphics, from and subject lines, required email footers and other advertising materials (“Publisher Creative Materials”), Company shall retain all rights to any such Publisher Creative Materials (under the consideration of work-for-hire or under exclusive worldwide and for life of copyright assignment, with the right to fully assign them to Advertiser). Publisher agrees that it will follow any specifications provided by Company during the creation of the Publisher Creative Materials, and that all Publisher Creative Materials must be submitted to Company for pre-approval prior to use by Publisher or its Marketing Affiliates at least ten (10) days prior of said Publisher Creative Materials going live. Publisher agrees that it will be fully responsible to obtain all necessary rights and assignments in favor of Company for any creative materials not provided to Publisher by Company and that such Publisher Creative Materials shall not infringe upon any third-party rights, including intellectual property, copyright, image and likeness, etc. Publisher agrees that the Publisher Creative Materials are for the exclusive use in connection with approved campaigns as per this Agreement or any relevant Insertion Order and Publisher and its Marketing Affiliates acknowledge that they will not use the Publisher Creative Materials expressly approved by Company for any other purpose or share the Publisher Creative Materials with any third-parties or permit their use without Company’s prior express consent in writing.
Publisher’s Warranties and Representations
- Publisher and Publisher’s Marketing Affiliates will not, directly or indirectly, by any means, trick, link, or connect in any way, any of the following content or material to any Advertiser’s website(s):
- Obscene material; including without limitation to any material depicting bestiality, rape, torture, or scat.
- Any material which is displayed or transmitted in a way as to constitute harmful matter or indecent communications to minors;
- Any material not fully in compliance with 18 U.S.C. Sec. 2257 et seq., including any material which constitutes child pornography or matter which involves depictions of nudity or sexuality by an age inappropriate-looking performer, be the performer real or computer generated (i.e. someone who looks younger than 18 years of age), or by a performer who is portrayed or made to appear to be a person under the age of 18 years of age by virtue of the script, make-up, demeanor, costuming, setting, etc..
- Any material, which is illegal, threatening, abusive, hateful, defamatory, libelous, slanderous, scandalous or injurious to the reputation of any person or entity.
- Any material which constitutes an infringement, misappropriation or violation of any person's rights of publicity, privacy rights, image and likeness, or any person's intellectual property rights, including but not limited to copyrights, trademark and service rights. This includes photos altered to look like celebrities or other private persons.
- Any program, file, data stream or other material which contains viruses, malware, worms, Trojan horses, malicious java script, or any other feature which takes control of a third party’s computer or CPU without their permission, which may cause damage to any computer equipment, loss or corruption of data or programs, or inconvenience to any person—regardless of whether damage is intended or unintended.
- Any material which contains any solicitation for prostitution or which is not compliant with FOSTA-SESTA, or which promotes or facilitates any illegal activities, Incentive Based Websites, Warez Websites, or the hacking, cracking, downloading, or trading of unauthorized files.
- Publisher will not publish or otherwise distribute the Creative Materials via email, telemarketing, fax, mobile text (SMS) or multimedia (MMS) message, or push notifications in any form to any device unless such campaign is approved by Company in writing and in strict compliance with all applicable laws. For purposes of this agreement, e-mail ‘subject lines’, ‘from’ addresses, and actual text and content in the message section of said e-mail, mobile messaging or push notifications, shall all be considered part of the Creative Materials.
- Publisher and its Marketing Affiliates shall provide the Service and conduct all communications, advertising, marketing, sales, and transmissions related to this Agreement and the Program in strict compliance with these terms and all applicable laws, including but not limited to CAN-SPAM (15 U.S.C. § 7701) and all state anti-spam laws such as the California Business & Professions Code § 17529; the Fair Credit Reporting Act (FCRA); the Telephone Consumer Protection Act (TCPA) (47 U.S.C. § 227 et seq.); Restore Online Shoppers Confidence Act; FTC regulations; and other federal and state consumer protection laws, regulations, and guidelines, as well as their equivalents in any other territories where Publisher targets its campaigns. Furthermore, Publisher shall require its Marketing Affiliates to comply with the terms of this Agreement and will monitor the activities of its Marketing Affiliates to ensure all such compliance. Marketing Affiliates are not permitted to transfer any rights or obligations under this Agreement to any third party (i.e. a “sub affiliate”).
- Publisher represents and warrants that, with respect to campaigns directed to the US market, the email addresses or mobile numbers used by Publisher to mail or message to mobile phones the Creative Materials are from users that have manifested affirmative consent – opted in - to receive commercial emails or mobile messages from Publisher and none of the email addresses or mobile numbers were obtained through email or mobile number harvesting or dictionary attacks. Publisher must collect and maintain proof of opt-in consent for 24 months from the date of receipt and shall supply, upon Company’s request, the name, date, mobile number (where applicable) time and IP address where the user signed-up and/or gave affirmative consent to Publisher to be contacted with email or mobile messages. Publisher is solely responsible for all consumer complaints that it receives in connection with email and mobile messaging campaigns that it conducts and shall bear any costs and/or fees charged by its Internet Service Provider related to responding to and/or managing allegations of “spam” or any other unauthorized usage complaints received from consumers, regulatory agencies or otherwise. Publisher shall: (i) make adequate disclosures to those consumers regarding its email, privacy and security policies; (ii) timely respond to all complaints after Publisher becomes aware of the complaint; and (iii) provide with a copy of every complaint related to Company, promptly, upon Publisher’s receipt thereof.
- Every email sent by Publisher for a Company campaign shall: (i) contain accurate routing information in the header and shall not include false or misleading header information, false or misleading registrations for email accounts, or use IP addresses whose purpose is to conceal the email’s origin and shall include in the header (a) a traceable publicly registered domain name or (b) the Publisher’s company name or registered d/b/a; (iii) with regard to the subject line, not utilize a subject line (a) that is misleading, (b) that implies any prior personal or business relationship, or (c) that contains any personal names, confirms information/prizes, or (d) that implies the email is a response to the recipient; (iv) not contain a third party domain name without the third party’s written permission; (v) not seek or obtain unauthorized access to a user’s computer or connected device that enables sending any commercial email; (vi) if the email is sent on Company’s behalf, Company’s physical mailing address and customer service/unsubscribe/opt-out link or, if Publisher is acting as the “sender” of the email for CAN-SPAM or TCPA purposes, Publisher’s physical mailing address and customer service/opt- out/unsubscribe link; (viii) contain the intended recipient’s email address in the “to” line; (ix) clearly and conspicuously identify the emails as advertisements; and (x) include the identifiers and disclaimers that Company assigned to the email.
- Any email that is in violation of this Agreement is not a valid lead and Company will not compensate Publisher in connection with that lead. Publisher shall fully defend, indemnify and hold harmless against any allegation, claim, action, judgment, loss, damage, or expense (including reasonable attorney fees and costs) arising out of any breach of this section regarding email campaigns.
- To the extent campaigns are targeting users outside the US, Publisher shall comply with all local provisions and regulations regarding email and mobile number messaging applicable to each territory.
- COMPANY HAS A ZERO TOLERANCE POLICY FOR SPAMMING. IF YOU SPAM, YOUR PARTICIPATION IN THE PROGRAM MAY BE IMMEDIATELY TERMINATED, YOU WILL BE BARRED FROM FUTURE PARTICIPATION IN THE PROGRAM, AND ALL FUNDS OTHERWISE DUE TO YOU WILL BE FORFEITED TO THE COMPANY. You therefore warrant that you will not use any form of mass unsolicited electronic mail solicitations either by email or SMS/MMS (mobile messaging), push notifications, news group postings, social media postings, IRC posting or any other form of what is commonly known as "spamming" as a means of promoting your website or for the purpose of directing or referring users to any websites owned, operated or controlled by Company and/or Advertiser. You further acknowledge and agree that Company has the right to immediately, and without notice, terminate your participation in the program if we conclude, in our sole and exclusive judgment, that you have engaged in the use of any form of mass unsolicited electronic mail solicitations, unsolicited SMS/MMS messaging, unsolicited push notifications, social media spamming, news group postings, password selling or trading, warez, IRC posting or any other form of spamming, keyword stuffing, double-serving, link farming, cloacking, content scraping or link spamming.
- Publisher and its Marketing Affiliates are prohibited from using toolbars, adware, cookie stuffing, forced clicks, iframes, pop-ups, pop-unders, or any other technology or process to associate the Publisher’s or Marketing Affiliate’s affiliate identification number with a consumer without the consumer first viewing an advertisement presented by the Publisher or its Marketing Affiliates, and that same consumer then clicking the tracking link contained in the advertisement.
- The use by Publisher or Marketing Affiliate of “smartlinking” methods and technology (whereby the same set of Creative Materials may re-direct to different programs and URLs depending on the source and origin of the traffic and based on efficiency parameters exclusively under Publisher’s or Marketing Affiliate’s control and discretion) related to Creative Materials and Publisher Creative Materials which may affect in any way the campaigns hereunder or link to Company or Advertisers’ websites, products and/or services, shall be expressly and distinctively approved in writing by Company and Advertiser.
- If Company learns that Publisher or its Marketing Affiliate may not be in compliance with the terms of this Agreement or any applicable law, Company reserves the rights, without limitation, to (a) immediately terminate this Agreement without incurring any additional liability or further obligation, (b) refuse to pay for any leads attributable to the Publisher’s and/or its Marketing Affiliate’s non-compliance, (c) require Publisher to terminate a specific Marketing Affiliate, (d) collect monetary damages and obtain other legal remedies against Publisher or the Marketing Affiliate, including the reimbursement of Company’s attorneys’ fees and other legal costs, and/or (e) deduct, withhold, claw-back, and/or set-off against payments owed to Publisher under this Agreement.
- The Publisher and each Marketing Affiliate within its network warrant and represent that it is and will remain in compliance in all material respects with all U.S. economic sanctions laws, executive orders, implementing regulations and trade embargoes imposed, administered or enforced from time to time by any U.S. Governmental Authority, including, without limitation, those promulgated by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), and all other applicable anti-money laundering and counter-terrorism financing provisions and regulations such as the US FCPA of 1977 (as amended), the UK Bribery Act of 2010 (as amended), Canada’s Corruption of Foreign Public Officials Act and other similar anti-corruption legislation in other applicable jurisdictions. Neither the Publisher nor any Marketing Affiliate of the Publisher (nor any of its shareholders, affiliates, subsidiaries, executives, directors, officers, employees, agents and representatives) (i) is a Person designated by the U.S. government on the list of the Specially Designated Nationals and Blocked Persons (the “SDN List”) with which a U.S. Person cannot deal with or otherwise engage in business transactions, (ii) is a Person who is otherwise the target of U.S. economic sanctions laws such that a U.S. Person cannot deal or otherwise engage in business transactions with such Person or (iii) is controlled by (including without limitation by virtue of such person being a director or owning voting shares or interests), or acts, directly or indirectly, for or on behalf of, any person or entity on the SDN List or a foreign government that is the target of U.S. economic sanctions prohibitions such that the entry into, or performance under, this Agreement or any other related document would be prohibited under U.S. law.
- You agree to indemnify, defend and hold us (and Advertiser) harmless (including attorney’s fees and procedural costs), at your expense, against any demand letter, claim, suit, action, or proceeding (each a "Claim") and any damages and/or settlements related thereto, brought against and incurred by the Company and Advertiser (and their respective officers, directors, employees, agents, independent contractors, service providers, licensors, and affiliates) in the event that such Claim is based upon or arises out of any act or omission, breach misrepresentation, and/or infringement by you (and/or your Marketing Affiliate’s) of any of your obligations hereunder, and in particular, in connection with your warranties and representation above.
- In the event Publisher (and/or Publisher’s Marketing Affiliate) receives any Claim which may affect in any way ocking the tracking link contained in the advertisement.
- In the event Company or Advertiser receives notice of any Claim subject to Publisher’s indemnity obligation as per hereunder, Company will give Publisher prompt notice of said claim, provided, however, that Company or Advertiser’s failure to provide notification shall not affect Publisher’s indemnification obligations except to the extent that the failure to notify delays or prejudices Publisher’s ability to defend the applicable Claim. Publisher acknowledges that Company or Advertiser shall retain sole control of the defense or settlement of the Claim and shall provide all necessary cooperation and assistance in the defense or settlement of the Claim. However, Publisher shall have the right, at any time and at its own expense, to participate in the defense of the Claim with counsel of its own choosing, but subject to defense control and strategy of Company/Advertiser. Publisher shall not make any settlement of the Claim that results in any liability or imposes any obligation on Company or Advertiser without the prior written consent of the latter.
Billing and Payment
- CompensableTransactions—any act or event (including but not limited to leads, actions, impressions, clicks, sales, applications, registrations, click-throughs, or other compensable activities) by a consumer and verified and confirmed by Company, upon which payment is based. Schemes include, without limitation: Cost Per Acquisition (CPA), Cost Per Click (CPC), Cost Per Thousand (CPM), Cost Per Lead (CPL), Cost Per Download (CPD), Cost Per Install (CPI), Cost Per Sale (CPS) and Cost per View (CPV). The specific transaction scheme will be defined in each relevant IO.
- Lead—confirmed registration from a real user.
- Sale or Order—subscription or membership purchased with a valid credit card and not subject to any fraudulent event.
- Company shall pay Publisher for the Compensable Transactions generated on behalf of and confirmed by the Company, subject to the provisions set forth herein. The applicable Compensable Transactions, the rates and fees for such transactions, and other applicable terms and conditions will be set forth in a fully executed IO. Company’s platform will be the official counter for all statistics, including valid hits, impressions, clicks, signups, revenue earned, commissions and other applicable metrics pursuant to this Agreement and the applicable IO. Any form of artificially generated traffic, including without limitation fraudulent impressions or clicks, generated by auto-redirects, bots, botnets, iframes, parent window redirect or scripts, will result in the termination of the account and this Agreement. Publisher shall be solely liable for any errors and any direct or indirect damages or losses to Company or Advertiser as a result of fraudulent and non-compliant traffic or use through Company’s platform. Any discrepancies or errors must be brought to our attention within thirty (30) days or else they will be deemed permanently waived.
- Unless otherwise specified in any relevant IO, and subject to 5.4 below, payment of the Compensable Transactions generated and verified in the period comprised between the 1st and the 15th of each calendar month shall be paid on the 6th of the subsequent calendar month and those generated and verified in the period comprised between the 16th and the end of the same calendar month shall be paid on the 20th of the subsequent calendar month. Payments will be considered final and undisputable if Publisher does not provide written notice of any objection within thirty (30) days of receipt of such payment.
- Payouts shall be available via bank transfer (with a US$1,000.00 minimum payout) or PayPal (US$500.00 minimum payout). Full payment details (as well as any additional documentation needed to process payments) shall be provided by Publisher upon execution of this Agreement and the relevant IO (or upon request by Company at any other time). In the event Publisher provides wrong banking details and Company proceeds to make a transfer of any payment hereunder to said erroneous bank account, then Company shall be entitled to apply a penalty of US$50.00 to future transfers to the correct Publisher account. In the event that upon termination of this Agreement by Publisher any final settlements due to Publisher fall below the above payment threshold amounts, then Company may apply an administrative fee of US$50.00 to said final settlement payment.
- Company may deduct, set-off, withhold or claw-back any sums due to Publisher in cases of fraudulent traffic generation or where traffic results from or involves non-valid actions and/or a violation of applicable law or this Agreement. Any chargebacks and refunds shall be considered non-valid and/or fraudulent transactions. Publisher shall not be entitled to any revenues from non-valid and/or fraudulent transactions and shall be subject to forfeiture and/or claw-back of any fees and/or revenues related thereto. Pursuant to the preceding, Company will have thirty (30) days from the payment date of any Compensable Transaction to make a claim for fraud or nonvalidity. Any fraud or nonvalidity report will include adequate written proof, to Company’s discretion, that such event or activity occurred with reasonable written explanation of the fraudulent or non-valid activity.
- All amounts payable to Publisher hereunder are inclusive of any applicable GST, sales, VAT and all other similar taxes and duties payable in respect of such payments.
- Should any competent tax or government agency require under Applicable Law or regulations to apply any withholding tax or similar deduction or withholding to the payments to be made hereunder, then Company shall: (i) withhold the legally required amount from payment; (ii) remit such amount to the applicable tax authority; and (iii) within sixty (60) days of payment, deliver to Publisher original documentation or a certified copy evidencing such payment (“Withholding Tax Receipt”).
- The parties acknowledge that in the course of fulfilling their obligations under this Agreement, a party (the “Disclosing Party”) may provide access to certain confidential information to the other party (the “Receiving Party”) which may include: names, email addresses, and other personal information pertaining to leads generated and sales information such as cost, pricing, and financial information; consumer contact information; contact information for each Party’s employees, contractors, publishers, and other marketing affiliates; business methodologies and plans; marketing strategies, methods, and materials; computer programs and source code; and all related information (collectively “Confidential Information”). All Confidential Information shall remain the exclusive property of the Disclosing Party during and after the term of Agreement. The Receiving Party shall keep in strict confidence all Confidential Information and shall not at any time use Confidential Information in any manner for its own benefit.
- The Receiving Party’s confidentiality obligations under this Agreement shall survive and subsist in relation to any Confidential Information (notwithstanding the prior termination or expiry of this Agreement or termination of Publisher’s participation in the Program for any or no reason) for a period of three years from the date of the last disclosure under this Agreement of any Confidential Information by the Disclosing Party.
- Each Receiving Party recognizes that any breach or threatened breach of the confidentiality obligations under this Agreement may cause the Disclosing Party irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Disclosing Party under the Agreement, law or equity, the Receiving Party acknowledges and agrees that the Disclosing Party is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
Company’s Limitation of Liability
- WE AND OUR AFFILIATED COMPANIES, EMPLOYEES, DIRECTORS, REPRESENTATIVES, INDEPENDENT CONTRACTORS, ASSIGNS, SUCCESSORS AND/OR AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF OUR PRODUCTS, CONTENT, PROGRAM OR SERVICES FOR ANY PURPOSE. TO THE EXTENT PERMITTED BY LAW, THE PROGRAM IS PROVIDED "AS IS" AND “AS AVAILABLE” WITHOUT WARRANTY OR CONDITION OF ANY KIND. COMPANY DOES NOT MAKE ANY WARRANTY THAT ITS PRODUCTS AND SERVICES OR THE PROGRAM WILL MEET PUBLISHER’S REQUIREMENTS, OR THAT ADVERTISER’S AND/OR COMPANY’S OR ADVERTISER’S PRODUCTS AND SERVICES OR THE PROGRAM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED. FURTHERMORE, COMPANY DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE PARTICIPATION IN THE PROGRAM. COMPANY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO OUR PRODUCTS, WEBSITES, AND SERVICE INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (INCLUDING WARRANTY OR REPRESENTATION OF SUCCESS OR PROFITABILITY), TITLE AND NON-INFRINGEMENT.
- NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, IF COMPANY IS DETERMINED TO HAVE ANY LIABILITY TO YOU, YOUR MARKETING AFFILIATES OR ANY THIRD PARTY UNDER YOUR CONTROL, THE PARTIES AGREE THAT COMPANY’S LIABILITY WILL BE LIMITED TO ACTUAL DAMAGES AMOUNTING TO A MAXIMUM OF THE TOTAL REVENUES YOU EARNED FOR THE RELATED TRANSACTIONS IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE COMPANY OR ADVERTISER MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT.
- COMPANY SHALL NEVER BE LIABLE FOR DIRECT OR INDIRECT LOSSES AND INJURIES, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF BUSINESS PROFITS, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODWILL, LOSS OF REPUTATION, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM (WHETHER CONTRACTUAL, TORT OR OTHERWISE) AND IRRESPECTIVE OF WHETHER FORESEEABLE OR WHETHER COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
No monitoring nor supervision
- Other than Company relying on Publisher’s warranties and representations and compliance with the terms of this Agreement and the Program, Publisher acknowledges that neither the Company nor any employee, associate, agent, assign, affiliated company or successor of the Company shall exert or provide any direct or indirect control over, monitoring of, supervision of, prior approval of, or review of the content appearing or otherwise distributed on, in or in association with Publisher’s (and Publisher’s Marketing Affiliates’) website(s) and any other communication means and methods used to provide the Services hereunder. Publisher shall be solely responsible for any legal liabilities or consequences resulting from the dissemination methods and of the content included on or linked through the Publisher’s and Marketing Affiliates’ website(s) or other communications methods, except for Creative Content which is supplied to the Publisher by the Company, provided that the Creative Content supplied to the Publisher by the Company has not been altered or modified by the Publisher, Marketing Affiliates or by any other party, except when otherwise expressly agreed by the parties in writing.
- You acknowledge and agree that the term of this Agreement is at will and will begin upon Company's acceptance of your Application and will end when terminated by either party. Either you or Company may terminate this Agreement at any time, with or without cause, by giving the other party express written notice of termination.
- Company shall at all times have the right, in its sole and exclusive discretion, to modify and/or terminate the Program and any and all Program benefits associated with Program at any time and may do so with or without prior notice or cause.
- Company has the right to terminate Publisher’s and any other person’s participation in the Program at any time and may do so with or without prior notice or cause.
- Once Publisher’s participation in the Program is terminated or suspended for any reason, Publisher (and Publisher’s Marketing Affiliates) shall immediately and permanently cease all use of all Creative Materials provided by Company and shall remove and delete any and all files containing materials provided by the Company.
Entire Agreement; Modification; Assignment
- This Agreement constitutes the entire agreement between Company and Publisher with respect to the subject matter herein, and supersedes and cancels all other agreements, discussion, or representations, whether written or oral, throughout the duration of Publisher’s participation in the Program. Subsequent, duly executed agreements may prevail only in respect to specific commercial terms of an IO.
- You agree that Company may modify the type and quality of benefits provided to you under this Agreement by posting a change notice or a new agreement on the Program site. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
- Publisher acknowledges and agrees that the failure of Company to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder.
- In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision(s) had never been included. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision.
- You agree that Company may at any time, and without prior notice to you, freely assign all or part of its duties, obligations and benefits hereunder.
- This Agreement or any interest herein shall not be assigned by Publisher to any third party without prior express written consent of Company.
Jurisdiction and Choice of Law
- This Agreement is executed in New York and all provisions shall be governed by and construed according to the laws and judicial decisions of the State of New York and the United States when applicable, without regard to conflict of law provisions.
- Except as provided in these terms, all disputes as to the interpretation of or any performance under this Agreement, which are not first resolved informally, shall be determined by binding arbitration governed by the American Arbitration Association ("AAA"). Unless otherwise agreed upon, the arbitration shall take place in the State of New York. This arbitration provision does not prohibit Company from bringing an action in court in the event that Publisher, in its capacity as a party to this Agreement, commits any action in breach of CAN-SPAM (15 U.S.C. § 7701), TCPA (47 U.S.C. § 227), state statutory laws, such as California Business & Professions Code § 17529; of infringement on Company’s rights or the rights of any third-party; or where damages would not be an adequate remedy and Company seeks equitable relief, including injunctions.