MASTER PUBLISHER AGREEMENT
Terms & Conditions of Business for Publishers
This Agreement is made between Clickwork7, a brand owned by Submission Technology Limited, a company incorporated under UK law, with its principal place of business located at The Beater House, Turkey Mill, Ashford Road, Maidstone, Kent, ME14 5PP, England and registered office address at Heritage House, 34b North Cray Road, Bexley, Kent, DA5 3LZ, England (Company No. 04456811) (“Company”, “We” or “Us”) and you, as publisher using the Submission Technology service (“Publisher” or “You”).
This Agreement, together with the schedules attached, and any amendments to those schedules, governs your participation as a member of the Clickwork7 Affiliate Network (“Program”). This Agreement will apply to each business transaction between Company and Publisher related to Publisher’s distribution of all advertising campaigns on behalf of Company and Publisher’s use of Company website and tracking platform/portal (the “Site”). Publisher agrees to use the Site and any additional products and/or services offered by Company (“Services”) only in accordance with this agreement. Publisher covenants and agrees to be bound by this Agreement, and the schedules attached, as amended by Company from time to time. The latest version of this Agreement will be posted on the Site. Publisher’s continued use of the Site and/or the Services after any modification thereof shall constitute Publisher’s consent to such modification. Therefore, publishers should regularly check the site for updates and/or changes.
If you are an employee or agent of a business and are entering into this agreement for use by the business for its own purposes, you hereby agree that you enter into this agreement on behalf of the business and that you have authority and permission to bind the business to the terms and conditions of this agreement. You must be over the age of 18 years old to become a publisher. Any registration by, use if, or access to the site or service by anyone under age (18) is unauthorised, unlicensed, and in violation of this agreement. By registering as a publisher or using the site and/or services, you represent that you are at least eighteen (18) years of age or older and that you agree to abide by this agreement. If you do not agree to this agreement in its entirety, you are not authorised to register as a publisher, use the services and/or site, in any manner or form whatsoever.
Table of Contents
- Publisher Approval
- Data Protection
- Adware and Spyware
- Creative and Publisher Links
- Publisher Monitoring
- Proprietary Rights
- Non Circumvention
- Mobile Campaigns
- Real-Time Prospecting Campaigns
- Term and Termination
- Covenants, Representations and Warranties
- Publicity and Confidentiality
- Disclaimer or Warranties and Limitation of Liability
- User Information; Non-disclosure; Confidentiality
- "Advertiser" refers to a client of Company who provides advertising campaigns or offers.
- “Event” refers to such examples as but are by no means limited to clicks, click-throughs, sales, registrations, impressions, app installs, software downloads and leads.
- "Offer" means a promotional offer published by Company on the Site on behalf of an Advertiser and containing such additional terms and conditions as the Advertiser and Company, in their discretion, consider necessary from time to time.
- “Publisher” includes the individual, company or entity and, without limitation, any parent entities, owners, subsidiaries, publishers, predecessor or successor entities, and any agents, officers, directors or employees acting on behalf of same, registering with company to use the site or services offered by Company.
- “Site" means the website for the Program operated by Company and situated at http://www.clickwork7network.com.
- "Sub-Publishers" means an independent third party contracted by Publisher.
- “Conversions” means any transaction generated by Publisher for any given Advertiser Offer or Program on behalf of Company. Conversions include but are by no means limited to leads, sales, installs, software downloads, clicks, impressions, registrations etc.
- "Data Controller", “Joint Data Controllers” and "Personal Data" in this Agreement have the meanings set out in the General Data Protection Regulation (Regulation (EU) 2016/679) (the “EU GDPR”).
- The Site allows Company to post offers for the distribution of advertising campaigns sponsored by Company or its affiliates (“Program(s)”) on behalf of Company’s clients or Advertisers. The Site also allows Publisher to apply to participate in Programs subject to Company’s approval. The terms and conditions of each Program (“Program Terms”) will be posted on the Site. Company may, in its sole discretion, change a Program or the Program Terms at any time and without prior notice to Publisher.
- Company grants Publisher a limited, non-exclusive, non-transferable, revocable right to download Offers from the Site and to publish the same on Publisher's websites and in electronic mail correspondence sent by Publisher, all of which must be done in accordance with this Agreement, as amended from time to time, and the additional terms and conditions affixed to each of the said Offers.
- Once approved, Publisher will be eligible to receive payment for participating in Programs. Publisher’s total compensation will be determined upon occurrence of a specified Event as defined in each Program.
- If Publisher agrees to participate in a Program, Publisher agrees to place that Program's advertising creative (“Ad”) on Publisher’s websites, affiliated websites, email distribution lists and other approved marketing channels (collectively the “Media”). Publisher shall display the Ad exactly as it appears on the Site 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 the immediate termination of Publisher’s relationship with Company, without prior notice thereof, and forfeiture of all commissions, whether earned or unearned, up through and including the date of termination.
- It is Publisher’s responsibility to check the Site often and to ensure the Offer or any part of the Offer that Publisher publishes on Publisher’s websites and in electronic mail correspondence matches what is posted on the Site, even if the Offer or any part of the Offer has been modified in the Site since Publisher initially downloaded the Offer.
- Publisher understands and agrees that, on occasion, the Site and/or Programs may be inaccessible, unavailable or inoperable for any reason, including the following: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs; or (iii) causes beyond the control of Company or which are not reasonably foreseeable by Company including interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. Company will attempt to provide the Site and Programs on a continuous basis; however, Publisher acknowledges and agrees that Company has no control over the availability of the Site or Programs on a continuous or uninterrupted basis. Company’s failure to deliver because of technical difficulties does not represent a failure to meet the obligations of this Agreement.
3. Publisher Approval
- Company will permit Publisher to participate in the Program, subject to compliance with the terms and conditions in this Agreement and in any policies or additional terms and conditions established by Company, from time to time, and incorporated by reference in this Agreement.
- Publisher must read, absorb and agree to all and any Advertiser Terms & Conditions that are enforced at offer level, and must understand and adhere to the allowed traffic sources and specific restrictions for every offer. All of Publisher’s Media must at all times meet the following criteria, at a minimum:
- Publishers must at all times refer to and adhere to the ‘Allowed Traffic’ sources, outlined within the Offer description within the Site. Any conversions, leads, sales, installs (etc) generated by a source of traffic not specifically listed within the Allowed Traffic sources will not be paid for, and Publisher risks having all commissions removed, and being de-activated from network. If a traffic source is not specifically listed in Allowed Traffic Sources, Publisher must assume that the omitted traffic source is not permitted. Publishers must also note and adhere to any specifically outlined Restrictions in terms of traffic and promotion.
- Unless otherwise approved in writing by Company, or within offer description on Site, Publisher may not offer incentives to Internet users as a means to enhance the performance of any Program. Incentives include but are by no means limited to awarding cash, points, prizes, virtual currency and contest entries;
- Publisher’s websites must be fully functional at all levels;
- Publisher’s policies must be compliant with all applicable laws and regulations, including applicable state and federal laws and regulations of the United States, which includes, without limitation, the CAN-SPAM Act of 2003 (as amended) (“CAN-SPAM”), and if Publisher is located in the United Kingdom, its policies must be compliant with all applicable laws of the United Kingdom, including the EU GDPR;
- Unless otherwise expressed with offer description on Site, Publisher’s Media must not use spawning process pop-ups or exit pop-ups; and
- Publisher’s Media must satisfy such other criteria as Company may from time to time require, in its sole discretion.
- The content of Publisher’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 promote, advocate, facilitate or otherwise include any of the following: (i) pornographic, obscene, sexually explicit or related content; (ii) hate speech or material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation; (iii) investment or money-making opportunities or advice not permitted under law; (iv) gratuitous violence or profanity; (v) material that defames, abuses, is libellous, is tortuous or threatens physical harm to others; (vi) material that displays any telephone numbers, street addresses, last names, URLs, email addresses or any personally identifiable or confidential information of any third person; (vii) material that impersonates any person or entity; (viii) any indication that any statements Publisher makes are endorsed by Company and/or an Advertiser without verified substantiation and Company’s and/or Advertiser’s specific prior written consent; (ix) promotion of illegal substances or activities, including illegal online gambling, how to build a bomb, or counterfeiting money; (x) content which is inappropriate or harmful to children; (xi) promotion of terrorism or terrorist-related activities, sedition or similar activities; (xii) software pirating; (xiii) hacking or phreaking; (xiv) any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (xv) any software, product or service that is illegal or that violates the rights of a third party including spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet; (xvi) any software, product or service that harvests or collects the personal information of Internet users, whether or not for commercial purposes, without the express consent of such users; (xvii) any spoofing, redirecting or trafficking from other websites in an effort to gain traffic; (xviii) any content that infringes upon the intellectual property rights of any third party or any other right including false advertising, unfair competition, or invasion of rights of publicity or privacy; (xix) gambling, contests, lotteries, raffles, or sweepstakes; (xx) any material that violates applicable laws and regulations, including but no limited to, CAN-SPAM and/or the UK Data Protection Act; or (xxi) any illegal activity whatsoever. Company reserves the right to withhold, refuse or withdraw approval of any Media for any reason, in Company’s sole discretion and without prior notice. Notwithstanding the foregoing, Company’s policies, specifications and/or recommendations with respect to any Media should not be construed as legal advice, or as sufficient guidelines to ensure that such Media complies with applicable law. Company does not represent or warrant that such policies, specifications and/or recommendations are legally compliant or appropriate. Company assumes no obligation and hereby disclaims any liability for Publisher’s use of and/or reliance upon any such policies, specifications and/or recommendations. Publisher should consult with Publisher’s legal counsel and/or other professional advisors before acting on any policies, specifications and/or recommendations as provided by Company.
- Publisher gives Company permission to share content of Publisher’s website and details of Publisher’s compliance with applicable data protection laws with participating Advertisers should the Advertiser request it, including but not limited to screenshots of opt-ins for direct marketing purposes.
- Where use of email marketing is authorized by Company and the applicable Program Terms, the following additional terms shall apply:
- In the event that Company or Publisher receives a complaint from any recipient of an email transmitted by Publisher, upon Company’s request Publisher will immediately provide Company with appropriate Consent Records verifying such recipient’s consent to receive email transmissions from Publisher.
- Publisher may not use an Advertiser’s name (including any abbreviation thereof) in the originating email address line or subject line of any email transmission.
- Publisher shall not falsify header information or include in any email false registrations for domain accounts, email accounts or IP addresses. An email may not be retransmitted for the purpose of concealing its origin. Publisher and Publisher’s email delivery providers are prohibited from relaying or retransmitting emails from a computer or computer network that was accessed without authorization.
- 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. Publisher may only use approved subject lines provided by Company or subject lines for which Publisher has documented approval from Company. The subject line must accurately represent the product or service depicted within the email.
- Messages containing advertisements or solicitations must identify themselves as such clearly and conspicuously. Further, the sender must identify itself as the initiator and sender of the email including company name, email and physical address.
- Commercial emails must give recipients an effective means of requesting not to receive future emails from that sender. At a minimum, Publisher shall cause a valid physical postal address for Publisher and/or the applicable Advertiser, as required by applicable law, to appear in each email, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after email delivery).
- All unsubscribe requests must be adhered to within five (5) business days from their receipt. Publisher may not sell or transfer an email address once someone has opted out of receiving future communications, whether from only the Advertiser or globally.
- All Publisher emails sent under this Agreement shall be delivered to addresses on email lists owned or managed solely by Publisher. 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. Publisher must have full opt-in data for all recipients in its database. Publisher agrees to maintain at all times during the term of this Agreement and for a period of three (3) years thereafter complete and accurate subscriber registration data for every subscriber in Publisher’s database. (i) Publisher must use only email addresses with the name of the sending party that received the opt-in, and may not use a 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 addresses must be a functioning email address where sender can be contacted). (j) Publisher agrees that prior to emailing any Ad it will download the most recent suppression file(s) for any particular Ad and, for that Ad, will suppress all email addresses within its database that are found on such list. In addition, for any Ads that include a domain suppression list, Publisher agrees that prior to mailing the Ad it will download the most recent domain suppression list for that particular Ad and suppress all domains within its database found on such list. Publisher 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. Publisher 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.
- Publisher may desire to use its business partners and/or associates to fulfil the obligations or exercise the rights under a particular Program. For the purposes of this Agreement, any of Publisher’s business partners or associates that participate in or perform any activities on behalf of Publisher under this Agreement shall be considered a “Sub-Publisher.” Company reserves the right to review and approve or reject any and all Sub-Publishers and may revoke a prior approval of any Sub-Publisher at any time and for any reason, effective immediately. Sub-Publishers must meet the same criteria for approval as Publisher as set forth in this Agreement and must comply with all the terms and conditions that are applicable to Publisher under this Agreement and the applicable Program Terms. Publisher shall ensure and require that all Sub-Publishers comply with the material terms of this Agreement. In addition, Publisher shall require that all such Sub-Publishers have represented to Publisher that: (i) the content of its site(s) do not contain any content prohibited by Section 2.3 of this Agreement; (ii) all right, title and interest in all Programs is exclusively owned by Company (and/or its Advertisers) and that Sub-Publisher has no right other than the limited right to display and distribute the Programs and Creative (as defined below) as sublicensed by Publisher; and (iii) such Sub-Publisher will not modify or alter the Programs or Creative in any manner. Publisher is responsible for and shall fully and unconditionally indemnify Company for any and all actions of any of its Sub-Publishers, including the payment of legal fees and costs if necessary. Further, Company may, in its sole discretion, terminate Publisher at any time and without prior notice, based on the actions of Publisher’s Sub-Publisher(s). Notices to Publisher shall be deemed notice to Publisher’s approved Sub-Publisher(s). Publisher agrees that Company is under no obligation to pay a Sub-Publisher. Company further reserves the right to withhold or refuse payment to Publisher in the event that any of its Sub-Publishers breach this Agreement. Nothing in Company’s permission to engage Sub-Publishers may be construed as extending to any Sub-Publisher the status of third-party beneficiary of any agreement between Company and Publisher, including without limitation this Agreement.
- Publisher will be paid pursuant to the terms of each Program. Company shall pay any amounts due approximately thirty (30) days after the end of the calendar month during which one or more Events occurred. Notwithstanding the foregoing, Company may, in its discretion, withhold payments until such time as the applicable Advertiser has paid Company for the applicable Program.
- Publishers will earn payment to the sum of the stated currency though will receive payment to the same sum in the currency of their choosing and will be exclusive of any applicable taxes. Leads are not deemed payable until confirmed at the end of the billing (validation) period and an invoice has been generated in Company’s system. Company will use the first fifteen days of any calendar month to validate the previous months conversions, before such time no figures in the Site should be deemed billable or validated. Company may batch in any extra untracked Conversions if applicable; and/or reverse/scrub any fraudulent (as defined in Section 5 below) or duplicate Conversions.
- In addition to any other remedies that may be available to Company, in the event Publisher breaches this Agreement, Publisher shall forfeit all commissions owed by Company to Publisher, whether earned or unearned. Moreover, Company reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by Advertisers for invalid Events, technical errors, tracking discrepancies or other similar events. Company shall compile, calculate and electronically deliver with each payment data required to determine the amount owed to Publisher for the preceding calendar month. Unless Publisher disputes in writing the payout provided by Company within five (5) business days, the payout will be deemed accurate and accepted as such by Publisher. Company will not pay Publisher for any Events that occur before a Program is initiated or after a Program is terminated. Company will not be responsible for compensating Publisher for Events that are not recorded due to Publisher’s error. Company may require Publisher to provide a W-9 and other similar documentation as a condition to payment.
- In no circumstance will Company be obligated to pay Commissions to a Publisher unless and until the aggregate amount of the Commissions due and payable to that Affiliate exceeds One Hundred (£100.00) GB Pounds, or such greater amount established by Publisher, from time to time.
- Commissions due and payable by Company to a Publisher will not accrue interest.
- Payments to a Publisher in accordance with this Section will be based upon the records kept by Company and reported in Company’s online reporting system Site and audited by the Clients, from time to time.
- Company actively monitors traffic for fraud. If fraud is detected, Publisher’s account will be made inactive and all payments shall be withheld pending further investigation. Fraudulent traffic includes, without limitation and as determined solely by Company: (i) click-through or conversion rates that are much higher than industry averages where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of Company; (ii) having Publisher websites that contain ONLY click or lead generation programs generating clicks or leads with no indication based on site traffic that it can sustain the clicks or leads reported; (iii) fraudulent leads as determined and reported by Advertisers; (iv) using any incentives to procure clicks or leads without prior written approval of Company; (v) using phone books, or similar such compilations of personal data, to complete lead generation forms; or (vi) using fake redirects, automated software, and/or other fraudulent mechanisms to generate Events from the Programs. In addition to this Fraudulent activity may include, but is by no means limited to; using incentive traffic when incentives are not permitted, fake details (phone number, email address, telephone number, name), BOT traffic, unusual conversion rates, multiple IP addresses, Company fraud detection software flags suspicious activity, duplicate leads, duplicate contact details.
- Company actively monitors all activities for potential fraud. If Company, in its sole discretion, suspects or determines that Publisher’s account has been used in a fraudulent manner, Publisher’s account will be deactivated effective immediately, without prior notice, and Publisher will forfeit all Commissions, pending further investigation. Company reserves sole judgment in determining fraud and Publisher agrees to be bound by any and all such determinations. Company reserves sole judgment in determining fraud and publisher agrees to be bound by any and all such determinations.
- In the event Company determines that Publisher has engaged in fraud, Company may terminate Publisher’s relationship with Company and cancel outstanding payments for any Program at its sole discretion and without any further obligation to Publisher. In addition, in the event Publisher has already received payment for fraudulent activities, Company reserves the right to withhold such amounts from future earnings or to demand re-imbursement from Publisher.
6. Data Protection
- As the performance of this Agreement and the delivery of the Services implies the processing of personal data, Company and Publisher shall comply with the applicable data protection legislation and regulations, including but not limited to the EU GDPR.
- For the purpose of this Agreement, both Parties agree to act as Joint Data Controllers in relation to such personal data and therefore both Parties agree to:
- not process personal data for any purpose other than to deliver the services and to perform its obligations under the Agreement; if either Party cannot provide such compliance, for whatever reasons, it agrees to promptly inform the other Party of its inability to comply. This includes suppression lists supplied by Company to Publisher, which should only be used to unsubscribe users and maintain a record of suppressed contacts;
- inform either Party immediately if it believes that any instruction from the either Party infringes applicable data protection legislation and regulations;
- not disclose the personal data to any person other than to its personnel as necessary to perform its obligations under the Agreement and ensure that such personnel is subject to statutory or contractual confidentiality obligations;
- take appropriate technical and organisational measures against any unauthorised or unlawful processing;
- ensure that access, inspection, processing and provision of the personal data shall take place only in accordance with the need-to-know principle, i.e. information shall be provided only to those persons who require the personal data for their work in relation to the performance of the Services;
- deal promptly and properly with all reasonable inquiries from either Party relating to its processing of the personal data or in connection with the Agreement, including and not limited to the rectification or erasure of such data; and,
- without undue delay, notify the other party about:
- any legally binding request for disclosure of the personal data by a data subject, a judicial or regulatory authority unless otherwise prohibited, such as the obligation under criminal law to preserve the confidentiality of a judicial enquiry. It is the responsibility of Publisher to respond to such requests in the first instance,
- any accidental or unauthorised access, and more in general, any unlawful processing of the personal data related to this Agreement.
- securely destroy all personal data that is no longer needed to perform its obligations under the Agreement.
- Personal data transferred from one Party to the other Party will be done so securely.
- Personal data processed in the context of this Agreement may not be transferred to a country outside the European Economic Area without the prior written consent of the other Party. If personal data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.
- Publisher shall indemnify Company against all liabilities, losses, damages, costs or expenses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other reasonable professional costs and expenses) suffered or incurred by Company arising out of or in connection with any claim made against it in relation to any breach by Publisher of sections 6.1 – 6.5 inclusive.
7. Adware and Spyware
- Publisher shall at no time, engage in, disseminate, promote or otherwise distribute any marketing campaign on behalf of Company through the use of contextual media or specifically downloadable software, which includes, without limitation, adware, spyware, pop-up/pop-under technologies and plug-ins. This prohibition applies equally to Publisher and any of its Sub-Publishers. In the event that Company discovers that Publisher is engaging in, disseminating, promoting or otherwise distributing, any contextual marketing campaign which results in a violation of this Agreement, Company may, in its sole discretion, terminate this Agreement and immediately cancel any and all contextual marketing campaigns and withhold payment on any illegitimate earnings. Publisher agrees and acknowledges that any actual or threatened breach of this provision will constitute immediate, irreparable harm to Company for which monetary damages would be an inadequate remedy, and for which, in addition to any and all other remedies, preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond would be an appropriate remedy.
8. Creative and Publisher Links
- Publisher shall not alter, modify or otherwise change the Ads, the links provided by Company (“Links”) or any other Ad-related feature (collectively, “Creative”), that it obtains access to in connection with any Program in any manner whatsoever, without Company’s prior express written consent. In addition, Publisher will only use Creative provided by Company until such time that Company requests that Publisher discontinue use of such Creative, at which time Publisher shall discontinue such use within two (2) business days. Unless otherwise specified in the applicable Program Terms or by Company, and subject to the restrictions herein, the positioning, placement, frequency and other editorial decisions related to Creative shall be made by Publisher. Notwithstanding the foregoing, Publisher must comply, immediately, with any and all requests by Company to modify, alter, remove or otherwise change the positioning, placement, frequency and other editorial decisions related to the Creative. All Links must be served from Company’s server. Publisher shall not take any actions to impede the action of or to disable any such Links. Publisher also shall not run any deactivated Creative after the Advertiser has posted new Creative to run in lieu of such deactivated Creative for the applicable Program. Publisher agrees to review the availability of creative that it has placed within its media on a daily basis. it is publisher’s sole responsibility to change creative within its media when a particular creative is no longer available. Company assumes no responsibility to notify publisher when a specific creative is no longer available. In addition, Site integration tags, tracking pixels and other data provided by or obtained from Company to allow Company to measure performance (collectively, “Tags”) included in the Creative or otherwise incorporated may not be altered, removed, disabled or concealed under any circumstances. Company may employ a testing system to ensure that Publisher has not altered, removed, disabled or concealed the Tags. Altering, removing, disabling or concealing Tags will jeopardize Publisher’s ability to be paid for Events and constitute grounds for the immediate termination of Publisher’s relationship with Company, with or without notice, and the and forfeiture of all commissions, whether earned or unearned, up through and including the date of termination. Notwithstanding the foregoing, Publisher agrees, if requested by Company, to modify or alter Links or Tags in the manner requested by Company.
9. Publisher Monitoring
Company may monitor Publisher, on its own or with the assistance of third parties, for compliance with this Agreement. Without limiting the generality of the foregoing:
- Company may at any time audit Publisher for compliance purposes. Publisher agrees to provide Company with any reasonable information necessary to conduct an investigation into Affiliate's compliance with law and this Agreement.
- Publisher will be monitored for compliance with applicable legal and regulatory requirements, including with respect to, without limitation, honouring unsubscribe requests. If the monitoring is performed by a third party, such third party will share all such information with Company.
- Each unsubscribe list furnished to Publisher shall be separately and technologically identified so that Company will be able to ensure that Publisher is not disseminating or otherwise using the unsubscribe list other than in a manner required by applicable law.
Publisher must not send further emails to names already on or newly added to the unsubscribe list. Publisher must scrub against the unsubscribe list at least once every three (3) days.
- Publishers are strictly forbidden to market Company campaigns using SMS unless an official compliance form has been signed by both parties.
- In line with the EU GDPR, publishers may not promote Company campaigns using email or SMS beyond May 25th 2018 without a signed compliance form.
- Any Publisher found to be using a traffic source not listed on their signed EU GDPR compliance form will be removed from the network and reported to the relevant governing bodies.
10. Proprietary Rights
- Subject to this Agreement and the applicable Program Terms, Company grants to Publisher a revocable, non-transferable, non-exclusive limited license to display on, and distribute through, the Media, the Creative, and any and all associated trademarks, service marks, trade names and/or copyrighted material (“Intellectual Property Content”) that Company provides to Publisher in connection with this Agreement for the limited purpose of promoting Programs to Internet users. Publisher may not remove or alter any copyright or trademark notices. The Intellectual Property Content and other matters related to the Programs, Creative and Site are protected under applicable copyright, trademark and other proprietary rights. The use, copying, redistribution and/or publication by Publisher of any part of the Programs, Creative and/or Site, other than as expressly permitted hereunder, are strictly prohibited. Publisher does not acquire any ownership rights to the Programs, Creative and/or Site. The availability of the Programs, Creative and Site does not constitute a waiver of any rights related thereto. No part of the Site may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. Publisher may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Site, Site content or any portion thereof. Company reserves any rights not explicitly granted in this Agreement.
- Ownership. Company (and/or its Advertisers) owns all rights, title, and interest in and to the Links and all Internet user data collected and derived in connection with 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 Publisher to help Publisher optimize the quality of leads generated from Publisher’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 Publisher, Publisher agrees that this data will be used solely by Publisher for the purposes for which it is provided to Publisher and will not be shared by Publisher with any third party without the written approval of Company. Publisher acknowledges and agrees that Publisher does not have, nor will it claim, any right, title or interest in the Site software, applications, data, methods of doing business or any elements thereof, any content provided on the Site (including the Ads) or any Links. Publisher may only access the Site via web browser, email or in a manner approved by Company.
11. Non Circumvention
- During the term of this Agreement and for a one (1) year period thereafter, Publisher agrees that neither Publisher nor any Sub-Publisher will directly or indirectly approach or attempt to engage in a contract with any Advertiser. Company will promptly reply in writing to any inquiries received from Publisher regarding the status of any person or entity as an Advertiser so as to aid Publisher in its efforts to comply with this provision. Publisher agrees and acknowledges that any actual or threatened breach of this provision will constitute immediate, irreparable harm to Company for which monetary damages would be an inadequate remedy and for which, in addition to any and all other remedies, preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond, would be an appropriate remedy. In addition to any other legal remedy available to Company, Publisher shall pay Company all commissions earned by Publisher from such Advertiser(s) in violation of this provision.
12. Mobile Campaigns
- With respect to Publishers who are running mobile campaigns to generate app installs (“Installs”), leads (“Leads”) or sales (“Sales”) for Advertisers using mobile traffic, the following specific terms and conditions shall apply: 11.1 Publishers must take note and strictly abide by any specific caps and or budgets that are applied to each and every offer.
- For offers where publisher is required to drive Installs, each and every Install must be generated legitimately by a genuine (human) consumer wishing to engage with the Advertisers mobile app. Publishers may not auto-redirect to the relevant platform’s (OS) app store, the consumer must intentionally click on banner or link to direct themselves to the app store, and install the app intentionally.
- Incentives such as virtual currency, points and lives may only be offered if the Site specifically states Incentives Allowed within the campaign description. If there is no Incentive information it must be concluded that incentive traffic is absolutely not acceptable, and any Installs, Leads or Sales will be deemed fraudulent and therefore no commission will be paid.
- Promotion of all Android Install campaigns must fully comply with the Google Play App Promotion Policies:https://play.google.com/about/developer-content-policy.html. There will be a zero tolerance policy towards non-compliance. Creative, links and promotion methods will be audited regularly and non-compliant Publishers will be banned from campaigns and commissions will be forfeited.
13. Real-Time Prospecting Campaigns
With respect to Publishers who are running Real-Time Prospecting campaigns to generate leads for Advertisers (“Leads”), the following specific terms and conditions shall apply:
- No Program may go live until such time as Company, and if necessary the applicable Advertiser, have approved, in writing, (i) all sites to be used by Publisher for each Program and (ii) the transfer of Leads in the form of either a successful post for real-time transfer or the test file for batch or FTP files.
- Each Program shall have its own criteria for determining the validity of a Lead (the “Lead Requirements”). Company shall only pay for leads deemed valid by Company in its sole discretion. Company may detect and track invalid Leads on a real-time basis. Company may also subsequently determine that Leads are invalid for any reason, including, without limitation, (i) fraudulent activities, including changing approved Lead generation forms, publishing an offer on an unapproved site, utilizing automated methods to complete Real-Time Prospecting forms, offering incentives for Real-Time Prospecting forms or Publisher's inability to provide for each Lead the Internet user’s IP address and time/date stamp or (ii) non-compliance with Real-Time Prospecting Programs, including exceeding Lead caps as communicated by a Company manager and/or going live with a Real-Time Prospecting offer prior to receiving written approval from a Company manager of the creative and data transfer.
- Publisher hereby acknowledges that the collection of Leads is being done solely for the benefit of Company or its Advertisers. Therefore, other than providing the Leads to Company for delivery to the Advertisers, Publisher may not use, sell, transfer, 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.
- Publisher may not, in any way, alter or modify the Real-Time Prospecting forms, without the prior written consent of Company.
14. Term and Termination
- This Agreement shall commence upon Company’s acceptance of Publisher application and remain in effect until terminated as set forth herein. This Agreement may be terminated by either Company or Publisher at any time, for any reason, or for no reason at all. Termination may be effected by delivery to the non-terminating party of appropriate notice, delivered via e-mail, fax or other means of public communication (as set forth below), and will be effective immediately upon receipt of such notice, or three (3) business days following the sending of notice, whichever is earlier. In addition, Company reserves the right, in its sole and absolute discretion, to terminate a Program at any time for any reason, upon notice to Publisher. Company also reserves the right to terminate Publisher’s access to the Site and/or Service at any time, with or without notice to Publisher. As set forth herein, any and all information that Publisher may provide to Company during Publisher application process and/or the course of Publisher’s participation in Company’s Service shall at all times remain the sole and exclusive property of Company. Upon termination of this Agreement by either party, Publisher shall cease all advertising activities as of the effective time of the termination.
- From time-to-time, Company makes available to its publishers various policies and guidelines designed to reduce fraud and combat consumer deception. The policies and guidelines cover many topics including email marketing, search engine marketing, lead generation, blog-based marketing and product review websites. Publisher hereby represents and warrants that it: (i) has read Company’s policies and guidelines (ii) will regularly check the Policy Web Page for updates; and (iii) shall comply with any and all such policies and guidelines, as well as updates to same. Failure to comply with the aforementioned policies and guidelines will be considered a breach of this Agreement and may result in the immediate termination of this Agreement by Company.
16. Covenants, Representations and Warranties
- Each party represents and warrants that: (i) it has the right to enter into and fully perform its obligations under this Agreement; (ii) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with this Agreement; 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, representation or warranty, express or implied, as to the level of consumer response that will result from any Program.
- Publisher represents and warrants as follows:(a) the Media is currently in compliance with all applicable laws and regulations, including, without limitation, CAN-SPAM and the GDPR;
- the Media does not contain or promote, nor link to another website that contains or promotes, libellous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content, products, services or activities;
- Publisher’s website contains distinct and legitimate content, substance and material, not simply a list of links or advertisements and that Publisher’s website serves a purpose substantially or completely separate and distinct from merely being designed to earn money solely from Company’s Advertisers or other third party advertisers;
- Publisher’s website and emails are represented by a legitimate second-level domain name;
- Publisher’s website is not offered as a part of a community-based website personal entry or personal page;
- Publisher’s website and emails do not incentivize users to click on Ads. Incentives include awarding users cash, points, prizes, and/or contest entries;
- Publisher’s website is not hosted by a free service and is fully functional at all times and at all levels;
- Publisher will not use, nor knowingly permit any person or entity to use, any third-party trademarks in any way to direct traffic to any Publisher website or Advertiser website including purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name, or any derivative of any such trademark, service mark or brand name;
- Publisher will not allow the Creative to be placed on any non-Publisher website without the prior express written consent of Company;
- Publisher will not use any Creative or any other Program content in connection with aggregating, soliciting or recruiting other publishers, advertisers, websites or persons to form or join an affiliate marketing, advertising or similar network for the purpose of engaging in business of the type conducted by Company;
- Publisher’s database consists of only permission based opted-in email addresses; and
- Publisher owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on the Media.
- Publisher covenants that it shall not:
- send commercial email to recipients that have not consented to receive such emails;
- 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 or link to any website containing content prohibited by Section 3.3;
- use the Site in any manner other than as specifically contemplated herein;
- engage in any kind of deceitful, misleading, unfair, fraudulent or unlawful practice when marketing any Programs;
- during the term of this Agreement and for one hundred eighty (180) days thereafter, participate in any performance based advertising relationship with any Advertiser, unless a previously existing business relationship between Advertiser and Publisher can be demonstrated by Publisher to the reasonable satisfaction of Company. In this connection, both parties agree and acknowledge that if Publisher violates this covenant, Publisher shall pay Company damages in the amount of forty-five percent (45%) of such Advertiser’s gross revenue resulting from Publisher’s advertising or marketing efforts on its behalf;
- place an Ad that is prohibited by Section 3.3 or that may bring Company and/or any Advertisers negative publicity;
- violate the terms and conditions of any third party website, including the unauthorized use of a third party website for commercial gain or posting bulletins to a non-owned account; or
- 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.
- Publisher covenants that it shall:
- comply with the highest industry standards while participating in Programs; and
- provide, within one (1) business day after request therefor, the IP addresses used in connection with a Program, together with such other related information that Company may request. Failure to provide such information may result in the immediate suspension or termination of Company’s relationship with Publisher and/or the deactivation of all Links in any Programs downloaded by Publisher.
- Publisher acknowledges that any breach by Publisher of this Section 16 may, in the sole discretion of Company and in addition to any other remedies available to Company, result in the immediate suspension or termination of Company’s relationship with Publisher. If Company terminates this Agreement due to Publisher’s breach of this Section 16, Publisher shall forfeit all rights to any compensation then owed to Publisher by Company under this Agreement. Publisher acknowledges and agrees that Company shall not be responsible for any Advertiser’s violation of any applicable laws or regulations, including, without limitation, CAN-SPAM, the UK Data Protection Act (1998) or the EU General Data Protection Regulation (2016) when applicable.
17. Publicity and Confidentiality
- Subject to Company’s confidentiality obligations below, Company shall have the right to disclose the business relationship between the parties under this Agreement, including using Publisher’s business name and logo on Company’s website and/or in promotional materials.
- Either party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain confidential and/or proprietary information regarding the business of the Disclosing Party (“Confidential Information”). Without limiting the foregoing, “Confidential Information” shall include any information of the Disclosing Party that is labelled or identified as “confidential” or “proprietary” or that the Receiving Party otherwise knows, or would reasonably be expected to know, the Disclosing Party considers to be confidential or proprietary or the Disclosing Party has a duty to treat as confidential.
- The Receiving Party will restrict its use of any Confidential Information of the Disclosing Party to performance under this Agreement, and will disclose such Confidential Information only to its employees, contractors and representatives who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
- The Receiving Party’s obligations under Section 17.2 with respect to any Confidential Information of the Disclosing Party will terminate if such information:
- was already known to the Receiving Party at the time of disclosure by the Disclosing Party;
- was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions;
- is, or through no fault of the Receiving Party has become, generally available to the public; or
- was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) previously approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
- The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party and/or upon the expiration or termination of this Agreement. Upon request from the Disclosing Party, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 17.5. Notwithstanding the foregoing, the Receiving Party may retain copies of the Disclosing Party’s Confidential Information as may be necessary for the Disclosing Party to demonstrate compliance with applicable law.
- The parties agree that during the term of this Agreement and for a period of one (1) year thereafter, they will not directly or indirectly solicit the employment of any of the other party’s employees, officers or directors, provided, that employment solicitations directed to the general public shall not be prohibited pursuant to this Section 17.6.
- The parties acknowledge and agree that a breach of this Section 17 will cause the non-breaching party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, the parties agree that in such event, the non-breaching party will, in addition to all other remedies, be entitled to preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond.
18. User Information; Non-disclosure; Confidentiality
- Without limiting the generality of Section 17, as between Publisher and Company, all information submitted to Publisher by an Internet user pursuant to a Program (“User Information”) is proprietary information of Company and its affiliates. Such User Information is confidential and may not be disclosed by Publisher. Publisher agrees not to reproduce, disseminate, sell, distribute or commercially exploit any such User Information in any manner. Publisher shall maintain such User Information in a secure manner, consistent with industry standards.
19. Disclaimer or Warranties and Limitation of Liability
- The Site, Creative, Services, Programs and materials provided by Company hereunder, their use and the results of such use are provided on an “as is”, “as available” basis. To the fullest extent permissible pursuant to the applicable law, company makes no warranties (including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement), guarantees, representations, promises, statements, estimates, conditions, or other inducements, express, implied, oral, written, or otherwise, except as expressly set forth herein.
- Company shall not be liable to publisher or any third party for any unavailability or inoperability of the services, the internet or telecommunications systems or for any computer error, technical malfunction, corruption or loss of data or information or other disruption of any kind.
- Company shall not be liable to publisher for unapproved materials, including all copy, images, url names, and search terms used by publisher to promote an advertiser. Company makes no representations whatsoever about any third party website which publisher may access in connection with the services. Publisher acknowledges that company has no control over the content of any website that is not associated with and is independent of company. Furthermore, Publisher acknowledges that 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 Publisher’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.
- In no event will Company be liable for any consequential, indirect, exemplary, special, or incidental damages, including any lost data and lost profits, arising from or relating to this agreement, the services or any program, even if advised of the possibility of such damages. company’s total cumulative liability in connection with any services provided under this agreement, whether in contract, tort or otherwise, will not exceed the amount of fees actually paid to publisher under this agreement during the twelve (12) month period preceding the events giving rise to such liability.
- Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages, accordingly, company’s liability in such jurisdictions shall be limited to the maximum extent permitted by law.
- Publisher agrees to indemnify, defend an