Network Affiliate Agreement - the terms governing your relationship with Bucksbooth and your use of the Trackbooth, Subsbooth and Sendbooth platforms.
NETWORK AFFILIATE AGREEMENT. The following terms and conditions ("Agreement") govern your ("Affiliate") relationship with Bucksbooth ("Company"), and the use of Company's website(s), services, or additional products, services, or websites offered by Company, including the Trackbooth, Subsbooth and Sendbooth platforms (collectively "Services"). Company reserves the right to make changes to any Services and this Agreement, at any time, and without prior notification. The latest Agreement will be posted on Company's website. Affiliate will be notified of changes through its login page and Affiliate's continued use of the Services after such posting shall constitute its consent to such modification. If Affiliate does not agree to this Agreement in its entirety, or any subsequent modifications, then Affiliate is not authorized to access any of the Services offered by Company.
1.1 Registration with Company shall not confer any right on Affiliate to access Company's Services. All prospective Affiliates must be approved by Company before they can become Affiliates. Company reserves the right to withhold or refuse approval, for any reason, or for no reason. Once approved, Affiliate's continued right to participate is conditioned upon Affiliate's ongoing compliance with this Agreement and Company's posted policies. Failure of Affiliate to observe the terms and conditions of this Agreement, or the posted policies, will be a material breach and disqualify Affiliate from any further participation in Company's Services, and may result in termination, forfeiture of payment, and legal action. Affiliate shall promptly notify Company in the event of a material change in its business or marketing strategy. Approval may be withdrawn by Company, at any time, for any reason, without prior notification.
1.2 In order to access and use the Platform, Affiliate must provide accurate personal and/or company information to Company through the online registration process. Affiliate may be asked to provide its name, company name, physical address, billing address, telephone number, facsimile number, email address, website address, tax payer ID number or social security number, billing or payment information, and other identifying information. Company may share such personal information with affiliates, advertisers, outside accounting firms, legal counsel, state and federal tax services and any government or law enforcement agency that requests such information.
2.1 Company provides services to third parties in which such third parties ("Advertisers") post advertising campaigns to their advertising programs ("Program(s)") on Company's proprietary platform ("Platform"). The Program(s) will specify the specific type of advertising media, pricing, placement, run, rate, targeting and other campaign-specific terms, and the amount and terms under which Affiliate will receive payment when the applicable Program's requirements are fulfilled. Compensation is derived from a specified event ("Event") identified in a Program, such as clicks, click-throughs, sales, registrations, impressions, and leads. Company or Advertiser may change a Program, at any time, upon reasonable advance notice to Affiliate. Company is responsible for displaying and administering all active Programs, and tracking the payments owed. Company is not responsible or liable for the content of any Program.
3.1 If Affiliate accepts a Program, Affiliate agrees to place that Program on Affiliate's Media and shall display the Ad exactly as it appears on Company's Platform. Affiliate shall not alter the Ad in any way. Failure to adhere to this requirement may, in addition to all other remedies available to Company, result in termination of Affiliate and loss of revenue generated therefrom.
3.2 Failure to perform services as set forth in the Program or this Agreement may result in termination or suspension of Affiliate, and/or the deactivation of all links in any Programs downloaded by Affiliate, forfeiture of payment, and legal action.
3.3 All of Affiliate's websites, affiliated websites, and email distribution lists (collectively "Media"), must continually meet the following minimum criteria:
(a) Affiliate's website, Media, and Content must comply with all applicable state and federal laws and regulations, including but not limited to the Lanham Act, the Copyright Act of 1976, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission's Telemarketing Sales Rules, and the Federal Trade Commission's Red Flag Rules. Affiliate shall not engage in the following: (i) user generated content, including personal blogs; (ii) pornographic material, nudity, or indecent content; (iii) racial, ethnic, political, hate-mongering, or otherwise objectionable content; (iv) investment, money-making opportunities, or advice not permitted under law; (v) gratuitous violence or profanity; (vi) material that defames, misrepresents, abuses, or threatens physical harm to others; (vii) promotion of illegal substances or activities, such as illegal online gambling, how to build a bomb, counterfeiting money, etc.; (viii) software pirating; (ix) hacking, phishing or phreaking; (x) obscenity and any spoofing, redirecting, or trafficking, from adult-related websites, in an effort to gain traffic; (xi) infringement or violations of the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance, or other music-related rights, or any other right of any third party; (xii) any illegal activity whatsoever; and (xiii) spawning and pop-ups are prohibited.
(b) Unless otherwise approved in writing by Company, Affiliates may not offer incentives to users as a means to enhance the performance of any Program. Incentives include, but are not limited to, awarding cash, points, prizes, contests, entries, etc.
(a) Affiliates sending advertisements via email must have the consent of the consumer to send such email, and each Affiliate shall maintain records evidencing such consent, including, without limitation: (i) the opt-in date; (ii) the registration source; (iii) their first name; (iv) their last name; (v) their mailing address; (vi) their email address; (vii) the Privacy Policy of the source website; and (viii) any other information collected - and shall deliver any such records to Company within one (1) business day of request therefor.
(b) Affiliate may not use an Advertiser's name, including any abbreviation thereof, in the originating email address line or subject line of any email transmission unless it appears in the Ad on the Platform. If mailing to or from California, Affiliate must use an openly and accurately registered mailing domain in the friendly-from which can be found through a whois search online. An email may not include falsification of header information, falsified registrations for domain accounts, privacy protected or privacy guard on "whois" searches, email accounts or IP addresses used in connection with services, and re-transmissions of an email ad for the purpose of concealing its origin. Affiliate expressly agrees that it will register its mailing domains with accurate information including a legally registered company name or d/b/a, address, email address and phone number. Affiliate will not use domains that are privately registered or registered through a proxy service.
(c) Only approved, up-to-date creative, text copy, subject, and from lines, as they appear in the Program on the Platform, may be used. Affiliate may vary from the Ad only upon written approval by Company.
(d) Messages containing advertisements or solicitations must identify themselves as such, and do so by "clear and conspicuous" means. Affiliate must identify itself as the initiator and sender of the email, and include their company name or formally registered d/b/a, email address, and postal address.
(e) Affiliate must give recipients an effective means of requesting not to receive future email ads from Affiliate. At a minimum, Affiliate must give the recipient the ability to click on a link to unsubscribe, opt out via postal letter, and provide a functioning unsubscribe link that must remain in operation for thirty (30) days from the date of the original email transmission. Affiliate must also provide within the body of the email a valid postal address associated with Affiliate that receives physical opt-out requests.
(f) All unsubscribe requests must be adhered to within ten (10) business days from their receipt. Affiliate may not sell or transfer an email address once someone has opted out of receiving future communications, whether from an Advertiser or globally.
(g) Affiliate is responsible for knowing the source of its email list. Email addresses may not be obtained by the use of a program for random generation of email addresses, and/or "scraping" websites or online services. Affiliate must have full opt-in data for all recipients in its database.
(h) Use only email addresses with the name of the sending party that received the opt-in, and do not use the non-sending party's name in any mail-from or reply-to email addresses (e.g. "from" lines need to accurately identify the sender of the email).
(i) Affiliate agrees that prior to mailing any campaign, it will download the most recent suppression file(s) for any particular campaign, and for that campaign it will suppress all email addresses within its database that are found on such list. In addition, for any campaigns that include a domain suppression list, Affiliate agrees that prior to mailing the campaign, it will download the most recent domain suppression list for that campaign, and will suppress all domains within its database found on such list. Affiliate agrees that it will download and remove the domains located on the FCC's wireless domain names list from all current data used in all mailings. Affiliate further warrants that any new data that it acquires, regardless of its source, will be run against the FCC's wireless domain names list, and that domain names contained therein will be removed before sending any mailings.
(j) Affiliate agrees to scrub its data against all suppression lists which are provided by Company or its Advertiser prior to each and every transmission of email advertisements. Failure to properly scrub will result in termination and release of Affiliate identity to the offended Advertiser. Affiliate agrees to access and use suppression lists for lawful purposes and to not sell, rent or share any suppression lists other than as provided for by law.
(k) In the event that Company or Affiliate receives a complaint from any recipient of a Program transmitted by Affiliate, upon Company's request Affiliate will immediately provide Company with the appropriate records verifying that recipient's consent to receive email transmissions from Affiliate. Such records include, but may not necessarily be limited to, the Internet address of Affiliate's opt-in/opt-out website, the date of the recipient's action, and Affiliate's privacy policy.
(l) Affiliate may only engage in SMS Marketing by contacting consumers ("Consenting Consumers") who have provided Affiliate with "prior express written consent" ("Valid Consent") as that term is defined in the Telephone Consumer Protection Act, 47 U.S.C. § 227, as amended, and its implementing regulations and applicable F.C.C. rulings and orders (collectively, the "TCPA"), to be contacted via SMS Marketing by or on behalf of the entity designated by Company ("Named Company Advertiser"). The language to be used by Affiliate to obtain Valid Consent from Consenting Users ("Consent Disclosure") must include Company and/or the Named Company Advertiser, as well as all language and other elements required under the TCPA, as well as any other rules applicable to SMS Marketing.
(m) Affiliate will not engage in the following prohibited conduct:
4.1 Company may, but is not required to, monitor Affiliate's activities using Company's Services, on its own or with the assistance of third parties, for compliance with this Agreement. Without limiting the generality of the foregoing, Company, or a third party retained by Company, may monitor for the following: (i) assurance of compliance with applicable legal requirements of Affiliate's Media; (ii) assurance of compliance with the applicable Advertiser's campaign requirements; and (iii) assurance of compliance with honoring unsubscribe requests.
4.2 If the monitoring is done by a third party, such third party will share all such information with Company. Each unsubscribe list furnished to an Affiliate shall be separately and technologically identified, so that Company will be able to ensure that each Affiliate is not disseminating or otherwise using the unsubscribe list other than in a manner required by applicable law. Affiliate must not send further emails to names already on, or newly added to, the unsubscribe list.
5.1 Limited License Grant. Company grants Affiliate a revocable, non-transferable, non-sub-licensable, non-exclusive, limited license to use Company's website and Platform, including any Ads posted thereon, and any data, reports, information, or analyses arising out of such use ("Site Data"), solely for the purpose of marketing or promoting the Programs hereunder, and subject to this Agreement and the applicable Program terms. If Affiliate also maintains its own network of affiliates, it is not authorized to distribute Company's offers to Sub-Affiliates unless Company gives Affiliate express permission in writing. If permission is granted by Company, Affiliate shall ensure and require that all Sub-Affiliates: (i) comply with the material terms of this Agreement, and further provided that such Sub-Affiliate has no right other than the limited right to display any advertising campaign from the Services as sub-licensed by Affiliate; (ii) will not modify or alter any advertising campaign from the Services in any manner; and (iii) under no circumstances will any Sub-Affiliate be permitted to distribute Company's offers on its network; all offers distributed to a Sub-Affiliate must only be distributed internally. If an Affiliate or Sub-Affiliate fails to adhere to the foregoing requirements, in addition to any other remedies available to Company, Affiliate shall be terminated and forfeit its rights to any amounts owed by Company to Affiliate. Affiliate acknowledges and agrees that Affiliate does not have, nor will it claim, any right, title, or interest in the Services' software, applications, data, methods of doing business, or any elements thereof, or any Content provided, including the Ads. Affiliate may only access Company's website via Web browser, email, or in a manner approved by Company. Affiliate will not attempt, in any way, to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Services' tags, source codes, links, pixels, modules, or other data provided by or obtained from Company that allows Company to measure Ad performance and provide its Services. In addition, Affiliate acknowledges that all non-public information, data, and reports received from Company hereunder, or as part of the Services hereunder, is proprietary to and owned by Company. If instructed to do so by Company, and/or if Affiliate shall be terminated by Company, Affiliate will immediately destroy and discontinue the use of any Company data, including the Services' Data and any other material owned by Company or Advertisers.
5.2 Affiliate agrees not to download (other than page caching) or modify Company's website, Platform or software or any portion of it. This license does not include any derivative use of the website or Platform or software. Downloading or copying of Platform or account information or software for the benefit of anyone other than the Company, or any use of data mining, robots, or similar data gathering and extraction tools, is prohibited. Company's website, Programs or Platform, or any portion thereof, may not be reproduced, duplicated, copied, sold, or resold except to provide services pursuant to this Agreement. Affiliate may not frame or utilize framing techniques to enclose any trademark, logo or other proprietary information (including, without limitation, images, text, page layout, or form) of Company, its affiliates or advertisers without its or their respective express, written consent. Affiliate may not use any metatags or any other "hidden text" utilizing Company's, its affiliates' or advertisers' name(s) or trade names, trademarks or service marks without the express, written consent of Company. Any unauthorized use terminates the permission or license granted by Company.
5.3 Link Usage. Affiliate agrees to use the links in the exact form delivered to Affiliate. Affiliate agrees not to modify, alter, delete, or adapt the links in any manner without Company's written approval. Links must be served from Company's server. Affiliate shall not take any actions to impede the action of, or to disable, any such links. Affiliate agrees, if requested by Company, to modify or alter links or tracking devices in the manner requested by Company. Affiliate further agrees that it shall in no event modify or interfere with tracking devices, unless specifically instructed to do so by Company in accordance with the previous sentence.
5.4 Ownership. Company owns all rights, title, and interest to links and user data collected and derived through the activities of Affiliate pursuant to this Agreement. Company may choose to embed certain data mining tools within links from time to time ("Data Miners"). Any data derived by any such Data Miner shall be the sole property of Company. Company may, from time to time, opt to share data derived from Data Miners with Affiliate to help Affiliate optimize the quality of Leads generated from Affiliate's activities, or to otherwise improve the quality, functionality, and mutual profitability of the activities of the Parties under this Agreement. If Company does share data derived from the Data Miners with Affiliate, Affiliate agrees that this data will be used solely by Affiliate for the purposes for which it is provided to Affiliate, and will not be shared by Affiliate with any other third party or entity without the written approval of Company. Should Company choose to provide advertising creative content, Web design services, or other Web content of any type ("Web Content") to Affiliate, Affiliate shall use such Web Content: (i) in exactly the form that it is delivered to Affiliate by Company without modification, unless approved in writing; and (ii) only in the manner expressly permitted by Company, in writing, and only until Company shall request that Affiliate discontinue its use of such advertising creative, at which time Affiliate shall discontinue such use within two (2) business days of being requested by Company to do so.
6.1 For the purposes of this Agreement, "Confidential Information" includes, without limitation, the terms of this Agreement, including pricing and information regarding existing or contemplated services, products, Advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the Services. Each Party agrees to use the other Party's Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other Party's Confidential Information to any third party, unless: (i) any disclosure is necessary and permitted in connection with the receiving Party's performance of its obligations, or exercise of its rights, under this Agreement, or any other agreement between the Parties; (ii) any disclosure is required by applicable law; provided that the receiving Party uses reasonable efforts to give the disclosing Party reasonable advance notice thereof, so as to afford the disclosing Party an opportunity to intervene and seek an order, or other appropriate relief, for the protection of its Confidential Information from any unauthorized use or disclosure; or (iii) any disclosure is made with the consent of the disclosing Party. Notwithstanding the foregoing, Affiliate agrees that Company may divulge its personal and/or otherwise Confidential Information to an Advertiser, agency, legal, or regulatory authority, person, or entity, relating to investigations, claims, or actions that Affiliate has violated this Agreement, or any applicable law or regulation. Neither Party may divulge Confidential Information to a government entity unless and until notice is provided to the other non-disclosing Party in sufficient time to seek injunctive relief or a protective order from the appropriate legal institution.
7.1 While an approved Affiliate and for one hundred eighty (180) days thereafter, Affiliate shall not participate in any performance-based advertising relationship with any Advertiser within Company's network for which Affiliate undertook services on behalf of Company, unless a previously existing business relationship between Advertiser and Affiliate can be demonstrated to the reasonable satisfaction of Company. Because Company will be irreparably harmed by Affiliate's conduct, and because the true extent of such harm will be impossible to quantify, monetary damages will not be an adequate remedy for any such conduct. Affiliate agrees that Company shall be entitled to injunctive relief precluding Affiliate from taking or continuing any action or conduct in violation of this provision, to be issued by any court of competent jurisdiction, upon a showing of any such violation by Affiliate, without posting bond or required demonstration of monetary damages. Such injunctive relief is in addition to, and not exclusive of, all other rights and remedies available to Company. The ability to seek and obtain injunctive relief is a bargained-for provision of this Agreement.
8.1 Monitor and Inactivation. Company may, but is not required to, monitor traffic for fraud. If fraud is detected, Affiliate's account will be made inactive pending further investigation. Fraud traffic includes, but is not limited to: (i) click-through or conversion rates that are much higher than industry averages, and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of Company; (ii) click or lead generation programs generating clicks or leads with no indication by Company's website traffic that it can sustain the clicks or leads reported; (iii) fraudulent leads as determined and reported by Advertisers; (iv) use of any incentives to procure clicks or leads; (v) providing leads obtained other than through intended consumer action without prior written approval of Company - for instance, use of phone books, or similar such compilations of personal data, to complete lead generation forms shall be considered fraudulent behavior; and (vi) use of fake redirects, automated software, and/or other fraudulent mechanisms to generate Events from the Programs. If Affiliate fraudulently adds leads or clicks, or inflates leads or clicks by fraudulent traffic generation (such as pre-population of forms or mechanisms not approved by Company, or use of Company websites in co-registration campaigns that have not been approved by Advertiser), as determined solely by Company, Affiliate will forfeit its entire commission for all Programs, and its account will be terminated. In addition, in the event that Affiliate has already received payment for fraudulent activities, Company reserves the right to seek credit or remedy from future earnings, or to demand reimbursement from Affiliate.
8.2 Adware and Spyware Prohibited. Affiliate shall at no time engage in, disseminate, promote, or otherwise distribute any Company Affiliate marketing campaign through the use of contextual media, specifically downloadable software, also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable. This prohibition applies equally to Affiliate and any of its business affiliates. In the event that Company discovers that Affiliate is engaging in, disseminating, promoting, or otherwise distributing any Company Affiliate-related contextual marketing campaign which results in a violation of this Agreement, then Company may, in its sole discretion, terminate this Agreement, and immediately halt any and all Company Affiliate-related contextual marketing campaigns, making payment only on legitimate earnings of Affiliate as accrued through the date and time of termination. Affiliate agrees and acknowledges that if it violates its obligations under this Agreement, Company shall be entitled to seek: (i) injunctive relief without the requirement of posting a bond; and/or (ii) any and all other remedies that Company may have at law or in equity.
9.1 Tracking. All reporting of actionable events, including leads, clicks, actions or sales, shall be undertaken by Company. Initial payment shall be based on Company's tracking and reporting system or the Advertiser's tracking and reporting system. Affiliates must insert Company's tracking code or pixel as directed in order to have their Events tracked for payment. Where website integration tags are inserted in an advertisement, Affiliate agrees not to alter or remove such tags.
9.2 Affiliate will be paid per the terms of each Program. Company shall pay any amounts due approximately thirty (30) days after the end of each month, less any taxes required to be withheld under applicable law, provided that Company may, in its discretion, withhold payments until such time as Advertiser has paid Company for any Program. In addition to any other remedies that may be available to Company, in the event of any breaches by Affiliate of the terms and conditions of this Agreement, Affiliate shall forfeit its rights to any amounts owed to Affiliate. Company reserves the right to reduce any payments owed to Affiliate as a consequence of any offsets taken by Advertisers for invalid Events, technical errors, tracking discrepancies, and the like. Company shall compile, calculate, and electronically deliver data required to determine Affiliate's billing and compensation. Any questions or disputes regarding the data or payout provided by Company need to be submitted in writing within five (5) business days of receipt, otherwise the information will be deemed accurate and accepted as such by Affiliate. Company will not pay for any Events that occur before a Program is initiated or after a Program terminates. Invoices submitted to Company, and payments made to Affiliate, shall be based on the Events as reported by Company. Company will not be responsible to compensate Affiliate for Events that are not recorded due to Affiliate's error. Company will require Affiliate to provide a W-9, and similar such information, as a condition to payment.
9.3 Payment Transfer. Affiliate acknowledges that Company is only acting as a transfer agent of the Advertiser and Affiliate agrees that Company is not responsible for payment of any fees due to Affiliate in the event that the Advertiser withholds or refuses payment. Company agrees to use reasonable means by which to seek payment from Advertiser and, in the event payment is not received, Company agrees to provide reasonable assistance to the Affiliate in obtaining the payment from Advertiser. Affiliate agrees that in the event the Advertiser does not pay Company, Affiliate has no recourse against Company.
10.1 Either Party may terminate this Agreement on three (3) business days' advance notice to the other Party. In the event either Party in good faith believes that the other Party is in violation of applicable law, or in breach of any terms of this Agreement, such Party shall have the right to terminate the Agreement immediately upon written notice to the other Party. Company further reserves the right to terminate this Agreement and Affiliate's participation in the services hereunder without prior notice to Affiliate.
10.2 Termination notice will be provided via email and will be effective immediately, meaning, among other things, that Affiliate must immediately cease all advertising activities. All monies then due to Affiliate will be paid during the next billing cycle. The representations, warranties, and obligations contained in paragraphs 12, 15, and 16 shall remain in full force and effect after termination of this Agreement. In addition, all payment obligations accruing prior to the termination date shall survive until fully performed.
11.1 Mutual Representations. Each Party represents and warrants that: (i) it has the right to enter into and fully perform the services contemplated herein, consistent with this Agreement's terms and conditions; (ii) there is no outstanding contract, commitment, or agreement to which it is a Party that conflicts with the terms and conditions of 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, representations, nor warranties, express or implied, as to the level of consumer response that will result from the Programs.
11.2 Affiliate Representations. Affiliate represents and warrants that:
(a) It shall comply, and cause its affiliates and any Sub-Affiliate to comply, with all applicable international, federal, state, and local laws, rules, and regulations in the performance of its services under this Agreement.
(b) Affiliate's websites, databases, emails, and all linked content are, and shall remain at all times during the term of this Agreement, in compliance with all applicable foreign, federal, and state laws, including, but not limited to, the Federal Trade Commission Act, the Federal Communications Act, COPPA, the CAN-SPAM Act of 2003, as amended, applicable Federal Trade Commission implementing regulations, and any and all foreign, federal, and state deceptive trade practices legislation.
(c) Affiliate's websites, databases, emails, and all linked content do not: (i) promote racism, hate-mongering, or other objectionable content; (ii) contain any investment or money-making opportunities, or advice not permitted by applicable laws, rules, and regulations; (iii) contain any gratuitous violence or profanity, or other explicit vulgar or obscene language; (iv) contain or post any sexually explicit images, or other offensive content or adult services; (v) promote illegal substances, or alcohol or tobacco; or (vi) promote software piracy or otherwise violate any intellectual property rights of third parties.
(d) Affiliate does not engage in any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic. Websites that are point, lottery, or rewards based, and encourage users to click on Advertiser's link, or use Advertiser's ads, to generate revenue for users to win points, get rewards, or other incentives, are prohibited, unless expressly approved in writing by Company. Affiliate shall not violate any third-party terms and conditions, which includes, but is not limited to: (i) unauthorized use of a third-party website for commercial gain or posting bulletins to non-owned account(s); (ii) use of deceptive or misleading practices, such as the use of spyware, adware, devices, programs, robots, iframes, hidden pictures, redirects, spiders, computer scripts, or other automated, artificial, or fraudulent methods designed to appear as if a consumer is generating a Lead; and (iii) use of any deceptive form of advertising, which includes, but is not limited to, phishing - sending an email to an individual falsely claiming to be an established legitimate enterprise in an attempt to scam or defraud the user into surrendering private and personal information that can be used for identity theft or other activity.
(e) Affiliate acknowledges that breaches of any of the foregoing representations and covenants may, in the sole discretion of Company, result in the immediate suspension or termination of Company's relationship with Affiliate, and Affiliate shall forfeit all rights to any compensation theretofore owed to it by Company. The foregoing rights shall be in addition to any other remedies available to Company. Affiliate acknowledges and agrees that Company shall not be responsible for Advertisers' violation of any applicable laws or regulations, including, without limitation, the Federal Trade Commission Act, the Federal Communications Act, COPPA, the CAN-SPAM Act of 2003, as amended, applicable Federal Trade Commission implementing regulations, and any and all foreign, federal, and state deceptive trade practices legislation.
12.1 Affiliate shall maintain and post, in a conspicuous manner on all its websites involved in the Programs, a privacy policy that clearly and adequately describes what information is collected about the end user, how such information is collected, and how such information is used and/or leased or sold to a third party for commercial benefit to Affiliate.
13.1 All information submitted to Affiliate by an end-user customer pursuant to a Program is proprietary information of Company, its affiliates, Affiliates, and/or Advertisers. Such customer information is confidential and may not be disclosed by Affiliate. Affiliate agrees not to reproduce, disseminate, sell, distribute, or commercially exploit any such proprietary information in any way. Affiliate shall maintain such data in a secure manner consistent with industry standards. All information provided to Affiliate hereunder shall be kept strictly confidential.
14.1 Except pursuant to Section 16, unless otherwise provided in this Agreement, in no event shall Company or any Affiliate be liable to the other for any lost profits or any special, incidental, consequential, exemplary, punitive, or other indirect damages of any nature, for any reason, whether based on breach of contract, tort, including negligence, or otherwise, and whether or not either has been advised of the possibility of such damages.
14.2 DUE TO THE NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY, COMPANY CANNOT GUARANTEE THAT THERE WILL BE NO DOWNTIME OR OTHER INTERRUPTIONS IN SERVICE REGARDING THE LINKS OR OUR SERVICES. WITHOUT LIMITING THE ABOVE, THE LINKS, OUR CLIENT WEBSITES, AND ANY OTHER MATERIALS PROVIDED TO AFFILIATE ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY OF ANY KIND, AND COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW, OR OTHERWISE, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, AND (i) MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (ii) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS THEREIN; (iii) THAT A PARTY'S SECURITY METHODS EMPLOYED WILL BE SUFFICIENT IN ALL CIRCUMSTANCES OR IN THE FACE OF ALL ATTACKS; (iv) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY OF ANY INFORMATION SET FORTH THEREIN OR THEREON; OR (v) AGAINST INTERFERENCE WITH ENJOYMENT OF A PARTY'S "INFORMATION" (WEBSITE). ALL INFORMATION AND COMPUTER PROGRAMS PROVIDED IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER. SOME STATES LIMIT THE ABILITY TO DISCLAIM ALL WARRANTIES, SO THIS CLAUSE OR SOME PORTIONS OF IT MAY NOT APPLY TO YOU.
14.3 Company makes no representations and warranties whatsoever, and disclaims any responsibility and liability, regarding the content or nature of any Ad or Program made available on Company's website, or any product or service advertised in connection therewith. Company has no liability to Affiliate for unapproved materials, including all copies, images, URL names, and search terms, used by Affiliate to promote the client partner. Company makes no representations whatsoever about any other website which Affiliate may access through the Services. When Affiliate accesses a website that is not associated with and independent from Company, Affiliate acknowledges that Company has no control over the content of that website. Furthermore, a link to a non-Company website does not mean that Company endorses or accepts any responsibility for the content or the use of such website. It is Affiliate's sole responsibility to take precautions to ensure that websites, downloads, attachments, and other such files are free of such items as Trojan horses, worms, viruses, and other items of a destructive nature.
15.1 Indemnity. Affiliate will defend, indemnify, and hold harmless Company, Advertisers, and their affiliates, directors, employees, agents, successors, and assigns, from all claims, actions, losses, liability, damages, costs, and expenses, including reasonable attorney's fees (collectively "Claims"), arising from any breach of this Agreement or any Program terms. Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying Party hereunder. Affiliate hereby acknowledges that Advertisers are intended third-party beneficiaries of the foregoing indemnification obligation. No settlement may be consummated without Company's express written authorization, which shall not be unreasonably withheld.
15.2 Notification of Legal Action. Affiliate will immediately notify Company of any current, impending, or potential legal action against it by a third party for matters relating to its participation in Company's Services, or services similarly provided for by and through other parties, when the same arise.
16.1 Neither Party shall be deemed in default of the terms and conditions of this Agreement to the extent that performance of its obligations, or attempts to cure any breach, are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such Party; provided that the Party whose performance is affected by any such event gives the other Party written notice thereof within three (3) business days of such event or occurrence.
17.1 Entire Agreement. The terms and conditions of this Agreement, together with the terms for each of the Programs and the Mandatory Requirements Postings, constitute the entire agreement between the Parties, and supersede all prior agreements or understandings between the Parties.
17.2 Dispute Resolution. This Agreement shall be governed by the laws of the United States and the state of Company's principal office without respect to choice of law rules. The Parties consent to have all disputes regarding this Agreement resolved by binding arbitration before the American Arbitration Association, Commercial Division. The Parties agree to conduct the arbitration in the state and county of Company's principal office, and each Party shall bear the costs of such arbitration. The Parties specifically waive any international treaties or other international law which may govern the court or location of resolution of any dispute between them. This provision was a bargained-for relinquishment of both Parties' rights to jurisdiction in their respective states or countries. The Parties waive the personal service of any process upon them and agree that service may be completed by overnight mail, using a commercially recognized service, or by U.S. mail, with delivery receipt, to the address stated in this Agreement. The prevailing Party in any arbitration shall be entitled to an award of attorney fees and costs for such arbitration.
17.3 Waiver. No waiver by either Party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.
17.4 Assignment. Affiliate may not assign any of its rights hereunder without the prior written consent of Company, which may be withheld for any reason.
17.5 Severability. In the event that any provision of the terms and conditions of this Agreement is found invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be deemed to apply only to the maximum extent permitted by law, and the remainder of these terms and conditions shall remain valid and enforceable according to its terms.
17.6 Relationship. The Parties agree that Company is acting as an independent contractor in performing its Services, and that the relationship between Company and Affiliate shall not constitute a partnership, joint venture, or agency. Neither Company, nor any of Company's employees or agents (collectively "Employees"): (i) are an employee, agent, or legal representative of Affiliate; or (ii) shall have any authority to represent Affiliate, or to enter into any contracts, or assume any liabilities, on behalf of Affiliate. Company retains all the rights and privileges of sole employer of its employees, including, without limitation, the right to control, hire, discipline, compensate, and terminate such employees. Neither Company, nor any of its employees, shall have any right to receive any employee benefits as are in effect generally for Affiliate's employees.
17.7 No Publicity. Affiliate may not make any mention of Company, or any of Company's clients, in any publicity materials advertising or otherwise presenting information about Affiliate and Affiliate's services, including without limitation listing Company, or any of Company's clients, in Affiliate's customer lists, without the written consent of Company, whose consent may be withheld for any reason, or for no reason.
17.8 Notice. Any notice, communication, or statement relating to the terms and conditions of this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission or verified email; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested, or by nationally-recognized overnight courier service, to the address set forth in the registration form or provided by Affiliate thereafter.
17.9 Governing Law. Any claim, controversy, or dispute arising under or related to this Agreement will be governed by the laws of the state of Company's principal office without giving effect to rules governing conflicts of laws. The Parties agree that any claims, legal proceeding, or litigation arising in connection with this Agreement shall be resolved by and through binding arbitration.
17.10 Intellectual Property Rights. All content on Company's website and Platform, including, but not limited to, text, design, graphics, logos, button icons, images, audio clips, digital downloads, interfaces, data compilations, software, and code, as well as all software used by Company, its affiliates, or its content suppliers, is protected by United States and international copyright laws. Nothing contained on the Company website or Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the copyrighted works without the express, written consent of Company. The registered and unregistered trademarks, service marks, trade names, graphics, logos, page headers, button icons, scripts, trade dress, or other indicia of trade origin of Company, its affiliates, or Advertisers may not be used in connection with any business, product, or service whose source is not Company, in any manner that is likely to cause confusion among customers, the trade, or the public, or in any manner that disparages or discredits Company or any of its affiliates. All other trademarks, service marks, trade names, and logos not owned by Company, its affiliates or advertisers that appear on the website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Company or its affiliates. Nothing contained on Company's website should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of the trademarks, service marks, trade names, graphics, logos, page headers, button icons, scripts, trade dress or other indicia of trade origin of Company, its affiliates or advertisers displayed without the express, written consent of Company, its affiliates or advertisers.
17.11 Survival. In addition to certain provisions specifically set forth in the Agreement to survive cancellation, expiration, or earlier termination of this Agreement, the following paragraphs shall likewise survive expiration or earlier termination of the Agreement: 3, 5, 6, 7, 8, 11, 14, 15 and 17.2.
17.12 Complete Agreement. This Agreement constitutes the entire agreement of the Parties, and supersedes any other agreement or understanding, written or oral, that may have been made or entered into with regard to the subject matter thereof.
17.13 Electronic Signature. Affiliate acknowledges and agrees that by clicking on the button labeled "Agree", or such similar links as may be designated by Company to accept the terms and conditions of this Agreement, Affiliate is submitting a legally binding electronic signature and is entering into a legally binding contract. Affiliate acknowledges that its electronic submission constitutes its agreement and intent to be bound by this Agreement and all terms contained therein. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 ("E-Sign Act") or other similar statutes, AFFILIATE HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY COMPANY. Further, Affiliate hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.