PUBLISHER TERMS AND CONDITIONS
a. “Acceptable Use Policies” means the Email Policy, the Search Marketing Policy, the Downloadable Software Policy, the Testimonial and Endorsement Policy, and such other policies as MarketLeverage may develop and publish on the Website from time to time.
b. “Action(s)” means a third party user’s completion of an act related to an Offer, such as a purchase, registration, or submission. The applicable Action for each Offer shall be specified in the Offer description on the Website and, unless otherwise specified, such definition shall only apply with respect to that Offer.
c. “Advertiser(s)” means a MarketLeverage advertising client that contracts with MarketLeverage to place Offers on the MarketLeverage Network.
d. “Commission(s)” means the fees paid or payable to Publisher for Actions generated by Publisher in accordance with the Agreement.
e. “Creative Materials” means the advertising materials made available to You on the MarketLeverage Network to promote the Offers, including, without limitation, banners, graphic images, text, email messages, and links.
f. “Media Types” means the list of promotional methods and media types used to promote the Offers, such as Banner/Text Link, SEO/Organic Search, Search-PPC, Email, E-Newsletter, Contextual, Downloadable Software/Adware, and/or Social Media Placement.
g. “Offer” means an advertising offer made available in the MarketLeverage Network on behalf of an Advertiser.
h. “Publisher Email List(s)” means the email lists used by Publisher to promote the Offers.
i. “Publisher Website(s)” means the websites used by Publisher to promote the Offers.
j. “Third Party Publisher(s)” means an independent third party contracted by Publisher to promote the Offers on behalf of Publisher. For purposes of the Agreement, the term “Publisher” shall include any and all Third Party Publishers.
2. Background and Description of the MarketLeverage Network; Participation Requirements.
a. Description of the MarketLeverage Network.
The MarketLeverage Network provides You, the Publisher, access to a wide variety of Offers from Advertisers to promote on Your Publisher Websites, via Your Publisher Email Lists, and via other approved Media Types, subject to Your compliance with the Agreement. The Offer descriptions on the Website shall set forth the terms under which You may be entitled to Commissions and the Commission rates. MarketLeverage may change an Offer, including, without limitation, the Creative Materials or Commission rates, at any time in its sole discretion. Any such change shall be deemed effective upon posting on the Website.
You may only participate in the MarketLeverage Network if You agree to be bound by the terms and conditions of the Agreement, You satisfy any and all of MarketLeverage’s proprietary and confidential screening processes, and You receive MarketLeverage’s explicit approval, as described in Section 2(d) below. MarketLeverage’s approval of Your participation in the MarketLeverage Network may be withheld or terminated at any time, in MarketLeverage’s sole discretion, with or without cause, regardless of whether MarketLeverage initially grants approval of Your participation. Further, MarketLeverage has no obligation to disclose to You the reasons for denying Your participation in the MarketLeverage Network if, in MarketLeverage’s sole and absolute discretion, such disclosure would compromise MarketLeverage’s proprietary and confidential screening and compliance processes.
c. Criteria for Publisher Websites and Publisher Email Lists.
You shall, upon MarketLeverage’s request, forthwith send MarketLeverage a list of any and all materials used to promote the Offers, including, without limitation, the Publisher Websites, information regarding Publisher Email Lists, advertising copy, sending domains, and keywords used, including those of any Third Party Publishers. MarketLeverage reserves the right to withhold or refuse approval of any Publisher Websites, Publisher Email Lists, or other materials for any reason, in MarketLeverage’s sole discretion, even if MarketLeverage has previously approved such Publisher Websites, Publisher Email Lists, or other materials. In order for Publisher to be accepted as a participant in the MarketLeverage Network, and remain an active participant in the MarketLeverage Network, the Publisher Website(s) and/or Publisher Email Lists (including those of its Third Party Publishers) must meet the following criteria:
i. Your Publisher Websites must be content-based and may not consist solely of a list of links or advertisements, or consist solely of an advertisement from an Offer;
ii. Your Publisher Websites may not be a substantial copy of any third party website or websites;
iii. Your Publisher Websites must be fully functional at all levels, and not contain any “under construction” sections;
iv. Your Publisher Websites may not include spawning process pop-ups or cause more than one pop-up window to appear;
v. Your Publisher Websites must be represented by a legitimate second-level domains (e.g., yoursite.com is acceptable; however, sharedsite.com/yoursite is not acceptable);
vi. You must have the full opt-in information for all email addresses contained in Your Publisher Email Lists, including, without limitation, the subscriber’s IP address, the date and time of subscriber’s sign-up/registration, and the location of the subscriber’s sign-up/registration;
vii. Your Publisher Websites must be registered to You or Your affiliate and not a fictitious person or entity. For purposes of this Section, an “affiliate” is someone who is controlled by You or who is under common control with You; and
viii. Unless otherwise approved by MarketLeverage in writing, Your Publisher Websites and Publisher Email Lists must not incentivize users to click on advertisements or generate Actions, including, without limitation, offering users points, cash, prizes, or other rewards for clicking on advertisements or generating Actions.
d. Approval Process.
Prior to participation in the MarketLeverage Network, Publisher shall complete an application. By submitting Your application, You authorize MarketLeverage and its designated agents and representatives to conduct a comprehensive review of Your background, including, without limitation, obtaining consumer, business, credit, and investigative reports, verification of Your current and past employment, verification of Your professional credentials and affiliations, and Your criminal history. You further authorize any and all trade references provided by You to divulge any and all records, information, and data, verbal or written, pertaining to You. You hereby release, exculpate and exonerate MarketLeverage, any person, firm, or entity that discloses matters in accordance with these authorizations, and any and all trade references provided by You, and their respective agents, officials, and representatives, including, without limitation, their officers, employees, and related personnel, both individually and collectively, from any and all liability and for damages of whatever kind, which may, at any time, result to You because of compliance with these authorizations and requests to release. If, after the investigation, MarketLeverage determines to accept Your application, MarketLeverage shall send an email to You clearly communicating MarketLeverage’s acceptance (the “Acceptance Email”). Publisher shall only be entitled to participate in the MarketLeverage Network upon receipt of an Acceptance Email.
e. Continuing Obligations.
Upon acceptance into the MarketLeverage Network, You acknowledge and agree that You have a continuing obligation to ensure You, Your Publisher Websites, Your Publisher Email Lists, and any and all other promotional materials used by You, at all times, comply with the Agreement.
Subject to the terms and conditions of the Agreement and MarketLeverage’s issuance of an Acceptance Email to Publisher, MarketLeverage grants Publisher a revocable, non-transferable, non-exclusive limited license to use the MarketLeverage Network and any data, reports, information or analyses arising out of such use solely for the purposes set forth in the Agreement. Publisher may not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Website or any tags, source codes, links, pixels, modules or other data provided by or obtained from MarketLeverage that allows MarketLeverage to measure advertising performance and provide its services. Any alteration of pixels may impact Publisher’s ability to be paid for Actions, or to otherwise receive Commissions. Publisher may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Website, any content therein, or any portion thereof. You may not use the MarketLeverage Network to find Offers to circumvent MarketLeverage, and You acknowledge and agree that any circumvention of MarketLeverage will constitute a breach of the non-solicitation provisions set forth in Section 12(a) herein and subject You to liquidated damages.
4. Use of MarketLeverage Network.
a. No Sponsorship or Endorsement.
Publisher acknowledges and agrees that MarketLeverage does not approve, sponsor, or endorse any of the Offers or their associated materials. The existence or availability of an Offer on the MarketLeverage Network in no way constitutes an endorsement or approval of MarketLeverage. Publisher agrees that it will, at all times, utilize Offers and any Offer related materials (including but not limited to Suppression Lists (as defined in Section 6) and the Creative Materials) at its own risk.
Publisher acknowledges and agrees that prior to promoting an Offer, it shall be in compliance with the terms and conditions of the Offer and the Agreement. In addition, Publisher acknowledges that, prior to Publisher promoting certain Offers, an additional agreement may be displayed to Publisher at the request of an Advertiser, and Publisher shall be required to accept the terms and conditions of that additional agreement in order to promote such Offer. Failure by Publisher to adhere to the requirements set forth in this Section, in addition to all other remedies available to MarketLeverage, may result in immediate termination of the Agreement by MarketLeverage and forfeiture of any Commissions generated by Publisher, without penalty to MarketLeverage. Publisher acknowledges and agrees that MarketLeverage does not represent, warrant, or make any specific or implied promises as to the successful outcome of any Offers available on the MarketLeverage Network.
c. Media Types.
Each Offer will have an approved list of Media Types. Publisher shall only use the Media Types approved for an Offer to promote the Offer. As new Media Types become available and/or existing Media Types change, MarketLeverage may add additional Media Types or modify the definitions of existing Media Types. The most recent Media Types and their definitions will be available in the MarketLeverage Network, through Your Publisher Manager, and through the Publisher Helpdesk available at email@example.com. It is Your responsibility to have knowledge of, and comply with, the most recent set of Media Types. MarketLeverage shall be the sole arbitrator in determining which promotional methods belong to which Media Type. For questions concerning Media Types, You may contact Your Publisher Manager or the Publisher Helpdesk available at firstname.lastname@example.org. Failure by Publisher to adhere to the approved Media Types when promoting an Offer may result in immediate termination of the Agreement by MarketLeverage and loss of Commissions generated by Publisher, without penalty to MarketLeverage.
MarketLeverage shall be solely responsible for calculating Your Commissions, and MarketLeverage’s calculations shall be final and binding. Any questions regarding Your Commissions must be submitted in writing within three (3) calendar days of Your receipt of such Commissions, or the Commissions will be deemed accurate and accepted by You.
e. Third Party Publishers.
Publisher hereby acknowledges and agrees that to the extent it utilizes Third Party Publishers, Publisher assumes all liability for the Third Party Publishers and will ensure that Third Party Publishers comply with the terms of the Agreement and all applicable laws, rules, and regulations.
5. Prohibited Conduct.
a. Fraudulent Activity.
You may not engage in any fraudulent activity (“Fraudulent Activity”) in connection with the promotion of any Offers. Fraudulent Activity shall include, without limitation: (i) having click-through rates that are higher than industry averages and where solid justification for such click-through rates is not evident to the reasonable satisfaction of MarketLeverage, (ii) generating clicks to click-only Offers with no indication of site traffic, (iii) having Actions or clicks generated through fraudulent traffic generation, such as prepopulation of forms or other fraudulent means as determined by MarketLeverage, (iv) having much higher click to conversion rates than industry averages and where solid justification for such higher rates is not evident to the reasonable satisfaction of MarketLeverage, (v) using fake redirects, automated software, and/or fraud to generate Actions; (vi) having stolen credit cards used on Actions generated by You; (vii) having reported cases of identity theft on Actions generated by You; (viii) having fraudulent or non-existent phone numbers, email addresses, or physical addresses submitted on Actions generated by You; or (ix) any other activity that is intended or could reasonably be expected to mislead or confuse a consumer. MarketLeverage shall be the sole arbitrator of what constitutes Fraudulent Activity, and decisions made by MarketLeverage regarding Fraudulent Activity and the suspensions and subtractions of any earned Commissions related to said activity shall stand as final. Further, MarketLeverage, in its sole discretion, may provide Your Account Information to proper local, state, federal, and international law enforcement agencies for additional action.
b. Prohibited Content.
The content of the Publisher Website(s) or other materials used to promote the Offers may not promote, advocate, facilitate or otherwise include any of the following (collectively, “Prohibited Content”):
i. Racial, ethnic or political hate-mongering or otherwise objectionable content;
ii. Investment, money-making opportunities or advice not permitted under law;
iii. Violent imagery or profanity;
iv. Pornographic, obscene, sexually explicit or related content;
v. Material that defames, abuses, is libelous, is tortuous or threatens physical harm to others;
vi. Material that impersonates any person or entity;
vii. Any indication that any statements Publisher makes are endorsed by MarketLeverage or an Advertiser, without MarketLeverage’s specific prior written consent;
viii. Promotion of illegal substances or activities (e.g., illegal narcotics, how to build a bomb, counterfeiting money, etc.);
ix. Material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation;
x. Content which is inappropriate or harmful to children;
xi. Promotion of terrorism or terrorist-related activities, sedition or similar activities;
xii. Software pirating (e.g., warez, hotline);
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, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), programs that instigate the spread of viruses, 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;
xix. Any material that otherwise infringes upon the rights of any third parties including, without limitation, false advertising, unfair competition, invasion of rights of publicity or privacy, violation of any anti-discriminatory law or regulation, or any other right of any person or entity;
xx. Gambling, contests, lotteries, raffles, or sweepstakes;
xxi. Any material that violates the CAN-SPAM Act of 2003 (the “CAN-SPAM”), the Federal Trade Commission Act, as amended (the “FTC Act”), the Children’s Online Privacy Protection Act (“COPPA”), the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, and the Federal Trade Commission’s Guide Concerning the Use of the Word “Free” and Similar Representations; or
xxii. Any illegal activity whatsoever (including any violations of applicable U.S. state or federal law or regulation, or the laws of any other jurisdiction in which Publisher conducts business).
c. Prohibited Conduct.
If Publisher engages in any Fraudulent Activity and/or uses any Prohibited Content (collectively, “Prohibited Conduct”), as determined by MarketLeverage in its sole discretion, Publisher will forfeit its Commissions for all Offers, and the Agreement and all of Publisher’s rights hereunder shall immediately terminate. Further, MarketLeverage reserves the right to charge Publisher an administrative fee of a minimum of one hundred dollars ($100.00) to investigate potential Prohibited Conduct by Publisher or its Third Party Publishers. Finally, to the extent that Publisher’s Prohibited Conduct damages MarketLeverage’s relationship with an Advertiser or causes an Advertiser to terminate its business relationship with MarketLeverage, Publisher agrees it will be liable to MarketLeverage for consequential damages, including, without limitation, lost profits, and punitive damages.
d. Prohibited Conduct by Third Party Publishers.
Upon notice by MarketLeverage that a Third Party Publisher is engaging, or has engaged, in Prohibited Conduct, including but not limited to fraudulent traffic generation, Publisher agrees to immediately terminate its relationship with such Third Party Publisher, as it pertains to the Third Party Publisher’s participation in the MarketLeverage Network. If Publisher is notified that a Third Party Publisher is engaging, or has engaged, in Prohibited Conduct, and Publisher fails to terminate its relationship with such Third Party Publisher within four (4) hours of notice by MarketLeverage, MarketLeverage reserves the right to immediately terminate the Agreement and revoke the Commissions otherwise due to Publisher, in addition to all other remedies available to MarketLeverage. Further, in the event that MarketLeverage determines, in its sole discretion, that a Third Party Publisher is engaging, or has engaged, in Prohibited Conduct (regardless of whether Publisher participated in or knew about the Prohibited Conduct), MarketLeverage shall recalculate and withhold the Publisher’s Commissions accordingly, and, upon MarketLeverage’s request, You will immediately disclose all business information, contact information, account information, and other information relating to such Third Party Publisher.
Publisher acknowledges and agrees that MarketLeverage may use any means of monitoring Publisher’s (including any Third Party Publisher’s) activities in connection with the promotion of the Offers, including, without limitation, through the use of seed email accounts, third party monitoring services, and proprietary monitoring systems.
f. Litigation and Investigation.
To the extent that Publisher becomes aware of any litigation or investigation concerning Publisher’s marketing or promotional practices or procedures, Publisher will immediately notify MarketLeverage (irrespective of whether such litigation relates to Publisher’s relationship with MarketLeverage).
6. Suppression Lists.
To the extent that MarketLeverage provides an opt-out or unsubscribe list (“Suppression List”) via the Website in connection with an Offer, Publisher shall scrub its database against the most recent Suppression List prior to promoting the Offer, such that the email addresses that appear in the Suppression List are removed from the list of prospective recipients. Publisher shall not at any time send any emails to a Suppression List. MarketLeverage will transmit or display an updated Suppression List for each Offer that involves email marketing on the Website no less than once every ten (10) days. Publisher will not use the Suppression List in any manner other than for the purpose set forth in this Section 6. Failure to adhere to this requirement may, in addition to all other remedies available to MarketLeverage, result in immediate termination of the Agreement and a revocation of the Commissions otherwise due to Publisher, without penalty to MarketLeverage. Publisher shall not obtain any ownership interest or rights in and to any Suppression List.
7. Confidential Information; Account Information; and Customer Information.
a. Confidential Information.
“Confidential Information” means any information disclosed to You by MarketLeverage, either directly or indirectly, in writing, orally or visually, other than information that You can establish: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by MarketLeverage to You; (b) becomes publicly known and made generally available after disclosure by MarketLeverage to You other than through Your action or inaction; (c) was independently developed or received by You in connection with Your own business activities; or (d) is in Your possession, without confidentiality restrictions, at the time of disclosure by MarketLeverage as shown by Your files and records prior to the time of disclosure by MarketLeverage. MarketLeverage’s nonstandard payout rates on Offers and business information are considered Confidential Information. You shall not at any time: (i) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information; (ii) use any Confidential information; or (iii) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to You or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain MarketLeverage’s property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to MarketLeverage immediately upon MarketLeverage’s request.
b. Account Information.
“Account Information” means any and all information regarding your MarketLeverage account, including, without limitation, business information, information regarding Your Publisher Websites, information regarding Your Publisher Email Lists (including, without limitation, the sources and opt-in information), information regarding Your promotional methods, contact information, payment history, statistics on Offers, and compliance history. You acknowledge and agree that MarketLeverage may disclose Your Account Information (i) as required by a governmental request, (ii) in response to a subpoena or court order, (iii) to comply with applicable laws, rules or regulations, (iv) to those who help MarketLeverage provide its services, (v) in response to an investigation or inquiry into Your promotional methods or activities, (vi) to any affiliate networks, advertisers, or other third parties for which You listed MarketLeverage as a trade reference; (vii) when MarketLeverage believes, in its sole discretion, that disclosure is reasonably necessary to protect the property or rights of MarketLeverage, third parties, or the public at large, or (viii) with other affiliate networks or industry participants for the purpose of creating a comprehensive compliance database, certification process, or other similar activity intended to aggregate information concerning a publisher’s reputation and performance in the industry. You hereby release, exculpate and exonerate MarketLeverage and its respective agents, officials, and representatives, including, without limitation, its officers, employees, and related personnel from any and all liability and for damages of whatever kind, which may, at any time, result to You as a result of MarketLeverage’s release of Your Account Information.
c. Customer Information.
“Customer Information” means any and all information submitted by end-user customers in connection with an Offer. Any and all Customer Information shall be considered proprietary and owned exclusively by the Advertiser or MarketLeverage, as the case may be, and may not be captured, accessed, utilized, or otherwise disclosed by You, unless expressly approved by MarketLeverage in writing. Further, You agree you will notify MarketLeverage as soon as You learn of any actual or suspected unauthorized capturing of, access to, use of, or disclosure of Customer Information and provide commercially reasonable assistance to MarketLeverage in the investigation and prosecution of any such unauthorized capturing of, access to, use of, or disclosure of Customer Information.
8. Payment Terms.
MarketLeverage will pay Publisher in connection with the occurrence of any completed Action. Unless otherwise stated in the Offer terms and conditions, Payment shall be made to Publisher approximately fifteen (15) days from the end of the calendar month in which a completed Action occurred, less any returns and charge backs, and pursuant solely to MarketLeverage’s calculations and reports. All payments to Publisher by MarketLeverage are contingent upon MarketLeverage receiving payment from the Advertisers. In the event MarketLeverage fails to receive payment from an Advertiser, MarketLeverage shall have no payment obligation to Publisher with respect to that Advertiser and Publisher will have the right to contact the non-paying Advertiser directly. Publisher accepts all risks associated with non-payment by an Advertiser and acknowledges that MarketLeverage is not a guarantor of any Advertiser payment obligation. If an Advertiser does not pay on time, MarketLeverage will notify Publisher and may, in its sole discretion, offer its reasonable assistance in matters related to collections. MarketLeverage will not pay for any Actions that occur before an Offer is initiated, or after an Offer terminates. MarketLeverage will not be obligated to pay any interest or late payment fees in connection with Commissions or other payments held or withheld by MarketLeverage. MarketLeverage is not liable for Actions that are not recorded due to Publisher’s error. All accounts will be paid in US dollars ($US). If the compensation owed to Publisher for any one month period is less than one hundred dollars ($100.00), MarketLeverage will withhold payment until the total amount due is at least one hundred dollars ($100.00), or, if earlier, until the Agreement is terminated. Every Publisher account must have a unique, valid taxpayer identification number or valid social security number. In the event You have not provided to MarketLeverage the necessary paperwork to pay You (whether it be a unique, valid taxpayer identification number or social security number, bank wire information, or otherwise) within sixty (60) days of from the end of the calendar month in which the Commissions were generated, such Commissions shall be deemed abandoned by You, and You shall lose all rights in and to the Commissions. If Publisher has an outstanding balance due to MarketLeverage or any of its related business entities (including, without limitation, its parents, sisters, or subsidiaries) under the Agreement or any other agreement, Publisher agrees that MarketLeverage may offset such outstanding balance from amounts payable to Publisher under the Agreement. If, in MarketLeverage’s sole discretion, Publisher is deemed to have violated the terms of the Agreement, then MarketLeverage may, in addition to all other remedies available to MarketLeverage, revoke the Commissions otherwise due Publisher, without liability to MarketLeverage. MarketLeverage may also apply a debit to Your Commissions at any time (including future payment cycles) or seek a refund for Commissions otherwise paid to You for any completed Actions if MarketLeverage does not receive payment from the Advertiser or if, in MarketLeverage’s sole discretion, the Actions were generated in violation of the Agreement.
9. Term and Termination.
The Agreement shall begin upon MarketLeverage’s delivery of an Acceptance Email to Publisher and remain in effect until terminated as set forth herein. In addition to any other termination rights contained herein, either party may terminate the Agreement upon two (2) days prior written notice to the other party, for any reason or no reason. The Agreement may be terminated at any time by a party, effective immediately upon written notice, if the other party (a) files a voluntary petition in bankruptcy, (b) makes an assignment for the benefit of its creditors, or (c) breaches any of the material terms of the Agreement. Following the applicable notice periods, if any, termination pursuant to this Section shall be automatic, and shall not require any action by either party. In addition, MarketLeverage reserves the right, in its sole and absolute discretion, to terminate an Offer or Publisher’s participation in an Offer at any time for any reason. MarketLeverage also reserves the right to terminate Publisher’s access to the Website at any time, with or without notice to Publisher, for any reason. Upon termination, all legitimate Commissions due to Publisher that are actually collected from the applicable Advertiser (including amounts below the payment threshold) will be paid during the next billing cycle. Upon termination of the Agreement for any reason, any and all licenses and rights granted to Publisher in connection with the Agreement shall immediately cease and terminate. Further, Publisher acknowledges and agrees that if instructed to do so by MarketLeverage and/or if the Agreement terminates, Publisher will (a) immediately discontinue the use of the MarketLeverage Network, (b) immediately cease to use and remove from the Publisher Websites any and all advertisements and/or related materials made available to Publisher in connection with Publisher’s participation in the MarketLeverage Network, and (c) immediately cease transmitting any and all emails in connection with any Offer.
10. Representations and Warranties; Indemnification.
a. Representations and Warranties.
Publisher represents and warrants, on behalf of itself and on behalf of the Third Party Publishers, that:
i. Your execution, delivery and performance of the Agreement will not conflict with or violate: (a) any provision of law, rule or regulation to which You are subject; (b) any order, judgment or decree applicable to You; (c) any provision of Your corporate by-laws, certificate of incorporation, or operating agreement, if applicable; or (d) any agreement or other instrument applicable to You;
ii. You will not use third-party trademarks in any way to direct traffic to any Publisher Websites or Advertiser websites including, but not limited to, 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, of any of Company, any Advertiser and/or any of their respective affiliates or clients;
iii. Publisher has all necessary rights and authority to enter into the Agreement and to place advertising on the Publisher Websites and send advertising to the Publisher Email Lists;
iv. Publisher owns and/or has the right to use all materials contained on Publisher Websites and Publisher Email Lists;
v. the Publisher Websites, the content contained on the Publisher Websites, and the Publisher Email Lists will not infringe or violate the patents, copyrights, trademarks, rights of publicity, defamation, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party;
vi. the Publisher Websites and Publisher Email Lists will not contain any Prohibited Content, or links to Prohibited Content or any other illegal or objectionable content;
vii. Publisher will not use fraud or deceit when marketing an Offer or presenting an Offer to consumers or otherwise engage in Fraudulent Activity;
viii. Publisher will not alter the Creative Materials provided for an Offer in any way, unless authorized in writing by MarketLeverage;
ix. Publisher will comply with all local, state and federal laws and regulations, including, but not limited to, CAN-SPAM, COPPA, the FTC Act, the Utah and Michigan “Child Protection Registry” laws, the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, and the Federal Trade Commission’s Guide Concerning the Use of the Word “Free” and Similar Representations;
x. Publisher will not transmit any email: (a) with materially false or misleading header information; (b) with a “from line” that is materially false or misleading and does not accurately identify a person initiating the email; (c) with a subject line that is misleading, false or misrepresentative or is likely to mislead the recipient about the content or subject matter of the email; (d) that does not include a clear and conspicuous identification that the email is an advertisement or solicitation, (e) that does not contain a clear and conspicuous notice of the opportunity to decline to receive further communications, (f) that does not contain a valid physical postal address of the Advertiser and Publisher, and (g) that does not contain a functioning return email or other Internet-based mechanism, that (1) a recipient may use to submit a reply email or other form of Internet-based communication requesting not to receive future commercial emails from Publisher and Advertiser, and (2) remains capable of receiving such messages or communications for no less than thirty (30) days after the email was sent; or (viii) with any content that (2) infringes or violates any intellectual, proprietary or privacy rights, or (2) is Prohibited Content;
xi. Publisher will not transmit a commercial email (a) if Publisher knows, or has reason to know, that the email address was obtained using an automated means, including without limitation, harvesting software, such as harvesting bots or harvesters, dictionary attacks, etc., or an Internet service which indicated that at the time the address was obtained the service was not to give or sell the address to others; or (b) to any individual that has requested not to receive any emails from You more than ten (10) days after receipt of such request, unless the recipient subsequently requests that such email communication be initiated again; Publisher will download and remove the email addresses containing the domains located on the FCC’s wireless domain list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from Publisher’s Email Lists used in connection with the Offers;
xii. You will, within twenty-four (24) hours of MarketLeverage’s request, provide MarketLeverage, at a minimum, with the following subscriber sign-up/registration information for any email address contained in Your Publisher Email List: (a) the subscriber’s IP address; (b) the date and time of the subscriber’s sign-up/registration for Your Publisher Email List; and (c) the location of the subscriber’s sign-up/registration.
xiii. Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Website tags, source codes, links, pixels, modules or other data provided by or obtained from MarketLeverage that allows MarketLeverage to measure ad performance and provide its services;
xiv. You may not advertise or otherwise promote any Offer via a third party website’s internal communication system, including, without limitation, internal website email (e.g. Myspace.com or Facebook.com email), bulletin boards, classified sites (e.g., Craigslist.org or backpage.com), chat rooms, or comments;
xvi. You will send email to only those recipients who have opted-in to receive email communications from You when advertising or otherwise promoting the Offers;
xvii. You will not target any Offer to children under the age of thirteen (13);
xviii. There is no pending or, to the best of Your knowledge, threatened claim, action or proceeding against You; and
xix. You will comply with any and all additional terms and conditions of an Offer that are not otherwise part of the Agreement.
FAILURE TO ADHERE TO THE FOREGOING REPRESENTATIONS AND WARRANTIES MAY, IN ADDITION TO ALL OTHER REMEDIES AVAILABLE TO MARKETLEVERAGE, RESULT IN IMMEDIATE TERMINATION OF THE AGREEMENT AND A REVOCATION OF YOUR COMMISSIONS, WITHOUT PENALTY TO MARKETLEVERAGE.
Publisher, on its own behalf and on behalf of its Third Party Publishers, will defend, indemnify, and hold harmless MarketLeverage, the Advertisers, and their respective affiliates, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney’s fees and expenses) arising from or related to: (a) any breach of Publisher’s obligations under the Agreement and/or any Offer terms and conditions, (b) any claim that the Publisher Websites or the Publisher Email Lists infringe upon the rights of any third party, (c) any allegation that Publisher violated any foreign or domestic federal, state or local laws, rules or regulations, including but not limited to CAN-SPAM and the regulations promulgated thereunder, (d) Publisher’s improper or unauthorized use of the Website or any Offer, (e) any third party claim related to the Publisher Websites, Publisher Email Lists, emails, promotional materials, and/or marketing practices, (f) any content, goods or services offered, sold or otherwise made available by Publisher on or through the Publisher Websites, emails or otherwise, or (g) a Third Party Publisher’s breach of the Agreement. Publisher acknowledges that the Advertisers are intended third party beneficiaries of these indemnities. Publisher agrees that it will not assert a defense based upon lack of privity against any Advertiser seeking to enforce the Agreement.
11. Disclaimer of Warranty; Limitation of Liability.
a. Disclaimer of Warranty.
THE MARKETLEVERAGE SITE AND SERVICE IS PROVIDED ON AN “AS IS”, “WHERE IS”, AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND AND WITHOUT GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OF ANY ADVERTISEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, MARKETLEVERAGE MAKES NO WARRANTIES AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SUBJECT MATTER OF THE AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL MARKETLEVERAGE BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS (EVEN IF MARKETLEVERAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTORY OR OTHERWISE ARISING FROM OR RELATING TO THE AGREEMENT, THE WEBSITE, THE CREATIVE MATERIALS, THE SUPPRESION LISTS, THE OFFERS, OR ANY OTHER ASPECT OF THE RELATIONSHIP CONTEMPLATED HEREIN. MARKETLEVERAGE’S MAXIMUM AGGREGATE LIABILITY TO PUBLISHER AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE FIVE HUNDRED DOLLARS ($500.00). YOU ACKNOWLEDGE AND AGREE THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST MARKETLEVERAGE MORE THAN ONE (1) YEAR AFTER accrual of the cause of action. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY REMEDIES HEREUNDER AND APPLY REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. Restrictive Covenants.
a. Advertiser Non-Solicitation.
Publisher recognizes that MarketLeverage has proprietary relationships with the Advertisers that participate in the MarketLeverage Network. Publisher agrees not to circumvent MarketLeverage’s relationship with such Advertisers, or otherwise solicit or induce, directly or indirectly, any Advertiser for purposes of promoting such Advertiser’s Offers during the term of the Agreement and for the six (6) month period following termination or expiration of the Agreement. Publisher and MarketLeverage hereby acknowledge and agree that, in the event of any breach by Publisher, directly or indirectly, of the foregoing restriction, it will be difficult to ascertain the precise amount of damages that may be suffered by MarketLeverage by reason of such breach; and accordingly, the parties hereby agree that, as liquidated damages (and not as a penalty) with respect to any such breach, Publisher shall be required to provide an accounting of any and all benefits received or derived, either directly or indirectly, by Publisher as a result of such breach, and Publisher thereafter shall be required to pay to MarketLeverage, as damages, cash amounts equal to twenty-five (25%) of the gross payments made to Publisher in violation of this Section. The parties hereby agree that the foregoing constitutes a fair and reasonable estimate of the actual damages that might be suffered by reason of any breach of this Section by Publisher, and the parties hereby agree to such liquidated damages in lieu of any and all other measures of damages that might be asserted with respect to any such breach.
b. Employee Non-Solicitation.
Publisher will not hire or contract with MarketLeverage’s personnel during the term of the Agreement and for the twelve (12) month period following termination or expiration of the Agreement. Publisher and MarketLeverage hereby acknowledge and agree that, in the event of any breach by Publisher, directly or indirectly, of the foregoing restriction, it will be difficult to ascertain the precise amount of damages that may be suffered by MarketLeverage by reason of such breach; and accordingly, the parties hereby agree that, as liquidated damages (and not as a penalty) with respect to any such breach, Publisher shall be required to pay to MarketLeverage two hundred percent (200%) of either the new annual compensation payable to such personnel or the fees paid to, or in favor of such personnel for one (1) year after such personnel separates from service with MarketLeverage, whichever is applicable. The parties hereby agree that the foregoing constitutes a fair and reasonable estimate of the actual damages that might be suffered by reason of any breach of this Section by Publisher, and the parties hereby agree to such liquidated damages in lieu of any and all other measures of damages that might be asserted with respect to any such breach.
a. Entire Agreement; No Reliance.
The Agreement constitutes the entire agreement between You and MarketLeverage with respect to the subject matter hereof and supersedes any and all written or oral prior or contemporaneous agreements and understandings between the parties. Neither party has relied on any statement, representation, nor promise of the other party in executing the Agreement except as expressly stated herein.
Publisher shall not assign the Agreement and any rights or obligations hereunder without the express written approval of MarketLeverage, which approval shall not be unreasonably withheld. MarketLeverage may assign the Agreement with or without Your consent. Subject to the foregoing, the Agreement shall inure to the benefit of, and shall be binding on, the parties and their respective successors and permitted assigns.
All notices to You shall be sent by mail, fax, email or courier to the address submitted by You when signing up for the MarketLeverage Network, or at such different address as may be designated by You in writing. Notice will be effective upon receipt. Any notice, communication or statement by You to MarketLeverage relating to the Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission; (iii) upon transmission when delivered by email, receipt confirmation requested, with a copy sent immediately via facsimile, hand delivery or registered or certified mail; or (iv) when delivered by registered or certified mail, postage prepaid, return receipt requested, or by nationally-recognized overnight courier service, to the address set forth below or at such different address as may be designated MarketLeverage from time to time.
Attn: Legal Department
171 English Landing Drive #215
Kansas City, MO. 64152
Facsimile: (407) 268-9671
d. Governing Law; Forum Selection.
The laws of the State of Missouri, without giving effect to its conflicts of law principles, govern all matters arising out of or relating to the Agreement and all of the transactions it contemplates, including, without limitation, its validity, interpretation, construction, performance, and enforcement. Any party bringing a legal action or proceeding against any other party arising out of or relating to the Agreement or the transactions it contemplates shall only bring the legal action or proceeding in the United States District Court for the Middle District of Florida, Orlando Division, or in any court of the State of Florida sitting in Seminole County, Florida. Each party to the Agreement consents to the exclusive jurisdiction of the United States District Court for the Middle District of Florida, Orlando Division, and any court of the State of Florida sitting in Seminole County, Florida for the purpose of all legal actions and proceedings arising out of or relating to the Agreement or the transactions it contemplates. Each party hereto irrevocably waives any objection to the venue of such courts (whether on the basis of forum non conveniens or otherwise). You agree that the exclusive choice of forum set forth in this Section does not prohibit the enforcement of any judgment obtained by MarketLeverage against You in any other forum.
No waiver by MarketLeverage of any breach hereunder shall be deemed a waiver of any subsequent breach. No waiver by MarketLeverage shall be effective unless in writing, and signed by an authorized party of MarketLeverage. No delay in the serving of any right or remedy shall constitute a waiver of any right or remedy.
f. Independent Contractor.
The parties to the Agreement are independent contractors. Neither party is an agent, representative, partner, employee, or joint venturer of the other party. Neither party will have any right, power, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other party.
MarketLeverage reserves the right to make changes to the Agreement at any time. Your continued use of the Website and the MarketLeverage Network after any such modification shall constitute Your express consent to such modification. No modifications, amendments or changes proposed or submitted by You shall modify the Agreement unless set forth in a written instrument signed by both parties hereto.
In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the Agreement (a) such provision will be restated to reflect as nearly as possible MarketLeverage’s original intention in accordance with applicable law, and (b) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
i. Force Majeure.
Neither party shall be deemed in default of the 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.
In the event of termination of the Agreement: Sections 7, 8, 9, 10, 11, 12, and 13 shall survive.
k. Section Headings.
The titles to the paragraphs in these Terms and Conditions are solely for the convenience of the parties and shall not be used to explain, modify, simplify, or aid in the interpretation of said covenants or provisions set forth therein.
l. Attorneys’ fees.
In the event of a dispute regarding, arising out of, or in connection with the breach, enforcement, or interpretation of the Agreement, including, without limitation, any action seeking declaratory relief, equitable relief, injunctive relief, or damages, or any litigation or cause of action, including, without limitation, any appeals, federal bankruptcy proceedings, receivership or insolvency proceedings, reorganization, or other proceedings, the prevailing party shall recover all costs and actual attorneys’ fees incurred in connection therewith, including any costs of collection (including paralegals’ fees).the Agreement In addition, the fees and expenses for the services of “in-house” counsel (if any) shall be included within MarketLeverage’s fees and expenses as fully as if such in-house legal services were provided by an “outside” attorney or law firm as contemplated within this Section, irrespective of whether “outside” legal services are obtained in connection with such matter. The fees and expenses on the part of in-house counsel as aforesaid shall be determined based upon the prevailing hourly rates, fees and expenses for an attorney(s) of comparable experience in the Kansas City, Missouri area.
m. Waiver of Jury Trial.
AS A MATERIAL INDUCEMENT FOR THE AGREEMENT, YOU SPECIFICALLY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY ISSUES SO TRIABLE.
By entering Your signature below, You affirm and acknowledge that You are over the age of eighteen (18), and You have read the Agreement in its entirety and agree to be bound by all of its terms and conditions. If You are accessing the Agreement on behalf of a business entity, by doing so, You represent that You have the legal capacity and authority to bind such business entity to the Agreement.
Last Updated: 1/30/11