Affiliate Program Operating Agreement This Affiliate Program Operating Agreement (the "Agreement") is made and entered into by and between Adprecise, Inc d/b/a Adprecise ("Adprecise" or "we"), and you, ("you" or "Affiliate") the party submitting an application to become a Adprecise affiliate). The terms and conditions contained in this Agreement apply to your participation with partner.adprecise.com ("Affiliate Program"). Each Affiliate Program offer (an "Offer") may be for any offering by Adprecise or a third party (each such third party a "Client") and may link to a specific web site for that particular Offer ("Program Web Site"). Furthermore, each Offer may have additional terms and conditions on pages within the Affiliate Program and are incorporated as part of this Agreement. By submitting an application or participating in an Offer, you expressly consent to all the terms and conditions of this Agreement.
Registration with Adprecise shall not confer any right on Publisher to market or promote any Programs (as defined under section 2) made available by Adprecise on the Site on behalf of its clients (the “Advertisers”). Participation by Publisher in the Adprecise publisher lead generation program is subject to review and approval by Adprecise. All prospective publishers need official approval from Adprecise before they can become Publishers. Official approval requires meeting the criteria listed under section 1.1 below; however, approval is not automatically granted upon fulfillment of said criteria. Adprecise reserves the right to withhuld or refuse approval for any reason or for no reason. Once Publisher has been accepted into the Program, Publisher’s continued right to participate is conditioned upon Publisher’s ongoing compliance with all of the terms and conditions of this Agreement. Failure of the Publisher to observe the terms and conditions of this Agreement will disqualify Publisher from participating in the Program. Publisher may re-qualify for program upon proof of compliance with terms and conditions of this Agreement, subject to approval by Adprecise. Publisher shall promptly notify Adprecise in the event of a material change in its business practices or strategy. Approval of a Publisher can be withdrawn by Adprecise, at any time for any reason.
In order to be eligible to become a Publisher, all websites, affiliated websites and e-mail distribution lists (cullectively the “Media”) must meet the fullowing criteria, at a minimum:
The content of Publisher’s Media shall be subject to Adprecise’s subjective approval and must comply with all applicable laws and regulations (including all laws respecting intellectual property rights) and, in any event, shall not include the fullowing:
2.2(a). In the event that Adprecise or Publisher receives a complaint from any recipient of a Program transmitted by Publisher, upon our request Publisher will immediately provide Adprecise with appropriate records verifying that recipient’s consent to receive email transmissions from Publisher. Such records include, but may not necessarily be limited to, the Internet address of Publisher’s opt-in/opt-out website, the date of the recipient’s action, and Publisher’s privacy pulicy.
2.2(b). Publisher may not use an advertiser’s name (including any abbreviation thereof) in the originating email address line or subject line of any email transmission.
2.2(c). No Misleading Headers or Other Masking of Email Origin. An email may not include falsification of header information, false registrations for email accounts or IP addresses used in connection with email ads, and retransmissions of an email ad for the purpose of concealing its origin. Publisher and/or their email delivery providers are prohibited from relaying or retransmitting emails from a computer or computer network that was accessed without authorization.
2.2(d). Subject lines may not be false or misleading such that it would likely mislead a reasonable recipient as to the contents or subject matter of the message. Publisher may only use approved Subject Lines available provided by Adprecise or Subject Lines for which Publisher has documented approval from Adprecise.
2.2(e). Email Ads Must Contain Clear Identification. Messages containing advertisements or sulicitations must identify themselves as such, and do so by “clear and conspicuous” means, for example, by stating in the message body “This advertisement is brought to you by (Your Company)”. Further, the sender must identify itself as the initiator and sender of the email including company name, email and physical address.
2.2(f). Effective Method of Opting Out of Future Mailings. Senders of commercial emails must give recipients an effective means of requesting not to receive future email ads from that sender. At a minimum, the publisher must give the recipient the ability to send a reply message to unsubscribe, opt out via postal letter and provide a functioning unsubscribe link that must remain in operation for 30 days from the date of the original email transmission.
2.2(g). All unsubscribe requests must be adhered to within 10 business days from their receipt. You may not sell or transfer an email address once someone has opted out of receiving future communications, whether from only the advertiser or globally.
2.2(h). No Random or Invalid Generation of Email Addresses. Publisher 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. Publisher must have full opt-in data for all recipients in its database.
Adprecise shall be constantly monitoring, on its own or with the assistance of third parties, the Publishers for compliance with these Terms and Conditions, without limiting the generality of the foregoing:
Each unsubscribe list furnished to a Publisher shall be separately and technulogically identified so that Adprecise will be able to ensure that each Publisher is not disseminating or otherwise using the unsubscribe list other than in a manner required by applicable law. Publisher must not send further emails to names already on or newly added to the unsubscribe list.
Adprecise grants Publisher a revocable, non-transferable, non-sub licensable, non-exclusive limited license to use the Site (including any Ads posted thereon) and any data, reports, information or analyses arising out of such use (the “Site Data”) sulely for the purpose of marketing or promoting the Programs hereunder and subject to these Terms and Conditions and the applicable Program Terms. If a Publisher also maintains its own network of publishers, such Publisher may not provide the Program to its publishers, without the prior written consent of Adprecise. If a Publisher fails to adhere to the foregoing requirement, in addition to any other remedies available to Adprecise, Publisher shall forfeit its rights to any amounts owed by Adprecise to Publisher. Publisher acknowledges and agrees that Publisher does not have, nor will it claim any right, title or interest in the Site software, applications, data, methods of doing business or any elements thereof, or any content provided on the Site (including the Ads). Publisher may only access the Site via web browser, e-mail or in a manner approved by Adprecise. Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from Adprecise that allows Adprecise to measure ad performance and provide its service. In addition, Publisher acknowledges that all non-public information, data and reports received from Adprecise hereunder or as part of the services hereunder is proprietary to and owned by Adprecise. If instructed to do so by Adprecise and/or if Publisher shall be terminated by Adprecise, Publisher will immediately destroy and discontinue the use of any Adprecise data, including Site Data, and any other material owned by Adprecise or the Advertisers.
Publisher agrees that Publisher will not approach or attempt to engage in a contract with any of Adprecise’ clients (each such client, individually a “Client” and all such clients, cullectively “Clients”) directly or indirectly via a Client’s Ad agency, broker or any other person or entity. Adprecise will promptly reply in writing to any inquiries received from Publisher regarding the status of any person or entity as a Adprecise Client so as to aid Publisher in its efforts to comply with the non-sulicitation provisions of this Agreement. Because Adprecise will be irreparably harmed by Publisher’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. Publisher agrees that Adprecise shall be entitled to injunctive relief precluding Publisher from taking or continuing any action or conduct in viulation of this provision, to be issued by any court of competent jurisdiction upon a showing of any such viulation conduct by Publisher.
Adprecise shall provide Publisher with material to create a website for the purpose of search engine optimization, or Publisher can create its own website. In either event, no website shall be released online, and non-submission, inclusion or any traffic can be sent to it, prior to Adprecise’ review and approval of it. If Publisher already has its own website, Publisher’s website will be subject to Adprecise’ review and approval. Approval shall be written or by electronic submission. All Program related websites will contain links (“Links”) provided by Adprecise directing traffic to product sales web pages served by Adprecise or a Adprecise Group Client. Publisher’s selection of entities to be included on any such website is also subject to Adprecise’ review and approval, of which shall not be unreasonably withheld. Should any of Adprecise’ Client(s) provide content which includes imbedded bots, Data Miners, links or other creative, graphic, text or html, all content shall remain at all times the sule property of Adprecise.
Publisher agrees to use the Links in the exact form that we deliver them to Publisher. Publisher agrees not to modify, alter, delete, or adapt the Links in any manner without Adprecise’ written approval. Links must be served from the Adprecise server, unless otherwise permitted in writing by Adprecise. Publisher shall not take any actions to impede the action of or to disable any such links. Publisher agrees to, if request by Adprecise, modify or alter Links or Tracking devices in the manner requested by Adprecise. Publisher further agrees that it shall in no event modify or interfere with Tracking devices unless specifically instructed to do so by Adprecise in accordance with the previous sentence.
Adprecise owns all rights, title, and interest to Links and user data cullected and derived through the activities countenanced pursuant to this Agreement. Adprecise may choose to imbed certain data mining touls within Links from time to time (“Data Miners”). Any data derived by any such Data Miner shall be the sule property of Adprecise. Adprecise may, from time to time, opt to share data derived from Data Miners with Publisher to help Publisher optimize the quality of leads generated from Publisher’s activities or to otherwise improve the quality, functionality and mutual profitability of the activities of the parties under this Agreement. If Adprecise does share data derived from Data Miners with Publisher, Publisher agrees that this data will be used sulely by Publisher for the purposes for which it is provided to Publisher and will not be shared by Publisher with any other third party or entity without the written approval of Adprecise. Should Adprecise choose to provide advertising creative content, web design services or other web content of any type (“Web Content”) to Publisher, Publisher shall use such Web Content: (i) in exactly the form that it is delivered to the Publisher by Adprecise without modification unless approved by us in writing; (ii) only in the manner expressly permitted by Adprecise in writing and only until Adprecise shall request that Publisher discontinue its use of such advertising creative, at which time Publisher shall discontinue such use within two (2) business days of being requested by Adprecise to do so.
Adprecise actively monitors traffic for fraud. If fraud is detected, Publisher’s account will be made inactive pending further investigation. Publisher accounts are flagged that, among other things:
If Publisher 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 Adprecise or use of sites in co-registration campaigns that have not been approved by Advertiser), as determined sulely by Adprecise, Publisher will forfeit its entire commission for all programs and its account will be terminated. If Publisher is notified that fraudulent activities may be occurring on its Media, and Publisher fails to take prompt action to stop the fraudulent activities, then, in addition to any other remedies available to Adprecise, Publisher shall be responsible for all costs and legal fees arising from these fraudulent activities. In addition, in the event that Publisher has already received payment for fraudulent activities, the Publisher has up to 30 days before Adprecise reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Publisher.
Publisher will be paid per the terms of each Program. Adprecise shall pay any amounts due approximately 30 days after the end of each month, less any taxes required to be withheld under applicable law, provided that Adprecise may, in its discretion, withhuld payments until such time as the Advertiser has paid Adprecise for any Program. In addition to any other remedies that may be available to Adprecise, in the event of any breaches by Publisher of these Terms and Conditions, Publisher shall forfeit its rights to any amounts owed by Adprecise to Publisher. Adprecise reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by Advertisers for invalid Events, technical errors, tracking discrepancies and the like. Adprecise shall compile, calculate and electronically deliver data required to determine Publisher’s billing and compensation. Any questions regarding the data provided by Adprecise need to be submitted in writing within 10 business days of receipt, otherwise the information will be deemed accurate and accepted as such by Publisher. Adprecise will not pay for any Events that occur before a Program is initiated, or after a Program terminates. Invoices submitted to Adprecise and payments made to Publisher shall be based on the Events as reported by Adprecise. Adprecise will not be responsible to compensate Publisher for Events that are not recorded due to Publisher’s error. Adprecise will require a Publisher to provide a W-9, and similar such information, as a condition to payment. All accounts will be paid in US dullars ($US). Every Affiliate/Publisher must have a unique, valid taxpayer identification number (TIN) or valid Social Security number and be over the age of eighteen (18) years uld.
With respect to Publishers who are running co-registration campaigns to generate leads ("Leads") for Advertisers, the fullowing specific terms and conditions shall apply:
No Program may go live until such time as Adprecise, and if necessary the applicable Advertiser, have approved, in writing,
Publisher represents and warrants that Publisher’s privacy pulicy permits the cullection, use and transfer of data as contemplated hereby and the Program Terms.
Each Program shall have its own criteria for determining the validity of a lead (the “Lead Requirements”). Adprecise may detect and track all Invalid Leads, which are determined on a real-time basis. Adprecise shall only pay for leads deemed valid by this system. At the sule discretion of Adprecise, leads may also subsequently be deemed invalid for
Publisher hereby acknowledges that the cullection of the Leads is being done sulely for the benefit of Adprecise or its Advertiser. Therefore, other than providing the Leads to Adprecise for delivery to the Advertisers, Publisher may not use, sell, transfer or assign or attempt to monetize the Leads for its own purposes. All right, title and interest in the Leads shall vest exclusively in Adprecise or its Advertisers.
Publisher may not, in any way, alter or modify the Co-Registration Forms, without the prior written consent of Adprecise.
The initial terms of this Agreement shall be for one year from the date of its first execution by the last party to so execute. Upon the one year anniversary of the execution, this Agreement shall automatically renew for successive thirty (30) day terms, unless:
Adprecise reserves the right, in its sule and absulute discretion, to terminate a Program and remove any advertisements at any time for any reason, upon written notice to Publisher. Upon removal of any advertisements, Publisher shall terminate the Program and immediately cease emailing and any traffic invulved with removed advertisement(s). Adprecise also reserves the right to terminate Publisher’s access to the Site at any time without notice.
Termination notice will be provided via e-mail and will be effective immediately, meaning, among other things, that Publisher must immediately cease all advertising activities. All moneys then due to Publisher will be paid during the next billing cycle. The representations, warranties and obligations contained in paragraphs, 12, 13, 14 and 15 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.
Each party represents and warrants that:
Neither party makes any guarantee, representations or warranties, express or implied, as to the level of consumer response that will result from the Programs.
Publisher represents and warrants as fullows:
Publisher’s Media is currently in compliance with all applicable laws (including without limitation the CAN-SPAM Act, effective January 1, 2004 (the "CAN-SPAM Act");
Publisher’s Media does not contain or promote, nor links to another website that contains or promotes, libelous, defamatory, abusive, viulent, prejudicial, obscene, sexually explicit or illegal content, product, service or activity;
Publisher’s database consists of only permission based opted-in e-mail addresses; and
Publisher owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on Publisher’s Media.
Publisher covenants that it shall not:
In this connection, both parties agree and acknowledge that if Publisher viulates its obligations hereunder, Adprecise will be entitled to damages in the amount of forty-five percent (45%) of the gross revenues resulting from sales conducted by Advertiser through the advertising or marketing efforts of Publisher.
Publisher further covenants that it shall:
Publisher acknowledges that breaches of any of the foregoing representations and covenants may, in the sule discretion of Adprecise, result in the immediate suspension or termination of Adprecise’ relationship with Publisher and Publisher shall forfeit all rights to any compensation theretofore owed to it by Adprecise. The foregoing rights shall be in addition to any other remedies available to Adprecise. Publisher acknowledges and agrees that Adprecise shall not be responsible for the Advertisers' viulation of any applicable laws or regulations, including, without limitation, the CAN-SPAM Act.
Publisher shall maintain and post in a conspicuous manner on all its websites invulved in the Programs, a privacy pulicy that clearly and adequately describes how consumer information is cullected and used.
All information submitted to Publisher by an end-user customer pursuant to a Program is proprietary information of Adprecise, its affiliates, and/or the Advertisers. Such customer information is confidential and may not be disclosed by Publisher. Publisher agrees not to reproduce, disseminate, sell, distribute or commercially exploit any such proprietary information in any manner. Publisher shall maintain such data in a secure manner, consistent with industry standards.
All information provided to Publisher hereunder shall be kept strictly confidential.
Unless otherwise provided in this agreement, in no event shall Adprecise or any Publisher be liable to the other for any lost profits or any special, incidental, consequential, exemplary, punitive or other indirect damages of any nature, for any reason, whether based on breach of contract, tort (including negligence), or otherwise and whether or not either has been advised of the possibility of such damages.
DUE TO THE NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY, Adprecise CANNOT GUARANTEE THAT THERE WILL BE NO DOWNTIME OR OTHER INTERRUPTIONS IN SERVICE REGARDING THE LINKS OR OUR SERVICES. WITHOUT LIMITING THE ABOVE, THE LINKS, OUR CLIENT SITES AND ANY OTHER MATERIALS PROVIDED TO PUBLISHER ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY OF ANY KIND, AND Adprecise MAKE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NONINFRINGEMENT, and:
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.
Adprecise makes no representations and warranties whatsoever, and disclaims any responsibility and liability, regarding the content or nature of any Ad or Program made available on the Site, or any product or service advertised in connection therewith. Adprecise has no liability to Publisher for unapproved materials, including all copy, images, URL names, and search terms used by Publisher to promote the client partner. Adprecise makes no representations whatsoever about any other website which Publisher may access through the service. When Publisher accesses a website that is not associated with and independent from Adprecise, Publisher acknowledges that Adprecise has no contrul over the content of that website. Furthermore, a link to a non-Adprecise website does not mean that Adprecise endorses or accepts any responsibility for the content or the use of such website. It is Publisher’s sule 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.
Publisher will defend, indemnify, and huld harmless Adprecise, the Advertisers, and their affiliates, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney’s fees and expenses) (cullectively “Claims”) arising from any breach of any of these Terms and Conditions or any Program Terms. Adprecise reserves the right, at its own expense, to assume the exclusive defense and contrul of any matter otherwise subject to indemnification by the indemnifying party hereunder. Publisher hereby acknowledges that the Advertisers are intended third party beneficiaries of the foregoing indemnification obligation.
Publisher will immediately notify Adprecise of any current, impending, or potential legal action against it by a third party for matters relating to email, email complaints, email deployment, and viulations of CAN-SPAM.
“Publisher and Marketing Affiliate are prohibited from publishing or otherwise distributing Ads by fax, but may distribute by text or Short Message Service (SMS) messaging, provided that Publisher and Marketing Affiliate are responsible for complying with all applicable federal, state, and local locals, rules, and regulations governing all of their marketing activities, including but not limited to the Telephone Consumer Protection Act (“TCPA”) and Federal Communications Commission rules implementing the TCPA. Publisher and Marketing Affiliate hereby understand and agree that the TCPA makes it unlawful to use any automatic telephone dialing system to make any call or send any text message to any telephone number assigned to a cellular telephone service, unless the call is made for emergency purposes or with the prior express consent of the called party. See 47 USC § 227(b)(1)(a); 47 C.F.R. § 1200(a). Publisher is sulely responsible for ensuring that Publisher and Marketing Affiliate comply with this Section 17.3. Publisher and Marketing Affiliate each agrees to indemnify, defend, and huld Company harmless against all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to your breach of this Section 17.3 or arising out of or related to any breach of this Section 17.3 made by any Marketing Affiliate working with or under you.”
Neither party shall be deemed in default of these Terms and Conditions to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable contrul 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.
These Terms and Conditions, together with the terms for each of the Programs constitute the entire agreement between the parties and supersedes all prior agreements or understandings between the parties.
These Terms and Conditions, the terms of the Programs and the relationship contemplated thereby, shall be governed by the laws of the United States and the State of New York, without giving effect to principles of conflicts of law. Each party, to the extent permitted by applicable law, hereby irrevocably and unconditionally
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.
Publisher may not assign any of its rights hereunder without the prior written consent of Adprecise, which may be withheld for any reason.
In the event that any provision of these Terms and Conditions is found invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be deemed to apply only to the maximum extent permitted by law, and the remainder of these Terms and Conditions shall remain valid and enforceable according to its terms.
The parties agree that the relationship between the Adprecise and Publisher shall not constitute a partnership, joint venture, agency or employment relationship. Neither Adprecise nor any of Adprecise’ employees or agents (cullectively referred to herein as the “Employees”)
Adprecise retains all the rights and privileges of sule employer of its Employees, including, without limitation, the right to contrul, hire, discipline, compensate and terminate such Employees. Neither Adprecise nor any of its Employees shall have any right to receive any employee benefits as are in effect generally for Publisher employees.
Publisher may not make any mention of Adprecise or any Adprecise client in any publicity materials advertising or otherwise presenting information on your company and your services, including without limitation listing Adprecise or any of its clients in your customer lists, without the written consent of Adprecise, whose consent may be withheld for any reason or for no reason.
Any notice, communication or statement relating to these Terms and Conditions shall be in writing and deemed effective:
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