ADAttract Advertiser Standard Terms & Conditions
This terms and conditions and any Insertion Order, whether expressly provided herein or incorporated by reference (collectively, the ‘Agreement’) constitute the entire and exclusive agreement between EBIZZ SOLUTIONS (hereinafter referred to as ‘ADAttract’) and the company (hereinafter referred to as ‘Advertiser’).
Who further collectively referred to as ‘Parties’, separately as ‘Party’ mentioned above.
The Parties agree as follows:
Any reference to ‘writing’ or similar expressions includes a reference to facsimile transmission as well as e-mail and other electronic communication which is capable of being printed by the recipient and other present and future comparable means of communication.
‘Advertiser’ means one or more clients of ADAttract who produce the advertising materials, authorize ADAttract as its intermediary to implement one or several campaign(s), and acquire traffic, actions or sales through ADAttract and ADAttract’s publishers.
‘Advertising Materials’ includes but not limited to logos, pictures, texts, video, banners, landing pages, artwork, copy, or active URLs and creatives of campaign.
‘Product’ means the application or online service platform (website, etc.) which is wholly-owned by or licensed to Advertiser.
‘Campaign (Service)’ means the activities carried out by ADAttract for Advertiser on the basis of this Agreement, which mainly consist of placing and promoting the banner and landing pages of product by Advertiser, also includes other activities aiming at promoting the product as well as any required web marketing consulting services.
‘IO (Insertion Order)’ means document to clarify and describe the business details issued by Advertiser to ADAttract from time to time. This Agreement shall be accompanied with several IOs and each such IO shall be the part of this Agreement.
‘ADAttract Advertising Platform’ means ADAttract’s proprietary mobile platform located at http://affiliates.adattract.com and any service, software and/or features available therein which enable Advertiser to promote and distribute products.
‘CPA’ means deliverables sold on a cost per acquisition / action basis.
‘CPB’ means deliverables sold on a cost per billable acquisition / action basis.
‘CPS’ means deliverables sold on a cost per sale basis.
‘CPL’ means deliverables sold on a cost per lead basis.
‘CPI’ means deliverables sold on a cost per install basis.
‘CPD’ means deliverables sold on a cost per download basis.
‘CPC’ means deliverables sold on a cost per click basis.
‘CPM’ means deliverables sold on a cost per 1000 impressions basis.
‘Intellectual Property’ means rights, title and interest to and in any discovery, development, invention, patent, including application for the grant of such right, improvement, design (whether registered or unregistered), process, formula, method, database, information, drawing, code, computer program, copyright work or any work of authorship (present and future), semiconductor or other topography, trade mark (whether registered or unregistered) or trade name or get-up/trade dress.
‘Business Day’ means a day other than Saturday, Sunday or public holiday in People’s of Hong Kong.
3. Formation of the Agreement
3.1 The Agreement sets forth the terms and conditions under which ADAttract shall represents Advertiser and provide service to Advertiser.
3.2 Any Other terms, conditions, performance criteria, guarantees or prior representations, warranties, whatsoever (whether written or oral), irrespective of the timing, shall be of no effect unless otherwise is provided herein.
Any modification to the Agreement shall be of no effect unless expressly specified in Insertion Order in writing and signed by both of Parties or respective authorized representatives of the Parties.
3.3 This Agreement supersedes all previous discussions and agreements of the Parties (or their subsidiaries or parent companies) with respect to the subject matter of this Agreement.
4. Provision of Service
4.1 Subject to the terms and conditions, during the term of this agreement, ADAttract shall have the right (but not the obligation) to distribute and promote product, which is determined by ADAttract at its sole discretion.
4.2 ADAttract shall be entitled to authorize ADAttract’s publisher(s) which has the according qualifications and licenses to publish advertising materials provided by Advertiser and the reconsignment shall not need the separate permission or authorization of Advertiser.
4.3 ADAttract shall have the right, at its sole discretion, to remove any advertising material from ADAttract Advertising Platform at any time (as applicable), with or without notice, if: (a) ADAttract receives a complaint from any person or entity regarding any such advertising material; (b) ADAttract reasonably believes that displaying any such advertising material will have an adverse impact on ADAttract Advertising Platform and/or its reputation or business; (c) the advertising material is in breach of any applicable law, rule or regulation, or industry best practices; (d) the advertising material is in violation of any terms and conditions of this Agreement; or (e) the advertising material which results in the infringement of any third party’s right.
ADAttract shall not be liable for any damages or costs resulting from the removal of any such Advertising Material.
4.4 Advertiser may request, by a written notice, that ADAttract suspends the distribution of any Product within three (3) business days and/or modifies any Advertising Material or any restrictions within 48 hours from receipt of such notice (the ‘Notice Period’).
4.5 ADAttract grants Advertiser a revocable, non-transferable, non-exclusive limited license to use ADAttract Advertising Platform and any data, reports, information or analysis arising out of such use solely for the purposes set forth in this Agreement.
4.6 ADAttract’s approval of Advertiser’s participation and use shall be withheld or terminated at any point at ADAttract’s sole discretion, regardless of initial acceptance in accordance with this Agreement.
4.7 Advertiser grants ADAttract a non-exclusive, transferable, irrevocable right to use the advertising materials for the sole purpose of advertising campaign set forth in the Insertion Order and the Agreement. Except as expressly specified herein, ADAttract shall not be granted any other rights and interests of advertising materials and trademarks, service marks, copyrights, patents or trade secrets of Advertiser
4.8 ADAttract shall not be permitted to use any materials except for advertising materials provided by Advertiser, and alter, modify, manipulate or create derivative works of the links or any creative, copy or other materials owned by, or licensed to Advertiser in any way.
4.9 All self-made creatives, texts, pre-landers or other own made materials for promotion of these products and derivatives shall be submitted to Advertiser to obtain prior approvals. If Advertiser fails to file any objection in writing in 2 business days, all creatives and materials made by ADAttract shall be deemed to obtain approvals.
4.10 Advertiser shall provide all advertising materials to ADAttract at least 5 business days before the advertisement is published. ADAttract shall not be liable for any delay or cancellation of the advertisement release, provided such delay or cancellation is caused by Advertiser’s failure to provide the Advertising Materials in accordance with this Agreement.
5. Tracking data, Payment and Payment Liability
5.1 Advertiser shall start the verification of tracking data with ADAttract in writing and shall finish the verification within the first 5 days of each calendar month. If the conversion report is provide by the Advertiser and the discrepancy as to the data exceeds 5%, the Parties shall check and negotiate to decide the final number. If the Parities fail to finish the verification, or if there is any dispute about the related data and the dispute cannot be resolved within the first 5 days of each calendar month, REGARDLESS OF WHETHER ADVERTISER AGREES OR NOT, ADAttract’ s calculation of the billing amount shall be final, conclusive and binding on Advertiser.
5.2 Invoice shall be issued by ADAttract monthly after the service is offered. Credit term shall be 30 days after the month end. All payments due hereunder are in U.S. dollars.
5.3 Advertiser shall pay the invoice by bank transfer or PayPal as per the information given by ADAttract. Relevant expenses regarding the payment such as bank fees shall be individually paid by each Party.
5.4 If the Advertiser delays its payment to ADAttract under the Agreement, Advertiser shall be charged a penalty interest of 0.05% of the overdue amount for every delayed day. In addition the Advertiser is obliged to indemnify ADAttract any damages caused by the delay and reimburse the costs of collecting the debt (including the costs of legal assistance, costs of submitting an extra-judicial claim and court expenses).
5.5 If the Advertiser has made a prepayment and at the end of the validity of the Agreement, it appears that the Advertiser has spent for ADAttract service less than the Advertiser has prepaid. In such a case the Advertiser is entitled to ask for a refund within 30 days after the termination of the Agreement. Before refunding, ADAttract shall finalize all not invoiced spending and make necessary adjustments where needed. After finalizing all current statistics, Advertiser’s unused balance will be refunded to the Advertiser at Advertiser’s request, minus ADAttract’ s costs and fees, within 30 days.
5.6 If ADAttract has an outstanding balance due to Advertiser under this Agreement or any other agreement between Advertiser and ADAttract, Advertiser agrees that it shall not offset any such amounts due to ADAttract from amounts payable to Advertiser under this Agreement without the prior written approval of ADAttract.
5.7 The Parties agree that any taxes imposed on a Party by any governmental authority in connection with the execution and performance of this Agreement shall be paid by that Party. If any withholding tax is imposed by any relevant tax authority with respect to any sums due to ADAttract, then such sum will be paid to ADAttract, and Advertiser shall pay such with withholding tax to the relevant authorities and provide ADAttract with a copy of tax receipts.
6. Fraud and Quality Report
6.1 ADAttract is expressly prohibited from using any persons, means, devices or arrangements to commit fraud in order to increase the number of clicks, downloads, or obtain any required information etc. Such acts include but not limited to using automated means, spyware, steal ware, cookie-stuffing or any other deceptive acts that cause harm to Advertiser (collectively, ‘Fraud’).
6.2 In order to detect and prove ADAttract’ s fraudulent activities, the Advertiser shall deliver ADAttract a monthly detailed quality report containing sufficient evidence that the Advertiser considers to be fraudulent within 15 days of following month. In case the fraudulent activities cannot be clearly identified based on the Advertiser’s report, the Advertiser shall provide additional evidence within 2 business days. Otherwise all traffic shall be considered as valid and Advertiser shall pay for all traffic.
6.3 Advertiser must disclose KPIs and it’s version (Soft or Hard) in Offer description or in written over email. Advertiser only allows to refuse non-conversions for KPIs mentioned in offer description or written information to ADAttract. In case of Soft KPI advertiser only allow to refuse non-conversions only for conversions fraud.
7. Representations and Warranties
7.1 Each of the parties hereby represents and warrants that: (a) the Agreement constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms; (b) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under the Agreement; (c) it is duly organized and in good standing under the laws of its state of organization; and (d) the execution of the Agreement or the performance of its obligations under the Agreement do not and will not violate any other obligation or agreement, law or regulation by which it is bound or to which it is subject.
7.2 ADAttract hereby represents and warrants that during the term hereof, it will use commercially reasonable efforts to perform its obligations hereunder.
7.3 Advertiser hereby represents and warrants that: (i) it owns or has the valid legal right or license (as applicable) to use and distribute the advertising materials, to the extent required or contemplated hereunder, and the right shall be complete and without any defects and other dispute; (ii) any and all activities and/or obligations it undertakes in connection with the Agreement shall be performed in compliance with all applicable laws, rules and regulations; (iii) it is solely responsible for the advertising materials and any content or technology that may be reached via the advertising materials;(ⅳ) the advertising materials meet the following requirements: (a) are in compliance with all applicable laws, rules and regulations, industry best practices of the country and district where the Parities are located and where the advertisement is published, (b) do not and will not, at any time during the term hereof, infringe or violate any proprietary right or any other right of any person or entity; (c) shall be true, lawful, and without any false statement and shall not deceive and misguide customers; (d) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that ADAttract informs Advertiser that it considers objectionable; (v) it will only use ADAttract Advertising Platforms for the purposes and in the manner expressly permitted under the Agreement; and (vi) it shall not bind ADAttract to any agreement or obligation or give any representation, warranty or guarantee in respect of ADAttract, except for those that are specifically authorized by ADAttract in advance and in writing.
8. Limitation of Liability
In the event that ADAttract fails to place campaign in accordance with the schedule provided in the Insertion Order, or in the event of any other failure, technical or otherwise, the sole liability of ADAttract and exclusive remedy of the Advertiser shall be limited to, at ADAttract’s sole discretion, placement of the campaign at a later time in a comparable position, or extension of the end date specified in the Insertion Order until the campaign are delivered. IN NO EVENT WILL ADATTRACT, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO ADVERTISER OR ANY OTHER PERSON OR ENTITY, FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION TO DAMAGES FOR ANY LOST PROFITS OR REVENUES, LOSS OF GOODWILL, SERVICE INTERRUPTION, LOSS OF CUSTOMERS, LOSS OF ANY EQUIPMENT OR SOFTWARE, SYSTEMS, COMPUTER DAMAGE OR SYSTEM FAILURE, LOSS OF DATA OR INFORMATION, INTEREST CHARGES OR COST OF CAPITAL, COST OF PROCUREMENT OF SUBSTITUTE EQUIPMENT , ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ADVERTISER’S ABILITY OR INABILITY TO USE ADATTRACT ADVERTISING PLATFORM UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT ADATTRACT SHOULD HAVE REASONABLY FORESEEN OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. IN NO EVENT WILL ADATTRACT’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THE AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT RECEIVED BY ADATTRACT. The Advertiser confirms that it has entered into the Agreement with ADAttract relying on the limitations of liability stated herein and that those limitations are an essential part of the bargain between the Advertiser and ADAttract.
9.1 Advertiser agrees to hold harmless, defend and indemnify ADAttract, and their respective officers, directors, shareholders, employees, agents and other Representatives harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses including reasonable attorneys’ fees based on or arising out of: (a) any breach of this Agreement by Advertiser; or (b) any gross negligence or willful misconduct of Advertiser or its associated companies or any of their respective directors, officers, employees, contractors, agents or other Representatives.
9.2 ADAttract hereby agrees to indemnify, defend and hold Advertiser and their respective officers, directors, shareholders, employees, agents and other Representatives harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses including reasonable attorneys’ fees based on any breach of this Agreement, including any representation, warranty, restriction or obligation made by ADAttract herein.
10. Disclaimer of Warranty
ADAttract does not have any obligation to monitor the advertising materials, for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the advertising materials or anything described or written by Advertiser. ADAttract Advertising Platform and any other technology or services provided by ADAttract is provided on an ‘AS-IS’ basis. Except as expressly provided in the Agreement and to the fullest extent allowable by law, ADAttract makes no other warranty of any kind, whether express, implied, statutory or otherwise, including without limitation, warranties of merchantability, fitness for a particular use or non-infringement or those arising in the course of or connected to the performance hereunder, and disclaims any such warranties. In addition, ADAttract does not represent or warrant that: (i) ADAttract Advertising Platform or any part therein will be error free or that any errors will be corrected; (ii) the operation of ADAttract Advertising Platform or any part therein will be uninterrupted; (iii) Advertiser will profit or derive any economic benefit from Advertiser’s use of ADAttract Advertising Platform; or (iv) any specific content, service and/or feature will be made available to Advertiser via the ADAttract Advertising Platform.
11. Confidential Information
‘Confidential Information’ means (i) campaign, prior to publication, (ii) the Insertion Order and any ADAttract statistics which shall be deemed ADAttract Confidential Information; and/or (iii) any information designated in writing, or identified orally at time of disclosure, by the disclosing party as ‘confidential’ or ‘proprietary.’ During the term of this Agreement, and for a period of two years following any End Date, neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. The foregoing restriction does not apply to information that: (i) has been independently developed by the receiving party without access to the other party’s Confidential Information; (ii) has become publicly known through no breach of this section by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority.
12. Cancellation, Term and Termination
12.1 This Agreement shall commence on the date of signature of Insertion Order by both ADAttract and Advertiser. Unless terminated by either Party upon three 3 business days with prior written notice to other party, the Agreement shall automatically renew for successive 1 year term.
12.2 Unless designated on the IO as non-cancellable, Advertiser may cancel the IO before ADAttract starts the Campaign, within a 48 hours with written notice. If ADAttract has made some preparations for the Campaign, Advertiser shall reimburse all the costs suffered by ADAttract.
12.3 Unless otherwise provided in this Agreement, if one party breaches any provision hereof materially and has not made any correction within 15 days after the other party’s written notice, the other party shall be entitled to terminate this Agreement.
12.4 Upon termination of this Agreement for any reason, Advertiser shall pay all unpaid amounts to ADAttract within 10 days from the termination date. And any and all licenses and rights granted to ADAttract in connection with this Agreement shall be immediately ceased and terminated. ADAttract will: (i) immediately terminate all use of and delete all links and intellectual property which provided by Advertiser. (ii) immediately cease to use any and all campaigns and/or related materials available to ADAttract in connection with ADAttract’s participation in the service.
13. Force Majeure
‘Force Majeure’ means events which are beyond the control of the Parties to this Agreement, and which are unforeseen, unavoidable or insurmountable, and which prevent total or partial performance by each Party. Such events shall include earthquakes, typhoons, flood, war, riots or any other instances which cannot be foreseen, prevented or controlled, including instances which are accepted as Force Majeure in general International commercial practice.
Either party shall not be held responsible for failure or delay to perform all or any part of this agreement due to Force Majeure. However, the party affected by the event of Force Majeure shall inform the other party of its occurrence in writing as soon as possible and thereafter send a certificate of the event issued by the relevant authorities to the other party within thirty (30) days after its occurrence. If the event of Force Majeure continues for more than forty-five (45) days, both parties shall negotiate the performance or the termination of this Agreement. If within three (3) months after the occurrence of the event of Force Majeure both parties cannot reach an agreement, either party has the right to terminate this Agreement. In the case of such a termination either party shall bear its own costs, further claims for compensation in connection with the termination shall be excluded.
Headings used in this Agreement are provided for convenience only and shall not be used to define, limit or describe the scope of this Agreement and shall not form a part hereof.
15. Jurisdiction and Venue
This Agreement shall be governed by and construed in accordance with the laws of the Hong Kong, without giving effect to principles of conflicts of law. Any dispute hereunder will be negotiated in good faith between the parties within 45 days commencing upon written notice from one party to the other. If any dispute cannot be resolved by negotiation, then any Party may submit the dispute to the Hong Kong International Arbitration Centre for arbitration by arbitrators which shall be conducted in accordance with its arbitration rules in effect at the time of applying for arbitration. The place of arbitration shall be Hong Kong.
Any notice to be given hereunder shall be in writing and shall be transmitted by facsimile or email or sent by express airmail, and shall be deemed given when transmitted by facsimile, the day of such facsimile to transmitted, or if sent by mail or email when received, to the parties at the addresses specified at the IO of this Agreement.
17.1 The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
17.2 If any provision contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that mostly reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
17.3 The Agreement shall not operate so as to create a partnership or joint venture of any kind between the parties. Nothing contained in the Agreement shall be so construed as to constitute either party to be the agent of the other. Neither party shall have any authority to make any commitments on the other party’s behalf.
Below are the terms and conditions for all ADAttract Publishers.
This Affiliate Program Operating Agreement (the “Agreement”) is made and entered into by and between ADAttract (“ADAttract” or “we”), and you, (“you” or “Affiliate”) the party submitting an application to become a ADAttract affiliate). The terms and conditions contained in this Agreement apply to your participation with affiliate.nordicadmedia.com (“Affiliate Program”). Each Affiliate Program offer (an “Offer”) may be for any offering by ADAttract 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.
1. Enrollment in the Affiliate Program
You must submit an Affiliate Program application from our website. You must accurately complete the application to become an affiliate (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the Affiliate Program, generally within two (2) business days. We may accept or reject your application at our sole discretion for any reason.
2. Obligations of the Parties
Subject to our acceptance of you as an affiliate and your continued compliance with the terms and conditions of this Agreement, ADAttract agrees as follows:
I. We will make available to you via the Affiliate Program graphic and textual links to the Program Web Site and/or other creative materials (collectively, the “Links”) which you may display on web sites owned or controlled by you, in emails sent by you and clearly identified as coming from you and in online advertisements (collectively, “Media”). The Links will serve to identify you as a member of our Affiliate Program and will establish a link from your Media to the Program Web Site.
II. We will pay Affiliate for each Qualified Action (the “Commission”). A “Qualified Action” means an individual person who (i) accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) completes all of the information required for such action within the time period allowed by ADAttract and (v) is not later determined by ADAttract to be fraudulent, incomplete, unqualified or a duplicate.
III. We will pay you any Commissions earned monthly, provided that your account is currently greater than $50. Accounts with a balance of less than $50 will roll over to the next month, and will continue to roll over monthly until $50 is reached. We reserve the right to charge back to your account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action.
IV. Payment for Commissions is dependent upon Clients providing such funds to ADAttract, and therefore, you agree that ADAttract shall only be liable to you for Commissions to the extent that ADAttract has received such funds from the Clients. You hereby release ADAttract from any claim for Commissions if ADAttract has not received such funds from the Clients.
V. ADAttract shall automatically generate an invoice on behalf of Affiliate for all Commissions payable under this Agreement and shall remit payment to Affiliate based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by ADAttract in its sole discretion. In the event that Affiliate disputes in good faith any portion of an invoice, Affiliate must submit that dispute to ADAttract in writing and in sufficient detail within thirty (30) days of the date on the invoice. If Affiliate does not dispute the invoice as set forth herein, then Affiliate agrees that it irrevocably waives any claims based upon that invoice. In the event that Affiliate is also tracking Qualified Actions and Affiliate claims a discrepancy, Affiliate must provide ADAttract with Affiliate’s reports within three (3) days after 30th day of the calendar month, and if ADAttract’s and Affiliate’s reported statistics vary by more than 10% and ADAttract reasonably determines that Affiliate has used generally accepted industry methods to track Qualified Actions, then ADAttract and Affiliate agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then ADAttract’s numbers shall govern.
VI. If Affiliate has an outstanding balance due to ADAttract under this Agreement or any other agreement between the Affiliate and ADAttract, whether or not related to the Affiliate Program, Affiliate agrees that ADAttract may offset any such amounts due to ADAttract from amounts payable to Affiliate under this Agreement.
Affiliate also agrees to:
I. Have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, your Media.
II. Ensure that all materials posted on your Media or otherwise used in connection with the Affiliate Program (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that ADAttract informs you that it considers objectionable (collectively, “Objectionable Content”).
III. Not make any representations, warranties or other statements concerning ADAttract or Client or any of their respective products or services, except as expressly authorized herein.
IV. Make sure that your Media does not copy or resemble the look and feel of the Program Web Site or create the impression that your Media is endorsed by ADAttract or Clients or a part of the Program Web Site, without prior written permission from us.
V. Comply with all (i) obligations, requirements and restrictions under this Agreement and (ii) laws, rules and regulations as they relate to your business, your Media or your use of the Links.
VI. Comply with the terms, conditions, guidelines and policies of any third party services used by Affiliate in connection with the Affiliate Program, including but not limited to, email providers, social networking services and ad networks.
VIII. Always prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by ADAttract or Client, or as required by applicable laws regarding such Offers.
IX. Make sure to not place ADAttract ads on any online auction platform (i.e. eBay, Amazon, etc).
The following additional program-specific terms shall apply to any promotional programs set forth below:
I. Email Campaigns. For all email campaigns, Affiliate must download the “Suppression List” from the Offers section of ADAttract. Affiliate shall filter its email list by removing any entries appearing on the Suppression List and will only send emails to the remaining addresses on its email list. ADAttract will provide an opt-out method in all Links, however, if any opt-out requests come directly to Affiliate, Affiliate shall immediately forward them to ADAttract at [email protected] Affiliate’s emails containing the Links may not include any content other than the Links, except as required by applicable law.
A. Affiliate agrees that failure to download the Suppression List and remove all emails from the database before mailing may result in Commission withholdings, removal or suspension from all or part of the Affiliate Program, possible legal action and any other rights or remedies available to ADAttract pursuant to this Agreement or otherwise. Affiliate further agrees that it will not mail or market to any suppression files generated through the ADAttract network, and that doing so may result in Commission withholdings, removal or suspension from the Affiliate Program, possible legal action and any other rights or remedies available to ADAttract pursuant to this Agreement or otherwise.
II. Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by ADAttract in writing. Any pop-ups/unders used for the Affiliate Program shall be clearly identified as Affiliate served in the title bar of the window and any client-side ad serving software used by Affiliate shall only have been installed on an end-user’s computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and plain-english end user license agreement and the software be easily removed according to generally accepted methods.
III. Affiliate Network Campaigns. For all Affiliate’s that maintain their own affiliate networks, Affiliate agrees to place the Links in its affiliate network (the “Network”) for access and use by those affiliates in Affiliate’s Network (each a “Third Party Affiliate”). Affiliate agrees that it will expressly forbid any Third Party Affiliate to modify the Links in any way. Affiliate agrees to maintain its Network according to the highest industry standards. Affiliate shall not permit any party to be a Third Party Affiliate whose web site or business model involves content containing Objectionable Content. All Third Party Affiliates must be in good standing with Affiliate. Affiliate must require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Links. Affiliate shall promptly terminate any Third Party Affiliate who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Affiliate with respect to the Links, Affiliate shall promptly disclose to ADAttract the identity and contact information for such Third Party Affiliate. Affiliate shall promptly remove any Third Party Affiliate from the Affiliate Program and terminate their access to future Offers of ADAttract in the Network upon written notice from ADAttract. Unless ADAttract has been provided with all truthful and complete contact information for a Third Party Affiliate and such Third Party Affiliate has affirmatively accepted this Agreement as recorded by ADAttract, Affiliate shall remain liable for all acts or omissions of any Third Party Affiliate.
Except as otherwise provided in this Agreement or with the consent of ADAttract, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Affiliate shall not use any information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same.
4. Limited License & Intellectual Property
We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the Affiliate Program and assisting in increasing sales through the Program Web Site.
You may not alter, modify, manipulate or create derivative works of the Links or any ADAttract graphics, creative, copy or other materials owned by, or licensed to, ADAttract in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Affiliate Program. We may revoke your license anytime by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of ADAttract’s trademarks, service marks, copyrights, patents or trade secrets. You agree that ADAttract may use any suggestion, comment or recommendation you choose to provide to ADAttract without compensation. All rights not expressly granted in this Agreement are reserved by ADAttract.
This Agreement shall commence on the date of our approval of your Affiliate Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time by removing all Links from your Media, deleting all copies of the Links. We may terminate your participation in one or more Offers or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of your participation in one or more Offers or this Agreement for any reason, you will immediately cease all use of and delete all Links, plus all ADAttract or Client intellectual property, and will cease representing yourself as a ADAttract or Client affiliate for such one or more Offers. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
In addition to any other rights and remedies available to us under this Agreement ADAttract reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if (i) ADAttract determines that you have violated this Agreement, (ii) ADAttract receives any complaints about your participation in the Affiliate Program which ADAttract reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Affiliate Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, ADAttract reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
7. Anti-Spam Policy
You must strictly comply with the federal CAN-SPAM Act of 2003 (the “Act”). All emails sent in connection with the Affiliate Program must include the appropriate party’s opt-out link. From time to time, we may request – prior to your sending emails containing linking or referencing the Affiliate Program that you submit the final version of your email to ADAttract for approval by sending it to your ADAttract representative and upon receiving written approval from ADAttract of your email the email may be transmitted to third parties. It is solely your obligation to ensure that the email complies with the Act. You agree not to rely upon ADAttract’s approval of your email for compliance with the Act, or assert any claim that you are in compliance with the Act based upon ADAttract’s approval.
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Affiliate Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. ADAttract shall make all determinations about fraudulent activity in its sole discretion.
9. Representations and Warranties
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, ADAttract represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to ADAttract’s own business operations or ADAttract’s proprietary products or services.
In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Affiliate Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, ADAttract may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Affiliate agrees to promptly implement any request from ADAttract to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the Affiliate Program.
11. Independent Investigation
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Affiliate Program and each Offer and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Affiliate Program.
12. Mutual Indemnification
Affiliate hereby agrees to indemnify, defend and hold harmless ADAttract and Clients and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Affiliate herein, (ii) any misuse by Affiliate, or by a party under the reasonable control of Affiliate or obtaining access through Affiliate, of the Links, Offers or ADAttract or Client intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links). ADAttract hereby agrees to indemnify, defend and hold harmless Affiliate and its subsidiaries, affiliates, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on a claim that ADAttract is not authorized to provide you with the Links.
THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE “AS IS”. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ADATTRACT EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. ADATTRACT DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. ADATTRACT EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. ADATTRACT DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
14. Limitation of Liability
IN NO EVENT SHALL ADATTRACT BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF ADATTRACT. IN NO EVENT WILL ADATTRACT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT ADATTRACT HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. ADATTRACT’S CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY ADATTRACT IN COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
15. Governing Law & Miscellaneous
Affiliate shall be responsible for the payment of all attorneys fees and expenses incurred by ADAttract to enforce the terms of this Agreement. This Agreement contains the entire agreement between ADAttract and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Affiliate agrees that ADAttract shall not be subject to or bound by any Affiliate insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether ADAttract “clicks through” or otherwise indicates its acceptance thereof. Affiliate may not assign all or any part of this Agreement without ADAttract’s prior written consent. ADAttract may assign this Agreement at any time with notice to Affiliate. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. The provisions of Section 3, 4(b), 6, 7, 8, 12-15 and any accrued payment obligations shall survive the termination of this Agreement. Except as set forth in the “Modifications” section above, this Agreement may not be modified without the prior written consent of both parties. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default. By submitting and application to Affiliate Program, you affirm and acknowledge that you have read this Agreement in its entirety and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not submit an application to Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement. This Agreement was last revised on 08-04-2014.