The
LeadClick Media Publisher
Agreement
These terms and conditions, govern
your participation as an “Publisher” and member of the LeadClick Media Publisher
Program (the “Publisher Program”), an online, performance-based marketing
program sponsored by LeadClick Media.
As used herein, the term “Publisher” shall refer to a web site, e-mail or
search engine marketer or other distributor of Offers and the terms “you” and “your(s)” shall
refer to the corporate or individual entity owning, either directly or
indirectly, the referring URL of each Publisher.
From time to time, LeadClick Media
may amend, supplement or replace entirely these Terms & Conditions by
(i)
Posting updated Terms & Conditions or supplements, amendments or exhibits
thereto (collectively the “Updated Conditions”) on the LeadClick Media web site
and
(ii) If, in the reasonable judgment
of LeadClick Media, the Updated Conditions are material, notifying each affected
party via e-mail at the address specified on the Account Information page of the
LeadClick Media web site.
Thereafter, the Updated Conditions shall be deemed effective five (5)
business days after the later of such posting or e-mail transmission (the
“Effective Date”) AND you will be conclusively deemed to have consented to, and
agreed to be bound by, the Updated Conditions UNLESS your termination notice is
received by us prior to the Effective Date; provided, that no Updated Condition will
affect your right to receive any Commissions earned by you prior to the
Effective Date.
If this AGREEMENT
is being agreed to in connection with an insertion order (IO), the applicable
insertion order is incorporated herein by reference, and the terms of the
AGREEMENT are hereby incorporated into the applicable insertion order by
reference. In the event of any inconsistency between the applicable insertion
order and the AGREEMENT, the applicable insertion order shall control. NO TERM
OR CONDITION PLACED BY PUBLISHER IN AN APPLICABLE INSERTION ORDER SHALL BE
BINDING UPON LeadClick Media, UNLESS EXPRESSLY AGREED TO IN WRITING BY LeadClick
Media.
I. Application. You may apply to join the LeadClick
Media Publisher Program by completing the form insertions appearing on the
publisher application page of the LeadClick Media web site and then clicking
the “Submit”
button. By clicking on the “Submit” button you
acknowledge that you have read, accepted and agreed to be bound by these Terms
& Conditions, as they may be modified from time to time by any Updated
Conditions.
1.1 Pre-Condition of
Membership. As a condition to your membership, you
represent and warrant, and covenant on an ongoing basis, that your web site:
(i) Does
not violate any law or regulation governing (a) false or deceptive advertising,
(b) sweepstakes or (c) gambling;
(ii) Does not contain any trade
disparagement or libelous, defamatory or infringing content; and
(iii) Does not contain any
machine-readable code that could be unintentionally downloaded onto a
recipient’s computer (such as a worm, virus, Trojan Horse or other self-executing computer program);
(iv)
Is written in
English and contains only English language content;
(v) Cannot offer incentives to users
to click-on ads or complete offers; incentives include but are not limited to
awarding them cash, points, prizes, contest entries;
(vi)
Does not place
our advertisements into your framed environment.
II. Content Ineligible
Websites. If LeadClick Media, in the exercise of
reasonable discretion, determines your web site to be ineligible, all
commissions, whether earned or unearned, shall be forfeited. The content of the
website and/or newsletter shall not contain the following:
(i)
Explicit, vulgar or obscene language;
(ii)
Posting or referencing of sexually explicit images or other
offensive content;
(iii)
Infringe on any personal, intellectual property or copyrights:
(iv)
Gratuitous violence or profanity;
(v)
Material that defames, abuses, or threatens physical harm to others or to
you;
(vi)
Promotion of illegal substances or
activities;
(vii) Software
Pirating (e.g., Warez, Hotline);
(vii)
Hacking, Phreaking or any spoofing,
redirecting, or trafficking websites in an effort to gain traffic.
III. Membership Approval. All websites, newsletters, companies, or
individuals need official approval from LeadClick Media before they can become a
member of the Publisher Program. Only websites and newsletters that have been
reviewed and approved are permitted to use the programs. LeadClick Media
reserves the right to withhold or refuse approval on any website, newsletter,
company, or individual for any reason, whatsoever.
IV. User Name and Password. Upon submission of your application and
upon approval of your membership, you will be issued a user name and a
password. Your use of these
identifiers is limited only to you, and may not, under any circumstances, be
distributed to any other person, including without limitation any
Sub-Publisher.
V. Offers. You may use your
user name and password to access the LeadClick Media Offer Library. The LeadClick Media Offer Library
contains Offers along with associated commission schedules and restrictions or
conditions specific to each Offer (including, but not limited to, restrictions
on incentives that may be associated with any Offer) that may be downloaded by
you only for the purposes described herein.
5.1 Integrity of Offers. You
may not add, subtract or in any way alter or edit any Offer (including, for this
purpose, any machine-readable code which may be a part of any Offer), nor may
you make any use whatsoever of any Offer other than for the purposes of, and as
contemplated by, this Agreement.
Offers may only be published in accordance with the terms and
restrictions associated therewith.
5.2 Offer
Fraud. If you are found to
have fraudulently added leads or clicks or inflate leads or clicks by fraudulent
traffic generation (as determined solely by LeadClick Media in its reasonable
business judgment, such as pre-population of forms), you agree that the entire
commission for all programs will be forfeited.
VI. Limited License. LeadClick Media
hereby grants to you a limited, non-exclusive, non-transferable, revocable,
worldwide right to
(i)
Download
one or more Offers for posting on your web site and
(ii)
Use, in connection with publishing such Offers, all copyrighted, trade or
service marked or other protected intellectual property contained therein for
the purposes described in this Agreement.
VII. Rules Governing
Sub-Publishers. A member of the
Publisher Program may solicit non-member Publishers to distribute Offers
(collectively “Sub-Publishers”), provided that each Sub-Publisher agrees in
writing to be bound by and subject to
the restrictions and conditions set forth in this agreement.
7.2 Relationship among Publisher, Sub-Publisher(s) and
LeadClick Media. Each Sub-Publisher shall, for
purposes of these Terms & Conditions, be deemed to be an agent of the
Publisher Program member, with the Publisher Program member responsible in all
respects for the activities of its Sub-Publishers. Any breach by
your Sub-Publishers of these Terms &
Conditions shall be deemed a breach by you. It is understood and agreed
between you and LeadClick Media that
(i) LeadClick Media is not and shall not be party to any
agreement between you and any Sub- Publisher,
(ii) You are not
authorized to make any commitments on behalf of LeadClick Media to any
Sub-Publisher, including but not limited to any payment or other
commitment by LeadClick Media, and
(iii) No license other
than the license set forth in this agreement may be extended by you to any
Sub- Publisher.
7.3 No Third-Party Beneficiary
Status. Nothing in LeadClick
Media’s permission to engage Sub-Publishers may be construed as extending to any
Sub-Publisher the status of third-party
beneficiary of any agreement between LeadClick Media and you, including without
limitation these Terms & Conditions.
VIII. Special Rules Governing
Click-Through Campaigns. From time to time, a Client may request
a campaign wherein payment is based not on customer conversion but on the number
of recipients clicking on an Offer (a “click-through rate” or “CTR”). For any CTR deal, you will not employ
any device that has the effect of inflating the click-through rate, including
but not limited to automatic page-spawning, automatic redirects, “robots” or
incentives offered to any recipient.
LeadClick Media reserves the right
to audit any web site traffic at any time and for any reason, or no reason at
all. Should LeadClick Media
determine, in the exercise of its reasonable business judgment, that you have
employed any device to artificially inflate the click-through rate,
(i) Your
membership in the Publisher Program will be immediately terminated,
(ii) Any unpaid Commissions
attributable to the subject CTR deal will be immediately voided, whether or not
earned and
(iii) Upon demand, you will return
to LeadClick Media immediately any Commissions attributable to the subject CTR
deal that had been previously paid.
IX. Publisher Responsibilities
Governing Email Advertisement.
Publisher agrees and warrants that it will not
send, transmit and/or distribute any LeadClick Media Offer (as defined in the
Agreement) via e-mail unless such e-mail is not deemed “SPAM e-mail” (as defined
below). An e-mail shall be deemed to be “SPAM e-mail” if such e-mail satisfies
any one or more of the following criteria:
(i) The e-mail fails to identify the Publisher as the sender
of the e-mail;
(ii) The e-mail
contains a falsified sender domain name or non-responsive IP address;
(iii) The e-mail
contains or includes a false or misleading subject line that attempts to
disguise or conceal the content of the e-mail;
(iv) The e-mail fails
to notify the recipient that he or she may unsubscribe or “opt out” from further
e-mail solicitations from the Distribution Partner/Publisher; and
(v) The e-mail fails
to contain or include a valid return e-mail address or other internet based
mechanism whereby recipients can unsubscribe or “opt out” from receiving further
e-mail solicitations from the Publisher. Such return e-mail address or other
internet based mechanism shall remain valid for no less than thirty (30) days
from the date of transmission of the e-mail and the Distribution
Partner/Publisher shall implement all requests to unsubscribe or “opt out”
within ten (10) days of receipt of such request;
(vi)
The e-mail fails to
contain or include a valid physical postal address for the Publisher (which shall not include a P.O. Box address);
(vii) The e-mail is
sent to an individual who was not provided with an accurate, clear and
conspicuous description of the marketing purposes for which his or her e-mail
address may be used at the time such e-mail address was provided by the
individual;
(viii) The e-mail
fails to provide clear and conspicuous notice that the message is an
advertisement or solicitation;
(ix) The e-mail is
sent for the purpose (but not necessarily the sole purpose) of harvesting the
e-mail addresses in order to send future unsolicited e-mails; or
(x) The e-mail
contains nudity, profanity, sexually oriented materials, hate speech, or other
obscene content.
9.1 CAN-SPAM ACT
Publisher further agrees and warrants that it will comply with all
local, state and federal laws (including, but not limited to, the “CAN-SPAM”
Act, effective January 1, 2004) regarding the sending of e-mails.
9.2 Opt-in
Information LeadClick Media will notify
Publisher of any complaint regarding their e-mail practices or any
alleged violation of the above warranties. Within forty-eight (48) hours of
notification, Publisher must respond to
LeadClick Media and provide source information as to any questionable e-mails
including, but not limited to, the time, date, IP address and content of the
questionable e-mails along with the applicable “opt-in” information (e.g. time,
date and IP address of opt-in source) of the recipient. If the Publisher
fails to provide source information satisfactory to
LeadClick Media to demonstrate that the Publisher did not send SPAM e-mail or otherwise breach the above
warranties, then LeadClick Media has the right to immediately suspend payment to
and further performance of any services by the Publisher.
X. Compensation. LeadClick
Media will pay you commissions (“Commissions”) in the amounts set forth in the
commission schedule associated with each Offer and posted in LeadClick Media’s
reporting system. LeadClick Media shall pay Publishers for commissions earned
within fifteen (15) days after the end of the month in which LeadClick Media has
received payment from each applicable client. Regardless of the timing of any
payment made by LeadClick Media to Publisher hereunder, LeadClick Media shall be
authorized to recoup any commission paid to Publisher that specifically relates
to
(i) Leads/sales returned or rejected by
client within ninety days from the date of generation;
(ii) Overpayments to Publisher,
duplicate entries or other clear bona-fide errors. It is your responsibility to
advise us immediately of any change in any of the information furnished by you
as part of your application.
10.1.
When Commissions are Earned. Commissions will not be “earned” until
LeadClick Media receives payment from the Client. Notwithstanding the foregoing, LeadClick
Media may elect to advance to you commissions prior to those commissions having
been earned. You acknowledge and
agree that your receipt of commission payments prior to those payments having
been earned is conditional and subject to LeadClick Media’s right to demand
return of unearned commissions for any reason or for no reason at
all.
10.2. LeadClick Media’s Records to
Control. LeadClick Media maintains records of all
traffic passing over the LeadClick Media Program. LeadClick Media’s records
shall govern all interpretations made under this Agreement, including but not
limited to the calculation of Commissions.
10.3. Minimum
Commission Requirement For Regular Payment.
LeadClick Media shall not be obligated to make any payment of Commissions to you
unless the aggregate amount of earned Commissions equal or exceed fifty dollars
($50.00). Any earned but unpaid Commissions shall carry over to the next
regularly scheduled payment period.
10.4. Suspension of
Payment. If LeadClick Media
determines, in the exercise of its reasonable business judgment, that you are in
breach of any material term of this Agreement, LeadClick Media will
(i)
Use commercially reasonable best efforts to notify you promptly of such
breach and
(ii)
Suspend any payment of any earned but unpaid Commissions until such
breach has been cured.
XI. Confidentiality. All
information relating to your participation in the Publisher Program, including
but not limited to your unique user name and password, the identities of any
LeadClick Media Client, LeadClick Media’s commission rates and pricing
strategies, any calculation of amounts paid to you hereunder and the number of
sales, leads or customers acquired by you for any Client, shall be considered
proprietary information of LeadClick Media, shall be held in strictest
confidence by you and will not, without the prior written consent of LeadClick
Media, be disclosed by you to any other person, in any manner whatsoever, in
whole or in part, and will not be used by you directly or indirectly for any
purpose other than confirming the correctness of the commission
calculation.
11.1. Ownership and Proprietary
Nature of Data and Reports. All
data, including but not limited to campaign results, user data, statistical
information, traffic analysis or other data produced or provided by you, shall
be deemed to be the property of LeadClick Media.
XII. Covenants of LeadClick
Media. LeadClick Media covenants and agrees to use its commercially
reasonable best efforts:
(i)
To provide, monitor and maintain the necessary technology applications
required to link you to the Client Web sites;
(ii)
To provide you with Offers in appropriate format; and
(iii) To
provide changes to Offers or cancellations as quickly as is commercially
feasible in advance of requested change date or time.
12.1. Non-Competition. You shall not, during the term of this
Agreement and for three (3) months thereafter, implement any cost-per-action
(“CPA”) agreements with any LeadClick Media Client with whom you did not have a
previously existing CPA agreement.
XIII. Termination. This
Agreement may be terminated by either of us at any time and for any reason or
for no reason at all. Termination
may be effected by delivery to the non-terminating party of appropriate notice,
delivered via e-mail, fax or other means of public communication, and will be
effective on the earlier of
(i)
Receipt by the non-terminating party or
(ii)
Three (3) business days following the sending of the termination notice.
13.1. Responsibilities
Following Termination.
Immediately upon termination, you will
(i)
Remove any and all Offers from any web site owned or operated by you
and/or
(ii)
Suspend any e-mail campaign that has not already been sent. As a precondition to receiving any
earned but unpaid compensation you will certify to us, via e-mail, that this
condition has been met within two (2) business days following
termination.
XIV.
Liability Policies.
14.1. Warranties. LEADCLICK’S NETWORK, SERVICES AND
SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE.” NO WARRANTIES ARE MADE BY
EITHER OF US AS TO THE SERVICES OR TECHNOLOGY DESCRIBED IN THIS AGREEMENT AND
EACH PARTY HERETO EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT AS IT RELATES TO THE
TECHNOLOGY AND SERVICES PROVIDED PURSUANT TO THIS
AGREEMENT.
14.2. Limitation on
Damages. Neither of us shall be
liable to the other for any special, consequential (even if a party has been
informed of the possibility of such damages), incidental, punitive or indirect
damages, losses (including lost or imputed profits), costs or expenses of any
kind arising out of these Terms & Conditions or your participation in or
termination from the Publisher Program, however caused, and whether based in
contract, tort (including negligence), products liability or any other theory of
liability regardless of whether such party has been advised of the possibility
of such damages, losses, costs or expenses. Except for liabilities resulting
from willful misconduct or recklessness, any liability of one of us to the other
shall not exceed the total amount of the Commissions actually paid by LeadClick
Media to you with respect to your participation in the Publisher
Program.
14.3. Indemnification. EACH
PARTY HERTO AGREES TO INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY AND EACH OF
ITS AGENTS, OFFICER, DIRECTORS AND EMPLOYEES AGAINST ALL LIABILITY TO THIRD
PARTIES RESULTING FROM THE ACTS, FAILURE TO ACT, OF SUCH INDEMNIFYING PARTY, OR
ANY ACTS OF ITS CUSTOMERS OR USERS.
14.3.1. You agree to indemnify
LeadClick Media, without limitation, for any costs, charges, fines, expenses,
settlements or other liabilities resulting from any violation, intentional or
otherwise, by you or any of your Sub-Publishers of the undertakings,
responsibilities, covenants, representations and warranties contained in this
agreement.
XV. Dispute Resolution.
Any controversy or claim between
the parties shall be determined by arbitration or litigation in
XVI. Miscellaneous.
16.1. Transferability. Your right to participate in the
Publisher Program is non-transferable, except in the event of a sale of all or
substantially all of your assets or stock as part of an acquisition or merger,
including any reorganization or reincorporation. LeadClick Media may transfer
its rights to the Publisher Program without restriction.
16.2. Public Statements.
Any press release or other public announcement by you regarding your
participation in the LeadClick Media Publisher Program shall require the prior
approval of LeadClick Media.
16.3. Force Majeure. Neither of us shall be deemed in default of
these Terms & Conditions to the extent that performance of our obligations
or attempts to cure any breach are delayed or prevented by reason of any act of
God, fire, natural disaster, accident, terrorism, riots, acts of government,
shortage of materials or supplies, or any other cause beyond the reasonable
control of such party; provided, that the party whose performance is affected by
any such event gives the other party written notice thereof within three (3)
business days of such event or occurrence.
16.4. Relationship. The
relationship between us established by these Terms & Conditions is that of
non-exclusive independent contractors.
Neither of us may represent to any third party, or otherwise be deemed to
be, an employee, agent, partner or joint venturer with
respect to the other.
16.5. Notices. Unless
otherwise specified herein, any notice, communication or statement relating to
these Terms & Conditions shall be in writing and deemed effective:
(i)
Upon delivery when delivered in person;
(ii) Upon
transmission when delivered by verified facsimile transmission; or
(iii) When
delivered by registered or certified mail, postage prepaid, return receipt
requested or by nationally recognized overnight courier service to the address
of the respective party as indicated above.
16.6. Waiver. The failure
of either party to insist upon or enforce strict performance by the other or to
exercise any right under these Terms & Conditions shall not be construed as
a waiver or relinquishment to any extent of such party's right to assert or rely
upon any such provision or right in that or any other instance, and the same
shall be and remain in full force and effect.
16.7. Corporate Authority;
Non-Breach. Each party
represents and warrants to the other that:
(i) Such
party has all necessary right, power and authority to agree to these Terms &
Conditions and to perform its obligations hereunder; and
(ii) Nothing contained in these
Terms & Conditions or required by such party's performance hereunder will
place such party in breach of any other contract or agreement to which it is
bound or violate any applicable law, including obscenity, privacy and defamation
laws and
(iii) The performance of either
party’s obligations under these Terms & Conditions shall not infringe or
violate upon the Intellectual Property or privacy rights of any third
party.
16.8. Entire Agreement.
This Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter hereof, and merges all prior discussions and
writings between them with respect to the contents of this Agreement. If any
provision (or part thereof) of this Agreement is determined by a court of
competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration,
to be invalid, illegal, or otherwise unenforceable, such provision shall be
enforced as nearly as possible in accordance with the stated intention of the
parties, while the remainder of this Agreement shall remain in full force and
effect and bind the parties according to its terms. The individual submitting
this application certifies that she/he is authorized to act on behalf of
Publisher and that she/he, on behalf of Publisher, has
read and accepted the terms, conditions and disclosures associated with this
Agreement.
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