This Internet Publisher Agreement ("Agreement") is entered into by and between Affiliate Venture Group, a dba of PAB67Media, LLC, a Virginia
Limited Liability Company ("Company") and you the publisher ("Publisher").
1. Publisher Program. This Agreement governs Publisher's participation as a member of Company's Publisher Program, an online, performance-based
marketing network sponsored by Company. As used herein, the term "Publisher" shall refer to a web site, e-mail or search engine marketer or other
distributor of Offers and shall include the corporate or individual entity owning, either directly or indirectly, the referring URL of Publisher.
From time to time, Company may amend, supplement or replace entirely the terms and conditions in this Agreement by:
(i) Posting updated terms and conditions or supplements, amendments or exhibits thereto (collectively the "Updated Conditions") on the Company web site, and
(ii) If, in the reasonable judgment of Company, the Updated Conditions are material, Company shall post such Updated Conditions online and may notify
each affected party via e-mail at the address specified on the Account Information page of the Company web site. Thereafter, the Updated Conditions shall
be deemed effective immediately after the later of the posting or e-mail transmission (the "Effective Date") and Publisher will be conclusively deemed
to have consented to, and agreed to be bound by, the Updated Conditions. This AGREEMENT can operate in connection with a duly executed Insertion Order ("IO"). The IO is incorporated herein and the terms of the AGREEMENT are hereby incorporated into the IO. In the event of any inconsistency between the IO and the AGREEMENT, the IO shall control. NO TERM OR CONDITION PLACED BY PUBLISHER IN AN IO SHALL BE BINDING UPON COMPANY, UNLESS SUCH TERM OR CONDITION IS EXPRESSLY AGREED TO IN WRITING AND EXECUTED BY THE COMPANY.
2. Application: Publisher may apply to join the Company Publisher Program by completing the form insertions appearing on the account application page of the Company web site and then clicking the "Submit" button. By clicking on the "Submit" button and/or promoting Company's offers, Publisher acknowledges that it has read, accepted and has agreed to be bound by these terms and conditions, as they may be modified from time to time by any Updated Conditions.
3 Publisher Compliance. Publisher represents and warrants, and covenants on an ongoing basis, that Publisher's 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, unless otherwise permitted with communication, or offer description.
(vi) Does not place Company's advertisements into Publisher's framed environment.
4. Content Ineligible Websites. If Company, in the exercise of reasonable discretion, determines Publisher's web site to be ineligible, all commissions, whether earned or unearned, shall be forfeited. The content of the web site 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 Company;
(vi) Promotion of illegal substances or activities;
(vii) Software Pirating;
(vii) Hacking, phreaking or any spoofing, redirecting, or trafficking web sites in an effort to gain traffic.
5. Publisher Approval. All websites, newsletters, companies, or individuals need official approval from Company before they can become a participant in the Publisher Program. Only websites and newsletters that have been reviewed and approved are permitted to use the programs. Company reserves the right to withhold or refuse approval on any web site, newsletter, company or individual for any reason, whatsoever.
6. User Name and Password. Upon submission of Publisher's application and upon approval of Publisher's participation, Publisher will be issued a user name and password. Publisher's use of these identifiers is limited only to Publisher, and may not, under any circumstances, be distributed to any other person, including without limitation any Sub-Publisher.
7. Offers. Publisher may use Publisher's user name and password to access Company Offers. The Company 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 Publisher only for the purposes described herein.
8. Integrity of Offers. Publisher may not add to, 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 Publisher 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.
9. Offer Fraud. Publisher may not, under any circumstances, fraudulently add leads or clicks or inflate leads, clicks or sales by fraudulent traffic generation (including without limitation pre-population of forms or through mechanisms not approved in writing by Company), as determined by Company in its sole discretion. By way of example and not limitation, Company flags accounts for fraud that: (a) have click-through rates that are much higher than industry averages and where solid justification is not evident; (b) have ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks reported; (c) have shown fraudulent leads as determined by our clients based on criteria set forth in Subsection 9 (i) below; and/or (d) use fake redirects, automated software, and/or fraud to generate clicks or leads from Company's programs. If Company flags Publisher's account for fraud, Company will hold any payments due to Publisher in 'Pending Status' for a period of thirty (30) calendar days, during which time Publisher may provide evidence to Company that Publisher is not engaging in fraud by submitting to Company a fraudulent leads report containing the data fields set forth in Section 9. (ii) below. In the event Company determines that Publisher is engaging in fraud and Publisher fails to prove otherwise to Company's reasonable satisfaction during such period, Publisher will forfeit Publisher's entire commission for all Advertisements and Publisher's account and this Agreement will be terminated. Company reserves sole judgment in determining fraud and Publisher agrees that Company's determination in this regard shall be final, binding and non-appealable.
(i) Fraudulent leads include leads involving persons that are (a) from precluded regions, (b) of precluded ages, (c) of precluded media types, (d) without any objective showing of an expression of interest or intent in purchasing the product or service being advertised, (e) from Proxy Servers and/or (f) from duplicate IP's.
(ii) Fraudulent lead reports requested by Company from Publisher shall contain the following data fields as to each identified lead suspected by Company (or its client) to be fraudulent, (a) date, (b) time stamp, (c) IP, (d) sub ID, (e) user name or email, (f) referring URL and (g) reason for rejection.
10. Limited License. Company hereby grants to Publisher a limited, non-exclusive, non-transferable, revocable, worldwide license right to:
(i) Download one or more Offers for posting on Publisher's web side 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.
11. Rules Governing Sub-Publishing. 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.
12. Relationship among Publisher, Sub-Publisher(s) and Company. Each Sub-Publisher shall, for purposes of these terms and 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 Publisher's Sub-Publishers of these terms and conditions shall be deemed a breach by Publisher. It is understood and agreed between Publisher and Company that
(i) Company is not and shall not be party to any agreement between Publisher and any Sub-Publisher,
(ii) Publisher is not authorized to make any commitments on behalf of Company to any Sub-Publisher, including but not limited to any payment or other commitment by Company, and
13. No Third-Party Beneficiary Status. Nothing in Company'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 Company and Publisher, including without limitation these terms and conditions.
14. 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, Publisher 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. Company reserves the right to audit any web site traffic at any time and for any reason, or no reason at all. Should Company determine, in the exercise of its reasonable business judgment, that Publisher has employed any device to artificially inflate the click-through rate.
(i) Publisher's 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, Publisher will return to Company immediately any Commissions attributable to the subject CTR deal that had been previously paid.
15. Publisher Responsibilities Governing Email Advertisement. Publisher agrees and warrants that it will not send, transmit and/or distribute any Company 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;
(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.
Suppression files must be uploaded within forty-eight (48) hours prior to an e-mail delivery. Strict compliance must be adhered to with respect to all suppression file regulations. Non- compliance with such suppression file regulations shall result in immediate termination of this Agreement and forfeiture of any and all Commissions due Publisher.
16. 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.
17. Opt-in-Information. Company 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 Company 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 Company to demonstrate that the Publisher did not send SPAM e-mail or otherwise breach the above warranties, then Company has the right to immediately suspend payment to and further performance of any services by the Publisher.
18. Compensation. Company will pay Publisher commissions ("Commissions") in the amounts, and at the times set forth in the commission schedule associated with each Offer and posted in Company's reporting system. Company shall process Publisher payments for commissions "earned" within thirty (30) days following the month in which Company receives payment from the Advertiser associated with the applicable Offer. Regardless of the timing of any payment made by Company to Publisher hereunder, Company 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 Publishers, duplicate entries or other clear bona-fide errors. It is Publisher's responsibility to advise Company immediately of any change in any of the information furnished by Publisher as part of Publisher's application.
19. When Commissions are Earned. Commissions will not be "earned" until Company receives payment from the Client. Notwithstanding the foregoing, Company may elect to advance to Publisher commissions prior to those commissions having been earned. Publisher acknowledge and agrees that receipt of commission payments prior to those payments having been earned is conditional and subject to Company's right to demand return of unearned commissions for any reason or for no reason at all.
20. Company's Records to Control. Company maintains records of all traffic passing over the Publisher Program. Company's records shall govern all interpretations made under this Agreement, including but not limited to the calculation of Commissions.
21. Minimum Commission Requirement for Regular Payment. Company shall not be obligated to make any payment of Commissions to Publisher unless the aggregate amount of earned Commissions equal or exceed fifty dollars ($50.00) with respect to domestic U.S. Publishers and one hundred dollars ($100.00) with respect to International Publishers. Any earned but unpaid Commissions below the minimum shall carry over to the next regularly scheduled payment period.
22 Suspension of Payment. If Company determines, in the exercise of its reasonable business judgment, that Publisher is in breach of any material term of this Agreement, Company will:
(i) Use commercially reasonable best efforts to notify Publisher promptly of such breach and
(ii) Suspend any payment of any earned but unpaid Commissions until such breach has been cured.
23. Confidentiality. All information relating to Publisher's participation in the Publisher Program, including but not limited to Publisher's unique user name and password, the identities of any Company Client, Company's commission rates and pricing strategies, any calculation of amounts paid to Publisher hereunder and the number of sales, leads or customers acquired by Publisher for any client, shall be considered proprietary information of Company, shall be held in strictest confidence by Publisher and will not, without the prior written consent of Company, be disclosed by Publisher to any other person, in any manner whatsoever, in whole or in part, and will not be used by Publisher directly or indirectly for any purpose other than confirming the correctness of the commission calculation.
24. 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 Publisher, shall be deemed to be the property of Company.
25. Covenants of Company. Company covenants and agrees to use its commercially reasonable best efforts;
(i) To provide, monitor and maintain the necessary technology applications required to link Publisher to the Client Web sites;
(ii) To provide Publisher with Offers in appropriate format.
26. Termination. This Agreement may be terminated by either Company or Publisher at any time and for any reason or for no reason at all. The Company reserves the right to effect termination of this Agreement immediately without notice to the Publisher. Termination by Publisher may be effected by delivery to the Company 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 Company or
(ii) One (1) business day following the sending of the termination notice.
27. Responsibilities Following Termination. Immediately upon termination Publisher will
(i) Remove any and all Offers from any web site owned or operated by Publisher and or
(ii) Suspend any e-mail campaign that has not already been sent. As a precondition to receiving any earned but unpaid compensation Publisher will certify to Company, via e-mail, that this condition has been met within two (2) business days following termination.
28. Warranties. NO WARRANTIES ARE MADE BY EITHER COMPANY OR PUBLISHER 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.
29. Limitation on Damages. Neither party 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 and conditions or Publisher's 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 of recklessness, any liability of either party to the other shall not exceed the total amount of the Commissions actually paid by Company to Publisher with respect to Publisher's participation in the Publisher program.
30. Indemnification. Each Party agrees to indemnify, defend and hold harmless the other Party, its employees, agents and affiliates from and against any and all third party claims, demands, liabilities, costs or expenses, including attorney's fees and costs, arising from or related to its obligations or representations under this Agreement. Publisher shall further indemnify, defend and hold Company harmless from any claim that Publisher has not paid or underpaid any commissions or other sums due to any third party provider of Leads or any third party claim based Publisher's products or services. The Indemnified Party shall have the option to tender its defense to the Indemnifying Party, while retaining the right to select its own legal counsel and to fully participate in its defense including without limitation controlling strategy and settlement decisions, but excluding the obligation to satisfy the costs of defense.
31. Dispute Resolution. In the event of disputes between Company and Publisher arising from or concerning in any manner the subject matter of these terms and conditions or Publisher's participation in or termination from the Publisher Program, the parties shall first attempt to resolve the dispute(s) through good faith negotiation. In the event that the dispute(s) cannot be resolved through good faith negotiation, the Parties shall refer the dispute(s) to a mutually acceptable mediator for hearing in Henrico, Virginia. Thereafter, if mediation cannot resolve the dispute(s), the parties shall submit the dispute(s) to the American Arbitration Association for resolution through binding arbitration by a single arbitrator pursuant to the American Arbitration Association's rules applicable to commercial disputes. The arbitration shall be held in Henrico, Virginia and the decision reached by such arbitrator shall be entered as a judgment in any court of competent jurisdiction. The prevailing party in any dispute between the parties arising from this Agreement or other matter shall be entitled to recover its reasonable attorney's fees and costs incurred in connection with such dispute.
32. Governing Law and Jurisdiction. This Agreement will be governed by and construed and enforced in accordance with, the laws of the Commonwealth of Virginia without regard to its conflicts of law principles. Publisher irrevocably submits to the jurisdiction of the state courts of Virginia and to the jurisdiction of the United States District Court for the District of Virginia, for the purpose of any suit, action or other proceeding relating to the subject matter of this Agreement.
33. Transferability. Publisher's right to participate in the Publisher Program is non-transferable, except in the event of a sale of all or substantially all of Publisher's assets or stock as part of an acquisition or merger, including any reorganization or reincorporation. Company may transfer its rights to the Publisher Program without restriction.
34. Public Statements. Any press release or other public announcement by Publisher regarding Publisher's participation in the Publisher Program shall require the prior approval of Company.
35. Force Majeure. Neither party shall be deemed in default of these terms and conditions to the extent that performance of either party's 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.
36. Relationship. The relationship between Company and Publisher established by these terms and conditions is that of non-exclusive Independent contractors. Neither party may represent to any third party, or otherwise be deemed to be, an employee, agent, partner or joint venture with respect to the other.
37. Notices. Unless otherwise specified herein, any notice, communication or statement relating to these terms and conditions shall be in writing and deemed effective:
(i) Upon delivery when delivered in person;
(ii) Upon transmission when delivered by verified facsimile transmissions; 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.
38. Waiver: The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under these terms and conditions shall not be construed as a waiver or relinquishment to any event 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.
39. 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 and conditions and to perform its obligations hereunder; and
(ii) Nothing contained in these terms and 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 and conditions shall not infringe or violate upon the intellectual Property or privacy rights of any third party.
40. 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 not in accordance with the stated intention of the parties, the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms. The individual signing this Agreement and submitting the associated application to Company 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.
4/25/2012
