The following Terms and Conditions are entered into by Perform[cb] (“Advertiser,” “we” or “us”) and the advertising affiliate or publisher (“Publisher,” and together with Advertiser the “Parties”), and shall govern the placement and delivery of advertising that Publisher implements for Advertiser and/or its merchant clients (each, a “Merchant”).
Additional campaign-specific terms may be set forth in an applicable Insertion Order(s) (“IO”) or other documentation within the Parties’ affiliate platform accounts (“Platform Terms”), which together with these Terms and Conditions form the Parties’ “Agreement.”
In the event of any conflict between the documents constituting the Agreement, the following order of precedence shall prevail (in order from greatest to least precedence):
The terms of an IO specific to the Parties
These Terms and Conditions
Platform-specific terms
The standard affiliate network terms and conditions agreed to by each Party upon registration
ALLOWED MARKETING CHANNELS & RESTRICTIONS
Allowed Distribution:
Deal/Coupon*
Content/Blog
Display
Mobile
Newsletter
Prohibited Distribution:
Search**
Toolbar
Network/Rebrokering
Approval Only:
Email
Incent
Video
Loyalty***
* Only coupons provided through the affiliate platform are valid for commission. Any promo code used that is not provided through the platform to the Publisher account may be reversed.
** We do not allow the use of our trademark terms, trademark + terms, or display URL on search engines.
*** We do not work with Loyalty programs that offer cash back directly to the consumer. Please reach out with questions.
Friend referral links or refer-a-friend promotions are not applicable for use or commission through the affiliate program.
GENERAL PUBLISHER OBLIGATIONS
A. Merchant Creative
Publisher shall distribute advertising for campaigns or offers of Merchant (each, an “Offer”), consisting of graphic files or other creative work made available by Merchant (“Creative”).
Publisher shall not modify or alter any Offer or Creative. Publisher will only run approved banners and text and will not create its own advertising materials unless expressly approved in writing by Merchant.
Unauthorized use will result in immediate termination and forfeiture of commissions.
B. No Inappropriate Content
Publisher shall not place Offers in any context containing inappropriate content, including but not limited to content that:
Promotes alcohol, tobacco, illegal substances, pornography, escort services
Contains expletives or offensive language
Promotes violence or illegal activity
Promotes racism, hate, spam, fraud, gambling, pyramid schemes
Infringes intellectual property
Introduces harmful code
Is otherwise objectionable at Merchant’s discretion
C. No Deceptive Advertising; FTC Compliance
Publisher shall not engage in deceptive or misleading advertising, including phishing, cybersquatting, typosquatting, or combosquatting.
Publisher must comply with:
Section 5 of the Federal Trade Commission Act
FTC rules, guides, and interpretations
Direct Marketing Association Best Practices
All applicable advertising laws in the jurisdictions where advertising occurs
If distributing outside the United States, Publisher represents it is familiar with and will comply with applicable laws and customs.
Publisher is solely responsible for understanding and complying with all advertising laws in both its location and the location of distribution.
D. Influencer Compliance
Publisher shall not engage in influencer marketing without written consent from Merchant.
If approved, Publisher must comply with the FTC’s Endorsement Guides and clearly disclose material connections in any promotional content.
E. Traffic-Type Compliance
Publisher agrees to comply with all additional provisions applicable to its traffic type(s) as outlined below.
F. Acknowledgement of Orders
Each Party acknowledges compliance with the applicable regulatory orders referenced in prior agreements and agrees that violation of such standards may result in immediate termination and forfeiture of commissions.
G. Networks / Sub-Publishers
Unless expressly authorized in writing, Publisher may not promote Offers through third-party affiliates (“Sub-Publishers”).
If authorized, Publisher warrants that Sub-Publishers:
Comply with applicable advertising laws
Do not modify Creative
Do not place Offers in inappropriate contexts
Comply with all Allowed Marketing Channels & Restrictions
Publisher remains fully responsible for Sub-Publisher conduct.
CONFIDENTIALITY
Confidential Information includes all proprietary or non-public information shared between the Parties, including pricing and campaign details.
Such information:
May only be shared with employees or agents under confidentiality obligations
May only be used for purposes of the Agreement
Excludes information that is publicly available, independently developed, or previously known
Disclosure may occur only if required by law, with prior notice where permitted.
MUTUAL REPRESENTATIONS AND WARRANTIES
Each Party represents that:
It has full authority to enter into the Agreement
Performance does not violate any laws or other agreements
Services will be performed in a commercially reasonable manner
It has rights to all intellectual property used
Each Party shall maintain clear privacy policies and comply with applicable privacy and security laws.
LIMITATION OF LIABILITY; INDEMNIFICATION
Websites and Offers are provided “AS IS.”
Neither Party shall be liable for indirect or consequential damages.
Merchant’s maximum liability shall not exceed amounts paid to Publisher in the prior six months.
Each Party agrees to indemnify the other for third-party claims arising from breach of representations or Agreement violations.
Publisher expressly indemnifies all Parties for claims arising from Sub-Publisher conduct.
GENERAL
A. Governing Law
Governed by the laws of the State of Colorado. Exclusive jurisdiction in Denver, Colorado courts, subject to arbitration provisions below.
B. Arbitration
Disputes may be resolved through binding arbitration under the American Arbitration Association’s rules.
Arbitrators may not award punitive damages.
C. Force Majeure
Neither Party is liable for delays due to causes beyond reasonable control.
D. Third-Party Beneficiaries
Merchant is an intended beneficiary and may enforce provisions as if an original signatory.
ADDITIONAL PROVISIONS BY TRAFFIC TYPENO INCENTIVIZED TRAFFIC
Point/reward-based traffic is prohibited unless approved in writing.
SEARCH ADVERTISING
Strict no-tolerance policy:
No bidding on Merchant trademarks or variations
No trademark use in ad copy, titles, URLs
No direct linking from PPC ads
Violations result in forfeiture of at least 30 days of commissions and 0% commission status
EMAIL MARKETING
Must comply with:
CAN-SPAM
California Anti-Spam Act
CASL
FCC rules
Must maintain opt-in lists, suppression compliance, valid headers, accurate subject lines, opt-out mechanisms, and process opt-outs within required timelines.
NO TEXT/SMS TRAFFIC
Prohibited unless approved in writing.
If approved, Publisher must comply with:
TCPA
FCC regulations
Do Not Call registry
Consent documentation requirements
Time-of-day restrictions (8am–9pm local time)
Blast texting and automated mass messaging are prohibited.
