Fyrtorr
Program Terms
FYRTORR LTD. AFFILIATE AGREEMENT
This is a legal contract between you and/or your company (in either case, the “Affiliate”) and Fyrtorr, Ltd. (“Fyrtorr”) regarding your participation in Fyrtorr’s Affiliate Program, as defined below. Together, these Affiliate Terms, Affiliate Acceptable Use Policy (the “AUP,” attached hereto as Exhibit A), and any applicable Insertion Order executed by you and Fyrtorr constitute a single agreement (the “Agreement”). Affiliate and Fyrtorr may also be individually referred to herein as “Party” and collectively as “Parties.” This Agreement is effective as of the date executed by the Parties below (the “Effective Date”).
1. Select Definitions.
(a) An “Affiliate Link” means the unique tracking link assigned to Affiliate for use in redirecting Customers to the Websites to ensure that Affiliate is credited with any Sale completed by the Customer.
(b) The “Affiliate Program” means the combined paid advertising opportunities, the web or mobile-based sites or applications through which the advertising opportunities are accessed, reporting, access to data, and advertising materials provided by Fyrtorr pursuant to this Agreement.
(c) A “Customer” is a bona-fide end user purchaser of Fyrtorr’s Products, as defined below.
(d) “Fees” are the payments earned by Affiliate on Sales pursuant to the terms of this Agreement.
(e) The “Products” are the branded supplements, books, and other goods and services offered for sale by Fyrtorr to Customers on its Websites, such as bensnaturalhealth.com and through other venues and media.
(f) A “Sale” means a specified event identified in this Agreement or an Insertion Order wherein a Fee is generated, such as clicks, click-throughs, sales, registrations, impressions, and leads. In the absence of another definition or qualifications for a Sale, a Sale shall be interpreted to mean a bona fide purchase by a Customer of a Product from the Website, where such Customer was directed to the Website through Affiliate’s Link and completes the purchase during the same visit to the Website.
(g) The “Tracking Platform” means the service designated by Fyrtorr for the tracking of Sales, and may include third party services, such as ShareaSale.
(h) The “Website” and the “Websites” mean, collectively, the Internet websites operated by Fyrtorr for the sale of its Products to Customers, such as bensnaturalhealth.com.
2. Participation.
(a) Approval. Affiliate’s participation in the Affiliate Program is subject to the terms and conditions of this Agreement and Fyrtorr’s explicit approval. Fyrtorr’s approval of Affiliate’s participation may be withheld or terminated at any point, in Fyrtorr’s sole discretion, regardless of initial acceptance.
(b) Third-Party Publishers. Affiliate represents and warrants that it is not an advertising network and will not delegate its responsibilities hereunder to a network of third party publishers or websites (“Third Party Publishers”) without the prior written approval of Fyrtorr. In the event such approval is given, or in the event Affiliate breaches this Section 2(b), Affiliate assumes all liability for such Third Party Publishers and will ensure that such Third Party Publishers comply with the terms of this Agreement, the AUP, and all applicable laws. Without limiting any other provision of this Agreement, Affiliate shall fully and completely indemnify, defend, and hold harmless Fyrtorr for all damages arising from a Third Party Publisher’s breach of any obligations or warranties set forth in Section 9 or the AUP. Without limiting any other provision of this Agreement, Affiliate represents and warrants that it has the ability to immediately terminate any Third Party Publisher’s rights to the Affiliate Program or any Creative (as defined in Section 2 below) provided by Fyrtorr. For the purposes of this Agreement, “Affiliate” means the Affiliate and any Third Party Publishers.
(c) Limited License. Subject to the terms and conditions of this Agreement, during the term of this Agreement, Fyrtorr grants Affiliate a limited, revocable, non-transferable, non-exclusive limited license to use the Affiliate Program, the Fyrtorr-provided Creative, and any data, reports, information, or analyses arising out of such use (the "Program Data") solely for the purposes set forth in this Agreement.
3. Promotional Materials and Methods.
(a) Creative. Fyrtorr shall make available to Affiliate graphic or textual material for display and use on Affiliate’s social media and other advertisements (collectively, “Creative”). Affiliate may not use any other graphic, textual, audio, artwork, or other materials other than Creative either supplied by Fyrtorr, or supplied by Affiliate but approved of in advance by Fyrtorr, to promote the Products. Affiliate acknowledges that any material alterations made by Affiliate to Creative that is not approved by Fyrtorr could result in false advertising that Fyrtorr cannot endorse with payment. If Fyrtorr determines that Creative has been altered without Fyrtorr’s approval, Fyrtorr may suspend payment owed to Affiliate while Fyrtorr fully investigates the matter.
(b) Affiliate Acceptable Use Policy. Affiliate shall comply with the AUP, attached hereto as Exhibit A, in any use of the Creative or promotion of the Products.
(c) Campaigns. At its discretion, Fyrtorr may provide offers of separate advertising campaigns or promotions (collectively, the "Campaigns"), which may include Campaign-specific terms and conditions. At times, these Campaign-specific terms may be reduced to writing in a separate “Insertion Order,” in which event, said Insertion Order shall become incorporated into this Agreement. In the event of any conflict between the terms of this Agreement and Campaign-specific terms, the Campaign-specific terms shall govern as to the Campaign at issue, and this Agreement shall govern as to all other matters. Fyrtorr reserves the right to, in its sole discretion, approve or deny Affiliate to work on a specific Campaign without affecting any other aspect of this Agreement or Fyrtorr’s relationship with Affiliate.
4. Payment and Tracking.
(a) Fee Schedule. Unless otherwise set forth in an Insertion Order, Affiliates earn Fees on Sales of Products to Customers through the Affiliate Links as set forth in the Fee Schedule attached hereto as Exhibit B. Fyrtorr may modify or change the Fee Schedule at any time upon notice to Affiliate, including by email, and at Fyrtorr’s sole discretion. Affiliate’s continued participation in the Affiliate Program after a change to the Fee Schedule constitutes acceptance of the Fee Schedule, as revised.
(b) Payment Terms. Unless otherwise stated in an Insertion Order or other Campaign-specific terms, all payments due under this Agreement shall be made on a monthly basis, by the last working day of the month following the calendar month in which the Fees accrued. If the 15th day of the month falls on a weekend or bank holiday, then payment shall be made on the next business day. Payments will be made by the method elected by the Affiliate in its Affiliate Account. Payments will be initiated electronically and/or mailed on the payment date, and Affiliate understands and agrees that it may take additional time to reach Affiliate or clear Affiliate’s payment account. Fyrtorr shall not remit payment for any Sales that occur after Affiliate has been suspended or terminated, or for Sales or charges that are later reversed by a refund or chargeback to the Customer. Fyrtorr is not liable for Fees that are not recorded due to Affiliate’s error (such as failure to properly use the Affiliate Link). If a refund or chargeback occurs after the associated Fees have been paid to Affiliate, Fyrtorr will, at its sole discretion, (i) offset the amount of the refund or chargeback against future payments from Fyrtorr to Affiliate; or (ii) demand repayment by Affiliate, which Affiliate agrees to make within fifteen (15) days of such demand. All Fees will be paid in US dollars ($US) if Affiliate is located in the United States; if Affiliate is located outside the United States, then all Fees will be paid in British pounds (£GBP). Fyrtorr is not liable for any fees incurred by Affiliate from Affiliate’s financial institution; Affiliate shall be solely responsible for such fees. Affiliate understands and agrees that it is Affiliate’s sole responsibility to notify Fyrtorr of any changes to Affiliate’s payment account.
(c) Affiliate Link. It is Affiliate’s sole responsibility to ensure that all Sales occur through the Affiliate Link so that Fyrtorr may track Affiliate’s Sales and Fees with accuracy. Affiliate agrees to monitor its Affiliate Link to ensure its proper functioning. Fyrtorr shall not be responsible for payment on any Sales generated outside of the Affiliate Link. Except as provided herein, Affiliate may not directly link to Fyrtorr’s Websites without Fyrtorr’s express approval and may not mislead consumers by misrepresenting itself as Fyrtorr or any other person or entity.
(d) Tracking and Disputes. Fyrtorr shall be exclusively responsible for tracking all Fees due to Affiliate, which shall be visible to Affiliate through the Tracking Platform. In the event that Affiliate reasonably believes Fyrtorr’s tracking for a given calendar month is inaccurate, no later than seven (7) days after the close of such month, Affiliate shall provide Fyrtorr with all evidence supporting the alleged error, and the Parties shall work together in good faith to resolve the matter to their mutual satisfaction. In the event the Parties are unable to agree, then Fyrtorr’s reasonable decision shall govern.
5. Proprietary Rights.
Affiliate agrees that it does not have, nor will it claim, any right, title, or interest in the Affiliate Program, the Fyrtorr Creative, the Products, the Program Data, or any underlying technology, software, applications, data, methods of doing business, or any elements thereof. Affiliate may only access Fyrtorr’s Website via web browser, email, or in a manner approved by Fyrtorr. Affiliate shall not attempt in any way to tamper with, alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Affiliate Links, other links, tags, source codes, pixels, modules, or other data provided by or obtained from Fyrtorr that allows Fyrtorr to measure Affiliate’s performance and provide the Affiliate Program. In addition, Affiliate acknowledges that all Program Data, including but not limited to non-public information, data, and reports received by Affiliate from Fyrtorr as part of the Affiliate Program are proprietary to and owned by Fyrtorr. If instructed to do so by Fyrtorr, Affiliate will immediately destroy and discontinue the use of any such Program Data and any other material owned by Fyrtorr.
6. Fraud; Suspension of Affiliate Account.
(a) Without limiting and other provision of this Agreement, Fyrtorr reserves the right, in Fyrtorr’s sole and absolute discretion to terminate this Agreement and/or Affiliate’s account, at any time without liability to Fyrtorr, should Fyrtorr determine, in its sole and absolute discretion, that Affiliate engages or has engaged in fraud, dishonesty, or any other misconduct that causes harm to Fyrtorr (collectively, “Fraud”). Fraud shall include, but not be limited to, the opening of more than one Affiliate account by Affiliate, the generation of Sales using false information or stolen credit cards, or the use of false or misleading advertising by Affiliate.
(b) IF FYRTORR DETERMINES THAT AFFILIATE HAS ENGAGED IN FRAUD, AFFILIATE WILL FORFEIT ITS ENTIRE EARNINGS FROM FYRTORR AND AFFILIATE’S PARTICIPATION IN THE AFFILIATE PROGRAM WILL BE TERMINATED IMMEDIATELY. IF AFFILIATE IS NOTIFIED THAT AFFILIATE IS ENGAGING IN FRAUD, AND AFFILIATE FAILS TO TAKE PROMPT ACTION TO STOP THE FRAUD, THEN, IN ADDITION TO ANY OTHER REMEDIES AVAILABLE TO FYRTORR, AFFILIATE SHALL BE RESPONSIBLE FOR ALL COSTS AND LEGAL FEES ARISING FROM SUCH FRAUD.
(c) Upon notice by Fyrtorr to Affiliate that a Third Party Publisher is engaging, or has engaged, in any activity prohibited by this Agreement, including but not limited to fraudulent Sales generation, Affiliate shall immediately terminate its relationship with such Third Party Publisher, as it pertains to the Third Party Publisher’s participation in the Affiliate Program. If Affiliate is notified that a Third Party Publisher is engaging, or has engaged, in prohibited activities, and Affiliate fails to terminate such Third Party Publisher’s participation in the Affiliate Program within three (3) days of notice by Fyrtorr, Fyrtorr reserves the right to immediately terminate this Agreement. FURTHER, IN THE EVENT THAT FYRTORR DETERMINES, IN ITS SOLE DISCRETION, THAT A THIRD PARTY PUBLISHER IS ENGAGING, OR HAS ENGAGED, IN PROHIBITED ACTIVITIES, FYRTORR SHALL RECALCULATE AND WITHHOLD PAYMENT TO AFFILIATE ACCORDINGLY. FOR CLARITY, FYRTORR RESERVES THE RIGHT TO WITHHOLD OR RECALCULATE AMOUNTS GENERATED BY PROHIBITED ACTIVITY OF THIRD PARTY PUBLISHERS, REGARDLESS OF WHETHER AFFILIATE PARTICIPATED IN OR KNEW ABOUT THE PROHIBITED ACTIVITY.
(d) To the extent that Affiliate becomes aware of any class-action litigation or government investigation concerning Affiliate's advertising or other Internet practices or procedures, irrespective of whether such litigation relates to Affiliate’s relationship with Fyrtorr, Affiliate shall immediately notify Fyrtorr of such litigation or investigation.
7. Confidential Information.
Each Party agrees to use the other Party's Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other Party's Confidential Information to any third party, unless (a) any disclosure is necessary and permitted in connection with the receiving party's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the Parties; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing party. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding any existing or contemplated Fyrtorr services, Products, processes, techniques, or know-how, information regarding any Customer, all Program Data, or any other information or data developed pursuant to the performance of the Affiliate Program, or any identification or payment account information provided by Affiliate other than that which Affiliate makes public on its own website or advertising.
8. Term and Termination.
(a) Term. This Agreement shall begin on the Effective Date and remain in effect for an initial term of one (1) year. Unless terminated by either Party upon thirty (30) days notice prior to the end of the initial term or any renewal term, the Agreement shall automatically renew for successive one (1) year terms.
(b) Termination. Either Party may terminate this Agreement, or any Campaign, effective upon written notice, for any reason or no reason, at any time upon three (3) days’ written notice to the other Party. In the event that either Party (i) files a voluntary petition in bankruptcy, (ii) makes an assignment for the benefit of its creditors, or (iii) breached any of the material terms of this Agreement, this Agreement shall automatically terminate. Such termination shall be automatic and shall not require any action by either Party.
(c) Effect of Termination. Upon termination of this Agreement, any and all licenses and rights granted to Affiliate in connection with this Agreement shall immediately cease and terminate. Further, upon termination of this Agreement, Affiliate will: (i) immediately discontinue the use of the Affiliate Program and any Program Data; (ii) immediately cease to use, and remove from the Affiliate’s websites, any and all advertisements and/or related materials made available to Affiliate in connection with Affiliate’s participation in the Affiliate Program; and (iii) immediately cease transmitting any and all emails, text messages, or other communications in connection with any Campaign. In the event of termination of this Agreement, Sections 5–7, 9(b) and 10–13 shall survive.
9. Representations and Warranties; Indemnification.
(a) Affiliate represents and warrants that: (i) Affiliate has all necessary rights and authority to enter into this Agreement and to place advertisements on its website(s), social media accounts, through its personal email address, or those of its Third Party Publishers and other partners (collectively, the “Affiliate Media”); (ii) Affiliate owns and/or has the right to use all materials contained on Affiliate Media; (iii) the Affiliate Media and the content contained on the Affiliate Media will not infringe or violate the patents, copyrights, trademarks, rights of publicity, defamation, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party; (iv) the Affiliate will not violate any applicable foreign or domestic, federal, state, or local statutes, laws, ordinances, rules and regulations, or industry standards, including without limitation, the CAN-SPAM Act of 2003 (“CAN-SPAM”), California’s Anti-Spam Act, Cal. Bus. & Prof. Code §§ 17529 et seq. (“California’s Anti-Spam Act”), Canada’s Anti-Spam Law (“CASL”), the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq. (“TCPA”), the Federal Trade Commission Act (“FTC Act”), all FTC rules, regulations, and guidelines, applicable credit card merchant guidelines, the Utah and Michigan “Child Protection Registry” laws, the General Data Protection Regulation (EU) 2016/679 ("GDPR"), the United Kingdom Data Protection Act of 1998 (as amended) (“UK Data Protection Act”), and the California Consumer Privacy Act, once effective (the “CCPA”). To be clear, Affiliate represents and warrants that it knows, understands, and complies with all applicable laws in both the jurisdiction where Affiliate is located and the jurisdiction(s) in which Affiliate conducts its advertising activities.
(b) Indemnification. Affiliate, on its own behalf, and on behalf of its respective third-party partners (including, without limitation, Third Party Publishers), affiliates, directors, employees, agents, successors, and assigns (collectively, the “Indemnitor”) will defend, indemnify, and hold harmless Fyrtorr and its third-party partners, affiliates, directors, employees, agents, successors and assigns (collectively, the “Indemnitee”) from and against all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorneys’ fees and expenses) (collectively, “Claims”) arising from or related to: (i) any negligent act or omission by Indemnitor, including any Fraud; (ii) any breach of this Agreement by the Indemnitor; (iii) any breach by Indemnitor of any Campaign-specific terms and conditions; (iv) any violation or alleged violation by Indemnitor of any applicable foreign or domestic, federal, state, or local statutes, laws, ordinances, rules and regulations, or industry standards, including without limitation, CAN-SPAM, California’s Anti-Spam Act, CASL, the TCPA, the FTC Act, all FTC rules, regulations and guidelines, applicable credit card merchant guidelines, the Utah and Michigan “Child Protection Registry” laws, the GDPR and the UK Data Protection Act; and (v) any violation or alleged violation by Indemnitor of the rights of any third party. The Indemnitee will provide Indemnitor with prompt written notice of the Claim for which the Indemnitee intends to claim such indemnification, and Indemnitor shall have the right to participate in, and, to the extent the Indemnitor so desires, to assume sole control of the defense thereof with counsel selected by the Indemnitor; provided, however, and notwithstanding the foregoing, that the Indemnitee shall have the absolute right to retain their own counsel, with the fees and expenses to be paid by the Indemnitee. Indemnitor will have no authority to stipulate to any judgment or settle any Claim on the Indemnitee’s behalf without the written consent of the Indemnitee. Nothing in this Section shall limit any other remedy of the Parties. These obligations will survive any termination of the Agreement.
10. Disclaimer of Warranty.
FYRTORR HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTY THAT AFFILIATE WILL GENERATE FEES THROUGH THE AFFILIATE PROGRAM. THE CREATIVE AND THE AFFILIATE PROGRAM ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, FYRTORR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE CREATIVE, THE AFFILIATE PROGRAM, CAMPAIGNS, ADVERTISEMENTS, SUPPRESSION LISTS, AND PRODUCTS AND SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. FYRTORR DISCLAIMS ALL WARRANTIES THAT THE AFFILIATE PROGRAM WILL MEET AFFILIATE’S REQUIREMENTS OR EXPECTATIONS AND THAT THE OPERATION OF THE AFFILIATE PROGRAM WILL BE UNINTERRUPTED OR ERROR-FREE.
11. Limitation of Liability.
EXCEPT (I) AS TO THE OBLIGATIONS AND LIABILITIES ARISING OUT OF SECTION 9 AND FOR BREACHES OF THE AUP, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, STATUTORY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST REVENUE OR PROFITS) RESULTING FROM, ARISING OUT OF, OR RELATED TO ITS PERFORMANCE OR FAILURE TO PERFORM ANY OF ITS OBLIGATIONS UNDER, OR BREACH OF, THIS AGREEMENT, WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT (I) AS TO THE OBLIGATIONS AND LIABILITIES ARISING OUT OF SECTION 9 AND FOR BREACHES OF THE AUP, EACH PARTY'S LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE AGGREGATE OF ALL AMOUNTS RECEIVED BY AFFILIATE FROM FYRTORR HEREUNDER DURING THE SIX (6) MONTHS PRECEDING THE INCIDENT OR INCIDENTS GIVING FYRTORR TO SUCH LIABILITY.
12. Governing Law; Jurisdiction and Venue.
(a) Choice of Law. This Agreement, together with the AUP, and any Insertion Orders or Campaign-specific terms, shall be treated as though this Agreement were executed and performed in London, England and shall be governed and construed in accordance with the laws of the England and Wales without regard to conflict of law principles.
(b) Elective Arbitration. At the election of either Party, any dispute, of any nature whatsoever, between Affiliate and Fyrtorr arising out of or relating to the Application or this Agreement, including the Affiliate Acceptable Use Policy, Affiliate Insertion Orders, and any Campaign-specific terms and conditions, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The tribunal will consist of a sole arbitrator. The seat of the arbitration will be London, England. The language to be used in the arbitral proceedings will be English. A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the AAA fees) to the prevailing party.
(c) You hereby acknowledge that without this provision, you would have the right to sue in court with a jury trial or to participate in a class action.
(d) Remedies in Aid of Arbitration; Equitable Relief. This agreement to arbitrate will not preclude Affiliate or Fyrtorr from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration, or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude either Affiliate or Fyrtorr from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary.
(e) Venue. The exclusive venue for any non-arbitration action arising out of or under this agreement—including, without limitation, any litigation between the Parties, any motion to compel arbitration, any remedies in aid of arbitration, or any petitions for equitable relief—shall be the courts of England and Wales. The parties hereby waive any objection to the venue or personal jurisdiction of such courts.
(f) No Joinder of Claims. The Parties further agree that neither Party will join any legal claim with the claim of any other person or entity in a lawsuit, arbitration or other proceeding, that no legal claim will be resolved on a class-wide basis, and that neither Party will assert a claim in a representative capacity on behalf of anyone else.
13. Miscellaneous.
(a) General. This Agreement, together with the AUP, and any Insertion Orders, and any Campaign-specific terms, constitutes the entire agreement between the Parties and supersedes all prior agreements or understandings between the Parties, whether written or oral. Except in connection with a merger, acquisition, or sale of all or substantially all of Affiliate’s assets related to this Agreement, Affiliate may not assign this Agreement and its rights and obligations hereunder, and any attempted assignment in contravention of this provision shall be null and void and of no force or effect. Fyrtorr may assign this Agreement, and any and all rights granted hereunder, in its sole discretion, at any time, without Affiliate’s consent. Except as otherwise provided in this Agreement, all notices under this Agreement will be in writing and will be delivered by personal service, confirmed fax, confirmed email, express courier, or certified mail, return receipt requested, to the addresses designated from time to time by the Parties. Notice will be effective upon receipt.
Except as provided herein, the failure to exercise a right or require performance of an obligation under this Agreement shall not affect a Party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach. If any provision of this Agreement is held to be invalid or unenforceable with respect to a Party, the remainder of this Agreement, or the application of such provision to persons other than those to whom it is held invalid or unenforceable, shall not be affected, and each remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. The relationship of the Parties under this Agreement is one of independent contractors and nothing herein should be construed to constitute the Parties as partners, joint ventures, agent and principal or employer and employee. Nothing herein will give either Party any right or authority to bind the other, and neither Party will bind the other to any obligation to any third party. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
(b) Independent Counsel. Each Party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either Party by reason of its drafting.
(c) Force Majeure. Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such Party.
(d) Execution. This Agreement may be executed and delivered in counterparts by facsimile and/or electronic signature, each of which so executed and delivered counterpart is an original, and such counterparts, together, will constitute but one and the same instrument.
AFFILIATE ACCEPTABLE USE POLICY
This Affiliate Acceptable Use Policy (“AUP”) is intended to help the Affiliate understand the types of websites, traffic, and affiliate conduct that that Fyrtorr believes to be appropriate or inappropriate. Please keep in mind that this AUP is intended as a guideline, and not as an exhaustive list of content and conduct that Fyrtorr finds appropriate or inappropriate. This AUP is part and parcel of the Agreement between the Parties, and the requirements and prohibitions herein are binding contractual terms.
Some of the requirements in this AUP are straightforward, and some are very technical and specific to certain types of Internet advertising. These provisions are put here to protect Customers by preventing false or misleading advertising, to protect Fyrtorr by ensuring all Affiliates are required to comply with the law, but also to protect you from unwittingly engaging in advertising activity that violates the law. Suffice it to say, if you don’t understand the requirements for engaging in a specific type of advertising, do NOT engage in such advertising.
Capitalized terms used but not defined herein have the respective meanings ascribed to them in the Agreement. In the event of a conflict between the terms and provisions of any other agreement and this AUP, the terms and provisions of, first, the AUP and, second, the Agreement shall control. As in the Agreement, all references to “Affiliate” in this AUP shall mean and include Affiliate and all of Affiliate’s Third Party Publishers. Affiliate is responsible for ensuring the compliance of its Third Party Publishers with this AUP.
1. LEGAL COMPLIANCE
Affiliate shall not violate any applicable foreign or domestic, federal, state or local statutes, laws, ordinances, rules and regulations, or industry standards, including without limitation, CAN-SPAM, the California Anti-Spam Act, CASL, the TCPA, the FTC Act, all FTC rules, regulations, and guidelines, applicable credit card merchant guidelines, the Utah and Michigan “Child Protection Registry” laws, the GDPR, the UK Data Protection Act, and the CCPA. Ignorance of or misinterpretation of the law is not an excuse for violating it. Affiliate is responsible for knowing, understanding, and complying with all laws and regulations applicable in both the jurisdiction where Affiliate is located and the jurisdiction(s) where Affiliate conducts its advertising activities.
2. CAMPAIGN-SPECIFIC TERMS; FYRTORR CREATIVE
Campaigns may have campaign-specific terms and conditions. Affiliate shall comply with any and all Campaign-specific terms, including prohibitions on specific traffic types and advertising methods.
Affiliate shall only use Fyrtorr-approved Creative. Affiliate shall not alter, cut, crop, modify, or otherwise change any aspect of any Creative, without Fyrtorr’s express written approval.
3. WEBSITE REQUIREMENTS
Any and all websites or media that Affiliate uses to promote Campaigns must:
? Be fully functional at all levels, with no “under construction” sites or sections;
? Be content-based and not simply a “parked” page or list of links or advertisements;
? Not generate pop-up advertisements, including without limitation “pop-overs” and “pop-unders,” when entering or leaving the website;
? Close when instructed, i.e. when a user seeks to close or otherwise leave the, the website must close down and no other behavior should result;
? Not “mouse trap,” i.e. whereby the website does not permit the use of the browser back-button and thereby traps the user on the website, or whereby the website presents other unexpected behavior, such as re-directing to another advertisement or landing page; and
? Not contain automatic audio that plays without user instigation.
4. PROHIBITED CONTENT AND CONDUCT
Prohibited Affiliate content and conduct includes, without limitation, content and/or conduct that:
? Infringes the rights, including without limitation the copyright, patent, trademark, trade secret, or other proprietary rights, of any third party, or violates any agreement between Affiliate and a current or former employer concerning the intellectual property Affiliate create or created during Affiliate’s employment;
? Is false, misleading, fraudulent, or deceptive;
? States, suggests, or implies that any Product is capable of treating or curing any medical condition or disease;
? Uses any of the following phrases or words: cancer, stroke, heart attack, treat(s)(ing), heal(s)(ing), or cure(s)(ing).
? Is libelous or defamatory, or violates the privacy or publicity rights of any third party;
? Implies a connection or endorsement by any individual (e.g., a celebrity, a noted health expert) or entity (a business, a magazine, a new outlet) with which Affiliate has no such connection or endorsement;
? Contains, facilitates, or promotes “spam” or other advertising or marketing content that violates applicable laws, regulations, or industry standards;
? Consists of or contains viruses, Trojan horses, worms, malicious code, or other harmful or destructive content;
? Is “adult” in nature, obscene, lewd, lascivious, filthy, or pornographic, that may constitute child pornography, or that may exploit in a sexual or violent manner anyone under the age of 18;
? Depicts excessive violence, contains comments or images that are offensive, abusive, threatening, harassing, or menacing, or that incites, encourages or threatens physical harm against another;
? Promotes or glorifies racial or religious intolerance, uses hate and/or racist terms, or signifies hate towards any person or group of people;
? Advocates the violent overthrow of the government or other conduct that could constitute fraud or other criminal offense, gives rise to civil liability, or otherwise violates any applicable local, state, national, or foreign law or regulation;
? Glamorizes the use of illegal substances and drugs;
? Advertises: (i) tobacco products, (ii) cannabis and cannabis-derived products, (iii) ammunition, firearms, paintball guns, bb guns, or weapons of any kind, (iv) gambling, including without limitation, any online casino, sports books, bingo, or poker website, (v) get rich quick or other money making opportunities that offer compensation or financial reward in exchange for little or no investment, (vi) adult friend finders or dating sites with a sexual emphasis, (vii) adult toys, videos or other adult products, (viii) uncertified pharmaceutical products, (ix) spy cams or other illegal surveillance products, and (x) web-based, non-accredited colleges that offer degrees;
? Promotes pyramid schemes or chain letters;
? Promotes software pirating (e.g. Warez), phreaking, or hacking;
? Promotes or exploits religious, political, or other inflammatory issues for commercial use;
? Depicts a health condition in a derogatory or inflammatory way or misrepresents a health condition in any way;
? Offers incentives (e.g. cash, points, prizes, contest entries, etc.) to viewers for clicking on the advertisement, for submitting personally identifiable information, completing surveys, or for performing any other tasks;
? Harvests or otherwise collects information about Fyrtorr’s users;
? Uses or attempts to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Fyrtorr website for any use;
? Frames the Fyrtorr Website;
? Accesses protected content or data, or accesses or logs onto a secure server or account;
? Attempts to probe, scan, or test the vulnerability of the Fyrtorr Website, or any other system or network, or breaches security or authentication measures without proper authorization;
? Interferes or attempts to interfere with the use of the Fyrtorr Website by any other user, host, or network, including, without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”;
? Uses the Fyrtorr Website to send unsolicited e-mail, including without limitation promotions or advertisements for products or services;
? Attempts to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Fyrtorr in providing its Website; and
? Includes material that violates applicable laws and regulations, including but not limited to CAN-SPAM, California’s Anti-Spam law, CASL, the FTC Act, any FTC rules, regulations, and guidelines, applicable credit card merchant guidelines, the GDPR, the UK Data Protection Act of 1998, the CCPA and the Utah and Michigan “Child Protection Registry Laws” as discussed more fully herein.
5. PRIVACY; COMPLIANCE WITH U.S. AND INTERNATIONAL LAW
Affiliate shall comply with all applicable privacy laws. If Affiliate advertises Fyrtorr’s Prducts through its own website, or generates an email or phone database through Affiliate’s own website, Affiliate further agrees to post conspicuously on each of Affiliate’s websites a privacy policy, linked, at a minimum, from the website’s home page, that: (a) discloses Affiliate’s privacy practices, including Affiliate’s use of a third party for Affiliate’s ad serving activities, (b) identifies the collection and use of information gathered in connection with both ad serving activities and delivery of the Affiliate’s content, including express explanation of Affiliate’s use of “cookies,” and (c) provides the user with instructions on how to opt-out out from such collection and/or other rights the user may have with respect to their personal data. If Affiliate is collecting user emails, telephone numbers, or if Affiliate is located in or advertising to users in the UK, EU, Canada, or California, then Affiliate shall obtain the user’s affirmative consent to the privacy policy prior to collecting any personal data from the user.
6. SOCIAL MEDIA AND OTHER ENDORSEMENTS
In connection with Affiliate’s promotion of Campaigns on or through Affiliate’s own websites, Affiliate’s social media accounts, emails, or other advertising, Affiliate shall disclose clearly and conspicuously, and in close proximity to the endorsement, that Affiliate receives compensation in the form of affiliate commissions in exchange for such endorsement. Affiliate’s personal endorsement of any Product must reflect the honest opinions, findings, beliefs and/or experience of Affiliate with respect to the Product, and may not contain representations for which the Affiliate does not have substantiation or that would be considered deceptive. Affiliate further agrees to comply with the Federal Trade Commission’s Revised Endorsements and Testimonials Guide.
Outside of Affiliate’s own personal endorsement, Affiliate is prohibited from using an endorsement or testimonial unless Fyrtorr has received, reviewed and provided express, prior written consent to such advertising.
7. CONSENT RECORDS
Affiliate cannot use email in connection with promoting any Fyrtorr Product or marketing any Fyrtorr Campaign unless Fyrtorr has provided Affiliate with prior written consent to do so.
Moreover, even when such permission has been granted, in order to use email to market Products, Affiliate must have the consent of each recipient and shall maintain records evidencing such consent (“Consent Records”) including (i) opt-in date and time, (ii) registration source, (iii) first and last name, (iv) mailing address, (v) email address, (vi) phone number, (vii) privacy policy of source website at the time of opt-in, (viii) clear and conspicuous “check-box” disclosures at the time of opt-in, and (ix) any other information collected. Affiliate will provide such Consent Records to Fyrtorr within one (1) business day of any request for the same.
8. SUPRESSION LISTS
(a) Email. To the extent that Fyrtorr provides an opt-out or unsubscribe list (the "Suppression List") to Affiliate in connection with the Affiliate Program, Affiliate shall regularly scrub its email database against such Suppression List no less than every three (3) days and shall not at any time send any commercial emails to any individuals on such Suppression List.
(b) Affiliate will not use any Suppression List in any manner other than for the purpose set forth in Section 8(a) and (b) above. Affiliate shall not obtain any ownership interest or rights in and to any Suppression List.
9. EMAIL PRACTICES; CAN-SPAM AND CALIFORNIA ANTI-SPAM ACT COMPLIANCE
If Affiliate has obtained Fyrtorr’s prior written consent to use email to market Fyrtorr’s Products, Affiliate shall maintain accurate and current Consent Records as defined above.
If Affiliate uses email to market Fyrtorr’s Products, Affiliate shall not transmit any email:
? Using any Creative other than that supplied and/or approved in advance by Fyrtorr;
? With materially false or misleading header information;
? With a “from” line that is materially false or misleading and does not accurately identify the person sending the email;
? With a “subject” line that is misleading, false, or misrepresentative or is likely to mislead the recipient about the content of the email;
? With an apparent “from” domain that is materially false or misleading, or does not belong to Affiliate (e.g., @Oprah.com, @Lowes.com);
? Without a functioning return email or Internet address, clearly and conspicuously displayed, that functions for thirty (30) days after the email is sent, that a recipient can use to submit a reply email requesting not to receive future commercial emails or Internet communications from the sender;
? Without a clear and conspicuous identification that the email is an advertisement or solicitation, a clear and conspicuous notice of the opportunity to decline to receive further communications, and a valid business name and physical postal address of the Affiliate; or
? With any content that infringes or violates any applicable law or regulation or any intellectual, proprietary or privacy rights, or is misrepresentative, defamatory, inflammatory, offensive, or otherwise objectionable.
Further, Affiliate shall not transmit any email:
? If Affiliate knows, or has reason to know, that the email address was obtained using an automated means, including without limitation, harvesting software, such as harvesting bots or harvesters, dictionary attacks, etc., or via an Internet service, which indicated that at the time the address was obtained, that the Affiliate Program was not to give or sell the address to others; or
? To any individual that has requested not to receive any emails more than three (3) days after receipt of such request, provided that the email falls within the scope of the request.
Further, Affiliate agrees to do at least one of the following:
? Identify itself in the “from” line by using a domain name that includes Affiliate’s name; or
? Ensure that Affiliate’s name and contact information appear in the publically-accessible WHOIS record for any domain used in the “from” line, and that no such domain is registered using a privacy-protection service.
10. TELEPHONE/SMS MARKETING PRACTICES PROHIBITED
Affiliate is prohibited from using all forms of text messages, SMS, voicemail (including “ringless voicemail”) or telephone calls in its advertising to market Fyrtorr’s Products.
11. INCENTIVIZED TRAFFIC AND SURVEYS
Affiliate shall not generate any Fees through incentivized traffic (e.g., advertising methods that imply, promise, or give a payment, reward, or prize to users for completing an Action) or survey traffic. Fees generated through incentivized traffic or surveys shall be deemed non-payable.
12. FRAUDULENT ACTIVITY
The following activity, without limitation, is considered fraudulent and is strictly prohibited:
? The use of false data, credit/debit card numbers, or other financial information on any signup form, contract, online application, or registration;
? The use of unauthorized data, credit/debit card numbers, or other financial information in the name of third parties on any signup form, contract, online application, or registration;
? The manipulation of tracking pixels, codes, links, or other tracking information to simulate sales or inflate Fees;
? The use of “cookie stuffing,” “cookie dropping,” “forced clicks,” or “cookie sprinkling;”
? The artificial inflation of Sales or transactions via any device, program, robot, computer script, or other automated method;
? The generation of clicks that do not map to a conscious action by an individual, including but not limited to: (i) repeat manual clicks; (ii) the use of robots or other automatic means to generate clicks; and (iii) faking tracking information to stimulate links.
If Affiliate fraudulently adds or inflates Sales or transactions through fraudulent traffic generation, whether specifically proscribed above or otherwise, and as determined by Fyrtorr in its sole discretion, Affiliate will forfeit Affiliate’s entire Fees for all advertising activity for Fyrtorr and Affiliate’s Account will be terminated.
13. TERMINATION; LEGAL ENFORCEMENT
Without limiting any of Fyrtorr’s other remedies, Fyrtorr reserves the right, in Fyrtorr’s sole discretion, to terminate any Affiliate who violates the AUP. Any violation of the AUP may subject the offending party to civil and/or criminal liability. Fyrtorr intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of the AUP or of any applicable laws.
This is a legal contract between you and/or your company (in either case, the “Affiliate”) and Fyrtorr, Ltd. (“Fyrtorr”) regarding your participation in Fyrtorr’s Affiliate Program, as defined below. Together, these Affiliate Terms, Affiliate Acceptable Use Policy (the “AUP,” attached hereto as Exhibit A), and any applicable Insertion Order executed by you and Fyrtorr constitute a single agreement (the “Agreement”). Affiliate and Fyrtorr may also be individually referred to herein as “Party” and collectively as “Parties.” This Agreement is effective as of the date executed by the Parties below (the “Effective Date”).
1. Select Definitions.
(a) An “Affiliate Link” means the unique tracking link assigned to Affiliate for use in redirecting Customers to the Websites to ensure that Affiliate is credited with any Sale completed by the Customer.
(b) The “Affiliate Program” means the combined paid advertising opportunities, the web or mobile-based sites or applications through which the advertising opportunities are accessed, reporting, access to data, and advertising materials provided by Fyrtorr pursuant to this Agreement.
(c) A “Customer” is a bona-fide end user purchaser of Fyrtorr’s Products, as defined below.
(d) “Fees” are the payments earned by Affiliate on Sales pursuant to the terms of this Agreement.
(e) The “Products” are the branded supplements, books, and other goods and services offered for sale by Fyrtorr to Customers on its Websites, such as bensnaturalhealth.com and through other venues and media.
(f) A “Sale” means a specified event identified in this Agreement or an Insertion Order wherein a Fee is generated, such as clicks, click-throughs, sales, registrations, impressions, and leads. In the absence of another definition or qualifications for a Sale, a Sale shall be interpreted to mean a bona fide purchase by a Customer of a Product from the Website, where such Customer was directed to the Website through Affiliate’s Link and completes the purchase during the same visit to the Website.
(g) The “Tracking Platform” means the service designated by Fyrtorr for the tracking of Sales, and may include third party services, such as ShareaSale.
(h) The “Website” and the “Websites” mean, collectively, the Internet websites operated by Fyrtorr for the sale of its Products to Customers, such as bensnaturalhealth.com.
2. Participation.
(a) Approval. Affiliate’s participation in the Affiliate Program is subject to the terms and conditions of this Agreement and Fyrtorr’s explicit approval. Fyrtorr’s approval of Affiliate’s participation may be withheld or terminated at any point, in Fyrtorr’s sole discretion, regardless of initial acceptance.
(b) Third-Party Publishers. Affiliate represents and warrants that it is not an advertising network and will not delegate its responsibilities hereunder to a network of third party publishers or websites (“Third Party Publishers”) without the prior written approval of Fyrtorr. In the event such approval is given, or in the event Affiliate breaches this Section 2(b), Affiliate assumes all liability for such Third Party Publishers and will ensure that such Third Party Publishers comply with the terms of this Agreement, the AUP, and all applicable laws. Without limiting any other provision of this Agreement, Affiliate shall fully and completely indemnify, defend, and hold harmless Fyrtorr for all damages arising from a Third Party Publisher’s breach of any obligations or warranties set forth in Section 9 or the AUP. Without limiting any other provision of this Agreement, Affiliate represents and warrants that it has the ability to immediately terminate any Third Party Publisher’s rights to the Affiliate Program or any Creative (as defined in Section 2 below) provided by Fyrtorr. For the purposes of this Agreement, “Affiliate” means the Affiliate and any Third Party Publishers.
(c) Limited License. Subject to the terms and conditions of this Agreement, during the term of this Agreement, Fyrtorr grants Affiliate a limited, revocable, non-transferable, non-exclusive limited license to use the Affiliate Program, the Fyrtorr-provided Creative, and any data, reports, information, or analyses arising out of such use (the "Program Data") solely for the purposes set forth in this Agreement.
3. Promotional Materials and Methods.
(a) Creative. Fyrtorr shall make available to Affiliate graphic or textual material for display and use on Affiliate’s social media and other advertisements (collectively, “Creative”). Affiliate may not use any other graphic, textual, audio, artwork, or other materials other than Creative either supplied by Fyrtorr, or supplied by Affiliate but approved of in advance by Fyrtorr, to promote the Products. Affiliate acknowledges that any material alterations made by Affiliate to Creative that is not approved by Fyrtorr could result in false advertising that Fyrtorr cannot endorse with payment. If Fyrtorr determines that Creative has been altered without Fyrtorr’s approval, Fyrtorr may suspend payment owed to Affiliate while Fyrtorr fully investigates the matter.
(b) Affiliate Acceptable Use Policy. Affiliate shall comply with the AUP, attached hereto as Exhibit A, in any use of the Creative or promotion of the Products.
(c) Campaigns. At its discretion, Fyrtorr may provide offers of separate advertising campaigns or promotions (collectively, the "Campaigns"), which may include Campaign-specific terms and conditions. At times, these Campaign-specific terms may be reduced to writing in a separate “Insertion Order,” in which event, said Insertion Order shall become incorporated into this Agreement. In the event of any conflict between the terms of this Agreement and Campaign-specific terms, the Campaign-specific terms shall govern as to the Campaign at issue, and this Agreement shall govern as to all other matters. Fyrtorr reserves the right to, in its sole discretion, approve or deny Affiliate to work on a specific Campaign without affecting any other aspect of this Agreement or Fyrtorr’s relationship with Affiliate.
4. Payment and Tracking.
(a) Fee Schedule. Unless otherwise set forth in an Insertion Order, Affiliates earn Fees on Sales of Products to Customers through the Affiliate Links as set forth in the Fee Schedule attached hereto as Exhibit B. Fyrtorr may modify or change the Fee Schedule at any time upon notice to Affiliate, including by email, and at Fyrtorr’s sole discretion. Affiliate’s continued participation in the Affiliate Program after a change to the Fee Schedule constitutes acceptance of the Fee Schedule, as revised.
(b) Payment Terms. Unless otherwise stated in an Insertion Order or other Campaign-specific terms, all payments due under this Agreement shall be made on a monthly basis, by the last working day of the month following the calendar month in which the Fees accrued. If the 15th day of the month falls on a weekend or bank holiday, then payment shall be made on the next business day. Payments will be made by the method elected by the Affiliate in its Affiliate Account. Payments will be initiated electronically and/or mailed on the payment date, and Affiliate understands and agrees that it may take additional time to reach Affiliate or clear Affiliate’s payment account. Fyrtorr shall not remit payment for any Sales that occur after Affiliate has been suspended or terminated, or for Sales or charges that are later reversed by a refund or chargeback to the Customer. Fyrtorr is not liable for Fees that are not recorded due to Affiliate’s error (such as failure to properly use the Affiliate Link). If a refund or chargeback occurs after the associated Fees have been paid to Affiliate, Fyrtorr will, at its sole discretion, (i) offset the amount of the refund or chargeback against future payments from Fyrtorr to Affiliate; or (ii) demand repayment by Affiliate, which Affiliate agrees to make within fifteen (15) days of such demand. All Fees will be paid in US dollars ($US) if Affiliate is located in the United States; if Affiliate is located outside the United States, then all Fees will be paid in British pounds (£GBP). Fyrtorr is not liable for any fees incurred by Affiliate from Affiliate’s financial institution; Affiliate shall be solely responsible for such fees. Affiliate understands and agrees that it is Affiliate’s sole responsibility to notify Fyrtorr of any changes to Affiliate’s payment account.
(c) Affiliate Link. It is Affiliate’s sole responsibility to ensure that all Sales occur through the Affiliate Link so that Fyrtorr may track Affiliate’s Sales and Fees with accuracy. Affiliate agrees to monitor its Affiliate Link to ensure its proper functioning. Fyrtorr shall not be responsible for payment on any Sales generated outside of the Affiliate Link. Except as provided herein, Affiliate may not directly link to Fyrtorr’s Websites without Fyrtorr’s express approval and may not mislead consumers by misrepresenting itself as Fyrtorr or any other person or entity.
(d) Tracking and Disputes. Fyrtorr shall be exclusively responsible for tracking all Fees due to Affiliate, which shall be visible to Affiliate through the Tracking Platform. In the event that Affiliate reasonably believes Fyrtorr’s tracking for a given calendar month is inaccurate, no later than seven (7) days after the close of such month, Affiliate shall provide Fyrtorr with all evidence supporting the alleged error, and the Parties shall work together in good faith to resolve the matter to their mutual satisfaction. In the event the Parties are unable to agree, then Fyrtorr’s reasonable decision shall govern.
5. Proprietary Rights.
Affiliate agrees that it does not have, nor will it claim, any right, title, or interest in the Affiliate Program, the Fyrtorr Creative, the Products, the Program Data, or any underlying technology, software, applications, data, methods of doing business, or any elements thereof. Affiliate may only access Fyrtorr’s Website via web browser, email, or in a manner approved by Fyrtorr. Affiliate shall not attempt in any way to tamper with, alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Affiliate Links, other links, tags, source codes, pixels, modules, or other data provided by or obtained from Fyrtorr that allows Fyrtorr to measure Affiliate’s performance and provide the Affiliate Program. In addition, Affiliate acknowledges that all Program Data, including but not limited to non-public information, data, and reports received by Affiliate from Fyrtorr as part of the Affiliate Program are proprietary to and owned by Fyrtorr. If instructed to do so by Fyrtorr, Affiliate will immediately destroy and discontinue the use of any such Program Data and any other material owned by Fyrtorr.
6. Fraud; Suspension of Affiliate Account.
(a) Without limiting and other provision of this Agreement, Fyrtorr reserves the right, in Fyrtorr’s sole and absolute discretion to terminate this Agreement and/or Affiliate’s account, at any time without liability to Fyrtorr, should Fyrtorr determine, in its sole and absolute discretion, that Affiliate engages or has engaged in fraud, dishonesty, or any other misconduct that causes harm to Fyrtorr (collectively, “Fraud”). Fraud shall include, but not be limited to, the opening of more than one Affiliate account by Affiliate, the generation of Sales using false information or stolen credit cards, or the use of false or misleading advertising by Affiliate.
(b) IF FYRTORR DETERMINES THAT AFFILIATE HAS ENGAGED IN FRAUD, AFFILIATE WILL FORFEIT ITS ENTIRE EARNINGS FROM FYRTORR AND AFFILIATE’S PARTICIPATION IN THE AFFILIATE PROGRAM WILL BE TERMINATED IMMEDIATELY. IF AFFILIATE IS NOTIFIED THAT AFFILIATE IS ENGAGING IN FRAUD, AND AFFILIATE FAILS TO TAKE PROMPT ACTION TO STOP THE FRAUD, THEN, IN ADDITION TO ANY OTHER REMEDIES AVAILABLE TO FYRTORR, AFFILIATE SHALL BE RESPONSIBLE FOR ALL COSTS AND LEGAL FEES ARISING FROM SUCH FRAUD.
(c) Upon notice by Fyrtorr to Affiliate that a Third Party Publisher is engaging, or has engaged, in any activity prohibited by this Agreement, including but not limited to fraudulent Sales generation, Affiliate shall immediately terminate its relationship with such Third Party Publisher, as it pertains to the Third Party Publisher’s participation in the Affiliate Program. If Affiliate is notified that a Third Party Publisher is engaging, or has engaged, in prohibited activities, and Affiliate fails to terminate such Third Party Publisher’s participation in the Affiliate Program within three (3) days of notice by Fyrtorr, Fyrtorr reserves the right to immediately terminate this Agreement. FURTHER, IN THE EVENT THAT FYRTORR DETERMINES, IN ITS SOLE DISCRETION, THAT A THIRD PARTY PUBLISHER IS ENGAGING, OR HAS ENGAGED, IN PROHIBITED ACTIVITIES, FYRTORR SHALL RECALCULATE AND WITHHOLD PAYMENT TO AFFILIATE ACCORDINGLY. FOR CLARITY, FYRTORR RESERVES THE RIGHT TO WITHHOLD OR RECALCULATE AMOUNTS GENERATED BY PROHIBITED ACTIVITY OF THIRD PARTY PUBLISHERS, REGARDLESS OF WHETHER AFFILIATE PARTICIPATED IN OR KNEW ABOUT THE PROHIBITED ACTIVITY.
(d) To the extent that Affiliate becomes aware of any class-action litigation or government investigation concerning Affiliate's advertising or other Internet practices or procedures, irrespective of whether such litigation relates to Affiliate’s relationship with Fyrtorr, Affiliate shall immediately notify Fyrtorr of such litigation or investigation.
7. Confidential Information.
Each Party agrees to use the other Party's Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other Party's Confidential Information to any third party, unless (a) any disclosure is necessary and permitted in connection with the receiving party's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the Parties; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing party. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding any existing or contemplated Fyrtorr services, Products, processes, techniques, or know-how, information regarding any Customer, all Program Data, or any other information or data developed pursuant to the performance of the Affiliate Program, or any identification or payment account information provided by Affiliate other than that which Affiliate makes public on its own website or advertising.
8. Term and Termination.
(a) Term. This Agreement shall begin on the Effective Date and remain in effect for an initial term of one (1) year. Unless terminated by either Party upon thirty (30) days notice prior to the end of the initial term or any renewal term, the Agreement shall automatically renew for successive one (1) year terms.
(b) Termination. Either Party may terminate this Agreement, or any Campaign, effective upon written notice, for any reason or no reason, at any time upon three (3) days’ written notice to the other Party. In the event that either Party (i) files a voluntary petition in bankruptcy, (ii) makes an assignment for the benefit of its creditors, or (iii) breached any of the material terms of this Agreement, this Agreement shall automatically terminate. Such termination shall be automatic and shall not require any action by either Party.
(c) Effect of Termination. Upon termination of this Agreement, any and all licenses and rights granted to Affiliate in connection with this Agreement shall immediately cease and terminate. Further, upon termination of this Agreement, Affiliate will: (i) immediately discontinue the use of the Affiliate Program and any Program Data; (ii) immediately cease to use, and remove from the Affiliate’s websites, any and all advertisements and/or related materials made available to Affiliate in connection with Affiliate’s participation in the Affiliate Program; and (iii) immediately cease transmitting any and all emails, text messages, or other communications in connection with any Campaign. In the event of termination of this Agreement, Sections 5–7, 9(b) and 10–13 shall survive.
9. Representations and Warranties; Indemnification.
(a) Affiliate represents and warrants that: (i) Affiliate has all necessary rights and authority to enter into this Agreement and to place advertisements on its website(s), social media accounts, through its personal email address, or those of its Third Party Publishers and other partners (collectively, the “Affiliate Media”); (ii) Affiliate owns and/or has the right to use all materials contained on Affiliate Media; (iii) the Affiliate Media and the content contained on the Affiliate Media will not infringe or violate the patents, copyrights, trademarks, rights of publicity, defamation, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party; (iv) the Affiliate will not violate any applicable foreign or domestic, federal, state, or local statutes, laws, ordinances, rules and regulations, or industry standards, including without limitation, the CAN-SPAM Act of 2003 (“CAN-SPAM”), California’s Anti-Spam Act, Cal. Bus. & Prof. Code §§ 17529 et seq. (“California’s Anti-Spam Act”), Canada’s Anti-Spam Law (“CASL”), the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq. (“TCPA”), the Federal Trade Commission Act (“FTC Act”), all FTC rules, regulations, and guidelines, applicable credit card merchant guidelines, the Utah and Michigan “Child Protection Registry” laws, the General Data Protection Regulation (EU) 2016/679 ("GDPR"), the United Kingdom Data Protection Act of 1998 (as amended) (“UK Data Protection Act”), and the California Consumer Privacy Act, once effective (the “CCPA”). To be clear, Affiliate represents and warrants that it knows, understands, and complies with all applicable laws in both the jurisdiction where Affiliate is located and the jurisdiction(s) in which Affiliate conducts its advertising activities.
(b) Indemnification. Affiliate, on its own behalf, and on behalf of its respective third-party partners (including, without limitation, Third Party Publishers), affiliates, directors, employees, agents, successors, and assigns (collectively, the “Indemnitor”) will defend, indemnify, and hold harmless Fyrtorr and its third-party partners, affiliates, directors, employees, agents, successors and assigns (collectively, the “Indemnitee”) from and against all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorneys’ fees and expenses) (collectively, “Claims”) arising from or related to: (i) any negligent act or omission by Indemnitor, including any Fraud; (ii) any breach of this Agreement by the Indemnitor; (iii) any breach by Indemnitor of any Campaign-specific terms and conditions; (iv) any violation or alleged violation by Indemnitor of any applicable foreign or domestic, federal, state, or local statutes, laws, ordinances, rules and regulations, or industry standards, including without limitation, CAN-SPAM, California’s Anti-Spam Act, CASL, the TCPA, the FTC Act, all FTC rules, regulations and guidelines, applicable credit card merchant guidelines, the Utah and Michigan “Child Protection Registry” laws, the GDPR and the UK Data Protection Act; and (v) any violation or alleged violation by Indemnitor of the rights of any third party. The Indemnitee will provide Indemnitor with prompt written notice of the Claim for which the Indemnitee intends to claim such indemnification, and Indemnitor shall have the right to participate in, and, to the extent the Indemnitor so desires, to assume sole control of the defense thereof with counsel selected by the Indemnitor; provided, however, and notwithstanding the foregoing, that the Indemnitee shall have the absolute right to retain their own counsel, with the fees and expenses to be paid by the Indemnitee. Indemnitor will have no authority to stipulate to any judgment or settle any Claim on the Indemnitee’s behalf without the written consent of the Indemnitee. Nothing in this Section shall limit any other remedy of the Parties. These obligations will survive any termination of the Agreement.
10. Disclaimer of Warranty.
FYRTORR HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTY THAT AFFILIATE WILL GENERATE FEES THROUGH THE AFFILIATE PROGRAM. THE CREATIVE AND THE AFFILIATE PROGRAM ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, FYRTORR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE CREATIVE, THE AFFILIATE PROGRAM, CAMPAIGNS, ADVERTISEMENTS, SUPPRESSION LISTS, AND PRODUCTS AND SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. FYRTORR DISCLAIMS ALL WARRANTIES THAT THE AFFILIATE PROGRAM WILL MEET AFFILIATE’S REQUIREMENTS OR EXPECTATIONS AND THAT THE OPERATION OF THE AFFILIATE PROGRAM WILL BE UNINTERRUPTED OR ERROR-FREE.
11. Limitation of Liability.
EXCEPT (I) AS TO THE OBLIGATIONS AND LIABILITIES ARISING OUT OF SECTION 9 AND FOR BREACHES OF THE AUP, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, STATUTORY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST REVENUE OR PROFITS) RESULTING FROM, ARISING OUT OF, OR RELATED TO ITS PERFORMANCE OR FAILURE TO PERFORM ANY OF ITS OBLIGATIONS UNDER, OR BREACH OF, THIS AGREEMENT, WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT (I) AS TO THE OBLIGATIONS AND LIABILITIES ARISING OUT OF SECTION 9 AND FOR BREACHES OF THE AUP, EACH PARTY'S LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE AGGREGATE OF ALL AMOUNTS RECEIVED BY AFFILIATE FROM FYRTORR HEREUNDER DURING THE SIX (6) MONTHS PRECEDING THE INCIDENT OR INCIDENTS GIVING FYRTORR TO SUCH LIABILITY.
12. Governing Law; Jurisdiction and Venue.
(a) Choice of Law. This Agreement, together with the AUP, and any Insertion Orders or Campaign-specific terms, shall be treated as though this Agreement were executed and performed in London, England and shall be governed and construed in accordance with the laws of the England and Wales without regard to conflict of law principles.
(b) Elective Arbitration. At the election of either Party, any dispute, of any nature whatsoever, between Affiliate and Fyrtorr arising out of or relating to the Application or this Agreement, including the Affiliate Acceptable Use Policy, Affiliate Insertion Orders, and any Campaign-specific terms and conditions, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The tribunal will consist of a sole arbitrator. The seat of the arbitration will be London, England. The language to be used in the arbitral proceedings will be English. A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the AAA fees) to the prevailing party.
(c) You hereby acknowledge that without this provision, you would have the right to sue in court with a jury trial or to participate in a class action.
(d) Remedies in Aid of Arbitration; Equitable Relief. This agreement to arbitrate will not preclude Affiliate or Fyrtorr from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration, or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude either Affiliate or Fyrtorr from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary.
(e) Venue. The exclusive venue for any non-arbitration action arising out of or under this agreement—including, without limitation, any litigation between the Parties, any motion to compel arbitration, any remedies in aid of arbitration, or any petitions for equitable relief—shall be the courts of England and Wales. The parties hereby waive any objection to the venue or personal jurisdiction of such courts.
(f) No Joinder of Claims. The Parties further agree that neither Party will join any legal claim with the claim of any other person or entity in a lawsuit, arbitration or other proceeding, that no legal claim will be resolved on a class-wide basis, and that neither Party will assert a claim in a representative capacity on behalf of anyone else.
13. Miscellaneous.
(a) General. This Agreement, together with the AUP, and any Insertion Orders, and any Campaign-specific terms, constitutes the entire agreement between the Parties and supersedes all prior agreements or understandings between the Parties, whether written or oral. Except in connection with a merger, acquisition, or sale of all or substantially all of Affiliate’s assets related to this Agreement, Affiliate may not assign this Agreement and its rights and obligations hereunder, and any attempted assignment in contravention of this provision shall be null and void and of no force or effect. Fyrtorr may assign this Agreement, and any and all rights granted hereunder, in its sole discretion, at any time, without Affiliate’s consent. Except as otherwise provided in this Agreement, all notices under this Agreement will be in writing and will be delivered by personal service, confirmed fax, confirmed email, express courier, or certified mail, return receipt requested, to the addresses designated from time to time by the Parties. Notice will be effective upon receipt.
Except as provided herein, the failure to exercise a right or require performance of an obligation under this Agreement shall not affect a Party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach. If any provision of this Agreement is held to be invalid or unenforceable with respect to a Party, the remainder of this Agreement, or the application of such provision to persons other than those to whom it is held invalid or unenforceable, shall not be affected, and each remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. The relationship of the Parties under this Agreement is one of independent contractors and nothing herein should be construed to constitute the Parties as partners, joint ventures, agent and principal or employer and employee. Nothing herein will give either Party any right or authority to bind the other, and neither Party will bind the other to any obligation to any third party. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
(b) Independent Counsel. Each Party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either Party by reason of its drafting.
(c) Force Majeure. Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such Party.
(d) Execution. This Agreement may be executed and delivered in counterparts by facsimile and/or electronic signature, each of which so executed and delivered counterpart is an original, and such counterparts, together, will constitute but one and the same instrument.
AFFILIATE ACCEPTABLE USE POLICY
This Affiliate Acceptable Use Policy (“AUP”) is intended to help the Affiliate understand the types of websites, traffic, and affiliate conduct that that Fyrtorr believes to be appropriate or inappropriate. Please keep in mind that this AUP is intended as a guideline, and not as an exhaustive list of content and conduct that Fyrtorr finds appropriate or inappropriate. This AUP is part and parcel of the Agreement between the Parties, and the requirements and prohibitions herein are binding contractual terms.
Some of the requirements in this AUP are straightforward, and some are very technical and specific to certain types of Internet advertising. These provisions are put here to protect Customers by preventing false or misleading advertising, to protect Fyrtorr by ensuring all Affiliates are required to comply with the law, but also to protect you from unwittingly engaging in advertising activity that violates the law. Suffice it to say, if you don’t understand the requirements for engaging in a specific type of advertising, do NOT engage in such advertising.
Capitalized terms used but not defined herein have the respective meanings ascribed to them in the Agreement. In the event of a conflict between the terms and provisions of any other agreement and this AUP, the terms and provisions of, first, the AUP and, second, the Agreement shall control. As in the Agreement, all references to “Affiliate” in this AUP shall mean and include Affiliate and all of Affiliate’s Third Party Publishers. Affiliate is responsible for ensuring the compliance of its Third Party Publishers with this AUP.
1. LEGAL COMPLIANCE
Affiliate shall not violate any applicable foreign or domestic, federal, state or local statutes, laws, ordinances, rules and regulations, or industry standards, including without limitation, CAN-SPAM, the California Anti-Spam Act, CASL, the TCPA, the FTC Act, all FTC rules, regulations, and guidelines, applicable credit card merchant guidelines, the Utah and Michigan “Child Protection Registry” laws, the GDPR, the UK Data Protection Act, and the CCPA. Ignorance of or misinterpretation of the law is not an excuse for violating it. Affiliate is responsible for knowing, understanding, and complying with all laws and regulations applicable in both the jurisdiction where Affiliate is located and the jurisdiction(s) where Affiliate conducts its advertising activities.
2. CAMPAIGN-SPECIFIC TERMS; FYRTORR CREATIVE
Campaigns may have campaign-specific terms and conditions. Affiliate shall comply with any and all Campaign-specific terms, including prohibitions on specific traffic types and advertising methods.
Affiliate shall only use Fyrtorr-approved Creative. Affiliate shall not alter, cut, crop, modify, or otherwise change any aspect of any Creative, without Fyrtorr’s express written approval.
3. WEBSITE REQUIREMENTS
Any and all websites or media that Affiliate uses to promote Campaigns must:
? Be fully functional at all levels, with no “under construction” sites or sections;
? Be content-based and not simply a “parked” page or list of links or advertisements;
? Not generate pop-up advertisements, including without limitation “pop-overs” and “pop-unders,” when entering or leaving the website;
? Close when instructed, i.e. when a user seeks to close or otherwise leave the, the website must close down and no other behavior should result;
? Not “mouse trap,” i.e. whereby the website does not permit the use of the browser back-button and thereby traps the user on the website, or whereby the website presents other unexpected behavior, such as re-directing to another advertisement or landing page; and
? Not contain automatic audio that plays without user instigation.
4. PROHIBITED CONTENT AND CONDUCT
Prohibited Affiliate content and conduct includes, without limitation, content and/or conduct that:
? Infringes the rights, including without limitation the copyright, patent, trademark, trade secret, or other proprietary rights, of any third party, or violates any agreement between Affiliate and a current or former employer concerning the intellectual property Affiliate create or created during Affiliate’s employment;
? Is false, misleading, fraudulent, or deceptive;
? States, suggests, or implies that any Product is capable of treating or curing any medical condition or disease;
? Uses any of the following phrases or words: cancer, stroke, heart attack, treat(s)(ing), heal(s)(ing), or cure(s)(ing).
? Is libelous or defamatory, or violates the privacy or publicity rights of any third party;
? Implies a connection or endorsement by any individual (e.g., a celebrity, a noted health expert) or entity (a business, a magazine, a new outlet) with which Affiliate has no such connection or endorsement;
? Contains, facilitates, or promotes “spam” or other advertising or marketing content that violates applicable laws, regulations, or industry standards;
? Consists of or contains viruses, Trojan horses, worms, malicious code, or other harmful or destructive content;
? Is “adult” in nature, obscene, lewd, lascivious, filthy, or pornographic, that may constitute child pornography, or that may exploit in a sexual or violent manner anyone under the age of 18;
? Depicts excessive violence, contains comments or images that are offensive, abusive, threatening, harassing, or menacing, or that incites, encourages or threatens physical harm against another;
? Promotes or glorifies racial or religious intolerance, uses hate and/or racist terms, or signifies hate towards any person or group of people;
? Advocates the violent overthrow of the government or other conduct that could constitute fraud or other criminal offense, gives rise to civil liability, or otherwise violates any applicable local, state, national, or foreign law or regulation;
? Glamorizes the use of illegal substances and drugs;
? Advertises: (i) tobacco products, (ii) cannabis and cannabis-derived products, (iii) ammunition, firearms, paintball guns, bb guns, or weapons of any kind, (iv) gambling, including without limitation, any online casino, sports books, bingo, or poker website, (v) get rich quick or other money making opportunities that offer compensation or financial reward in exchange for little or no investment, (vi) adult friend finders or dating sites with a sexual emphasis, (vii) adult toys, videos or other adult products, (viii) uncertified pharmaceutical products, (ix) spy cams or other illegal surveillance products, and (x) web-based, non-accredited colleges that offer degrees;
? Promotes pyramid schemes or chain letters;
? Promotes software pirating (e.g. Warez), phreaking, or hacking;
? Promotes or exploits religious, political, or other inflammatory issues for commercial use;
? Depicts a health condition in a derogatory or inflammatory way or misrepresents a health condition in any way;
? Offers incentives (e.g. cash, points, prizes, contest entries, etc.) to viewers for clicking on the advertisement, for submitting personally identifiable information, completing surveys, or for performing any other tasks;
? Harvests or otherwise collects information about Fyrtorr’s users;
? Uses or attempts to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Fyrtorr website for any use;
? Frames the Fyrtorr Website;
? Accesses protected content or data, or accesses or logs onto a secure server or account;
? Attempts to probe, scan, or test the vulnerability of the Fyrtorr Website, or any other system or network, or breaches security or authentication measures without proper authorization;
? Interferes or attempts to interfere with the use of the Fyrtorr Website by any other user, host, or network, including, without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”;
? Uses the Fyrtorr Website to send unsolicited e-mail, including without limitation promotions or advertisements for products or services;
? Attempts to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Fyrtorr in providing its Website; and
? Includes material that violates applicable laws and regulations, including but not limited to CAN-SPAM, California’s Anti-Spam law, CASL, the FTC Act, any FTC rules, regulations, and guidelines, applicable credit card merchant guidelines, the GDPR, the UK Data Protection Act of 1998, the CCPA and the Utah and Michigan “Child Protection Registry Laws” as discussed more fully herein.
5. PRIVACY; COMPLIANCE WITH U.S. AND INTERNATIONAL LAW
Affiliate shall comply with all applicable privacy laws. If Affiliate advertises Fyrtorr’s Prducts through its own website, or generates an email or phone database through Affiliate’s own website, Affiliate further agrees to post conspicuously on each of Affiliate’s websites a privacy policy, linked, at a minimum, from the website’s home page, that: (a) discloses Affiliate’s privacy practices, including Affiliate’s use of a third party for Affiliate’s ad serving activities, (b) identifies the collection and use of information gathered in connection with both ad serving activities and delivery of the Affiliate’s content, including express explanation of Affiliate’s use of “cookies,” and (c) provides the user with instructions on how to opt-out out from such collection and/or other rights the user may have with respect to their personal data. If Affiliate is collecting user emails, telephone numbers, or if Affiliate is located in or advertising to users in the UK, EU, Canada, or California, then Affiliate shall obtain the user’s affirmative consent to the privacy policy prior to collecting any personal data from the user.
6. SOCIAL MEDIA AND OTHER ENDORSEMENTS
In connection with Affiliate’s promotion of Campaigns on or through Affiliate’s own websites, Affiliate’s social media accounts, emails, or other advertising, Affiliate shall disclose clearly and conspicuously, and in close proximity to the endorsement, that Affiliate receives compensation in the form of affiliate commissions in exchange for such endorsement. Affiliate’s personal endorsement of any Product must reflect the honest opinions, findings, beliefs and/or experience of Affiliate with respect to the Product, and may not contain representations for which the Affiliate does not have substantiation or that would be considered deceptive. Affiliate further agrees to comply with the Federal Trade Commission’s Revised Endorsements and Testimonials Guide.
Outside of Affiliate’s own personal endorsement, Affiliate is prohibited from using an endorsement or testimonial unless Fyrtorr has received, reviewed and provided express, prior written consent to such advertising.
7. CONSENT RECORDS
Affiliate cannot use email in connection with promoting any Fyrtorr Product or marketing any Fyrtorr Campaign unless Fyrtorr has provided Affiliate with prior written consent to do so.
Moreover, even when such permission has been granted, in order to use email to market Products, Affiliate must have the consent of each recipient and shall maintain records evidencing such consent (“Consent Records”) including (i) opt-in date and time, (ii) registration source, (iii) first and last name, (iv) mailing address, (v) email address, (vi) phone number, (vii) privacy policy of source website at the time of opt-in, (viii) clear and conspicuous “check-box” disclosures at the time of opt-in, and (ix) any other information collected. Affiliate will provide such Consent Records to Fyrtorr within one (1) business day of any request for the same.
8. SUPRESSION LISTS
(a) Email. To the extent that Fyrtorr provides an opt-out or unsubscribe list (the "Suppression List") to Affiliate in connection with the Affiliate Program, Affiliate shall regularly scrub its email database against such Suppression List no less than every three (3) days and shall not at any time send any commercial emails to any individuals on such Suppression List.
(b) Affiliate will not use any Suppression List in any manner other than for the purpose set forth in Section 8(a) and (b) above. Affiliate shall not obtain any ownership interest or rights in and to any Suppression List.
9. EMAIL PRACTICES; CAN-SPAM AND CALIFORNIA ANTI-SPAM ACT COMPLIANCE
If Affiliate has obtained Fyrtorr’s prior written consent to use email to market Fyrtorr’s Products, Affiliate shall maintain accurate and current Consent Records as defined above.
If Affiliate uses email to market Fyrtorr’s Products, Affiliate shall not transmit any email:
? Using any Creative other than that supplied and/or approved in advance by Fyrtorr;
? With materially false or misleading header information;
? With a “from” line that is materially false or misleading and does not accurately identify the person sending the email;
? With a “subject” line that is misleading, false, or misrepresentative or is likely to mislead the recipient about the content of the email;
? With an apparent “from” domain that is materially false or misleading, or does not belong to Affiliate (e.g., @Oprah.com, @Lowes.com);
? Without a functioning return email or Internet address, clearly and conspicuously displayed, that functions for thirty (30) days after the email is sent, that a recipient can use to submit a reply email requesting not to receive future commercial emails or Internet communications from the sender;
? Without a clear and conspicuous identification that the email is an advertisement or solicitation, a clear and conspicuous notice of the opportunity to decline to receive further communications, and a valid business name and physical postal address of the Affiliate; or
? With any content that infringes or violates any applicable law or regulation or any intellectual, proprietary or privacy rights, or is misrepresentative, defamatory, inflammatory, offensive, or otherwise objectionable.
Further, Affiliate shall not transmit any email:
? If Affiliate knows, or has reason to know, that the email address was obtained using an automated means, including without limitation, harvesting software, such as harvesting bots or harvesters, dictionary attacks, etc., or via an Internet service, which indicated that at the time the address was obtained, that the Affiliate Program was not to give or sell the address to others; or
? To any individual that has requested not to receive any emails more than three (3) days after receipt of such request, provided that the email falls within the scope of the request.
Further, Affiliate agrees to do at least one of the following:
? Identify itself in the “from” line by using a domain name that includes Affiliate’s name; or
? Ensure that Affiliate’s name and contact information appear in the publically-accessible WHOIS record for any domain used in the “from” line, and that no such domain is registered using a privacy-protection service.
10. TELEPHONE/SMS MARKETING PRACTICES PROHIBITED
Affiliate is prohibited from using all forms of text messages, SMS, voicemail (including “ringless voicemail”) or telephone calls in its advertising to market Fyrtorr’s Products.
11. INCENTIVIZED TRAFFIC AND SURVEYS
Affiliate shall not generate any Fees through incentivized traffic (e.g., advertising methods that imply, promise, or give a payment, reward, or prize to users for completing an Action) or survey traffic. Fees generated through incentivized traffic or surveys shall be deemed non-payable.
12. FRAUDULENT ACTIVITY
The following activity, without limitation, is considered fraudulent and is strictly prohibited:
? The use of false data, credit/debit card numbers, or other financial information on any signup form, contract, online application, or registration;
? The use of unauthorized data, credit/debit card numbers, or other financial information in the name of third parties on any signup form, contract, online application, or registration;
? The manipulation of tracking pixels, codes, links, or other tracking information to simulate sales or inflate Fees;
? The use of “cookie stuffing,” “cookie dropping,” “forced clicks,” or “cookie sprinkling;”
? The artificial inflation of Sales or transactions via any device, program, robot, computer script, or other automated method;
? The generation of clicks that do not map to a conscious action by an individual, including but not limited to: (i) repeat manual clicks; (ii) the use of robots or other automatic means to generate clicks; and (iii) faking tracking information to stimulate links.
If Affiliate fraudulently adds or inflates Sales or transactions through fraudulent traffic generation, whether specifically proscribed above or otherwise, and as determined by Fyrtorr in its sole discretion, Affiliate will forfeit Affiliate’s entire Fees for all advertising activity for Fyrtorr and Affiliate’s Account will be terminated.
13. TERMINATION; LEGAL ENFORCEMENT
Without limiting any of Fyrtorr’s other remedies, Fyrtorr reserves the right, in Fyrtorr’s sole discretion, to terminate any Affiliate who violates the AUP. Any violation of the AUP may subject the offending party to civil and/or criminal liability. Fyrtorr intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of the AUP or of any applicable laws.