MoreLabs
Program Terms
The following Terms and Conditions are entered into by Perform[cb] (“Advertiser,” “we” or “us”) and the advertising affiliate or publisher (“Publisher”), and shall govern the placement and delivery of advertising that Publisher implements for Advertiser and/or its merchant clients (each, a “Merchant”) and as may be set forth in any Additional, campaign-specific terms may be set forth in an applicable Insertion Order(s) (“IO”) or other documentation within the Parties’ ShareASale accounts (“SAS 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): (1) the terms of an IO specific to the Parties; (2) these Terms and Conditions, (3) the IR Terms, and (4) the standard ShareASale terms and conditions agreed to by each Party upon registration with ShareASale.
ALLOWED MARKETING CHANNELS & RESTRICTIONS:
Allowed Distribution: Deal/Coupon*, Content/Blog, Display, Mobile, Newsletter
Prohibited Distribution: Search**, Toolbar, Network/ Rebrokering
Approval Only: Email, Incent, Video
* Only coupons provided through the ShareASale platform are valid for commission. Any promo code used that is not provided to your publisher account through this platform are subject to reversals.
**We do not allow the use of our Trademark terms, Trademark+ terms or display URL on search engines
Friend referral links/ 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 file(s) or other creative work made available by Merchant for use in promoting an Offer (“Creative”). Publisher shall not modify or alter any Offer or any Creative. Publisher will only run approved banners and text in its advertising of Offers and will not create its own banners or advertising text based on the Creative or Offer, unless expressly approved in writing from Merchant. Any other use of Offers or Creative will result in immediate termination of this Agreement and the loss of payment for Leads.
B. No Inappropriate Content. Publisher shall not place an Offer on a website or in any other context with inappropriate content, which includes, but is not limited to, content that (i) contains or promotes the use of alcohol, tobacco or illegal substances, pornography, phone sex or escort services, expletives or other inappropriate language; (ii) promotes gratuitous violence, abuses or threatens physical harm; (iii) promotes illegal or unethical activity, racism, hate, "spam," mail fraud, gambling, sweepstakes, pyramid schemes, investment and money-making opportunities or illegal advice; (iv) promotes the use of illegal activities, such as how to build a bomb, counterfeiting money and software pirating (e.g., Warez, Hotline); (v) is libelous, or defamatory, or false; (vi) is otherwise expressly prohibited by federal or state law; (vii) willfully infringes on the trademark, copyright, or intellectual property rights of a third party; (viii) introduces viruses, worms, harmful code and/or Trojan horses on the Internet; or (ix) is otherwise objectionable to Merchant, in its sole discretion.
C. No Deceptive Advertising; FTC Advertising Compliance; International Compliance. Publisher shall not engage in any deceptive or misleading form of advertising or marketing, which includes, but is not limited to, phishing (the practice of sending an email to an individual, falsely claiming to be an established legitimate enterprise in an attempt to scam or defraud the user into surrendering private and personal information that can be used for identity theft, or for any other purpose), cybersquatting, typosquatting or combosquatting. Publisher shall operate in compliance with all applicable laws, regulations, decisions and industry best practices, including but not limited to Section 5 of the Federal Trade Commission Act and any current or future rules, regulations, orders, guides or other interpretation issued by the Federal Trade Commission (“FTC”) relevant to the Offer or Offer at hand, and (ii) the Direct Marketing Association’s Best Practices for Online Advertising and Publisher Marketing. If Publisher is distributing an Offer outside the United States, Publisher represents and warrants that (1) it is familiar with the particular laws, regulations and industry customs in those countries in which is distributing the Offer, (2) it has previous experience distributing offers in such countries, and (3) it will comply with all such laws, regulations and industry customs. To be clear, Publisher is responsible for understanding and complying with all advertising laws, regulations and customs in both the jurisdiction where the advertising takes place and the jurisdiction where Publisher is located.
D. Influencer Compliance. Publisher agrees to comply with the FTC’s Endorsement Guides currently located at https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking, with respect to any endorsements made as part of its services hereunder, including, without limitation, properly disclosing that Publisher receives consideration for reviewing, promoting and/or recommending a product or service or engaging in any type of influence marketing.
E. Traffic-Type Compliance. Publisher agrees to abide by and be bound by the Additional Provisions listed below regarding the specific traffic type(s) employed by Publisher in promoting any Offer.
F. Acknowledgement of Orders. Each party acknowledges that it has received, read, and agreed to comply with the "Stipulated Final Judgment and Order for Permanent Injunction" entered on November 29, 2012 (the "FTC Order") and the "Assurance of Voluntary Compliance" entered on November 16, 2012 (the "Florida Order"), warrants that there are no misrepresentations or material omissions in its advertisements, and understands and agrees that engaging in acts or practices prohibited by the FTC Order and the Florida Order will result in the immediate termination of this Agreement and forfeiture of all monies owed. Any party may read the FTC Order and the Florida Order by clicking here: http://www.affiliatenetwork.com/FTCorder.pdf. Each party agrees to provide the information included within this Section to each of its Merchants and/or affiliates and retain proof of the same.
G. Networks. Unless expressly authorized by Merchant in any IO, Publisher may not promote the Offer through its network of third-party affiliates (“Sub-Publishers”),. Publisher represents and warrants that, prior to participating in any Offer, all Sub-Publishers are required to (i) comply with all applicable laws and regulations, including Section 5 of the FTC Act, (ii) refrain from modifying or altering any Offer or any Creative, (iii) refrain from placing an Offer on a website or in any other context with inappropriate content, as defined above in the second paragraph of this Section entitled “General Publisher Obligations,” (iv) and refrain from placing an Offer on a website or in any other context with inappropriate content. Publisher agrees to communicate all Allowed Marketing Channels & Restrictions, as set forth above, to Sub-Publisher and obtain Sub-Publisher’s agreement to comply with the same.
Data Protection Addendum; International Compliance. Publisher has read and agrees to comply with the Data Protection Agreement, available at http://www.igniteopm.com/dpapublisher , which is incorporated herein by reference. Before approving any Sub-Publisher to promote an Offer through Perform[cb], Publisher shall present and secure the written agreement to the Data Protection Addendum from said Sub-Publisher. Publisher agrees that, where applicable, its marketing and data collection practices shall comply at all times with the United Kingdom Data Protection Act of 1998 (as amended), the General Data Protection Regulation (GDPR) (EU) 2016/679, as amended and adopted by the member states of the EU, and all related directives, acts, or regulations. Publisher represents and warrants that its consumer data collection practices are performed in a manner that obtains the necessary knowing and frequent consent from consumers and that all consumer data is stored using industry-standard or better security protocols. If Publisher is either located outside the United States or offering or distributing (or potentially distributing) an Offer outside the United States, Publisher represents and warrants that (1) Publisher is familiar with the particular laws, regulations and industry customs in those countries in which Publisher is located and/or distributing the Offer, (2) Publisher has previous experience distributing offers in such countries, and (3) Publisher will comply with all laws, regulations and industry customs applicable to the operation of its business, its marketing practices, and the collection and/or transfer of consumer data by Publisher in such countries. To be clear, Publisher is responsible for understanding and complying with all advertising laws, regulations and customs in both the jurisdiction where the advertising takes place and the jurisdiction where Publisher is located. Publisher’s obligations and liabilities under this Paragraph and the Data Protection Addendum shall extend to the conduct of all Sub-Publishers.
CONFIDENTIALITY. Any confidential information and/or proprietary data provided by one party ("Discloser") to the other party ("Recipient"), including the Ad descriptions and the pricing of the Ad, shall be deemed "Confidential Information" of the Discloser. Confidential Information shall not be released by the Recipient to anyone except an employee or agent that has a need to know same and that is bound by confidentiality obligations at least as strict as those contained herein, but in no event less than a reasonable confidentiality standard. Recipient shall not use any portion of Confidential Information provided by the Discloser for any purpose other than those provided for under the Agreement. Notwithstanding anything contained herein to the contrary, the term "Confidential Information" shall not include information that: (a) was previously known to the Recipient; (b) was or becomes generally available to the public through no fault of the Recipient; (c) was rightfully in Recipient‘s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by Discloser; or (d) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser. Notwithstanding the foregoing, either party may disclose, upon written notice to the other party, Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under the Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.
MUTUAL REPRESENTATIONS AND WARRANTIES. Each party represents and warrants to the other party that (i) such party has the full corporate or organizational right, power, and authority to enter into the Agreement and to perform the acts required of it, (ii) the execution of or electronic agreement to this Agreement by such party, and the performance by such party of its obligations and duties, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound, or any applicable federal, state or municipal law or regulation to which it is subject, (iii) each party shall render all services to the other party in a professional and commercially reasonable manner, in accordance with generally accepted industry standards; and (iv) each party owns or has the authority and valid license to use all intellectual property and content on its website(s).
Each party also represents and warrants that it is fully compliant with applicable privacy and information security laws. Each party shall provide clear and conspicuous notice for, and fully disclose, its respective privacy policy and practices to visitors to its website(s).
LIMITATION OF LIABILITY; NO ADDITIONAL WARRANTIES; INDEMNIFICATION. THE WEBSITES OF MERCHANT AND ADVERTISERS (INCLUDING ANY REPORTING SITE) AND THE OFFERS ARE PROVIDED "AS IS" AND "AS AVAILABLE." EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL MERCHANT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS OR REVENUES, OR HARM TO BUSINESS) EVEN IF IT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MERCHANT'S LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY, BE GREATER THAN THE TOTAL AMOUNT PAID WITHIN THE PRIOR SIX MONTHS BY MERCHANT TO PUBLISHER HEREUNDER.
INDEMNIFICATION. Each party agrees to indemnify, defend and hold harmless the other, its subsidiaries, advertisers, vendors and suppliers, and each of their respective agents, partners, officers, directors and employees from and against any third party loss, cost, claim, injury or damage (including reasonable attorneys' fees) arising out of or related to a breach of the indemnifying party's representations or warranties made in this Agreement or the indemnifying party’s breach of the terms and conditions of this Agreement. Publisher expressly agrees to indemnify all other Parties for claims arising out of or related to the conduct of any Sub-Publisher.
If any action is brought against the indemnified part in respect to any allegation for which indemnity may be sought from the indemnifying party hereunder, the indemnified party will promptly notify the indemnifying party of any such claim or which it becomes aware, except that failure to provide such notice shall not excuse the indemnifying party’s indemnification obligations under this Section unless such failure materially prejudices the indemnifying party. The indemnified party shall permit the indemnifying party to assume control over the defense of such claim; provided, however, that the indemnified party may participate in the defense at its own cost through independent counsel. The indemnifying party shall not acquiesce to any judgment or enter into any settlement that adversely affects the indemnified party’s rights or interest without the prior written consent of the indemnified party.
GENERAL.
A. Governing Law. The rights and obligations of the parties under or arising out of this Agreement shall be governed by and construed under the laws of the State of Colorado without reference to its conflict of laws principles. Advertiser and Publisher each: (a) subject to and without waiving the elective arbitration agreement below, hereby irrevocably submit to the exclusive jurisdiction in the state courts located in the City and County of Denver, Colorado, or in the United States District Court for the District of Colorado for the purposes of any suit, action or proceeding arising out of or relating to the Agreement; and (b) hereby waive, and agree not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction or that such proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper.
B. Arbitration. At the election of either party, any controversy or claim arising out of or relating to this Agreement shall be settled through binding arbitration in accordance with the Expedited Commercial Arbitration Rules of The American Arbitration Association. Any award rendered by the arbitrator(s) shall be entered as a judgment or order and may be confirmed or enforced by either party in any state or federal court having competent jurisdiction thereof. If either party brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and does not prevail, said party will pay all of the costs and expenses (including without limitation, court costs, arbitrators‘ fees and expenses and reasonable attorneys‘ fees) incurred by the other party in defending such action. The arbitrators will not be empowered to award punitive damages. The consent of the parties to arbitrate their disputes shall survive termination of this Agreement. If this Agreement is found to not be subject to arbitration, each party herein consents, agrees, and affirmatively waives any right to a jury trial in any proceeding.
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 Internet outage, act of God, fire, natural disaster, accident, terrorism, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.
Additional Provision by Traffic Type
Publisher agrees to comply with the following requirements related to the specific traffic type(s) employed by Publisher and/or any Sub-Publisher.
NO INCENTIVIZED TRAFFIC.
Any trafficking from websites that are point, lottery or rewards based and encourage users to click on Offers or use Offers to generate revenue for users to win points, get rewards, or other incentives are expressly prohibited, unless approved in writing.
Search Advertising.
If Publisher engages in any keyword search marketing hereunder, Publisher shall (1) comply with all rules, requirements and terms of the particular search engine being used, (2) not infringe upon any trademark or other intellectual property rights of any third parties, and (3) comply with all terms and requirements of the Advertiser with respect to search marketing. Publisher shall also comply with the following:
1. Publisher may not bid on any of Merchant or Advertiser terms, including any variations or misspellings thereof, for search or content based campaigns on Google, Bing, Yahoo or any other network.
2. Publisher may not use Merchant or Advertiser terms in sequence with any other keyword.
3. Publisher may not use Merchant or Advertiser terms in its ad title, ad copy, display name or as the display url.
4. Publisher may not direct link to Merchant or Advertiser website from any pay per Click ad or use redirects that yield the same result.
If Publisher automates its search campaigns, Publisher shall be responsible to exclude Merchant and Advertiser terms from its program. We have a strict no tolerance policy on search term bidding. We will not enter a discussion about when the violation started and when it stopped; you will forfeit all commissions for a minimum of the past 30 days and your commission will be set to 0% without warning.
Email.
Publisher represents and warrants that, with respect to email campaigns transmitted by Publisher for Merchant in connection with any Offer, Publisher shall at all times maintain strict compliance with 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 Federal Communications Commission’s (“FCC”) rules and orders regulating the transmission of commercial email to wireless devices, and all other applicable federal, state, local and international laws and regulations. In addition, without limiting the foregoing, Publisher agrees that it will comply with the following requirements. If Publisher uses a third party to transmit email on its behalf, then that third party and Publisher will be treated as one and the same for purposes of this Agreement.
A. Address List.
1) Publisher shall ensure that the addresses on its email address list (the “List”) are entirely “opt-in.” This means that the email recipient has consented to receiving advertisements of the type sent by Publisher via a clear and conspicuous affirmative “opt-in” process (and has not subsequently revoked such consent), subject to a posted, clear, conspicuous and accurate privacy policy that allows such use. If Publisher uses the list of a third party to distribute such emails, such third parties, or “List Owners,” will be considered one and the same as Publisher for purposes of this Agreement. If any consumer makes a spam or similar complaint with respect to any emails sent hereunder, Publisher shall immediately notify Advertiser of such compliant and shall provide documentary evidence of such consumer’s opt in information, including IP address, date, time and other relevant information.
2) Publisher shall not promote an Offer in emails sent to persons whose email addresses were gathered in any automated process, harvesting or screen scraping, or as the result of randomly generated combinations of characters.
3) Publisher agrees that, prior to transmitting any email to the List, it will scrub the List against its own do-not-email list and, if required by the terms of the Offers, the do-not-mail list of the Advertisers for such Offers (collectively, the “Suppression List”). Publisher will conduct such purges at the last possible, commercially reasonable moment but not more than twenty-four (24) hours before the List is sent an email promoting an Offer. Publisher will not transmit any email promoting an Offer to any address on the Suppression List. Publisher also agrees that it will download and remove the domains located on the FCC's wireless domain names list http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from all current data used in all mailings. Publisher further warrants that any new data that it acquires, regardless of its source, will be run against the FCC's wireless domain names list and that domain names contained therein will be removed before sending any mailings.
4) Publisher will not sell, remarket, disclose or use the Suppression List or the email address of any person who has opted out of receiving email promoting an Offer for any reason other than to comply with this Agreement and the law.
5) For each List (including, without limitation, lists provided by a List Owner), Publisher will promptly provide Advertiser, upon Advertiser’s request, a written explanation of: (a) the source of the email addresses and the method by which the email recipients opted into receiving email such as messages promoting an Offer; and (b) the opt-in and/or opt-out process such recipients had and have, and the attendant privacy policy, as well as what made such process and policy clear and conspicuous to the consumer.
B. Transmission. Publisher shall not promote an Offer in emails sent through open proxies, from email or Internet Protocol (“IP”) addresses registered through fraud or false pretenses, or through any means in violation of an Internet Service Provider’s (“ISP”) policies.
C. Content. Publisher shall be the “sender” of the email containing Offers as defined by the CAN-SPAM Act, its rules and official guidance, and shall comply with all requirements of a “sender” under the CAN-SPAM Act, its rules and official guidance, including but not limited to 16 CFR 316.2(m). Any email from Publisher (and any party delivering emails on its behalf) shall: (i) Have valid and traceable email header information identifying the Publisher as the sending party; (ii) Within the body of the email, include a valid physical street address of Publisher; (iii) Include a clear and conspicuous identification that such email message is an advertisement or solicitation when the email is sent to an address in which there is no prior business relationship; (iv) Include a "subject line" which accurately reflects the contents of the message and that is not misleading with respect to the contents or subject matter of the message; (v) Include a "friendly from line" which accurately identifies only the Publisher as the sending party; (vii) Use only email addresses containing the name of the Publisher as the sending party, and not use the non-sending party's name in any mail-from or reply-to email addresses (e.g. "from" lines need to accurately identify Publisher as the sender of the email); (viii) use reply-to address that are functioning email addresses where Publisher can be contacted; and (ix) not contain false or misleading header or transmission information. Publisher warrants and represents that any message content not supplied by Merchant will not infringe upon or violate any copyrights, trademarks or any rights of privacy or publicity or other proprietary rights of any third party and will not violate applicable laws or regulations or cause injury to, any third party.
D. Opt-Out Mechanism and Compliance. Publisher must include in each email message a clear and conspicuous explanation of how the recipient may opt-out of receiving future commercial emails from it, including a valid email address monitored by Publisher or a hyperlink that the recipient may use to do so. If Publisher uses a hyperlink, it must allow recipients to opt-out by clicking to a single web page and providing only the recipient’s email address. Publisher shall in no circumstances require any personally-identifiable information other than a recipient’s email address to effectuate the recipient’s request to opt-out. The email address or hyperlink must remain capable of receiving opt-out requests for at least thirty (30) days after the email is sent. Publisher must process opt-out requests within ten (10) days of receipt (or any other timeframe established in the future by the FTC). Publisher shall not send any commercial electronic email, including one promoting an Offer, to any recipient who has opted out 10 days or more before transmission of an email.
E. Collection & Privacy. The email addresses to be used in connection with any Merchant email campaign shall be: (i) collected and maintained in compliance with all federal and state laws, regulations and rules and applicable international laws and regulations; (ii) collected from websites and other online venues in compliance with the applicable websites' and or other online venues' privacy policies, and such privacy policies specifically allow for Publisher to use such email addresses as contemplated hereunder; and (iii) obtained and collected without employing email address harvesting, dictionary attacks and/or any other deceptive or illegal act and/or practice.
NO TEXT/SMS TRAFFIC.
All advertising via text message or SMS is expressly prohibited, unless approved in writing.
A. Requirements. For an Offer to be distributed on wireless devices, such as cell phones and tablets, Publisher agrees to: (i) comply with all rules, terms and policies of the wireless service provider and the maker(s) of the wireless device and operating system running on such device, (ii) not install any software, cookies or application to the device without the express affirmative consent of the User; and (iv) provide such data regarding any generated leads (“Leads”) as may be required by Merchant or its Advertiser from time to time, including UDID numbers and IP address associated with each Lead and time/date of the Lead generation.
B. TCPA Compliance. Publisher represents and warrants that, with respect to text campaigns transmitted by Publisher for Merchant in connection with any Offer, Publisher shall at all times maintain strict compliance with the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq. (“TCPA”), the Federal Communications Commission’s (“FCC”) rules and orders regulating the transmission of text or SMS messages to wireless devices, and all other applicable federal, state, local and international laws and regulations. In addition, without limiting the foregoing, Publisher agrees that it will comply with the following requirements. If Publisher uses a third party to transmit text messages on its behalf, then that third party and Publisher will be treated as one and the same for purposes of this Agreement.
C. Consent Records. In order to use phone or text message to market Offers, the Publisher must have the consent of each recipient and shall maintain records evidencing such consent (“Consent Records”) including: (i) the subscriber’s opt-in date/time; (ii) the subscription source; (iii) the subscriber’s first and last name; (iv) the subscriber’s mailing address (if collected); (v) the subscriber’s e-mail address used to sign-up/register for the Publisher’s list (if collected); (vi) the subscriber’s phone numbers; (vii) the posted privacy policy of the source website at the time subscriber’s data was collected (if collected); (viii) the subscriber’s IP address; and (ix) any other information collected. The Publisher will provide such Consent Records to Advertiser or Merchant party within one (1) business day of any request for the same.
D. Suppression Lists. To the extent that any Party provides a Suppression List for phone numbers to the other Publisher in connection with any campaign, the receiving Publisher and all Sub-Publishers shall regularly scrub their phone lists against such Suppression List no less than every three (3) days and shall not at any time send any text messages whatsoever to any individuals on such Suppression List. For every opt-out “reply” text messages received in relation to a Offer, Publisher and all Sub-Publishers shall (i) scrub their own lists and (ii) transmit the opt-out, including phone number and other available personal information, directly to the other Parties in a reasonable manner.
E. Do Not Call Registry. For purposes of this Agreement, the national Do Not Call registry shall be considered a Suppression List. No Publisher or its Sub-Publishers shall transmit, or cause to be transmitted, text messages or phone calls to any phone number on the Do Not Call registry.
F. Improper Use. No Party shall use any Suppression List in any manner other than for the purposes set forth herein. No Publisher shall obtain any ownership interest or rights in and to any Suppression List other than its own.
G. Prohibited Conduct. No text messages used to market any Offer shall be transmitted directly by any Publisher or its Sub-Publishers (or caused to be transmitted) using “blast texting” or any other automated system to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the receiving party is charged for the text. Further, no text messages or outbound phone calls used to market any Offer shall be transmitted or initiated outside of the hours established by federal time-of-day requirements—namely, between 8 a.m. and 9 p.m. local time of the recipient.
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): (1) the terms of an IO specific to the Parties; (2) these Terms and Conditions, (3) the IR Terms, and (4) the standard ShareASale terms and conditions agreed to by each Party upon registration with ShareASale.
ALLOWED MARKETING CHANNELS & RESTRICTIONS:
Allowed Distribution: Deal/Coupon*, Content/Blog, Display, Mobile, Newsletter
Prohibited Distribution: Search**, Toolbar, Network/ Rebrokering
Approval Only: Email, Incent, Video
* Only coupons provided through the ShareASale platform are valid for commission. Any promo code used that is not provided to your publisher account through this platform are subject to reversals.
**We do not allow the use of our Trademark terms, Trademark+ terms or display URL on search engines
Friend referral links/ 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 file(s) or other creative work made available by Merchant for use in promoting an Offer (“Creative”). Publisher shall not modify or alter any Offer or any Creative. Publisher will only run approved banners and text in its advertising of Offers and will not create its own banners or advertising text based on the Creative or Offer, unless expressly approved in writing from Merchant. Any other use of Offers or Creative will result in immediate termination of this Agreement and the loss of payment for Leads.
B. No Inappropriate Content. Publisher shall not place an Offer on a website or in any other context with inappropriate content, which includes, but is not limited to, content that (i) contains or promotes the use of alcohol, tobacco or illegal substances, pornography, phone sex or escort services, expletives or other inappropriate language; (ii) promotes gratuitous violence, abuses or threatens physical harm; (iii) promotes illegal or unethical activity, racism, hate, "spam," mail fraud, gambling, sweepstakes, pyramid schemes, investment and money-making opportunities or illegal advice; (iv) promotes the use of illegal activities, such as how to build a bomb, counterfeiting money and software pirating (e.g., Warez, Hotline); (v) is libelous, or defamatory, or false; (vi) is otherwise expressly prohibited by federal or state law; (vii) willfully infringes on the trademark, copyright, or intellectual property rights of a third party; (viii) introduces viruses, worms, harmful code and/or Trojan horses on the Internet; or (ix) is otherwise objectionable to Merchant, in its sole discretion.
C. No Deceptive Advertising; FTC Advertising Compliance; International Compliance. Publisher shall not engage in any deceptive or misleading form of advertising or marketing, which includes, but is not limited to, phishing (the practice of sending an email to an individual, falsely claiming to be an established legitimate enterprise in an attempt to scam or defraud the user into surrendering private and personal information that can be used for identity theft, or for any other purpose), cybersquatting, typosquatting or combosquatting. Publisher shall operate in compliance with all applicable laws, regulations, decisions and industry best practices, including but not limited to Section 5 of the Federal Trade Commission Act and any current or future rules, regulations, orders, guides or other interpretation issued by the Federal Trade Commission (“FTC”) relevant to the Offer or Offer at hand, and (ii) the Direct Marketing Association’s Best Practices for Online Advertising and Publisher Marketing. If Publisher is distributing an Offer outside the United States, Publisher represents and warrants that (1) it is familiar with the particular laws, regulations and industry customs in those countries in which is distributing the Offer, (2) it has previous experience distributing offers in such countries, and (3) it will comply with all such laws, regulations and industry customs. To be clear, Publisher is responsible for understanding and complying with all advertising laws, regulations and customs in both the jurisdiction where the advertising takes place and the jurisdiction where Publisher is located.
D. Influencer Compliance. Publisher agrees to comply with the FTC’s Endorsement Guides currently located at https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking, with respect to any endorsements made as part of its services hereunder, including, without limitation, properly disclosing that Publisher receives consideration for reviewing, promoting and/or recommending a product or service or engaging in any type of influence marketing.
E. Traffic-Type Compliance. Publisher agrees to abide by and be bound by the Additional Provisions listed below regarding the specific traffic type(s) employed by Publisher in promoting any Offer.
F. Acknowledgement of Orders. Each party acknowledges that it has received, read, and agreed to comply with the "Stipulated Final Judgment and Order for Permanent Injunction" entered on November 29, 2012 (the "FTC Order") and the "Assurance of Voluntary Compliance" entered on November 16, 2012 (the "Florida Order"), warrants that there are no misrepresentations or material omissions in its advertisements, and understands and agrees that engaging in acts or practices prohibited by the FTC Order and the Florida Order will result in the immediate termination of this Agreement and forfeiture of all monies owed. Any party may read the FTC Order and the Florida Order by clicking here: http://www.affiliatenetwork.com/FTCorder.pdf. Each party agrees to provide the information included within this Section to each of its Merchants and/or affiliates and retain proof of the same.
G. Networks. Unless expressly authorized by Merchant in any IO, Publisher may not promote the Offer through its network of third-party affiliates (“Sub-Publishers”),. Publisher represents and warrants that, prior to participating in any Offer, all Sub-Publishers are required to (i) comply with all applicable laws and regulations, including Section 5 of the FTC Act, (ii) refrain from modifying or altering any Offer or any Creative, (iii) refrain from placing an Offer on a website or in any other context with inappropriate content, as defined above in the second paragraph of this Section entitled “General Publisher Obligations,” (iv) and refrain from placing an Offer on a website or in any other context with inappropriate content. Publisher agrees to communicate all Allowed Marketing Channels & Restrictions, as set forth above, to Sub-Publisher and obtain Sub-Publisher’s agreement to comply with the same.
Data Protection Addendum; International Compliance. Publisher has read and agrees to comply with the Data Protection Agreement, available at http://www.igniteopm.com/dpapublisher , which is incorporated herein by reference. Before approving any Sub-Publisher to promote an Offer through Perform[cb], Publisher shall present and secure the written agreement to the Data Protection Addendum from said Sub-Publisher. Publisher agrees that, where applicable, its marketing and data collection practices shall comply at all times with the United Kingdom Data Protection Act of 1998 (as amended), the General Data Protection Regulation (GDPR) (EU) 2016/679, as amended and adopted by the member states of the EU, and all related directives, acts, or regulations. Publisher represents and warrants that its consumer data collection practices are performed in a manner that obtains the necessary knowing and frequent consent from consumers and that all consumer data is stored using industry-standard or better security protocols. If Publisher is either located outside the United States or offering or distributing (or potentially distributing) an Offer outside the United States, Publisher represents and warrants that (1) Publisher is familiar with the particular laws, regulations and industry customs in those countries in which Publisher is located and/or distributing the Offer, (2) Publisher has previous experience distributing offers in such countries, and (3) Publisher will comply with all laws, regulations and industry customs applicable to the operation of its business, its marketing practices, and the collection and/or transfer of consumer data by Publisher in such countries. To be clear, Publisher is responsible for understanding and complying with all advertising laws, regulations and customs in both the jurisdiction where the advertising takes place and the jurisdiction where Publisher is located. Publisher’s obligations and liabilities under this Paragraph and the Data Protection Addendum shall extend to the conduct of all Sub-Publishers.
CONFIDENTIALITY. Any confidential information and/or proprietary data provided by one party ("Discloser") to the other party ("Recipient"), including the Ad descriptions and the pricing of the Ad, shall be deemed "Confidential Information" of the Discloser. Confidential Information shall not be released by the Recipient to anyone except an employee or agent that has a need to know same and that is bound by confidentiality obligations at least as strict as those contained herein, but in no event less than a reasonable confidentiality standard. Recipient shall not use any portion of Confidential Information provided by the Discloser for any purpose other than those provided for under the Agreement. Notwithstanding anything contained herein to the contrary, the term "Confidential Information" shall not include information that: (a) was previously known to the Recipient; (b) was or becomes generally available to the public through no fault of the Recipient; (c) was rightfully in Recipient‘s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by Discloser; or (d) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser. Notwithstanding the foregoing, either party may disclose, upon written notice to the other party, Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under the Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.
MUTUAL REPRESENTATIONS AND WARRANTIES. Each party represents and warrants to the other party that (i) such party has the full corporate or organizational right, power, and authority to enter into the Agreement and to perform the acts required of it, (ii) the execution of or electronic agreement to this Agreement by such party, and the performance by such party of its obligations and duties, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound, or any applicable federal, state or municipal law or regulation to which it is subject, (iii) each party shall render all services to the other party in a professional and commercially reasonable manner, in accordance with generally accepted industry standards; and (iv) each party owns or has the authority and valid license to use all intellectual property and content on its website(s).
Each party also represents and warrants that it is fully compliant with applicable privacy and information security laws. Each party shall provide clear and conspicuous notice for, and fully disclose, its respective privacy policy and practices to visitors to its website(s).
LIMITATION OF LIABILITY; NO ADDITIONAL WARRANTIES; INDEMNIFICATION. THE WEBSITES OF MERCHANT AND ADVERTISERS (INCLUDING ANY REPORTING SITE) AND THE OFFERS ARE PROVIDED "AS IS" AND "AS AVAILABLE." EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL MERCHANT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS OR REVENUES, OR HARM TO BUSINESS) EVEN IF IT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MERCHANT'S LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY, BE GREATER THAN THE TOTAL AMOUNT PAID WITHIN THE PRIOR SIX MONTHS BY MERCHANT TO PUBLISHER HEREUNDER.
INDEMNIFICATION. Each party agrees to indemnify, defend and hold harmless the other, its subsidiaries, advertisers, vendors and suppliers, and each of their respective agents, partners, officers, directors and employees from and against any third party loss, cost, claim, injury or damage (including reasonable attorneys' fees) arising out of or related to a breach of the indemnifying party's representations or warranties made in this Agreement or the indemnifying party’s breach of the terms and conditions of this Agreement. Publisher expressly agrees to indemnify all other Parties for claims arising out of or related to the conduct of any Sub-Publisher.
If any action is brought against the indemnified part in respect to any allegation for which indemnity may be sought from the indemnifying party hereunder, the indemnified party will promptly notify the indemnifying party of any such claim or which it becomes aware, except that failure to provide such notice shall not excuse the indemnifying party’s indemnification obligations under this Section unless such failure materially prejudices the indemnifying party. The indemnified party shall permit the indemnifying party to assume control over the defense of such claim; provided, however, that the indemnified party may participate in the defense at its own cost through independent counsel. The indemnifying party shall not acquiesce to any judgment or enter into any settlement that adversely affects the indemnified party’s rights or interest without the prior written consent of the indemnified party.
GENERAL.
A. Governing Law. The rights and obligations of the parties under or arising out of this Agreement shall be governed by and construed under the laws of the State of Colorado without reference to its conflict of laws principles. Advertiser and Publisher each: (a) subject to and without waiving the elective arbitration agreement below, hereby irrevocably submit to the exclusive jurisdiction in the state courts located in the City and County of Denver, Colorado, or in the United States District Court for the District of Colorado for the purposes of any suit, action or proceeding arising out of or relating to the Agreement; and (b) hereby waive, and agree not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction or that such proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper.
B. Arbitration. At the election of either party, any controversy or claim arising out of or relating to this Agreement shall be settled through binding arbitration in accordance with the Expedited Commercial Arbitration Rules of The American Arbitration Association. Any award rendered by the arbitrator(s) shall be entered as a judgment or order and may be confirmed or enforced by either party in any state or federal court having competent jurisdiction thereof. If either party brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and does not prevail, said party will pay all of the costs and expenses (including without limitation, court costs, arbitrators‘ fees and expenses and reasonable attorneys‘ fees) incurred by the other party in defending such action. The arbitrators will not be empowered to award punitive damages. The consent of the parties to arbitrate their disputes shall survive termination of this Agreement. If this Agreement is found to not be subject to arbitration, each party herein consents, agrees, and affirmatively waives any right to a jury trial in any proceeding.
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 Internet outage, act of God, fire, natural disaster, accident, terrorism, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.
Additional Provision by Traffic Type
Publisher agrees to comply with the following requirements related to the specific traffic type(s) employed by Publisher and/or any Sub-Publisher.
NO INCENTIVIZED TRAFFIC.
Any trafficking from websites that are point, lottery or rewards based and encourage users to click on Offers or use Offers to generate revenue for users to win points, get rewards, or other incentives are expressly prohibited, unless approved in writing.
Search Advertising.
If Publisher engages in any keyword search marketing hereunder, Publisher shall (1) comply with all rules, requirements and terms of the particular search engine being used, (2) not infringe upon any trademark or other intellectual property rights of any third parties, and (3) comply with all terms and requirements of the Advertiser with respect to search marketing. Publisher shall also comply with the following:
1. Publisher may not bid on any of Merchant or Advertiser terms, including any variations or misspellings thereof, for search or content based campaigns on Google, Bing, Yahoo or any other network.
2. Publisher may not use Merchant or Advertiser terms in sequence with any other keyword.
3. Publisher may not use Merchant or Advertiser terms in its ad title, ad copy, display name or as the display url.
4. Publisher may not direct link to Merchant or Advertiser website from any pay per Click ad or use redirects that yield the same result.
If Publisher automates its search campaigns, Publisher shall be responsible to exclude Merchant and Advertiser terms from its program. We have a strict no tolerance policy on search term bidding. We will not enter a discussion about when the violation started and when it stopped; you will forfeit all commissions for a minimum of the past 30 days and your commission will be set to 0% without warning.
Email.
Publisher represents and warrants that, with respect to email campaigns transmitted by Publisher for Merchant in connection with any Offer, Publisher shall at all times maintain strict compliance with 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 Federal Communications Commission’s (“FCC”) rules and orders regulating the transmission of commercial email to wireless devices, and all other applicable federal, state, local and international laws and regulations. In addition, without limiting the foregoing, Publisher agrees that it will comply with the following requirements. If Publisher uses a third party to transmit email on its behalf, then that third party and Publisher will be treated as one and the same for purposes of this Agreement.
A. Address List.
1) Publisher shall ensure that the addresses on its email address list (the “List”) are entirely “opt-in.” This means that the email recipient has consented to receiving advertisements of the type sent by Publisher via a clear and conspicuous affirmative “opt-in” process (and has not subsequently revoked such consent), subject to a posted, clear, conspicuous and accurate privacy policy that allows such use. If Publisher uses the list of a third party to distribute such emails, such third parties, or “List Owners,” will be considered one and the same as Publisher for purposes of this Agreement. If any consumer makes a spam or similar complaint with respect to any emails sent hereunder, Publisher shall immediately notify Advertiser of such compliant and shall provide documentary evidence of such consumer’s opt in information, including IP address, date, time and other relevant information.
2) Publisher shall not promote an Offer in emails sent to persons whose email addresses were gathered in any automated process, harvesting or screen scraping, or as the result of randomly generated combinations of characters.
3) Publisher agrees that, prior to transmitting any email to the List, it will scrub the List against its own do-not-email list and, if required by the terms of the Offers, the do-not-mail list of the Advertisers for such Offers (collectively, the “Suppression List”). Publisher will conduct such purges at the last possible, commercially reasonable moment but not more than twenty-four (24) hours before the List is sent an email promoting an Offer. Publisher will not transmit any email promoting an Offer to any address on the Suppression List. Publisher also agrees that it will download and remove the domains located on the FCC's wireless domain names list http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from all current data used in all mailings. Publisher further warrants that any new data that it acquires, regardless of its source, will be run against the FCC's wireless domain names list and that domain names contained therein will be removed before sending any mailings.
4) Publisher will not sell, remarket, disclose or use the Suppression List or the email address of any person who has opted out of receiving email promoting an Offer for any reason other than to comply with this Agreement and the law.
5) For each List (including, without limitation, lists provided by a List Owner), Publisher will promptly provide Advertiser, upon Advertiser’s request, a written explanation of: (a) the source of the email addresses and the method by which the email recipients opted into receiving email such as messages promoting an Offer; and (b) the opt-in and/or opt-out process such recipients had and have, and the attendant privacy policy, as well as what made such process and policy clear and conspicuous to the consumer.
B. Transmission. Publisher shall not promote an Offer in emails sent through open proxies, from email or Internet Protocol (“IP”) addresses registered through fraud or false pretenses, or through any means in violation of an Internet Service Provider’s (“ISP”) policies.
C. Content. Publisher shall be the “sender” of the email containing Offers as defined by the CAN-SPAM Act, its rules and official guidance, and shall comply with all requirements of a “sender” under the CAN-SPAM Act, its rules and official guidance, including but not limited to 16 CFR 316.2(m). Any email from Publisher (and any party delivering emails on its behalf) shall: (i) Have valid and traceable email header information identifying the Publisher as the sending party; (ii) Within the body of the email, include a valid physical street address of Publisher; (iii) Include a clear and conspicuous identification that such email message is an advertisement or solicitation when the email is sent to an address in which there is no prior business relationship; (iv) Include a "subject line" which accurately reflects the contents of the message and that is not misleading with respect to the contents or subject matter of the message; (v) Include a "friendly from line" which accurately identifies only the Publisher as the sending party; (vii) Use only email addresses containing the name of the Publisher as the sending party, and not use the non-sending party's name in any mail-from or reply-to email addresses (e.g. "from" lines need to accurately identify Publisher as the sender of the email); (viii) use reply-to address that are functioning email addresses where Publisher can be contacted; and (ix) not contain false or misleading header or transmission information. Publisher warrants and represents that any message content not supplied by Merchant will not infringe upon or violate any copyrights, trademarks or any rights of privacy or publicity or other proprietary rights of any third party and will not violate applicable laws or regulations or cause injury to, any third party.
D. Opt-Out Mechanism and Compliance. Publisher must include in each email message a clear and conspicuous explanation of how the recipient may opt-out of receiving future commercial emails from it, including a valid email address monitored by Publisher or a hyperlink that the recipient may use to do so. If Publisher uses a hyperlink, it must allow recipients to opt-out by clicking to a single web page and providing only the recipient’s email address. Publisher shall in no circumstances require any personally-identifiable information other than a recipient’s email address to effectuate the recipient’s request to opt-out. The email address or hyperlink must remain capable of receiving opt-out requests for at least thirty (30) days after the email is sent. Publisher must process opt-out requests within ten (10) days of receipt (or any other timeframe established in the future by the FTC). Publisher shall not send any commercial electronic email, including one promoting an Offer, to any recipient who has opted out 10 days or more before transmission of an email.
E. Collection & Privacy. The email addresses to be used in connection with any Merchant email campaign shall be: (i) collected and maintained in compliance with all federal and state laws, regulations and rules and applicable international laws and regulations; (ii) collected from websites and other online venues in compliance with the applicable websites' and or other online venues' privacy policies, and such privacy policies specifically allow for Publisher to use such email addresses as contemplated hereunder; and (iii) obtained and collected without employing email address harvesting, dictionary attacks and/or any other deceptive or illegal act and/or practice.
NO TEXT/SMS TRAFFIC.
All advertising via text message or SMS is expressly prohibited, unless approved in writing.
A. Requirements. For an Offer to be distributed on wireless devices, such as cell phones and tablets, Publisher agrees to: (i) comply with all rules, terms and policies of the wireless service provider and the maker(s) of the wireless device and operating system running on such device, (ii) not install any software, cookies or application to the device without the express affirmative consent of the User; and (iv) provide such data regarding any generated leads (“Leads”) as may be required by Merchant or its Advertiser from time to time, including UDID numbers and IP address associated with each Lead and time/date of the Lead generation.
B. TCPA Compliance. Publisher represents and warrants that, with respect to text campaigns transmitted by Publisher for Merchant in connection with any Offer, Publisher shall at all times maintain strict compliance with the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq. (“TCPA”), the Federal Communications Commission’s (“FCC”) rules and orders regulating the transmission of text or SMS messages to wireless devices, and all other applicable federal, state, local and international laws and regulations. In addition, without limiting the foregoing, Publisher agrees that it will comply with the following requirements. If Publisher uses a third party to transmit text messages on its behalf, then that third party and Publisher will be treated as one and the same for purposes of this Agreement.
C. Consent Records. In order to use phone or text message to market Offers, the Publisher must have the consent of each recipient and shall maintain records evidencing such consent (“Consent Records”) including: (i) the subscriber’s opt-in date/time; (ii) the subscription source; (iii) the subscriber’s first and last name; (iv) the subscriber’s mailing address (if collected); (v) the subscriber’s e-mail address used to sign-up/register for the Publisher’s list (if collected); (vi) the subscriber’s phone numbers; (vii) the posted privacy policy of the source website at the time subscriber’s data was collected (if collected); (viii) the subscriber’s IP address; and (ix) any other information collected. The Publisher will provide such Consent Records to Advertiser or Merchant party within one (1) business day of any request for the same.
D. Suppression Lists. To the extent that any Party provides a Suppression List for phone numbers to the other Publisher in connection with any campaign, the receiving Publisher and all Sub-Publishers shall regularly scrub their phone lists against such Suppression List no less than every three (3) days and shall not at any time send any text messages whatsoever to any individuals on such Suppression List. For every opt-out “reply” text messages received in relation to a Offer, Publisher and all Sub-Publishers shall (i) scrub their own lists and (ii) transmit the opt-out, including phone number and other available personal information, directly to the other Parties in a reasonable manner.
E. Do Not Call Registry. For purposes of this Agreement, the national Do Not Call registry shall be considered a Suppression List. No Publisher or its Sub-Publishers shall transmit, or cause to be transmitted, text messages or phone calls to any phone number on the Do Not Call registry.
F. Improper Use. No Party shall use any Suppression List in any manner other than for the purposes set forth herein. No Publisher shall obtain any ownership interest or rights in and to any Suppression List other than its own.
G. Prohibited Conduct. No text messages used to market any Offer shall be transmitted directly by any Publisher or its Sub-Publishers (or caused to be transmitted) using “blast texting” or any other automated system to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the receiving party is charged for the text. Further, no text messages or outbound phone calls used to market any Offer shall be transmitted or initiated outside of the hours established by federal time-of-day requirements—namely, between 8 a.m. and 9 p.m. local time of the recipient.