Advatiz Terms and Conditions for Publishers
Last Updated: July 8, 2015
The following terms and conditions, together with any and all Codes of Conduct referenced herein, constitute the binding legal agreement (this "Agreement", "Terms and Conditions" or "T's and C's") between Advatiz Media Group, LLC, a Nevada limited liability company ("Company"), and you ("You" or "Publisher"), the user of the Company's website, advatiz.com
(the "Site") and the Advatiz advertising network (the "Service"). This Agreement governs Publisher's relationship with Company and the use of the Site. Publisher agrees to use the Site and any additional services offered by Company only in accordance with these Terms and Conditions. The Company reserves the right to make changes to the Site and these T's and C's at any time. Publisher's continued use of the Site after any such modification and notification thereof (which may be provided by e-mail to the email address provided in the course of Publisher's registration with Company) shall constitute Publisher's consent to such modification. All advertising restrictions and requirements applicable to Publisher as set forth in this Agreement apply equally to affiliates or publishers of Publisher ("Sub-Affiliates"). If You do not agree to the terms and conditions contained within this Agreement in their entirety, You are not authorized to register as a publisher or use the Site and/or Service in any manner or form whatsoever. In the event that Company and Publisher execute an insertion order ("IO") or other amendment or exhibit to this Agreement, the terms of the IO or such other amendments or exhibits shall supersede and amend any inconsistent provisions contained herein or in the Descriptions as defined below.
1. Approval of Publisher
Completion of the Affiliate Signup form on the Site shall not confer any right on Publisher to market or promote any advertising programs made available by Company on the Site ("Program(s)") on its own or on behalf of its advertisers (the "Advertisers"). (In cases in which there is no third-party Advertiser, references below to Advertiser shall refer to Company.) Nor shall it confer any right on Publisher to sell leads to Company's lead buyers (Advertisers and lead buyers are jointly referred to herein as the "Clients"). Official approval communicated via email to a prospective publisher is required before a prospective publisher can become a Publisher. In addition, all Publishers will be required to fully and honestly answer the questions in the Affiliate Sign Up form. Failure to fully and honestly answer all required fields on the Affiliate Sign Up form will render the Publisher ineligible to join or remain in the network. The Company reserves the right to withhold or refuse approval for any reason whatsoever. Publisher shall promptly notify Company in the event of a material change in its business practices or strategy. The Company can withdraw approval of a Publisher at any time for any reason.
Minimum Eligibility Requirements:
In order to become and remain a Publisher, all websites, affiliated websites, search listings, social network placements, banner ads, e-mail distribution lists and other online advertising vehicles utilized to deliver Events (as defined below) on behalf of Company (collectively or individually "Media") must meet the following criteria, at a minimum: (a) Be content-based, not simply a list of links or advertisements; (b) Be written in English and contain only English language content; (c) Have a top-level domain name, where applicable; (d) All Publishers that wish to send advertisements via email must have the consent of the consumer to send such email and each Publisher shall maintain records evidencing such consent including, without limitation, applicable IP addresses, source URL's and time/date stamps (the "Opt-in Information") and will supply such records to Company within one business day of request therefor; (e) Unless otherwise approved in writing by Company for each offer that Publisher wants to incentivize, Publishers may not offer direct or indirect incentives for any Company offer to users as means to enhance the performance of any Program; Direct Incentives include but are not limited to awarding cash, points, prizes, contest entries, etc., and Indirect Incentives include, but are not limited to, text links, link outs, banners, iframed content or other Media that is displayed to users as part of a survey or sweepstakes entry even if the completion of the offer, or the click on the ad, is completely optional and has no bearing on a user receiving a gift or entry into a sweepstakes; Even where a Program allows for incentivization, Publishers must get written approval for each incentivizable Program they wish to incentivize prior to downloading and running any incentivizable Program; (f) Publisher websites must be fully functional at all levels (e.g., no "under construction" sites or sections); (g) Be directed at U.S. residents only; and (h) Spawning process pop-ups are prohibited.
Publisher Website Content:
The content of Publisher's Media must comply with all applicable laws and regulations (including all laws respecting personal and intellectual property) and, in any event, shall not include the following: (a) Racial, ethnic, political, hate-mongering or otherwise objectionable content; (b) Investment, money-making opportunities or advice not permitted under law; (c) Gratuitous violence or profanity; (d) Material that defames, abuses, or threatens physical harm to others; (e) Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.; (f) Software Pirating; (g) Hacking or Phreaking; (h) Obscenity and any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic; (i) Any reference to liquor, alcohol, tobacco, pornography, lotteries, firearms or ammunition; and (j) Any illegal activity whatsoever.
2. Use of the Site.
The Site allows Publishers to download creatives and tracking URLs for specific offers within Company's and its clients' Program(s). Each Program will include the following parameters, where applicable: Description (the "Description"); Payout; Vertical; Landing Page (link to landing page); Allowed Media Types (e.g., All, Email only, Search only); In the Restrictions box; From Lines (approved from lines) and Subject Lines (approved subject lines) (collectively the "Program Terms"). Compensation is derived from completion of a specified event ("Event") identified in each Description, such as the submission of a lead form or a partial lead form or a sales transaction (collectively or individually an "Action"), or other Event such as a click, click-through, registration and impression. The Program Terms shall supersede any inconsistent terms in these T's and C's. The Description will specify, among other things, the Event as well as any additional terms affecting how Publisher is required to run the specific Program or whether Publisher will receive payment. Where applicable, an Action shall further be defined in the Description. If Publisher accepts a Program, Publisher agrees to place that Program's advertising creative(s) (the "Ad"), including, where applicable, the email subject and from lines, lead generation opt-in copy, the Advertiser Can-Spam disclosures and any other disclosures or disclaimers provided therein, on Publisher's Media in accordance with the Program Terms. Publisher shall display the Ad exactly as it appears and is provided in creative section for that Program on the Site and will not alter it in any way without written approval from Company, including without limitation, modifying creatives, running text links without prior written Company approval, modifying text email copy, popping Company's landing page for a Program without prior written Company approval, or altering email subject or from lines without prior written Company approval. Failure to adhere to this requirement may, in addition to all other remedies available to Company, result in termination of Publisher and forfeiture of compensation to Publisher. Unless otherwise specified in the Program Terms, the Company may change a Program at any time upon written notice to Publisher. The Company is responsible for displaying and administering all active Programs and tracking the payments owed.
The Company may monitor, on its own or with the assistance of third parties, the Publishers for compliance with these Terms and Conditions. Without limiting the generality of the foregoing:
(a) All email Publishers will be monitored for compliance with applicable legal requirements, including with respect to honoring unsubscribe requests. If a third party performs the monitoring, such third party will share all such information with Company. Notwithstanding the above, Publishers are solely responsible, and may not rely upon Company or any third party monitoring service retained by Company for compliance with these T's and C's or applicable legal requirements, including but not limited to the honoring of unsubscribe requests and compliance with Email Legislation (as defined below).
(b) Each unsubscribe list furnished to an email Publisher shall be separately, technologically identified so that Company will be able to ensure that each Publisher is not disseminating or otherwise using the unsubscribe list other than in a manner required by applicable law.
The Company grants Publisher a revocable, non-transferable, non-sublicensable, non-exclusive limited license to use the Site (including any Creative posted thereon) and any data, reports, information or analyses arising out of such use (the "Site Data") solely for the purpose of marketing or promoting the Programs hereunder and subject to these T's and C's and the applicable Program Terms. If a Publisher fails to adhere to the foregoing requirement, in addition to any other remedies available to Company, Publisher shall forfeit its rights to any and all amounts owed by Company to Publisher. Publisher acknowledges and agrees that Publisher does not have, nor will it claim any right, title or interest in the Site software, applications, data, methods of doing business or any elements thereof, or any content provided on the Site (including the Ads). Publisher may only access the Site via web browser, e-mail or in a manner approved by Company. Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service. In addition, Publisher acknowledges that all non-public information, data and reports received from Company hereunder or as part of the services hereunder is proprietary to and owned by Company. If instructed to do so by Company and/or if Publisher is terminated by Company, Publisher will immediately destroy and discontinue the use of any Company data, including Site Data, and any other material owned by Company or the Advertisers.
5. Fraudulent or Unapproved Marketing.
If fraudulent or unapproved marketing is suspected, Company may suspend the Publisher (or, if Publisher also maintains its own network of Sub-Affiliates, the suspected Sub-Affiliate(s')) account and block all traffic from Publisher or any Sub-Affiliate suspected of fraudulent or unapproved marketing pending further investigation. Fraudulent or unapproved marketing by Publisher shall include, without limitation: (1) Events that are generated by a computer or not an individual user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual or real live person; (2) Actions created by using pre-populated fields to automatically complete all or substantially all of an application form; (3) Events where an individual receives any type of direct or indirect incentives; (4) Actions resulting from any form of advertisement not directly approved in writing by Company; (5) Actions produced through email marketing that is not compliant with the Can-Spam Act of 2003, 15 U.S.C. § 7704 et seq. (including all amendments) or California Business & Professions Code § 17529.5; (6) Actions generated where Publisher or Sub-Affiliate was popping Company's landing page without prior written Company approval; (7) Actions generated from text links on survey reg paths that link to Company's landing page without prior written Company approval; (8) Actions generated where Publisher or Sub-Affiliate iframes Company's landing page without prior written Company approval; (9) Actions generated through any outside pay-per-click or pay-per-impression campaign that includes the use of any third party trademark or trade name as a search term/result or which could otherwise reasonably be alleged to infringe upon the intellectual property rights of any third party; (10) Events generated by advertising to non-U.S. residents; and (11) Actions resulting directly or indirectly from the use of automated or prerecorded calling, dialing or faxing systems (also known as "robocalling"), text messaging (including without limitation SMS and MMS messaging), or any other form of telemarketing conducted without prior written Company approval. In determining whether fraudulent or unapproved marketing has occurred, lead to action ratios that are materially above average for the type of advertising (e.g., email, banners, pops or search) shall be considered relevant. In the event of fraudulent or unapproved marketing, Company need not return actual leads for all actions that Company does not pay Publisher for. Failure by Publisher or its Sub-Affiliate to cooperate to the extent reasonably requested by Company in an investigation into suspected fraudulent or unapproved marketing will be considered determinative that fraudulent or unapproved marketing has occurred. In the event of fraudulent or unapproved marketing Company may withhold payment of Publisher's commissions for all events from the specific program with fraudulent or unapproved marketing. In addition, in the event that Publisher has already received payment for events occurring through fraudulent or unapproved marketing, Company reserves the right to seek a credit or remedy from future earnings or to demand reimbursement from Publisher.
Publisher will be paid as described in the terms of a particular Program. If there are no payment terms described for a particular Program, Company shall pay any amounts due approximately 30 days after the end of each month. In addition to any other remedies that may be available to Company, in the event of any breaches by Publisher of these T's and C's, Publisher shall forfeit its rights to any amounts owed by Company to Publisher. The Company reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by Advertisers for invalid or duplicate Events, technical errors, tracking discrepancies and the like. Advertiser may return leads with fraudulent information (for example, "Mickey Mouse") or wrong numbers, disconnected numbers, rings to fax. The Company shall compile, calculate and electronically deliver data required to determine Publisher's billing and compensation. Any questions regarding the data provided by Company must be submitted in writing within 10 business days of receipt, otherwise the information will be deemed accurate and accepted as such by Publisher. Any claim of underpayment must be raised within 30 days of the date on the check or is waived. All amounts will be paid in U.S. dollars. No payments will be issued for any amounts less than $50 US Dollars (the "Payment Threshold"). Publisher may request to have payments in excess of $3,000 wired, in which case written wire instructions must be received by Company in advance of any applicable payment date. All such amounts below the Payment Threshold shall be aggregated and paid when the Payment Threshold has been met. The Company will not pay for any Events that occur before a Program is initiated or after a Program terminates. Invoices submitted to Company and payments made to Publisher shall be based on the Events as reported by Company. The Company will not be responsible to compensate Publisher for Events that are not recorded due to Publisher's error. The Company may require a Publisher to provide a W-9 and similar such information as a condition to payment.
7. Special Terms for Co-Registration Campaigns
With respect to Publishers who are running co-registration campaigns to generate leads ("Leads") for Advertisers, the following specific terms and conditions shall apply.
Approval of Publisher's Site(s):
No Program may go live until such time as Company, and where applicable, the Advertiser, have approved, in writing: (a) all websites or other placements to be used by the Publisher for each Program, (b) the creative form used by Publisher to gather Lead data, and (c) the transfer of Leads in the form of either a successful post for real-time transfer or approval of the test file for batch or FTP files.
Each Program shall have its own criteria for determining the validity of a Lead (the "Lead Requirements"), which shall be detailed in the section entitled "Special Terms" included in the on-site offer summary and Company-provided program specifications. The Company shall only pay for Leads deemed valid by this system. At the sole discretion of the Company, Leads may also subsequently be deemed invalid ("Invalid Leads") as a result of: (a) fraudulent or unapproved marketing and/or (b) non-compliance with co-registration programs including but not limited to exceeding Lead caps as communicated by a Company representative and/or going live with a co-registration offer prior to written approval of a creative and data transfer by an Company representative. The Company's proprietary Lead processing system is responsible for detecting and tracking all Invalid Leads.
Use of Leads:
Publisher hereby acknowledges that the collection of the Leads is being done solely for the benefit of the Company or its Advertisers. Therefore, other than providing the Leads to the Company for delivery to the Advertisers, Publisher may not use, sell, transfer or assign or attempt to monetize the Leads for its own purposes. All right, title and interest in the Leads shall vest exclusively in the Company or its Advertisers.
No Alteration of Approved Co-Registration Forms:
Publisher may not, in any way, alter or modify the co-registration forms without the prior written consent of the Company.
In the event of a breach of the Agreement or suspected fraudulent or unapproved marketing, the Company reserves the right, in its sole and absolute discretion, to terminate a Program and remove any advertisements at any time, upon written notice to Publisher. Termination notice will be provided via e-mail and will be effective immediately, meaning, among other things, that Publisher must immediately cease all advertising activities. In all other cases, the Company shall provide the Publisher seventy-two (72) business hours written notice of termination. All moneys then due to Publisher, subject to the terms provide herein, will be paid during the next billing cycle. The representations, warranties and obligations contained in sections 9, 11, 12, 13, 14 and 16 shall remain in full force and effect after termination of this Agreement. In addition, all payment obligations accruing prior to the termination date shall survive until fully performed.
9. Representations and Warranties/Covenants
Each party represents and warrants that: (a) it has the right to enter into and fully perform the services contemplated herein, consistent with these T's and C's; (b) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with these T's and C's; and (c) at all times while any Program remains in effect, it shall comply with all applicable laws and regulations. Neither party makes any guarantees, representations nor warranties, express or implied, as to the level of consumer response that will result from the Programs.
Publisher represents and warrants the following: (a) Publisher's Media and marketing practices are currently in compliance with all applicable laws including without limitation the Can-Spam Act, 15 U.S.C. § 7704 et seq. (including all amendments), effective January 1, 2004 and any other federal or state legislation, regulation or other authority governing the distribution of email (collectively "Email Legislation"); (b) Publisher's Media neither contains nor promotes, nor links to any other website that contains or promotes libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content, products, services or activities; (c) Publisher's database consists of only permission based opted-in e-mail addresses; (d) Publisher owns or has the legal right to use and distribute all content, copyrighted material, products and services displayed on Publisher's Media; (e) If Publisher has Sub-Affiliates or otherwise provides Events that have been obtained or derived through Media provided by third parties, such Sub-Affiliates or third parties will abide by all applicable state and federal laws, including but not limited to Email Legislation; and (f) Publisher is legally authorized to utilize any Media employed in connection with this Agreement.
Publisher covenants that it shall not: (a) send unsolicited commercial e-mail (spam) (i.e., it will send commercial emails in connection with any Programs to only those email addresses that have consented to receive such e-mails in accordance with applicable law); (b) post any specific messages to newsgroups, chat rooms, bulletin boards, social media or any other places regarding any Programs unless expressly approved in writing from the Company; (c) promote via website or link to websites containing any pornographic, racial, ethnic, political, software pirating or hacking, hate-mongering, or otherwise objectionable or illegal content, or any other content referenced in section 1 above; (d) use the Site or conduct marketing in any manner other than that which is specifically contemplated herein; (e) engage in any kind of deceitful, misleading or other unfair trade practices, or fraudulent or other unlawful practice when marketing any Programs; (f) conduct any advertising or marketing pursuant to this Agreement to consumers residing outside of the United States; and/or (g) while an approved Publisher and for 180 days thereafter, participate in any advertising relationship with any Client unless a previously existing business relationship between Client and Publisher can be demonstrated to the reasonable satisfaction of the Company. In this connection, both parties agree and acknowledge that if Publisher violates its obligations hereunder, in addition to all other remedies available to Company, Publisher will forfeit any outstanding commissions owed to it and Company will it be entitled to liquidated damages in the amount of fifty percent (50%) of the gross revenues resulting from transactions between Publisher and Client. Publisher agrees and acknowledges that these liquidated damages are a fair and accurate estimate of Company's actual damages resulting from a breach of this provision and shall not be construed as penalty or punitive damages against Publisher. Publisher further covenants that it shall: (a) Conduct its advertising campaigns in accordance with the highest industry standards; (b) Comply with (and is currently in compliance with) the Advatiz Email Publisher Code of Conduct and the Advatiz Adware Code of Conduct, which are appended to this Agreement and incorporated herein by reference; (c) Comply with (and is currently in compliance with all requirements imposed by the Federal Trade Commission, Federal Communications Commission and the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. and (d) Provide within one (1) business day after request therefor, Opt-in Information, together with such other related information that Company may request. Failure to provide such information may result in termination or suspension of the Publisher and/or the deactivation of all links in any Programs downloaded by Publisher. Publisher acknowledges that breaches of any of the foregoing representations and covenants may, in the sole discretion of the Company, result in the immediate suspension or termination of Company's relationship with Publisher and Publisher shall forfeit all rights to any compensation theretofore owed to it by Company. The foregoing rights shall be in addition to any other remedies available to Company. Publisher acknowledges and agrees that Company shall not be responsible for any Advertisers' violation of any applicable laws or regulations, including, without limitation, Email Legislation.
11. Confidentiality and Non-Disclosure
(a) Customer Information:
All information submitted to Publisher by an end-user customer pursuant to a Program is proprietary information of the Company, its affiliates, and/or the Advertisers. Such customer information is confidential and may not be disclosed by Publisher. Publisher agrees not to reproduce, disseminate, sell, distribute or commercially exploit any such proprietary information in any manner. Publisher shall maintain such data in a secure manner, consistent with industry standards. All information provided to Publisher hereunder shall be kept strictly confidential.
(b) Mutual Confidentiality:
During the term of this Agreement, and until such time as the Confidential Information (as defined below) is no longer protected as a trade secret under applicable law, neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. Confidential Information means information that: (1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use, and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Subject to the foregoing, Confidential Information shall include, without limitation, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, the advertisement before publication, and may include the terms of the IO. Confidential Information does not include information that: (i) has been independently developed by the receiving party without access to the other party's Confidential Information; (ii) has become publicly known through no breach of this section by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority. At the request of the disclosing party, the receiving party shall return all of the disclosing party's Confidential Information to the disclosing party. Neither Party shall make a public announcement regarding the existence, terms or content of this Agreement or any IO without the other Party's prior written approval.
12. Consent to Release of Information by Company
Publisher agrees that, in response to any warrant, subpoena, request for production of documents, or other legal process or request for information, documents, or testimony addressed to Company in any legal proceeding in any forum whatsoever, Company may release information pertaining to Publisher, any Sub-Affiliates, the Media, this Agreement and/or any applicable IO. Company may also release Confidential Information to the extent reasonably necessary to enforce this Agreement.
13. Limitation of Liability; Disclaimer of Warranty
Except as provided in section 14 of these T's and C's, in no event shall Company or any Publisher be liable to the other for any lost profits or any special, incidental, consequential, exemplary, punitive or other indirect damages of any nature, for any reason, whether based on breach of contract, tort (including negligence), or otherwise and whether or not either has been advised of the possibility of such damages. The information, content and services on the site are provided on an "as is" basis. Publisher uses the site and runs the programs at its own risk. Other than as expressly set forth in these T's and C's, the Company disclaims all representations and warranties of any kind, express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose and warranty of non-infringement. The Company makes no representations and warranties whatsoever, and disclaims any responsibility and liability, regarding the content or nature of any Ad or Program made available on the Site, or any product or service advertised in connection therewith.
Publisher will defend, indemnify, and hold harmless the Company and its Advertisers, affiliates, directors, members, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney's fees and expenses) (collectively "Claims" or individually a "Claim") (a) arising in whole or in part from any breach of any of these Terms and Conditions or any Program Terms, including but not limited to violations of applicable law, IO or Descriptions by Publisher (including any disputed Claim that would constitute a breach or violation if meritorious), or (b) alleging violation of a non-U.S. law or regulation where Company reasonably believes the Claim to have arisen in whole or in part from an act or omission by Publisher. Publisher further agrees that its obligations under this section 14 shall apply with equal force and effect to any act or omission by a Sub-Affiliate or third party retained, hired, or otherwise compensated by Publisher. The Company reserves the right, at its own or at Publisher's expense to be determined at Company's sole discretion, to assume the exclusive defense and control of any Claim. Alternatively, the Company may, at its sole discretion, tender the matter to Publisher's or Publisher's insurer's counsel, if any, for defense of any Claim. Publisher hereby acknowledges that Advertisers are intended third party beneficiaries of the foregoing indemnification obligation.
15. Force Majeure
Neither party shall be deemed in default of these T's and C's 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; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.
These T's and C's together with the Program Terms for each of the Programs and any applicable IO constitute the entire agreement between the parties and supersede all prior agreements or understandings between the parties. The parties agree and acknowledge that neither party has made any representation regarding the subject matter of these T's and C's other than as set forth in this Agreement. In the event a party is required to digitally sign or agree to additional terms when using the other's website, or tracking platform, the parties agree that such digital agreement is inconsequential and not binding as it is the result of a technical requirement which cannot be altered to view stats or access content. Therefore, such terms are to be disregarded, and shall be superseded by this Agreement.
Any pre-litigation dispute regarding these T's and C's, the terms of the Programs and the relationship contemplated thereby, shall be settled under the laws of the State of Nevada. Each party, to the extent permitted by applicable law, hereby irrevocably and unconditionally (i) submits to the general jurisdiction of the federal and state courts located in Las Vegas, Nevada, (ii) agrees that any action or proceeding concerning this Agreement will be brought exclusively in such courts in Las Vegas, Nevada, and adjudicated pursuant to the substantive and procedural law of the state of Nevada, without giving effect to principles of conflicts of law, and (iii) waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding in any such court was brought in an inconvenient court and agrees not to claim or plead the same.
No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.
This Agreement is considered to have been drafted by both parties hereto such that the rule that ambiguities are construed against the drafter is not to be applied as against any party.
Neither party may assign or transfer any of its rights, interests or obligations (whether directly, by operation of law or otherwise) hereunder without the prior written consent of the other party; provided, however, that the Company may assign or transfer its rights, interests and obligations hereunder to any affiliate, in connection with any reincorporation or in connection with any other transaction as a result of which the holders of voting capital stock or membership interests of the Company hold less than a majority of the voting capital stock or membership interests of assignee. Any purported assignment or transfer in violation of this section shall be null and void. Subject to the foregoing, the rights and obligations of the parties hereto shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.
In the event that any provision of this Agreement is found invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be deemed to apply to the maximum extent permitted by law, and the remainder of this Agreement shall remain valid and enforceable according to its terms.
The parties agree that the Publisher is acting as an independent contractor in performing the Services and that the relationship between the Company and Publisher shall not constitute a partnership, joint venture or agency. Neither Company nor any of Company's employees or agents (collectively referred to herein as the "Employees") (i) is an employee, agent or legal representative of Publisher, or (ii) shall have any authority to represent Publisher or to enter into any contracts or assume any liabilities on behalf of Publisher. The Company retains all the rights and privileges of sole employer of its Employees, including, without limitation, the right to control, hire, discipline, compensate and terminate such Employees. Neither the Company nor any of its Employees shall have any right to receive any employee benefits as are in effect generally for Publisher employees. The only parties to this Agreement are Company and Publisher. There are and shall be no third-party beneficiaries to this Agreement, and no person or entity other than Company and Publisher shall be permitted to enforce this Agreement or any applicable IO. Sub-Affiliates shall neither be considered parties nor third-party beneficiaries to this Agreement or any applicable IO.
Any notice, communication or statement relating to these T's and C's shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission or e-mail; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to (a) Publisher at the contact information provided in the affiliate signup form online, and (b) Advatiz, LLC at 2831 St. Rose Parkway, Suite 200, Henderson, Nevada 89052, fax no.: (702) 608-0790
, email [email protected]
). Receipt by Advatiz Media Group, LLC of email notices must be confirmed in order to be deemed effective.
Advatiz Email Publisher Code of Conduct
Use of Commercial Email:
Publishers shall be required to adhere to the following requirements if they (including any Sub-Affiliate) intends to distribute promotional materials via commercial email (an "Email Campaign"):
Publisher's database shall consist of only permission based opted-in e-mail addresses, meaning that each consumer within the database has consented to receive commercial e-mails. In order to evidence such consent, Publisher shall maintain source URL, IP addresses and time/date stamps for all email addresses to whom Publisher is disseminating commercial email.
Compliance with Laws and Policies:
Publisher shall (and shall cause its Sub-Affiliates to) comply with all applicable laws, including Email Legislation. Without limiting the generality of the foregoing, Publisher shall:
Direct Consent and Preexisting or Current Business Relationship:
- Refrain from falsifying e-mail header information (including, without limitation, source, destination and routing information);
- Refrain from having e-mail subject lines that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.
- Refrain from including links to website or "landing page" other than those of Company.
- Refrain from seeking or obtaining unauthorized access to computers for the purposes of sending commercial e-mail;
- Include within any e-mail sent: a valid street address, a clear and conspicuous identification that any e-mail message is an advertisement or solicitation, and a clear and conspicuous and functioning opt-out notice;
- Comply with all legal obligations with respect to opting out or unsubscribing consumers from Publisher's e-mail mailing lists, as well as Advertiser's e-mail list, if applicable;
- Abide by any and all publicly posted "acceptable use policy", "commercial e-mail policy" or similar requirements of internet service or e-mail service providers;
- Not use any subject or from line that has not been provided by or approved in writing, by the Company;
- Not initiate communications, including but not limited to telephone calls, to any consumer cellular phone number;
- To the extent that Company provides an opt-out or unsubscribe list (the "Suppression List") to Publisher in connection with any Program, Publisher shall regularly scrub its database against the Suppression List and shall not at any time send any commercial e-mails to any individuals on the Suppression List;
- Not use the Suppression List in any manner other than for the purpose contemplated by clause 10, above, and Publisher shall not obtain any ownership interest or rights in and to any Suppression List; and
- Not employ any third party trademark or trade name as a search term/result in any outside pay-per-click or pay-per-impression campaign or conduct such campaigns in any manner which could reasonably be alleged to infringe upon the intellectual property rights of any third party.
Publisher shall ensure that California-based recipients of e-mails must have either: (a) given "direct consent" to receive e-mails from Company, meaning that the recipient has expressly consented to receive e-mails from Company either in response to a clear and conspicuous request for the consent (i.e., the consent request must be made in easily understandable language, and be presented in a type, size, color, and location for a consumer to easily view it) or at the recipient's own initiative; or (b) the recipient of the e-mail must have a "preexisting or current business relationship" with Company, meaning that the recipient has made an inquiry and has provided his or her e-mail address to Company, or has made an application, purchase, or transaction, with or without consideration, regarding products or services offered by Company.
Suppression List Confidentiality:
Publisher shall be obligated to maintain the confidentiality of any provided Suppression List and may not disseminate such list to any third parties. Upon the conclusion of any Email Campaign, Publisher shall destroy such Suppression List (and any copies thereof). If requested, Publisher shall provide a notarized affidavit confirming that the Suppression Lists have been destroyed and have not been shared with any third parties.
Publisher shall alert Company in the event that any litigation or investigation ensues concerning Publisher's or any Sub-Affiliate's e-mail practices (irrespective of whether such litigation relates to Publisher's relationship with Company).
Advatiz Adware Code of Conduct
"Adware" - any software application downloaded to a consumer's computer that includes and ad-serving mechanism.
"Bundle" - combining a software application with another software application for the purpose of distribution.
"EULA" - End user license agreement.
"Host Application" - A primary software application desired by a consumer that bundles a third-party software application.
"Malware" - any software application downloaded to a consumer's computer that is harmful to a consumer.
"Personally Identifiable Information" or "PII" - any information that can be used to identify an individual, including name, physical address, email address, telephone, number, social security number, tax identification number, passport number, driver's license number, birth certificate number, other government-issued identification number, credit card number, account number, access code or password.
"Spyware" - any software application downloaded to a user's computer that (a) collects information from a consumer without prior disclosure and consent from the consumer, and (b) exploits that information for profit.
Distribution of Software:
Information Collection and Use:
- If Publisher (including any Sub-Affiliate) distributes the software in a bundle with other applications, the Publisher must adhere to the following rules:
- The software may not be bundled with Spyware or Malware applications.
- The consumer must consent to the download/installation of the software, and agree to the EULA, before installation.
- All third-party bundling distributors should be contractually obligated to provide the appropriate disclosures and obtain the appropriate consents prior to distribution of the software.
- The software may not be distributed using an Active X (or similar) install.
- The software should not match a consumer's online activity (including web pages viewed or accessed, consumer-selected content or keywords or search terms entered) with any PII about the consumer unless the consumer has affirmatively and knowingly opted-in to such activities.
- The EULA must fully advise the consumer of how the advertising is going to be served (the physical manifestation) and the methodology by which advertising to be displayed is going to be selected (i.e., behavioral targeting, geographic targeting, etc.).
- Consumers should be given a clear disclosure that the software includes an ad generating functionality in advance of downloading the software.
- To the extent the software offers consumers the ability to opt-out of any advertising, those opt-out requests should be honored.
- All advertisements must be clearly branded by the company or software that serves the advertisements.
- The software should be fully removable using the Add/Remove Programs feature in Windows.
- The software should have its own uninstaller.
- The uninstaller should remove all software files and setting, thereby entirely disabling the uninstalled software.
- The software may not force the consumer to visit a website or provide feedback before uninstalling the software.
- The software should not require Internet access to uninstall the software.
- The software should not request PII from a consumer as a prerequisite to uninstalling the software.
- The software should not reinstall itself, or any portion thereof, after is has been uninstalled (unless the reinstallation is intended to protect the consumer and the consumer is provided with notice of the reinstallation and information about how to properly uninstall the software).
Other Prohibited Activities:
- If an automatic update feature is used, the software should verify the integrity and publisher of any automatic updates using Verisign's secure certificate service (or similar service) and Microsoft's authenticode technology (or similar technology).
- If an automatic update feature is used, updates should not change the core functionality of the software without providing additional disclosure to consumers and obtaining their consent to such new functionality.
- If the software will change a consumer's browser start page or other search results page, that function should be disclosed in the EULA.
- The software should not make use of a consumer's computer as a relay for activity such as spamming, messenger spam distribution, DDoS attacks, and accessing, using or controlling the computer unless the consumer has affirmatively and knowingly opted-in to such activities.
- The software should not disconnect or alter a consumer's Internet connection.
- The software should not, without the consent of the consumer, modify the consumer's list of bookmarks used to access web pages.
- The software should not monitor keystrokes, emails, instant messages, open programs or documents unless the consumer has affirmatively and knowingly opted-in to such activities.
- The software may not cause damage to, or remove, any component of the consumer's operating system or winsock files.
- The software should not use intentionally deceptive means to remove or disable any security, anti-spyware or anti-virus software.