The following are the terms and conditions governing your (hereinafter "Publisher") relationship with Push Interactive, LLC (hereinafter "Company") and the use of the Company website (hereinafter "Site"). Publisher agrees to use the Site and any additional services offered by Company only in accordance with these Terms and Conditions. Company reserves the right to make changes to the Site and these Terms and Conditions 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.
1.1. Minimum Eligibility Requirements
All Publisher's websites, affiliated websites and e-mail distribution lists (collectively the "Media") must continually meet the following criteria, at a minimum:
1.2. Publisher Website Content.
The content of Publisher's Media shall be subject to Company's subjective approval and must comply with all applicable laws and regulations (including all laws respecting intellectual property rights) and, in any event, shall not include the following: (a) Pornographic material, including any material appealing to the prurient interests; (b)Racial, ethnic, political, hate-mongering or otherwise objectionable content; (c) Investment, money-making opportunities or advice not permitted under law; (d) Gratuitous violence or profanity; (e) Material that defames, misrepresents, abuses, or threatens physical harm to others; (f) Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.; (g) Software Pirating; (h) Hacking or Phreaking; (i) Obscenity and any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic;(j)infringement or violations of the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party; (k)Any illegal activity whatsoever;
The Site allows Company to post offers of advertising programs sponsored by Company or its affiliates on the system ("Program(s)"). The Programs will specify the amount and terms under which Publisher will receive payment when the applicable Program's requirements are fulfilled. Compensation is derived from a specified event ("Event") identified in a Program, such as clicks, click-through, sales, registrations, impressions and leads. If Publisher accepts a Program, Publisher agrees to place that Program's advertising creative (including the subject and from lines, the Advertiser CAN-SPAM disclosures and any other disclosures provided therein) ("Ad") on Publisher's Media. Publisher shall display the Ad exactly as it appears on the Site and will not alter it in any way. Failure to adhere to this requirement may, in addition to all other remedies available to Company, result in termination of Publisher. Company may change a Program at any time, upon reasonable advance written notice to Publisher. Company is responsible for displaying and administering all active Programs and tracking the payments owed.
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:
3.1. All Publishers monitored by Company (or a third party retained by Company for such purposes) for compliance with applicable legal requirements, with respect to honoring unsubscribe requests. If the monitoring is done by a third party, such third party will share all such information with Company.
3.2 Each unsubscribe list furnished to a Publisher shall be separately and 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. Publisher must not send further emails to names already on or newly added to the unsubscribe list. Publisher must scrub against unsubscribe list at least every three (3) days.
Company grants Publisher a revocable, non-transferable, non-sublicensable, non-exclusive limited license to use the Site (including any Ads 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 Terms and Conditions and the applicable Program Terms. If a Publisher also maintains its own network of publishers, it is authorized to distribute company's offers to sub-publishers provided that Publisher shall ensure and require that all sub-publishers comply with the material terms of this Agreement and further provided that such sub-publisher has represented to Publisher that: (i) the content of its site(s) are not libelous, defamatory, infringing, pornographic, or offensive to the general public, (ii) all right, title and interest in the Offer is exclusively owned by Company and that sub-publisher has no right other than the limited right to display the Offer and Creative as sublicensed by Publisher, and (iii) such sub-publisher will not modify or alter the Offer or Creative in any manner. If a Publisher or sub-publisher fails to adhere to the foregoing requirement, in addition to any other remedies available to Company, Publisher shall forfeit its rights to any 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 shall be 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.
Publisher agrees to use the Links in the exact form delivered to Publisher. Publisher agrees not to modify, alter, delete, or adapt the Links in any manner without Company's written approval. Links must be served from Company server. Publisher shall not take any actions to impede the action of or to disable any such links. Publisher agrees, if request by Company, to modify or alter Links or Tracking devices in the manner requested by Company. Publisher further agrees that it shall in no event modify or interfere with Tracking devices unless specifically instructed to do so by Company in accordance with the previous sentence.
Company owns all rights, title, and interest to Links and user data collected and derived through the activities countenanced pursuant to this Agreement. Company may choose to imbed certain data mining tools within Links from time to time ("Data Miners"). Any data derived by any such Data Miner shall be the sole property of Company. Company may, from time to time, opt to share data derived from Data Miners with Publisher to help Publisher optimize the quality of leads generated from Publisher's activities or to otherwise improve the quality, functionality and mutual profitability of the activities of the parties under this Agreement. If Company does share data derived from Data Miners with Publisher, Publisher agrees that this data will be used solely by Publisher for the purposes for which it is provided to Publisher and will not be shared by Publisher with any other third party or entity without the written approval of Company. Should Company choose to provide advertising creative content, web design services or other web content of any type ("Web Content") to Publisher, Publisher shall use such Web Content: (i) in exactly the form that it is delivered to the Publisher by Company without modification unless approved by us in writing; (ii) only in the manner expressly permitted by Company in writing and only until Company shall request that Publisher discontinue its use of such advertising creative, at which time Publisher shall discontinue such use within two (2) business days of being requested by Company to do so.
4.3. Confidential Information
Each party agrees to use the other party's Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party's Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing party. For the purposes of this Agreement "Confidential Information" includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, Advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services. Notwithstanding the foregoing, Publisher agrees that Company may divulge its personal and/or otherwise Confidential Information to an Advertiser, agency, legal or regulatory authority, person or entity relating to investigations, claims or actions that Publisher has violated this Agreement or any applicable law or regulation.
Publisher agrees that neither Publisher nor any sub-publishers will approach or attempt to engage in a contract with any of Company's clients (each such client, individually a "Client" and all such clients, collectively "Clients") directly or indirectly via a Client's Ad agency, broker or any other person or entity. Company will promptly reply in writing to any inquiries received from Publisher regarding the status of any person or entity as a Company Client so as to aid Publisher in its efforts to comply with the non-solicitation provisions of this Agreement. Because Company will be irreparably harmed by Publisher's conduct, and because the true extent of such harm will be impossible to quantify, monetary damages will not be an adequate remedy for any such conduct. Publisher agrees that Company shall be entitled to injunctive relief precluding Publisher from taking or continuing any action or conduct in violation of this provision, to be issued by any court of competent jurisdiction upon a showing of any such violative conduct by Publisher.
6.1. Monitor and Inactivation
Company actively monitors traffic for fraud. If fraud is detected, Publisher's account will be made inactive pending further investigation. Fraud traffic includes but is not limited to, click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of Company; ONLY click or lead generation programs generating clicks or leads with no indication by site traffic that it can sustain the clicks or leads reported; fraudulent leads as determined and reported by Advertisers; used any incentives to procure clicks or leads; provided leads obtained other than through intended consumer action without prior written approval of Company. [For instance, use of phone books, or similar such compilations of personal data, to complete lead generation forms shall be considered fraudulent behavior.]; use of fake redirects, automated software, and/or other fraudulent mechanisms to generate Events from the Programs.
If Publisher fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre- population of forms or mechanisms not approved by Company or use of sites in co-registration campaigns that have not been approved by Advertiser), as determined solely by Company, Publisher will forfeit its entire commission for all programs and its account will be terminated. In addition, in the event that Publisher has already received payment for fraudulent activities, Company reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Publisher.
6.2. Adware and Spyware prohibited
Publisher shall at no time, engage in, disseminate, promote or otherwise distribute, any Company Publisher marketing campaign through the use of contextual media, specifically downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable). This prohibition applies equally to Publisher and any of its business Publishers, publishers, etc. In the event that Company discovers that Publisher is engaging in, disseminating, promoting or otherwise distributing, any Company Publisher-related contextual marketing campaign which results in a violation of the Agreement, then Company may, in its sole discretion, terminate this Agreement and immediately halt any and all Company Publisher-related contextual marketing campaigns, making payment only on legitimate earnings of Publisher as accrued through the date and time of termination. Publisher agrees and acknowledges that if it violates its obligations under this Addendum and/or the Agreement, Company shall be entitled to seek: (i) injunctive relief without the requirement of posting a bond; and/or (ii) any and all other remedies that Company may have at law or in equity.
Publisher will be paid per the terms of each Program. Company shall pay any amounts due approximately thirty (30) days after the end of each month, less any taxes required to be withheld under applicable law, provided that Company may, in its discretion, withhold payments until such time as the Advertiser has paid Company for any Program. In addition to any other remedies that may be available to Company, in the event of any breaches by Publisher of these Terms and Conditions, Publisher shall forfeit its rights to any amounts owed by Company to Publisher. Company reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by Advertisers for invalid Events, technical errors, tracking discrepancies and the like. Company shall compile, calculate and electronically deliver data required to determine Publisher's billing and compensation. Any questions or disputes regarding the data or payout provided by Company needs to be submitted in writing within five (5) business days of receipt, otherwise the information will be deemed accurate and accepted as such by Publisher. 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. Company will not be responsible to compensate Publisher for Events that are not recorded due to Publisher's error. Company will require a Publisher to provide a W-9, and similar such information, as a condition to payment.
With respect to Publishers who are running co-registration campaigns to generate leads ("Leads") for Advertisers, the following specific terms and conditions shall apply:
8.1. Approval of Publisher's Site(s)
No Program may go live until such time as Company, and if necessary the applicable Advertiser, have approved, in writing, (a) all sites to be used by the Publisher for each Program and (b) 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.
8.3. Scrubbing Leads
Each Program shall have its own criteria for determining the validity of a lead (the "Lead Requirements"). Company may detect and track all Invalid Leads, which are determined on a real-time basis. Company shall only pay for leads deemed valid by this system. At the sole discretion of Company, leads may also subsequently be deemed invalid for (i) fraudulent activities including but not limited to changing approved lead generation forms, publishing an offer on an unapproved site, utilizing automated software or manpower to complete co-registration forms, incentivization of co-registration forms and/or a publisher's inability to provide the user IP and time/date stamp for each lead or (ii) non-compliance with co-registration programs including but not limited to exceeding lead caps as communicated by a Company Manager and/or going live with a co-registration offer prior to written approval of a creative and data transfer by an Company Manager.
8.4. Use of Leads
Publisher hereby acknowledges that the collection of the Leads is being done solely for the benefit of Company or its Advertiser. Therefore, other than providing the Leads to 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 Company or its Advertisers.
8.5 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 Company.
Either party may terminate this Agreement on three (3) business days' advance notice to the other party. In the event either party in good faith believes that the other party is in violation of applicable law or in breach of any terms of this Agreement, such party shall have right to terminate the Agreement immediately upon written notice to the other party. Company further reserves the right to terminate this Agreement and Publisher's participation in the services hereunder without prior 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. All moneys then due to Publisher will be paid during the next billing cycle. The representations, warranties and obligations contained in paragraphs, 10, 13, and 14 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.
10.1. Mutual Representations
Each party represents and warrants that: (a) it has the right to enter into and fully perform the services contemplated herein, consistent with these Terms and Conditions; (b) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with these Terms and Conditions; and (c) at all times while any Program remains in effect, it shall comply with all applicable laws and regulations. Neither party makes any guarantee, representations or warranties, express or implied, as to the level of consumer response that will result from the Programs.
10.2. Publisher Representations
Publisher represents and warrants as follows:
10.3. Publisher Covenants
Publisher covenants that it shall not:
Publisher covenants that it shall:
Publisher acknowledges that breaches of any of the foregoing representations and covenants may, in the sole discretion of 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 the Advertisers' violation of any applicable laws or regulations, including, without limitation, the CAN-SPAM Act.
All information submitted to Publisher by an end-user customer pursuant to a Program is proprietary information of Company, its affiliates, publishers 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.
Unless otherwise provided in this agreement, 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.
DUE TO THE NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY, COMPANY CANNOT GUARANTEE THAT THERE WILL BE NO DOWNTIME OR OTHER INTERRUPTIONS IN SERVICE REGARDING THE LINKS OR OUR SERVICES. WITHOUT LIMITING THE ABOVE, THE LINKS, OUR CLIENT SITES AND ANY OTHER MATERIALS PROVIDED TO PUBLISHER ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY OF ANY KIND, AND COMPANY MAKE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NONINFRINGEMENT, and: (A) MERCHANTABILITY, CLIENTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS THEREIN, (C) THAT A PARTY'S SECURITY METHODS EMPLOYED WILL BE SUFFICIENT IN ALL CIRCUMSTANCES OR IN THE FACE OF ALL ATTACKS, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY OF ANY INFORMATION SET FORTH THEREIN OR THEREON, OR (E) AGAINST INTERFERENCE WITH ENJOYMENT OF A PARTY'S "INFORMATION" (WEB SITE). ALL ‘INFORMATION' AND ‘COMPUTER PROGRAMS' PROVIDED IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK, AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER. SOME STATES LIMIT THE ABILITY TO DISCLAIM ALL WARRANTIES, SO THIS CLAUSE OR SOME PORTIONS OF IT MAY NOT APPLY TO YOU.
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. Company has no liability to Publisher for unapproved materials, including all copy, images, URL names, and search terms used by Publisher to promote the client partner. Company makes no representations whatsoever about any other website which Publisher may access through the service. When Publisher accesses a website that is not associated with and independent from Company, Publisher acknowledges that Company has no control over the content of that website. Furthermore, a link to a non- Company website does not mean that Company endorses or accepts any responsibility for the content or the use of such website. It is Publisher's sole responsibility to take precautions to ensure that websites, downloads, attachments, and other such files are free of such items as Trojan horses, worms, viruses, and other items of a destructive nature.
Publisher will defend, indemnify, and hold harmless Company, the Advertisers, and their affiliates, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney's fees and expenses) (collectively "Claims") arising from any breach of any of these Terms and Conditions or any Program Terms. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder. Publisher hereby acknowledges that the Advertisers are intended third party beneficiaries of the foregoing indemnification obligation.
14.2. Notification of Legal Action.
Publisher will immediately notify Company of any current, impending, or potential legal action against it by a third party for matters relating to email, email complaints, email deployment, and violations of CAN-SPAM.
Neither party shall be deemed in default of these Terms and Conditions 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.
16.1 Entire Agreement
These Terms and Conditions, together with the terms for each of the Programs constitute the entire agreement between the parties and supersede all prior agreements or understandings between the parties.
16.2 Controlling Law
These Terms and Conditions, the terms of the Programs and the relationship contemplated thereby, shall be governed by the laws of the United States and the State of Michigan, without giving effect to principles of conflicts of law. 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 Troy, Michigan; (ii) agrees that any action or proceeding concerning this agreement will be brought exclusively in such courts; 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.
Publisher may not assign any of its rights hereunder without the prior written consent of Company, which may be withheld for any reason.
In the event that any provision of these Terms and Conditions is found invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be deemed to apply only to the maximum extent permitted by law, and the remainder of these Terms and Conditions shall remain valid and enforceable according to its terms.
The parties agree that Company 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. 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 Company nor any of its Employees shall have any right to receive any employee benefits as are in effect generally for Publisher employees.
16.7 No Publicity
Publisher may not make any mention of Company or any Company client in any publicity materials advertising or otherwise presenting information on your company and your services, including without limitation listing Company or any of its clients in your customer lists, without the written consent of Company, whose consent may be withheld for any reason or for no reason.
Any notice, communication or statement relating to these Terms and Conditions shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission or verified 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 address provided in the registration, and (b) Company at ___________________.