Ads Direct Media Affiliate Agreement

Ads Direct Media Inc.
Affiliate Terms of Use Agreement

LAST UPDATED: June 9, 2011

This AFFILIATE TERMS OF USE AGREEMENT ("Agreement") is a legal agreement between Ads Direct Media, Inc. ("Company" or "we") and the person or entity ("Affiliate" or "You") that has submitted an application to participate as an affiliate in Company's online advertising network ("Network," as further defined below).You and Company may also be individually referred to herein as a "Party" and collectively as "Parties". This Agreement governs Your participation in the Network and provides the terms and conditions under which You may earn payment for promoting offers for goods or services made available by third party advertisers (each, an "Advertiser") participating in the Network.

This Agreement constitutes the entire and only agreement between us and You, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Network (which include, without limitation, the website through which you access the Network and any services offered by the Company in connection with the Network now or in the future), the content and computer programs provided by or through the Network, and the subject matter of this Agreement. Company may change or updated this Agreement at any time and from time to time without specific notice to You. The current version of this Agreement will be posted on the Company's web site at http://www.adsdirect.com/terms and the administrative web site made available to you by the Company to access the Network ("Admin Site"), and you should review this Agreement prior to each use of the Network. Your continued use of the Network after any such modification and notification thereof shall constitute Your consent to such modification.  You agree to use the Network only in accordance with this Agreement.

1. Network Description; Use of the Network.

Through the Admin Site, Company will make creative advertising images and data ("Programs") of Advertisers available to you for placement on or distribution through Your media properties ("Media"), such as by posting on your web sites(s) or distributing to your email distribution lists.  Each Program will include specific terms governing your use of the Program ("Program Terms").  You must place or distribute the Program through your Media in accordance with the Program Terms.  The Program Terms will specify the amount and terms under which You may receive payment ("Bounty") for placing or distributing the Program when the requirements set forth in the Program Terms are fulfilled. Bounties are generated from a specified event ("Event") as specified in the Program Terms, such as clicks, click-troughs, sales, registrations, impressions and/or leads. Company and/or its Advertisers may change the Program Terms for any Program at any time upon notice to You, at which time You must promptly make any changes in your presentation or distribution of the Program to accommodate any such changes to the Program Terms, or immediately cease using the Program. 

Company will track all active Programs and compile, calculate and electronically deliver data required to determine the compensation that may be owed to you as a Bounty under this Agreement. Upon delivery of any such report to you, you must submit any questions or disputes regarding Company's data and calculations to Company in writing, including a detailed explanation for any such dispute, within 7 Days otherwise, Company's figures and calculations shall be deemed accurate and accepted as such by You.

2. Application to Participate.

Participation in the Network is subject to our prior approval.  We reserve the right to refuse acceptance of your application, in our sole discretion, with or without cause.  If we accept your application and later determine that acceptance was granted in error for any reason at our discretion, we may immediately terminate this Agreement upon notice to you. 

You have an ongoing responsibility to update any information provided to us in your application, including Your list of Media that may be used to place or distribute Programs, to ensure that our files remain current.  You acknowledge and agree we may communicate with you regarding your participation in the Network and any other aspect of the Network via email, telephone, mail, or any other means.  We may, from time-to-time, send necessary communications relating to the Publishers Program and this Agreement to the email address then-currently associated with your Account. You will be deemed to have successfully received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your account is no longer current.

 

Upon our approval of Your application, you will receive an account and password ("Account") to access the Admin Site. Upon termination of this Agreement for any reason, we will disable your Account.  You are solely responsible for all activities that occur under Your Account.  You are solely responsible for maintaining the security of your password.  You may not disclose Your password to any third party for any reason (other than third parties authorized by you to use your Account in accordance with this Agreement).  If your password is compromised you must immediately notify us.  We will not be liable for any loss or damage arising from your failure to comply with the requirements of this paragraph. 

3.  Affiliate Responsibilities.

A.         You are solely responsible for all aspects of Your Media, including but not limited to the development, operation, and maintenance of Your Media and all content that appears on or within Your Media.  You must conduct all marketing and other activities related to this Agreement in compliance with all applicable laws, regulations, and guidelines, including but not limited to the Federal Trade Commission Act ("FTC Act"), the CAN-SPAM Act, Federal Trade Commission ("FTC") regulations and guidelines implementing the FTC Act and the CAN-SPAM Act, FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, and other federal and state laws, regulations, and guidelines.  If any such laws, regulations, or guidelines are amended or modified, in whole or in part, then You shall comply fully with all applicable requirements thereof, on and after the effective date of any such amendment or modification.

B.         Without limiting the foregoing, Your Media must meet the following requirements:

(i)             Not include content that is deceptive, misleading, untruthful, unsubstantiated, or otherwise fails to comply with applicable federal and state consumer protection laws, regulations, and guidelines including, without limitation, Section 5 of the FTC Act.  

(ii)            Not include claims about the efficacy or generally expected results of using any product or service unless You can substantiate the claim with competent and reliable scientific evidence in the form of tests, analyses, research, studies or other such evidence.

(iii)           Where the Media includes a message that consumers are likely to believe reflects the unbiased opinions, beliefs, findings, or experiences of You or any other person or party ("Endorser"), other than the Advertiser, (including but not limited to consumer testimonials or celebrity or expert endorsements, blogs, and other statements), the message:

a.           must reflect the honest opinions, findings, beliefs and/or experience of the Endorser, and may not convey an express or implied representation that would be deceptive if made directly by the Advertiser.

b.           may not be presented out of context or reworded so as to distort in a material way the Endorser's opinion or experience with the Advertiser's product, service, or brand.

c.           if the message represents that the Endorser uses the Advertiser's product, service, or brand, the Endorser must have been a bona fide user of it at the time the message was distributed and the message may remain posted only as long as You have good reason to believe the Endorser continues to subscribe to the views presented.

d.           may not claim that the experience is representative of what consumers will generally achieve.

e.           must include in the Advertisement a disclosure that the Endorser has been paid for his/her message or otherwise disclose the material connection between the Endorser and the Affiliate or Advertiser, as appropriate. 

(iv)          Not infringe on the personal rights, trademark, service mark, trade dress, trade name, logo, publicity right, copyright, patent rights, or any other intellectual property right of any third party;

(v)           Not be labeled as an "official site" or similar designation or include any other designation indicating that the Media is an "official" advertisement of the Advertiser.

(vi)          Not constitute any advertising via facsimile or telemarketing (including without limitation by use or pre-recorded or artificial voice messages);

(vii)         Not constitute any advertising to wireless devices or portable electronic devices by text messaging in any form (including without limitation SMS, Smart Messaging, EMS, and MMS);

(viii)        Not use any methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of a consumer;  

(ix)          Be content-based, not simply a list of links or advertisements, nor can the site be marketed towards earning money from Company's Advertisers.

(x)           Have a top-level domain name.

(xi)          Not offer incentives to users to click on ads or to sign-up for advertiser offers; incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.

(xii)         Be fully functional at all levels; no 'under construction' sites or sections.

(xiii)        Not include racial, ethnic, political, hate-mongering or otherwise objectionable content.

(xiv)        Not include investment advice, money-making opportunities or other advice not permitted under law.

(xv)         Not include gratuitous violence or profanity. Not include material that defames, abuses, or threatens physical harm to others.

(xvi)        Not  include or promote any illegal activity including, without limitation, the promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc. 

(xvii)       Not constitute Software Pirating (e.g., Warez, Hotline), Hacking or Phreaking.

(xviii)      Not spoof, redirect, or traffic from adult-related websites in an effort to gain traffic.

 

C.  Consistent with the CAN-SPAM Act, Affiliate must ensure that all email transmitted by Affiliate to promote an Advertiser's product, service, or brand must include identification of the message as an advertisement or solicitation, a physical postal address for the "sender" of the message (as that term is defined in the CAN-SPAM Act, 15 U.S.C. § 7701 et seq.), and a functioning electronic mechanism by which the recipient of the message can request not to receive future commercial messages from the "sender." Without limiting any of the foregoing responsibilities and requirements, Affiliate shall:

(i)                 not falsify email "Header" information, as that term is defined in the CAN-SPAM Act.

(ii)                not seek or obtain unauthorized access to computers for the purposes of sending out commercial email; including without limitation use of an unauthorized open relay to facilitate distribution of emails.

(iii)               not alter any "subject" line provided in the Program Terms, or otherwise use any "subject" line that is false or misleading. All subject lines not specified in the Program Terms must be pre-approved for use by Company in writing.

(iv)               ensure that the "from" line used in transmitting message is not materially false or misleading.  As provided in the CAN-SPAM Act, a "from" line will not be deemed materially false or misleading if it accurately identifies a person who "initiated" the message (as the term "initiate" is defined in the CAN-SPAM Act).

(v)                ensure that each unsubscribe or opt-out link is active for 30 days from date the Affiliate sends the email.

(vi)               update all mailing lists using current Advertiser suppression lists (as made available by Company or the Advertiser) not more than five (5) calendar days prior to each mailing  or as otherwise required by law; and

(vii)               not send any unsolicited commercial email or other unsolicited online communication.    

 

D.         Lists of email addresses used by Affiliate to transmit Programs shall be:

(i)           Collected and maintained in compliance with all federal and state laws, regulations and rules;

(ii)          Collected from websites and other online venues only in compliance with the applicable websites' and or other online venues' privacy policies, provided that such privacy policies specifically allow for Affiliate 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.

 

E.         Affiliate agrees that prior to emailing any campaign available in the Network, it will download the most recent suppression file(s) for any particular campaign as made available by Company through the Program Terms or otherwise, and, for that campaign, will suppress all email addresses within its database that are found on such list. In addition, for any campaigns that include a domain suppression list, Affiliate agrees that prior to emailing the campaign it will download the most recent domain suppression list for any particular campaign and, for that campaign, will suppress all domains within its database found on such list.  Affiliate further agrees that it will download and remove from its email distribution lists 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. Affiliate 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. Company retains the right to "seed" suppression lists to ensure Affiliate's compliance with this section.  '

 

F.         You shall not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Network 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 ("Network Data").  If instructed to do so by Company and/or if this Agreement terminates, You will immediately remove and discontinue the use of any Network Data.  You acknowledge that Company does not represent, warrant, or make any specific or implied promises as to the successful outcome of any Programs.  You agree to display the creative exactly as it appears on the Program and will not alter any creative that has been submitted to the Network.  If any errors or undesirable results occur from Your use of the Network, Company shall not be responsible for losses and You may not be compensated.

 

4.         Use of Sub-Affiliates

 

If Affiliate contracts with or otherwise engages or arranges for other parties ("Sub-Affiliates") to distribute Programs, Affiliate (a) must require each Sub-Affiliate to agree in writing to terms and conditions substantially similar to the terms and conditions stated in this Agreement, including, without limitation, the obligations set forth in Section 3 herein, and the Program Terms, and (b) remain solely responsible and liable to the Company and/or Advertiser(s), as applicable, for all of the actions (or failure to act) of any such Sub-Affiliates or any other parties working with, for, or under such Sub-Affiliates.  Affiliate must keep records of all Sub-Affiliates and Programs distributed by Sub-Affiliates during the term that this Agreement remains effective and for a period of one (1) year thereafter.  Affiliate must immediately comply with any demand made by the Company to terminate any Sub-Affiliate from distributing Programs; failure to comply immediately with this demand may result in Affiliate's termination from the Network, loss of Bounties, and/or any other remedy available to the Company at its discretion.

5. Intellectual Property

Company grants You a non-transferable, non-exclusive limited license, if approved, to use the Network(s) and any data, reports, information or analyses arising out of such use, subject to the terms and conditions set forth herein. You acknowledge and agree that You do not have, nor will claim any right, title or interest in the Networks' software, applications, data, methods of doing business or any elements thereof. You may only access the Network via web browser, email or in a manner approved by Company. Network integration tags must NOT be altered. Altering tags may jeopardize Your ability to be paid for Events as Company may determine.

6. Fraud

Company actively monitors traffic for fraud. If we suspect fraud, Your account will be made inactive pending further investigation.

If You fraudulently add leads, clicks or conversions or inflate leads, clicks or conversions by fraudulent traffic generation (as determined solely by the Company, such as pre-population of forms or any mechanism not approved by Company), You will forfeit Your entire commission for all programs and Your account will be terminated. Company reserves sole judgment in determining fraud, and You agree to this clause.

It is the OBLIGATION of the Affiliate to prove to the Company that Affiliate is NOT committing fraud. The Company will hold Your payment in 'Pending Status' until You have satisfactorily provided evidence that You are not defrauding the system. Potential evidence of fraud that triggers the Company's recourse under this section include the following:

  • Have click-through rates that are much higher than industry averages and where solid justification is not evident.
  • Have ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks reported.
  • Have conversion rates that are much higher than industry averages without justification
  • Have shown fraudulent leads as determined by our Advertisers
  • Use fake redirects, automated software, and/or fraud to generate clicks or leads from our programs.
  • Engage in credit card fraud ("Carding") to generate conversions. Carding includes recommending and/or promoting affiliate links to friends, immediate and/or extended family, business associates and/or partners and/or any other individual considered by the Company or the advertiser to be an illegitimate customer.

7. Payment

You will be paid per the occurrence of an Event.  Except as provided herein, the Parties understand and agree that payment will be owed to the Affiliate from the Advertiser via The Company on terms net 7 days after the end of the pay period. The pay period runs weekly from Monday to Sunday. All accounts will be paid in US dollars ($US). No checks will be issued for any amounts less than $50 US Dollars. No wires will be issued for less than $500.  Every Affiliate account must have a unique, valid taxpayer identification number (TIN) or valid Social Security number on file with the Company except where the Affiliate is a Canadian citizen or business. All payments are based on actual figures as defined, accounted and audited by the Company.

The Company reserves the right to suspend payments without notice if payment is not received from the Advertiser. If The Company does not receive payment from the Advertiser after engaging in best efforts to collect the funds, Company is not obligated to make the payment to You. However, pending Affiliate payouts may be negotiated in good faith on a case-by-case basis as the Company may determine. Company does not guarantee payments on behalf of the Advertiser.

Company will not pay for any Events that occur before a Program is initiated, after a Program terminates or for Events for a Program that the Affiliate was not invited to or is not assigned to promote. Invoices submitted to Company and payments made to You shall be based on the Events and corresponding Bounties as reported by the Company. The Company will not be responsible to compensate You for Actions that are not recorded due to Your error.

8. Termination

This Agreement is effective as of the date that you electronically submit Your application to participate in the Network, provided that this Agreement shall become null and void if Company denies your application for any reason.  This Agreement may be terminated by either Party upon three (3) days' notice, or without notice by the Company in cases of violation of Section 3 (Affiliate Responsibilities), 4 (Use of Sub-Affiliates), and 5 (Fraud) of this Agreement. This Agreement shall terminate immediately upon the dissolution or insolvency of either Party. The Company reserves the right, in its sole and absolute discretion, to terminate a Program and remove any advertisements at any time for any reason. The Company also reserves the right to suspend or terminate Your access to the Network at any time without notice.

Termination notice may be provided via e-mail, and will be effective immediately. All Bounties due to Affiliate, subject to the terms of this Agreement, will be paid during the next billing cycle.  If Affiliate defrauds the system, then payment is revoked as determined solely by Company. If Your e-mail address is not operative, Company's actual attempt to send the Termination notice e-mail to Your last known address shall suffice as Termination notice hereunder.

The representations, warranties and obligations contained in Sections 7, 8, 9, 10, 11, and 12 shall remain in full force and effect after termination of this Agreement.

9. Representations and Warranties

A.         Affiliate represents and warrants that it will at all times comply with the materials obligations imposed on it under this Agreement, including but not limited to the requirements listed in Section 3 of this Agreement.  The failure to comply with any material obligation of this Agreement shall result in the loss of payment of Bounties, in addition to any other remedy available to the Company at law or in equity.  Affiliate acknowledges that the Company makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement; and

B.         Each Party represents and warrants to the other Party that:

 

(i) such Party has the full corporate right, power, and authority to enter into this Agreement, to grant the rights and licenses granted and to perform the acts required of it;

(ii) the execution of 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, any applicable governmental law or regulation to which it is subject, or any trademark, copyright, intellectual property, or other third party right;

(iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid, and binding obligation of such Party in accordance with its terms;

(v) such Party will abide by the terms and conditions set forth in this Agreement;

(vii) such Party has obtained all licenses, authorizations, approvals, consents or permits required to perform its obligations under this Agreement and to conduct its business.

 

10. Customer Information; Non-Disclosure

As applicable, all information about consumers ("Customer Information") submitted to the Affiliate by reason of Affiliate's participation in distributing a Program through the Network is proprietary to and owned by the Company and/or its Advertiser(s).  Such Customer Information is confidential and may not be disclosed by You or used for any purpose by You except as may be permitted by this Agreement or the Program Terms for any particular Program.

 

Each party agrees to use the other party's Confidential Information (defined below) solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party's Confidential Information or the Company's Advertisers' Confidential Information (including Customer 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; (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.  As used in this Agreement, "Confidential Information" means any and all oral or written information that is identified as confidential and is provided by one Party to the other, or information which, under the circumstances surrounding the disclosure, reasonably ought to be treated as confidential.


11. Limitation of Liability; Disclaimer of Warranty

IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE NETWORK, OPERATION OF A PROGRAM, , THE PRODUCTS OR SERVICE PROMOTED IN ANY PROGRAM, OR YOUR DISPLAY OF ANY PROGRAM CREATIVE ON YOUR MEDIA, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOST REVENUE, OR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY,  CONSEQUENTIAL, OR OTHER DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE PROGRAMS, NETWORK, AND THE INFORMATION, CONTENT AND SERVICES AVAILABLE ON AND THROUGH THE NETWORK AND ALL TECHNOLOGY, SOFTWARE, MATERIALS, DATA, O R IMAGES PROVIDED OR USED BY OR ON BEHALF OF US OR OUR LICENSORS IN CONNECTION WITH THE NETWORK (COLLECTIVELY, THE "NETWORK OFFERINGS") ARE PROVIDED ON AN 'AS IS' AND 'AS AVAILABLE' BASIS. YOU USE THE NETWORK AND RUN PROGRAMS AT YOUR OWN RISK.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE NETWORK OFFERINGS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENTS, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORAMNCE, OR TRADE USAGE. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ON NETWORK OR PROVIDED BY COMPANY IS ACCURATE, COMPLETE OR CURRENT.

WE WILL NOT BE HELD RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTIONS, DAMAGE OR LOSS OF, ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT.  WE MAY DISCONTINUE THE NETWORK OR NETWORK OFFERINGS, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE OR OPERATION OF THE NETWORK OR NETWORK OFFERINGS, AT ANY TIME AND FROM TIME TO TIME.  THE COMPANY SHALL NOT BE LIABLE FOR ANY ACTS OF ADVERTISERS OR OTHER CONTENT PROVIDERS WHOSE CONTENT OR OFFERS APPEAR ON THE NETWORK AND/OR IS MADE AVAILABLE TO YOU THROUGH THE NETWORK, NOR THE CONTENTS OF ANY OTHER ADVERTISEMENTS, WEB SITES, OR WEB PAGES.   

12. Indemnity

You shall indemnify, defend and hold the Company harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys' fees) by third parties arising out of Your: (a) improper use of the Network; (b) improper operation of a Program; or (c) breach or violation of this Agreement. The Company shall indemnify, defend and hold You harmless from and against any and all claims allegations, liabilities, costs and expenses (including reasonable attorneys' fees) by third parties arising out of any actual infringement of intellectual property rights resulting from Your display of the Company's advertising creative provided in connection with distributing a Program.

13. Assignment and Jurisdiction

The Company may assign this Agreement to a subsidiary or business successor. You may not assign this Agreement without the prior written consent of The Company, which shall not be unreasonably withheld. This Agreement shall be construed and governed by the laws of the state of Florida. You expressly consent to the exclusive venue and personal jurisdiction of the state and federal courts located in Miami-Dade County, Florida for any actions arising from or relating to this Agreement.

14. Severability

If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not effect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.

15. Force Majeure

Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters, interruption in internet service or any other cause which is beyond the reasonable control of such Party.

15. Attorneys' Fees

The Company shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding arising out of this Agreement.

16. Miscellaneous

This Agreement contains the sole and entire agreement and understanding between the Parties relating to the subject matter herein, and merges all prior discussions, whether through officers, directors, salespersons, employees or consultants. Each Party is an independent contractor and not a partner, joint venture or employee of the other. All notices shall be sent to You to the addresses submitted by You on your application to participate in the Network by certified mail, overnight service (e.g., Federal Express), fax, email or courier. The Company reserves the right to change any conditions of this contract at any time, with or without notice.  Your continued use of the Network after any change has been posted on the Admin Site constitutes your agreement to the change.