Affiliate Services Agreement
This agreement for services (“Agreement”) is made by and between HyperTarget Marketing LLC (“HyperTarget”), and (“Publisher” or “You”) as submitted in the online signup portal effective as of (“Effective Date”) as logged by online signup portal.
Whereas, HyperTarget provides marketing services that facilitate marketing programs (“Programs”) for HyperTarget and third parties (“Advertisers”) by providing information and services (“Network Service”) via the Internet; and
Whereas, a Program includes when a person, entity, affiliate, or its agent (“Publisher”) operates a website (“Website”) or other promotional methods to drive traffic to another’s website to earn financial compensation (“Payouts”); and
Whereas HyperTarget shall compensate You subject to the terms of this Agreement and Program-specific payout specifications for an action (“Transaction”) made by a visitor (“Visitor”) through an Internet connection (“Link”) to a website or phone number operated by HyperTarget or Advertiser;
Now, Therefore, in consideration of the covenants, promises and conditions contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1) Participation in Programs.
a) Approval by HyperTarget. Your ability to participate in any Program is expressly conditioned upon approval by HyperTarget. During the term of this Agreement You may promote Advertiser Programs for the opportunity to earn Payouts subject to the Advertiser’s terms and this Agreement. You may display (and remove) Links to Advertiser’s Website or Website content. Approval by HyperTarget or Advertiser to promote a Program extends to You, the entity or individual, that enters into this Agreement with HyperTarget.
b) Program Terms. The details of a Program shall be available through the Network Service and are incorporated herein by reference.
i) If the Payment Type is a Cost Per Lead (“CPL”), the Lead Payment Amount shall be the price payable per Contract Lead as specified in the Payment Amount in the applicable campaign details or insertion order.
ii) If the Payment Type is a Revenue Share, the Lead Payment Amount shall equal (i) the Payment Amount, multiplied by (ii) the gross revenues from the sale of such Contract Lead by HyperTarget to HyperTarget’s client/customers for the applicable Lead Type minus any returns and/or non-payments by such clients/customers of any Contract Lead as specified in this agreement
c) Prohibited Uses of Links.
i) Locations. You may not place Links on any unauthorized website, applications (including without limitation adware, toolbars, or other digital delivery mechanisms), in third party newsgroups, message boards, blogs, email, and other types of unlawful commercial email, link farms, counters, chatrooms, or guestbooks.
ii) Non-Bona Fide Transactions. You must promote Advertisers and Programs such that You do not mislead the Visitor, and such that the Links deliver bona fide Transactions to Advertiser. You shall not cause any Transactions to be made that are not in good faith, including, but not limited to, using any device, program, robot, Iframes, or hidden frames. You may or may not be compensated for Transactions where You or Your agent are the Visitor. Multiple leads from the same individual, entity, caller ID, or IP address may be considered non-bona fide Transactions. You shall not earn Payouts for non-bona fide Transactions.
iii) Infringement. Your promotional activities shall not infringe an Advertiser’s rights (including but not limited to trademark rights), HyperTarget’s rights, or a third party’s rights.
d) Updating Links. If Links to Advertiser are not dynamically updated through the Network Service, upon notification You are obligated to update Links in order to earn Payouts.
2) Your Obligations to HyperTarget.
a) Accurate, Up-to-Date Information. You agree to provide HyperTarget and Advertiser with accurate information about You and Your promotional methods, and to maintain up-to-date information regarding all Programs in which you participate during the term of this Agreement and for a period of three years thereafter.
d) You agree to obtain Prior Express Written Consent from any Lead generated by You or your affiliates. Prior Express Written Consent is defined as a written agreement, containing the telephone number and signature of the Lead, or prospective student (electronic or otherwise), that includes a “clear and conspicuous disclosure” that by signing the agreement the person authorizes telemarketing calls from Client using an auto-dialer. The Prior Express Written Consent must also include notice that the person is not required to sign the agreement “as a condition of purchasing any property, goods or services.” Upon request, You agree to provide Client complete Prior Express Written Consent for any Lead generated, including providing a time and date stamped copy of the form/application and Prior Express Written Consent the prospective Lead completed to generate the Lead. All Lead records shall include a field specifying whether or not the Lead gave Prior Express Written Consent to be contacted via auto-dialer on all phone numbers (including mobile numbers) provided with the Lead. You agree to keep and maintain all records of Prior Express Written Consent for a period of five (5) years from the date they were generated. This provision shall survive the termination of this Agreement. Such records include, but are not limited to:
i. the first and last name of the prospect who provided the consent;
ii. the telephone number for which the prospect provided consent;
iii. records of Lead source (must include either the URL and/or copy of the creative, or other unique identifier to the Lead source such as IP Address); and
iv. the date the Lead was generated.
e) Personally Identifiable Information of Visitors. You represent and warrant that any personally identifiable information of Visitors that you transmit to HyperTarget shall be collected and transmitted in strict compliance with all applicable laws and posted privacy policies.
g) Applicable Codes and Code Maintenance. In order for HyperTarget to record the tracking of Visitors’ Transactions resulting from clicks on Links, You must include and maintain a HyperTarget tracking code (“Tracking Code”) within the Links. All Links and all advertisements (“Ad Content”) must be in a Network Service compatible format.
h) Usage and Security of Account. You shall be responsible for all usage and activity on Your account and for loss, theft or unauthorized disclosure of Your password (other than through HyperTarget’s negligent or willful conduct or omission). You shall provide HyperTarget with prompt written notification of any known or suspected unauthorized use of Your Account or breach of the security of Your Account.
3) HyperTarget’s Services.
a) Tracking Transactions and Payouts. HyperTarget shall determine Payouts that should be credited to Your Account. HyperTarget may, in HyperTarget’s sole discretion, apply an estimated amount of Payouts, if: (i) You are referring Visitors to Advertiser as verified by clicks through Links with HyperTarget Tracking Code, (ii) where there is an error in Advertiser’s transmission of Tracking Code data to HyperTarget, and (iii) where HyperTarget is able to utilize a historical analysis of Your promotion to determine an equitable amount of estimated Payouts.
b) Payout Reductions.
i) Your Account amount may be reduced for: (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide Transactions; (iv) non-receipt of payment from, or refund of payment to, the Visitor by the Advertiser; (v) Your failure to comply with Program terms, other agreement with Advertiser, or this Agreement; (vi) costs and fees (including attorney’s fees) incurred as a result of Your breach of this Agreement.
ii) A charge-back initiated by a Visitor regarding a payment made to an Advertiser (a “Charge-back”) may be applied to Your Account at any time, including previous payment cycles.
c) Access to Tracking and Reporting Tools. HyperTarget shall provide You with access to tracking and reporting tools, and to support services. From time to time HyperTarget may offer optional services for a fee. Tracking detail regarding Visitor Transactions is not available on a real-time basis for all Advertisers and there may be reporting delays regarding Transactions for some Advertisers.
d) Facilitating Payment of Payouts. Subject to other provisions in this Agreement, HyperTarget shall credit Your Account with a Payout for each qualifying Transaction in accordance with the Payout rate, the Program terms for the relevant Transaction, and HyperTarget’s current payment terms, Monthly Net 30, unless otherwise specified by a particular advertiser or insertion order. HyperTarget will issue to You any positive balance in Your Account for Transactions reported since the prior payout.
e) HyperTarget shall have no obligation to make payment of any Payouts for which HyperTarget has not received payment from the relevant Advertiser of all monies due to HyperTarget (including for all Payouts owed by such Advertiser to all of such Advertiser’s publishers). Your recourse for any earned Payouts not paid to You shall be to make a claim against the relevant Advertiser(s), and HyperTarget disclaims any and all liability for such payment. All payments are made in United States dollars. The number or amount of Transactions, credits for Payouts, and debits for Charge-backs, as calculated by HyperTarget, shall be final and binding on You.
4) Proprietary Rights.
a) Linking to Advertisers. For each Program for which You have been accepted, HyperTarget grants to You the right to display and Link through the HyperTarget tracking site in accordance with the Program terms for the limited purposes of Promoting the Program, and subject to the terms and conditions of this Agreement. You may not copy or modify any icons, buttons, banners, graphics files, notices, or content contained in the Link. As between HyperTarget and You, HyperTarget owns all rights in and to all information regarding the Visitors that You refer to Advertisers pursuant to this Agreement.
c) Retention of Rights. All proprietary rights of Advertisers, You, and HyperTarget, and all goodwill arising as a result of such rights, inure to the benefit of such owner.
d) No Challenge to HyperTarget’s/Advertiser’s Proprietary Rights. You acknowledge that You obtain no proprietary rights in HyperTarget’s trademarks, service marks, tradenames, URLs, advertisements, copyrighted material, patents, and patent applications, and agree not to challenge HyperTarget’s proprietary rights. You acknowledge that You obtain no proprietary rights in any Advertisers’ proprietary rights, and agree not to challenge such Advertiser’s proprietary rights.
e) Data Ownership. You agree that all personally identifiable information, if any, provided by Visitors through the Tracking Code or in response to an advertisement or request for information or any or all reports, results, or information created, compiled, analyzed, or derived by HyperTarget from such data is the sole and exclusive property of Advertiser and HyperTarget and is considered HyperTarget’s Confidential Information pursuant to this Agreement. HyperTarget or its Advertisers, in their sole discretion, shall have the right to use, market, and re-market any such data without further obligation to You. You shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such data, or any portion thereof, to any third-party.
a) HyperTarget may provide You with information that is confidential and proprietary to HyperTarget, as is designated by HyperTarget or that is reasonably understood to be proprietary and/or confidential (“Confidential Information”). You agree to maintain the confidentiality of and to protect any proprietary interests of the HyperTarget. Confidential Information shall not include (even if designated by a party) information: (i) that is or becomes part of the public domain through no act or omission of You; (ii) that is lawfully received by You from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement, or any breach of fiduciary duty, or (iii) that You had in Your possession prior to the date of this Agreement. Upon termination of this Agreement, You must destroy or return to HyperTarget at HyperTarget’s request any Confidential Information provided by HyperTarget to You under this Agreement.
b) Provision of Info to Advertisers/Third Parties. You agree that HyperTarget may, but is not obligated to, provide Your email address(es) and basic Account detail (including but not limited to Your address, phone and fax number, Programs in which you have participated, Payouts and Website name) to Advertisers and third parties. HyperTarget may provide any and all Visitor, Transaction, and/or Tracking Code data to the Advertiser to which You referred such Visitor, and to any third party in HyperTarget’s sole discretion, including but not limited to all regulatory, legislative, and judicial bodies, and pursuant to allegations and claims of proprietary rights infringement and/or unlawful activity.
c) Non-Solicitation. During the term of this Agreement and for one (1) year after the termination of this Agreement, Publisher shall not, without the prior written consent of HyperTarget, either directly or indirectly, on Publisher’s own behalf or in the service or on behalf of others, solicit or attempt to solicit any customer or client of HyperTarget, unless Publisher has a contractual relationship that precedes the date of this Agreement as evidenced in writing and presented to CEE on the date this Agreement is signed.
6) Term, Termination, Deactivation and Notices.
a) Term. This Agreement shall commence upon the Effective Date and shall continue until terminated in accordance with the terms of this Agreement. This Agreement may be terminated by either party upon 15 days’ notice. This Agreement may be terminated immediately upon notice of Your breach of this Agreement. Your Account may be deactivated during investigation of breach of this Agreement.
b) Termination by Advertiser. An Advertiser may immediately terminate Your ability to use a promotional method from the Advertiser’s Program for any or no reason. Additionally, Advertiser may terminate You immediately from the Advertiser’s Program for breach of a third party’s proprietary rights, or diluting, tarnishing, or blurring an Advertiser’s trademarks, tradenames, or service marks, or for Your material breach of the Advertiser’s Program terms or of this Agreement.
c) Termination or Deactivation by HyperTarget. HyperTarget may immediately terminate You, one of Your Websites, or Your use of a promotional method, from an Advertiser’s Program, at any time in HyperTarget’s sole discretion. Breach of any section of this Agreement is cause for immediate termination from an Advertiser’s Program, termination of this Agreement, or any lesser remedy that HyperTarget deems appropriate and may result in non-payment or Chargeback of one or more Payouts. HyperTarget may temporarily deactivate or terminate Your Account or your participation in an Advertiser’s Program if: (i) You or Your agent are responsible for the improper functioning of Ad Content, or if You otherwise interfere with and/or fail to maintain the Tracking Code; (ii) Your Account has not been logged into and/or there have been no Transactions credited to Your Account for any 30 day period; (iii) HyperTarget determines You are diluting, tarnishing, or blurring HyperTarget’s proprietary rights; (iv) You begin proceedings to challenge HyperTarget’s proprietary rights; or (v) a third party (including an HyperTarget Advertiser) disputes Your right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or good offered on Your Website, or through any of Your promotional means. Upon termination of this Agreement, or in case of deactivation of Your Account, You shall no longer accrue Payouts in Your Account, including but not limited to sales and/or click-throughs that occurred prior to termination.
d) Termination of Programs and Offers. Programs and Offers may be discontinued at any time.
e) Notices. Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (i) for HyperTarget to HyperTarget Marketing, attn: Legal Dept. at Legal@HyperTargetmarketing.com, (ii) for You, at the email or physical address listed on Your Account (effective upon sending the email, or five (5) days after mailing).
f) Post-termination. Upon termination of this Agreement, any outstanding payments shall be paid by HyperTarget to You within 60 days of the termination date, and any outstanding debit balance shall be paid by You to HyperTarget within 30 days of termination of this Agreement. All payments are subject to recovery for Charge-backs. Upon termination of this Agreement, any permissions granted under this Agreement will terminate, and You must immediately remove all Links to Advertiser(s). Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement shall survive the termination of this Agreement to the extent that and as long as is necessary to preserve a party’s rights under this Agreement that accrued prior to termination.
7) Representations, Warranties, Disclaimers and Limitations.
a) Business Operations. Each party will keep its Website operational. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other or Advertisers liable for any of the consequences of such interruptions. HyperTarget may modify the Network Service, or discontinue providing the Network Service, or any portion thereof, at any time.
b) Authority. Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party’s behalf. IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
c) Non-infringement Warranties. You represent and warrant that: (i) You have all appropriate authority to operate, and to any and all content on, Your Website(s); (ii) You have all appropriate authority in any promotional method you may choose to use; (iii) Your Website(s) and Your promotional methods do not and will not infringe a third party’s, a HyperTarget Advertiser’s, or HyperTarget’s, proprietary rights; (iv) You shall remain solely responsible for any and all Websites owned and/or operated by You and all of Your promotional methods; and (v) HyperTarget may review all content on Your Website or used by You in Your promotional methods at any time and that you will fully and promptly cooperate with HyperTarget or any Advertiser that desires to review your marketing materials or compliance with the terms of this Agreement.
d) You represent and warrant that: 1) All the materials You use to advertise, market, and/or promote a Program was created without any contribution of any kind from HyperTarget, including without limitation editorial control or approval; 2) Any suggestions regarding content that You receive from HyperTarget are made “as-is” and without any warranty; and 3) You have had all materials reviewed by competent legal counsel and solely assume all responsibility for the materials.
e) Compliance with Laws. You represent and warrant that you are responsible for all legal compliance and warrant that no promotion method used by You or the content of Your Website(s) will render HyperTarget liable to any proceedings whatsoever.
f) Limitation of Liabilities. ANY OBLIGATION OR LIABILITY OF HYPERTARGET UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR PAYOUTS PAID TO YOU BY HYPERTARGET UNDER THIS AGREEMENT DURING THE MONTH PRECEDING THE CLAIM. YOU AGREE THAT HYPERTARGET SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY ANOTHER PUBLISHER OR AN ADVERTISER OF THE NETWORK SERVICE), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
g) Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, HYPERTARGET DISCLAIMS ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT HYPERTARGET’S SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (E) AGAINST INTERFERENCE WITH ENJOYMENT OF YOU INFORMATION OR WEBSITE. ALL INFORMATION, ADVERTISING MATERIALS, AND COMPUTER PROGRAMS AND SERVICES PROVIDED TO YOU IN THE COURSE OF THIS AGREEMENT ARE PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. HYPERTARGET IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY ADVERTISER OR YOU, OR SUCH ADVERTISER OR YOUR WEBSITE(S), AND/OR THE CONTENT OF AN ADVERTISER’S WEBSITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH THE NETWORK SERVICE.
h) Remedies. No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
i) Benefit of the Bargain. THE PROVISIONS OF THIS SECTION 7 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.
8) Indemnification. A party (the “Indemnifying Party”) shall defend, indemnify and hold the other party (the “Indemnified Party”) harmless against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys’ fees) incurred, claimed or sustained by third parties directly or indirectly as a result of (a) a breach of or non-compliance with this Agreement, (b) a violation of any law, or an alleged violation of law, (c) use of the Network Service, or (d) participation in any Program, (each (a)-(d) individually is referred to hereinafter as a “Claim”). Should any Claim give rise to a duty of indemnification under this section 8, the Indemnified Party shall promptly notify the Indemnifying Party, and the Indemnified Party shall be entitled, at its own expense, and upon reasonable notice to the Indemnifying Party, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of obligations to indemnify or hold harmless. The Indemnifying Party shall not settle any Claim without the Indemnified Party’s prior written consent. The Indemnifying Party also shall indemnify for any reasonable attorneys’ fees or other costs incurred by the Indemnified Party in investigating or enforcing this section 8. In the context of this section 8 only, the term “HyperTarget” shall include officers, directors, employees, corporate affiliates, subsidiaries, agents, subcontractors, and Advertisers.
a) Headings and References. Headings of sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms.
b) Third Party Disputes. In the event of a third party claim against either: (a) HyperTarget’s intellectual property; or (b) against HyperTarget’s right to offer any service or good on HyperTarget’s Website(s) or if, in HyperTarget’s opinion, such a claim is likely, HyperTarget shall have the right, at its sole option and in its sole discretion, to (i) secure the right at HyperTarget’s expense to continue using the intellectual property or good or service; (ii) at HyperTarget’s expense replace or modify the same to make it non-infringing or without misappropriation; or (iii) terminate this Agreement immediately.
c) Relationships of Parties/Third Party Rights. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor.
d) Choice of Law/Attorneys’ Fees. This Agreement is governed by the laws of the State of California (USA), except for its conflict of law provisions. The state or federal courts in Los Angeles County, California shall have exclusive jurisdiction over any dispute that arises under or relates to this Agreement. The parties consent to such venue and jurisdiction and waive any right to a trial by jury. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys’ fees and costs. HyperTarget controls and operates its Website from its offices in the USA and access or use where illegal is prohibited.
e) Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of nature.
f) Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null, or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
g) Assignment and Acknowledgement. Neither party may assign this Agreement without the prior express written permission of the other party. Notwithstanding the foregoing, Your consent shall not be required for assignment or transfer made by HyperTarget (1) due to operation of law, or (2) to an entity that acquires substantially all of HyperTarget’s stock, assets or business, or (3) to a related entity (e.g. parent or subsidiary of parent). Your use of the Network Service is irrefutable acknowledgement by You that You have read, understood and agreed to each and every term and provision of this Agreement.
h) Entire Agreement. This Agreement contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties, or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is agreed to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through an electronic acknowledgement of assent.