Publisher Compliance Policy (Revised: April 9, 2017)
Publisher Compliance Policy Agreement (the “Agreement”) is made and entered into by and between Concussion Media (“Concussion Media” or “we”), and you, (“you”, “Affiliate” or “Publisher”) the party submitting an application to become a Concussion Media affiliate). The terms and conditions contained in this Agreement apply to your participation with cmedia.hasoffers.com (“Affiliate Program”). This Agreement is in addition to any other Terms & Conditions required in submitting an application to become a Concussion Media Affiliate.
Each Affiliate Program offer (an “Offer”) may be for any offering by Concussion Media or a third party (each such third party a “Client”) and may link to a specific web site for that particular Offer (“Program Web Site”). Furthermore, each Offer may have additional terms and conditions on pages within the Affiliate Program and are incorporated as part of this Agreement. By submitting an application or participating in an Offer, you expressly consent to all the terms and conditions of this Agreement.
Subject to Concussion’s acceptance of Publisher and Publisher’s continued compliance with the terms and conditions of this Policy, Publisher agrees as follows:
This Policy governs your conduct as an online advertiser and sets the guidelines for acceptable content to post while working with Concussion. This Policy shall remain in full force and effect so long as there exists an effective agreement executed between you and Concussion. You hereby agree to be bound by this Policy and warrant that you have full authority to execute and to perform this Policy in accordance with its terms; the execution and delivery of this Policy and the consummation of the transactions contemplated hereby does not and will not conflict with, result in a breach, violation or default or give rise to an event which, with the giving of notice or after the passage of time, or both, would conflict with or result in a breach, violation or default of any of the terms or provisions or of any indenture, agreement, judgment, decree or other instrument or restriction to which you are a party or by which you may be bound or affected; and no further authorization or approval, whether of governmental bodies or otherwise, is necessary in order to enable you to enter into and perform the same.
2. Publisher’s Compliance Obligations.
During the effective term of this Policy, you agree that you will refrain from making or distributing false, misleading, deceptive or disparaging advertisements, statements, representations, and/or communications regarding Concussion and any products or services sold and/or promoted. Furthermore, Publisher hereby agrees that all advertisements and promotional content that it creates and/or disseminates pursuant to its work for Concussion does not and shall never: (a) misrepresent any of the products or services being promoted; or (b) violate any applicable federal, state or local law or regulation relating to the Internet, false advertising, and/or unfair competition or business practices, including, but not limited to, privacy laws (including the right to share lead contact information with third-parties), the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”) and the e-mail marketing laws of the several states that are not pre-empted by CAN-SPAM, Section 5 of the Federal Trade Commission Act (“FTC Act”), FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, the Telemarketing and Consumer Fraud and Abuse Prevention Act, Personal Information Protection and Electronic Documents Act (“PIPEDA”), the Telephone Consumer Protection Act (“TCPA”), the Telemarketing Sales Rule (“TSR”), the Gramm-Leach-Bliley Act, Health Insurance Portability and Accountability Act of 1996, the Fighting Internet and Wireless Spam Act (“FISA”), Canada’s Online Protection Legislation (“COPL”) (or more colloquially, “CASL”), and the regulations promulgated thereunder (collectively, “Applicable Laws and Regulations”). If any such Applicable Laws and Regulations are amended or modified, in whole or in part, then Publisher shall ensure that it remains fully compliant with all applicable requirements thereof, on and after the effective date of any such amendment or modification.
Furthermore, Publisher is prohibited from transmitting any advertisement, content, or communication that is unlawful, defamatory, libelous, harassing, abusive, fraudulent, or obscene (collectively, the “Prohibited Content”), or to link their advertisements to such Prohibited Content. Upon being informed of the existence of any of Prohibited Content, Concussion shall promptly remove any advertisement, publication, or communication containing such content to the best of Concussion’s ability. Publisher shall not have any other claims against Concussion.
3. Prohibitions Against Misrepresentations.
Publisher and all other persons in active concert or participation with any of them, are strictly prohibited from: misrepresenting, or assisting others in misrepresenting, any material fact, expressly or by implication, including, but not limited to: that a good or service is “free;” that a good or service is without cost or obligation; that consumers have won a contest or have been selected to receive a gift or prize; that consumers’ personal information is being collected to send consumers merchandise; the purpose for which consumers are providing personal information; that personal information submitted by consumers will not be sold or shared with third parties; the extent to which the privacy and confidentiality of consumers’ personal information is maintained and protected; the total cost to purchase, receive, or use the good or service; any material restrictions, limitations, or conditions to purchase, receive, or use the good or service; any material aspect of the performance, efficacy, nature, or central characteristics of the good or service; and any material aspect of the nature or terms of a refund, cancellation, exchange, or repurchase policy for the good or service.
Publisher must clearly and prominently disclose the material terms and conditions of any offer, in any text message, email, or online advertisement, and on any landing page that contains any direct or implied representation that a good or service is free or is a gift or prize, failing to disclose, in the same color, font, and size, and within close proximity to such representation, that a purchase is required, or that purchases are required, to obtain such gift or prize, when such is the case; and on any landing page associated with any direct or implied representation that a good or service is free or is a gift or prize, failing to disclose, in a clear and conspicuous manner: a list of the monetary obligations a consumer is likely to incur to obtain the advertised gift or prize; and a list of any non-monetary obligations a consumer is likely to incur to obtain the advertised gift or prize, such as having to apply and qualify for credit cards or an automobile loan.
4. Publisher’s Email Compliance Obligations.
Publisher must strictly comply with the law in regard to sending email and other communications. All emails sent in connection with the promotion or sale of Publisher’s products or services during the effective term of any agreement executed between Publisher and Concussion must especially include the appropriate party’s opt-out link. It is solely Publisher’s obligation to ensure that its emails and communications comply with the law. Publisher agrees not to rely upon Concussion’s approval of Publisher’s emails or communications for compliance with the law, or assert any claim that Publisher is in compliance with the law based upon Concussion’s approval.
5. Publisher’s Warranties.
Publisher agrees to all of the following:
a. Have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, Publisher’s Media.
b. Ensure that all materials posted by Publisher or otherwise used in connection with Publisher’s posted content: (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling where applicable), contains profanity or otherwise contains materials that Concussion informs Publisher that it considers objectionable (collectively, “Objectionable Content”).
c. Accept that Concussion neither endorses nor approves of actions performed or content made available by Publisher.
d. Hold Concussion harmless of any third party claims alleging Publisher’s posted content or communications contains illegal content.
e. Not make any representations, warranties, or other statements concerning Concussion or any of its respective products or services, except as expressly authorized herein.
f. Make sure that Publisher’s posted content and communications do not create the impression that Publisher’s posted content is endorsed by Concussion, without prior written permission from Concussion, which may be unreasonably withheld.
g. Comply with the terms, conditions, guidelines, and policies of any third party services (if any) used by Publisher, including but not limited to, email providers, social networking services, and advertising networks.
i. Always prominently post and make available to end-users any terms and conditions in connection with any products and/or services promoted and/or sold by Publisher, or as required by applicable laws.
6. Publisher’s Duty to Provide Accurate Information.
Publisher agrees to: (1) provide true, accurate, current and complete information about itself and any related entities that it is signing on behalf of; and (2) maintain and update as necessary its registration data with Concussion to keep it true, accurate, current, and complete. If Publisher provides any information that is untrue, inaccurate, not current, or incomplete, or Concussion has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Concussion has the right to suspend or terminate any agreement previously executed between Concussion and Publisher and to refuse to enter into any agreement contemplated but not yet executed by the parties.
7. No Duty to Monitor.
Concussion shall have no obligation or duty to monitor, determine, or inquire as to Publisher’s compliance with any applicable online advertising, payment processing, or online retail laws with respect to Publisher’s promotion and sale of any product or service under this Policy or any other agreement executed between Publisher and Concussion. Concussion shall have no responsibility for any actions taken or not taken by Publisher.
8. System Security.
Concussion takes reasonable measures to protect its systems and communications against viruses, spyware, and other malicious code (together “Malicious Code”), and shall take reasonable measures to check, or have its Advertisers check all links delivered to Publisher for Malicious Code. However, Publisher acknowledges that Malicious Code can never be completely prevented. It is Publisher’s responsibility to protect all data stored on its systems against unauthorized access, and data loss. Publisher shall make its users waive, as far as legally permissible, all potential claims against Concussion based on Malicious Code, and inform its users as to appropriate measures to protect their system.
By submitting and application to Affiliate Program, you affirm and acknowledge that you have read this Agreement in its entirety and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not submit an application to Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.
Concussion Media, Inc.
Affiliate Terms and Conditions
These Affiliate Terms and Conditions (“Terms”) are made and entered into by and between Concussion Media, Inc. (“Concussion” or “we” or “us”), and you, the party submitting an application to become a Concussion affiliate (“you” or “Affiliate”) as of June 23, 2017. These Terms apply to your participation with cmedia.hasoffers.com (“Affiliate Program”). Each Affiliate Program product offer (an “Offer”) may be for any product and/or service(s) offering by Concussion or a third party (each such third party a “Client”) and may link to a specific website for that particular Offer (“Offer Website”). Furthermore, each Offer may have additional terms and conditions on pages within the Affiliate Program and Offer Websites, which additional terms and conditions are incorporated by reference hereto as part of these Terms, however these Terms shall control in the event of any potential conflict between such additional terms and conditions and these Terms. By submitting an application or participating in an Offer, you expressly consent to abide by these Terms.
1. Enrollment in the Program
In order to be considered for acceptance into the Concussion Affiliate Program, you are required to submit an Affiliate Program application, available at insert specific URL. Acceptance into the Affiliate Program requires that you complete the application accurately and promptly provide us with any changes to the information listed on your application. After we review your application, we will notify you of your acceptance or rejection into the Affiliate Program, which will generally occur within two business days. We may accept or reject your application at our sole discretion for any reason.
2.1. As an Affiliate, you can promote Offers by logging into your dashboard for Concussion Affiliates at insert specific URL.
2.2. As an Affiliate, you will be given access to links to the Offer Websites and other websites of Clients along with access to Clients’ various promotional materials and trademarks (“collectively the “Materials”). As long as you comply with these Terms and any terms of a particular Client, you can place the Materials wherever you like on your website.
2.3. Concussion prohibits the promotion of Offers and/or the display of Client’s Materials via and/or bearing any affiliation to websites containing pornographic, racist, or illegal content. The classification of content as pornographic, racist, or illegal is determined at Concussion’s sole and complete discretion.
2.4. Concussion operates in full compliance with the following laws and requires compliance of such by all Affiliates: the CAN-SPAM Act of 2003, as amended and the e-mail marketing laws of the several states that are not pre-empted by CAN-SPAM; Section 5 of the Federal Trade Commission Act (“FTC Act”), FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising; the Telemarketing and Consumer Fraud and Abuse Prevention Act; Personal Information Protection and Electronic Documents Act (“PIPEDA”); the Telephone Consumer Protection Act (“TCPA”); the Telemarketing Sales Rule (“TSR”); the Gramm-Leach-Bliley Act; the Health Insurance Portability and Accountability Act of 1996; the Fighting Internet and Wireless Spam Act (“FISA”); Canada’s Online Protection Legislation (“COPL”) (or more colloquially, “CASL”); and the regulations promulgated thereunder (collectively, “Applicable Laws and Regulations”).
2.5. Concussion will at all times attempt to monitor any misuse and will issue you warnings for instances of minor noncompliance. You shall be immediately and irrevocably terminated upon receipt of three warnings from Concussion.
2.7. Concussion reserves the right to remove accounts that have remained unverified since creation or have not been accessed in up to twelve months.
2.8. A Client may apply particular terms and conditions to how it deals with Affiliates. You must comply with the particular terms of any Client that you deal with in addition to these Terms. If you do not wish to comply with those terms, you should not work with that Client and deal with different Clients instead.
3. Concussion’s Obligations.
We will make available to you via the Affiliate Program graphic and textual links to the Offer Website and/or other creative materials (collectively, the “Links”) which you may display on websites owned or controlled by you, in emails sent by you and clearly identified as coming from you and in online advertisements (collectively, “Media”). The Links will serve to identify you as a member of our Affiliate Program and will establish a link from your Media to the Offer Website. We will pay you for each Qualified Action (the “Commission”). A “Qualified Action” means an individual person who: (i) accesses the Offer Website via the Link, where the Link is the last link to the Offer Website, (ii) is not a computer generated user, such as a robot, spider, computer script, or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) completes all of the information required for such action within the time period allowed by Concussion, and (v) is not later determined by Concussion to be fraudulent, incomplete, unqualified, or a duplicate, which determination shall be made in Concussion’s reasonable discretion.
We will pay you any Commissions earned on a monthly basis, provided that your account is greater than $100 at the time of disbursement. Affiliate Commission accounts with a balance of less than $100 will roll over into the next month, and will continue to roll over on a monthly basis until the $100 threshold is reached. We reserve the right to charge back to your account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action.
Payment for Commissions is dependent upon Clients providing such funds to Concussion, and you therefore agree that Concussion shall only be liable to you for Commissions to the extent that Concussion has received such from the Clients. You hereby release Concussion Media from any claim for Commissions if Concussion Media has not received such funds from the Clients.
Concussion Media shall automatically generate an invoice on behalf of Affiliate for all Commissions payable under these Terms and shall remit payment to Affiliate based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by Concussion in its sole and complete discretion. In the event that Affiliate disputes in good faith any portion of an invoice, Affiliate must submit that dispute to Concussion in writing and in sufficient detail within thirty (30) days of the date on the invoice. If Affiliate does not dispute the invoice as set forth herein, then Affiliate agrees that it irrevocably waives any claims based upon that invoice. In the event that Affiliate is also tracking Qualified Actions and Affiliate claims a discrepancy, Affiliate must provide Concussion Media with Affiliate’s reports within three (3) days of claiming such discrepancy, and if Concussion Media’s and Affiliate’s reported statistics vary by more than 10% and Concussion reasonably determines that Affiliate has used generally accepted industry methods to track Qualified Actions, then Concussion and Affiliate agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then Concussion’s calculations shall govern.
If Affiliate has an outstanding balance due to Concussion under these Terms or any other agreement executed between the Affiliate and Concussion, whether or not related to the Affiliate Program, Affiliate agrees that Concussion may offset any such amounts due to Concussion from amounts payable to Affiliate under these Terms.
4. Affiliate Obligations.
If you are approved by Concussion to participate in its Affiliate Program, you hereby agree to all of the following obligations:
4.1. You must strictly comply with all terms, conditions, guidelines, and policies of and applicable to any third party services used by you in connection with the Affiliate Program, including but not limited to, email providers, social networking services, and website creation tools.
4.3. Always prominently post and make available to end-users any terms and conditions in connection with any applicable Offer you promote, as set forth by Concussion Media or Client, or as required by applicable laws regarding such Offers.
4.4. You must never place your Media, Links, or any Concussion advertisements on any online auction platform (i.e. eBay, Amazon, etc.).
4.5. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by Concussion in writing. Any pop-up and/or pop-under advertisement styles that you might use for the Affiliate Program shall be clearly identified as your property in a clear and conspicuous fashion so that such pop-up and/or pop-under styles are not affiliated with Concussion or Client. Any pop-up and /or pop-under advertisement styles used must be served within the title bar of the window for any client-side ad-serving software. No software may be installed on any end-user’s computer unless: (1) the name, function, and developer of such software are clearly displayed, (2) the end-user affirmatively opts in to the installation of such software; (3) the end-user is given a simple and recognizable opportunity to opt out from installing the software, and (4) the installation is pursuant to an affirmatively accepted and plain-English end user license agreement and the software be easily removed according to generally accepted methods.
4.6. You must notify Concussion at insert contact email if your website is no longer active or if your website becomes owned by someone else.
4.7. Ensure that your Media does not copy or resemble the look and feel of any Offer Website or create the impression that your Media is endorsed by Concussion or any Client, or is a part of any Offer Website, without our prior written consent, which may be unreasonably withheld.
4.8. You shall have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, your Media.
4.9. You bear sole responsibility for ensuring that all materials posted on your Media or otherwise used in connection with the Affiliate Program: (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party, and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability, or age), promotes illegal activities (such as gambling), contains profanity, or otherwise contains materials which Concussion informs you that it considers objectionable (collectively, “Objectionable Content”). Concussion may deem material/content as objectionable in its sole and complete discretion.
4.10. You shall refrain from making any representations, warranties, or other statements concerning Concussion or Client or any of their respective products or services, except as expressly authorized herein.
4.11. You shall refrain from making any written or oral statements or representations, whether of fact or opinion, that disparage or otherwise impair the reputation of any party to these Terms, (including its business purpose, and its other assets and activities), any Client, or any party’s employees, officers, agents, contractors, and assigns.
These Terms shall commence on the date of our approval of your Affiliate Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time by removing all Links from your Media, deleting all copies of the Links, and notifying Concussion in writing thereof. We may terminate these Terms or your participation in one or more Offers at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of these Terms or of your participation in one or more Offers for any reason, you will immediately cease all use of and delete all Links, remove all Materials, delete all Concussion or Client intellectual property, and will cease representing yourself as a being affiliated with Concussion or Client or any Offer. All rights to validly accrued payments, causes of action, and any provisions, which by their terms are intended to survive termination, shall survive any termination. These Terms shall automatically merge into and be superseded by the Publisher Master Services Agreement once executed by both parties hereto.
6. Limited License on Concussion Intellectual Property.
We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access the Concussion website through the Links solely in accordance with these Terms, for the sole purpose of identifying your Media as a participant in the Affiliate Program and assisting in increasing sales through the Offer Websites. You have no rights with respect to the intellectual property of our Clients. You may not alter, modify, manipulate or create derivative works of the Links or any graphics, creative, copy or other materials owned by or licensed to Concussion in any way. Your ability to use the Links is predicated at all times to you being a member in good standing of Concussion’s Affiliate Program. We may revoke your license anytime by providing written notice of the same. Except as expressly stated herein, nothing in these Terms is intended to grant you any rights to any of Concussion trademarks, service marks, copyrights, patents, or trade secrets or to those of our Clients. You agree that Concussion may use any suggestion, comment or recommendation you provide to Concussion without compensation or recognition thereof.
7. Prohibition on Fraud.
You are expressly prohibited from using any persons, means, devices, or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Affiliate Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cloaking technology, cookie-stuffing and other deceptive acts or click-fraud. Concussion shall make all determinations about fraudulent activity in its sole and complete discretion.
8. Email Campaign Compliance.
Before commencing any email campaign relating to any Client or involving any Materials or Links, you must first download the “Suppression List” from insert specific URL and filter all email lists by removing any email addresses appearing on the Suppression List. For clarity, you are prohibited from sending any emails to email addresses contained within the Suppression List and are required to keep your email list scrubbed and up to date by regularly checking the Suppression List regularly at insert specific URL. You agree that failure to download and properly use the Suppression List may result in the withholding of payments owed to you, removal or suspension from all or part of the Affiliate Program, legal action, and/or any other rights or remedies available to Concussion pursuant to these Terms, at law, or otherwise. You further agree that you will not disclose any data contained within the Suppression List or any suppression files generated through the Concussion Media network to any third party, and that doing so may result in withholdings of payments otherwise owed to you, removal or suspension from the Affiliate Program, possible legal action, and/or any other rights or remedies available to Concussion Media pursuant to these Terms, by law, or otherwise.
9. Opt Out Compliance.
Concussion will provide an opt-out method for customers in all Links, however, should you receive any opt-out requests, you shall immediately forward them to Concussion at [email protected] Your emails containing the Links may not include any content other than the Links, except as required by applicable law, expressly including a prohibition on the use of cloaking technology of any kind.
10. Terms Applicable to Affiliate Networks.
Affiliate shall remain jointly and severally liable for all acts or omissions of any Third Party Affiliate. For all Affiliate’s who maintain their own affiliate networks, Affiliate agrees to place the Links in its affiliate network (“Network”) for access and use by those affiliates in Affiliate’s Network (each a “Third Party Affiliate”). Affiliate agrees that it will expressly forbid any Third Party Affiliate from modifying any Link in any way and monitor its affiliates to prevent such. Affiliate agrees to maintain its Network according to the highest industry standards. Affiliate shall not permit any party to be a Third Party Affiliate whose website or business model involves content containing Objectionable Content. All Third Party Affiliates must be in good standing with Affiliate. Affiliate must require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, these Terms prior to obtaining access to the Links. Affiliate shall promptly terminate any Third Party Affiliate who takes, or could reasonably be expected to take, any action that violates any of these Terms. In the event that either party suspects any wrongdoing by a Third Party Affiliate with respect to the Links, Affiliate shall promptly disclose to Concussion the identity and contact information for such Third Party Affiliate. Affiliate shall immediately remove any Third Party Affiliate from the Affiliate Program and terminate their access to all Offers upon written notice from Concussion Media.
No warranties of any kind (including implied warranties of merchantability or fitness for a particular purpose) are given with respect to the Links or materials provided to you or used under these Terms, and Concussion shall not be liable to you for damages arising out of or cause by defects or deficiencies in the Links or materials provided to you, whether direct, incidental, consequential, or otherwise. The Affiliate Program and Links, and the products and services provided in connection therewith, are provided to Affiliate “as is.” Except as expressly set forth herein, Concussion expressly disclaims all warranties, express, implied or statutory, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and noninfringement, and any warranties arising out of course of dealing, usage, or trade. Concussion does not warrant that the Affiliate Program or Links will meet Affiliate’s specific requirements or that the operation of the Affiliate Program or Links will be error-free or uninterrupted. Concussion expressly disclaims any and all liability for any act or omission of a Client or their products or services. Concussion does not guarantee that Affiliate will earn any amount of commissions.
12. Affiliate Warranties.
You hereby represent and warrant that you possess full authority to execute and to perform these Terms; the execution and delivery of these Terms and the consummation of the transactions contemplated hereby do not and will not conflict with, result in a breach, violation or default or give rise to an event which, with the giving of notice or after the passage of time, or both, would conflict with or result in a breach, violation or default of any of the terms or provisions or of any indenture, agreement, judgment, decree or other instrument or restriction to which you are a party or by which you may be bound or affected; and no further authorization or approval, whether of governmental bodies or otherwise, is necessary in order to enable you to enter into and perform the same.
13. Concussion’s Warranties.
Concussion hereby represents and warrants that it possesses full authority to execute and to perform these Terms; the execution and delivery of these Terms and the consummation of the transactions contemplated hereby do not and will not conflict with, result in a breach, violation or default or give rise to an event which, with the giving of notice or after the passage of time, or both, would conflict with or result in a breach, violation or default of any of the terms or provisions or of any indenture, agreement, judgment, decree or other instrument or restriction to which Concussion is a party or by which Concussion may be bound or affected; and no further authorization or approval, whether of governmental bodies or otherwise, is necessary in order to enable Concussion to enter into and perform the same.
14. Relationship of Parties
The parties are independent contractors, and nothing in these Terms will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Affiliate will have no authority to make or accept any offers or representations on our behalf. Affiliate will not make any statement, whether on the Affiliate Site or otherwise, that reasonably would contradict anything in this section.
15. Limitation of Liability
Concussion shall not be liable to you or to any other person or entity for any indirect, consequential, incidental, special, or exemplary damages, including lost profits, arising out of or in connection with these Terms (however arising, and regardless of the theory of recovery). Concussion’s total liability to Affiliate arising out of or in connection with these Terms is limited to the greater of five hundred dollars ($500.00) or the amounts paid by Concussion to Affiliate during the twelve (12) months immediately preceding the first occurrence of events giving rise to the imposition of liability under these Terms.
Concussion makes no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, Concussion makes no representation that the operation of the Concussion Site will be uninterrupted or error-free, and we will not be liable for any such interruptions or errors.
17. Independent Investigation
Affiliate acknowledges that it has read these Terms and agrees to all its terms and conditions. Affiliate understands that Concussion may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in these Terms or operate websites that are similar to or compete with Affiliate’s site. Affiliate has independently evaluated the desirability of participating in the Program and is not relying on any representations or statements other than as set forth in these Terms.
All rights not expressly granted herein by Concussion to Affiliate are reserved by Concussion. There are no implied rights.
You acknowledge that you have read these Terms and agree in full. You have independently evaluated the desirability of participating in the Affiliate Program and each Offer and are not relying on any representation, guarantee, or statement other than as set forth in these Terms or anywhere within the Affiliate Program.
Any notice provided for or permitted under these Terms will be treated as having been given when: (1) sent via email from or to [email protected], (2) delivered personally, (3) sent by fax; (4) sent by nationally recognized commercial overnight courier with written verification or receipt; or (5) mailed postage prepaid by certified or registered mail, return receipt requested, to the party to be notified, at the address set forth on Affiliates applicable registration form, in the case of Affiliate, and the address set forth below for Concussion.
Concussion’s Mailing Address
4371 Northlake Blvd., Ste. 200
Palm Beach Gardens, FL 33410
No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
If any provision of these Terms is held invalid or unenforceable for any reason, the remainder of the provision(s) and Terms shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
These Terms shall be governed by and construed under the laws of the State of Illinois, Cook County, without regards to its conflict of laws principals.
Concussion may assign these Terms without restriction, provided that assignee agrees in writing to be bound by the terms hereunder. Affiliate may not assign these Terms or any rights, duties, or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Concussion and any attempt to do so without such consent will be void. These Terms will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
The titles and headings herein are for reference purposes only and shall not in any manner limit the construction of these Terms, which shall be considered as a whole. Except as may be otherwise specifically provided in these Terms, these Terms are not intended to and shall not confer upon any other person or business entity, other than the parties hereto, any rights or remedies with respect to the subject matter hereof.
These Terms constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations and agreement, whether written or oral.
CONCUSSION MEDIA, INC.
PUBLISHER MASTER SERVICES AGREEMENT
This Publisher Master Services Agreement, together with any applicable Publisher Insertion Order(s) (collectively, the “Agreement”), is entered into by and between Concussion Media, Inc. (“Concussion”), as well as any legal entities that own, are owned by, or are under partial or total common ownership with Concussion (collectively, “Concussion”) and the applicable affiliate indicated below (“Publisher” or “you”) (each a “Party” or collectively the “Parties”) as of this 11th day of May, 2017 and sets forth the Parties’ respective rights and obligations to be undertaken by the Parties. Publisher will distribute Concussion’s campaigns through one or more of the following: (a) email; (b) performance-based online advertising network; and/or (c) co-registration promotional path(s) (“Path(s)”). From time to time, the Parties may (but are not obligated to) negotiate and execute additional IOs. Each IO shall constitute a separate contract between the Parties, which contract shall be deemed to incorporate and include this Agreement even if this Agreement is not attached to the applicable IO(s). To the extent that anything in or associated with this Agreement is in conflict or inconsistent with an IO, the IO shall take precedence unless otherwise stated to the contrary herein. This Agreement constitutes the entire and only agreement between the Parties and supersedes all prior or contemporaneous agreements, representations, warranties and understandings.
1.1. “Ad” means Promotional Content as defined below.
1.2. “Advertiser(s)” means a merchant or advertising agency, or agent thereof that provides Ads to Concussion for use by the Publisher.
1.3. “Affiliate Program” means the affiliate marketing service offered by Concussion that is the subject matter of this Agreement.
1.4. “Concussion” means Concussion Media, Inc.
1.5. “Concussion-Affiliate” means a member of the Concussion Publisher Network.
1.6. “Agreement” means the terms of this Agreement and any documents incorporated by reference herein.
1.7. “Campaign Terms” means the specific guidelines for each Advertiser campaign as stated in the Network or in the IO.
1.8. “Commission” means what Concussion pays Concussion-Publishers for each Qualified Action.
1.9. “IO(s)” means the terms and conditions that must be accepted by a Concussion-Publisher, and that govern a Concussion-Publisher’s participation in an Offer and are incorporated into this Agreement.
1.10. “Invalid Traffic” means that traffic which will not be counted as Qualified Action, which classification shall be made in Concussion’s sole discretion. In general, Publisher shall not drive traffic through incentivized click programs, spam email marketing, paid-to-surf, autosurf, click-exchange programs, unwanted advertisements on third-party websites, toolbars, misleading (whether through text, images, audio, and/or video) people in any manner to view and/or click on advertisements, and other unsolicited software downloads.
1.11. “Link(s)” means graphic and textual URLs to the Program Sites, including Promotional Content, and/or other creative materials made available to you through the Affiliate Program. The Links will identify you as a member of the Affiliate Program.
1.12. “Media” means, collectively, web sites owned or controlled by you, emails sent by you and clearly identified as coming from you, and online advertisements.
1.13. “Network” means the Concussion Media Affiliate Program Network operated by Concussion Media, Inc., which consists of Concussion-Affiliates and Advertisers.
1.14. “Offer(s)” means an Advertiser’s offer, received by an Concussion-Affiliate through the Affiliate Program.
1.15. “Opt-in” means that the consumer has made an active, affirmative choice to receive Ads from the Publisher.
1.16. “Personal Identifiable Information” or “PII” means individually identifiable information from or about a consumer, as interpreted by the United States Federal Trade Commission.
1.17. “Program Site(s)” means Affiliate Program Offers that link to a specific web site for that particular Offer.
1.18. “Promotional Content” means buttons, banners, widgets, text, and other creative content that (i) are used by Concussion-Affiliates to promote Program Sites, (ii) contain Links, and (iii) may be specific to an Offer.
1.19. “Promotional Method” means the location where you place Promotional Content or the method by which you otherwise promote Offers using Promotional Content and your Media.
1.20. “Qualified Action(s)” means an action where an individual person accesses the Program Site via the Link, where the Link is the last link to the Program Site, and that individual person:
1.20.1. is not a computer generated user; such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person,
1.20.2. is not using pre-populated fields,
1.20.3. completes all of the information required for such action within the time period allowed by Concussion, and
1.20.4. is not later determined by Concussion to be fraudulent, incomplete, unqualified, or a duplicate.
1.21. “Restricted Activities” as defined in Section 8 of this Agreement.
1.22. “Spam” means unsolicited bulk email where recipients have not agreed in advance to receive Ads.
1.23. “Tracking Code” means information you receive from Concussion to track the Qualified Actions you generate and attribute them to your account.
1.24. “User” means any person using the Internet.
2.1. The terms and conditions contained in this Agreement, and those stated on the applicable Insertion Order incorporated fully by reference herein, apply to your participation with the Affiliate Program. Offers may be by Concussion or an Advertiser, and may link to a Program Site. Each Offer may have additional terms and conditions on pages within the Affiliate Program and are incorporated as part of this Agreement. By submitting an application or participating in an Offer, you expressly consent to all the terms and conditions of this Agreement.
WHEREAS, Concussion and Publisher desire to provide for the terms and conditions of this Agreement as more specifically set forth herein;
THEREFORE, the Parties agree to be legally bound as follows:
3. ENROLLMENT IN THE AFFILIATE PROGRAM
To begin the enrollment process, you will submit a complete and accurate application to the Affiliate Program either in writing or through the website.
3.2. Accurate Information.
You agree to provide Concussion with complete and accurate information about you (including your payment and tax information), your Media, and your Promotional Methods, and to maintain up-to-date account information. Concussion has the right to confirm or otherwise verify, in its sole discretion, the truth and accuracy of any registration information at any time.
3.3. Account Security.
You are responsible for all activity on your account and for loss, theft, or unauthorized disclosure of your password (other than through Concussion’s gross negligence or willful misconduct or omission). You must provide Concussion with prompt written notification of any known or suspected unauthorized use of your account or a breach of the security of your account.
3.4. Acceptance or Rejection.
Concussion will evaluate your application and notify you of our determination, generally within two (2) business days. We may accept or reject your application if we determine, in our sole discretion, that you are unsuitable for the Affiliate Program. Participation in the Affiliate Program is limited to parties that can lawfully enter into contracts under applicable law.
If we accept your application and your site is thereafter determined, in our sole discretion, to be unsuitable for the Affiliate Program, we may terminate this Agreement.
4. PARTICIPATION IN THE AFFILIATE PROGRAM, AND PROMOTING PROGRAM SITES AND PROMOTIONAL CONTENT
The IO defines approved Promotional Methods and end-user activities that may qualify for compensation, and may include additional information about compensation.
They also contain other rules specific to each Offer or several Offers. In the event of a conflict between this Agreement and the IO, the IO will prevail.
Concussion will provide you with Links to promote Program Sites for display on your Media. You may not modify a Link unless it is specifically designed to be modified as authorized by Concussion. If the Links you use are not dynamically updated, you are obligated to update them upon notification.
4.3. Promotional Content.
When you are accepted as an Concussion-Affiliate in the Affiliate Program, Concussion or the Advertiser may provide you with pre-approved Promotional Content. You may not modify this Promotional Content without obtaining prior written permission from Concussion.
4.4. Approval for Links and Promotional Content.
All Links and Promotional Content you display on your Media must be clearly recognizable as an advertisement for the relevant Program Site. To participate in an Offer, you must comply with the IO’s list of approved Promotional Methods therein, in addition to all other terms of this Agreement.
Subject to compliance with this Agreement, Concussion agrees to pay you Commission earned as specified in the accompanying IO for each Qualified Action, so long as your account has a current balance greater than $100 USD. Accounts with a balance of less than $50 USD will roll over to the next month, and will continue to roll over monthly until $50 USD is reached. We reserve the right to charge back to your account any previously paid Qualified Actions that are later determined to have not met the requirements.
5.2. Commission Payments Contingent Upon Advertisers’ Payments.
Commission payments are dependent upon Advertisers providing such funds to Concussion. Concussion is only liable to you for Commissions to the extent that we have received such funds from the Advertisers. You agree to release Concussion from any claim for Commission if we have not received such funds from the Advertiser.
Publisher shall regularly provide Concussion with the necessary invoices for traffic generated.
5.4. Link Tracking; Qualified Actions and Commission Determinations.
All tracking of Links, and Qualified Actions and Commission determinations shall be made, in its sole discretion, by Concussion. If you wish to dispute in good faith any portion of an invoice, you must submit that dispute to Concussion in writing and in sufficient detail within thirty (30) days of the date on the invoice. Concussion will use commercially reasonable efforts to reach agreement with you. If you do not dispute the invoice previously described, you agree to irrevocably waive any claims based upon that invoice.
Concussion reserves the right to filter, and/or withhold compensation for, traffic that it in its sole discretion believes does not comply with the terms of this Agreement.
5.5. Form of Payment.
Concussion will provide payments in the form of wire transfers, ACH, PayPal, or check.
Concussion is not obligated to and shall not provide you with tax and/or legal advice. Concussion undertakes no duty to investigate or research your tax status and/or obligations, and such research and investigation is solely your responsibility. You are obligated to independently assess and comply with all relevant tax and legal requirements. If Concussion provides you with information regarding a particular Advertiser or Concussion-Affiliate, the information shall not be deemed tax or legal advice, and Concussion Ads shall not be responsible for the accuracy of such information.
5.7. Non-payment, Withholding, Reversal and Chargebacks.
Notwithstanding anything to the contrary herein, Concussion shall have no duty to pay you for what would otherwise be Qualified Actions during any current or previous month where you were or are in material breach of this Agreement.
Concussion reserves the right to withhold your compensation for all previous months, and compensation that you are accruing, if Concussion, in its sole discretion, has reason to believe that you or your agent(s) have materially breached this Agreement or have engaged in potentially fraudulent activities in connection with this Agreement.
Concussion may apply a debit to your account in an amount equal to a payment previously made to you, or a compensation that has been credited to your account, but has not been paid out yet, if we determine, in our sole discretion, that there has been (a) duplicate entry or other clear error; (b) non-bona fide actions or other fraudulent activity, (c) breach of, failure to complete, or reversal of, the Qualifying Action; or (d) failure to comply with the terms of this Agreement.
If you have an outstanding balance due to Concussion under this Agreement or any other agreement between you and Concussion, you agree that we may offset any such amounts due to us from amounts payable to you under this Agreement, irrespective of whether the outstanding balance is related to the Affiliate Program.
6. TERM AND TERMINATION
This Agreement shall commence upon Concussion’s approval of your Publisher Compliance Agreement and shall continue thereafter until terminated as provided in this Section.
6.2. Termination by Publisher.
You may terminate your participation in the Affiliate Program at any time by providing thirty days advanced written notice to Concussion and by removing and deleting all Links and any copies of them from your Media. Upon termination, cancellation or expiration of this Agreement for any reason, or upon request by either Party, all Confidential Information of the requesting Party, together with any copies thereof, shall be returned to that Party or certified destroyed. Advertiser’s Confidential Information shall remain the property of Publisher, and Concussion’s Confidential Information shall remain the property of Concussion.
6.3. Termination by Concussion or Advertiser.
Concussion or Advertiser(s) may terminate your participation in one or more Offers, or the Affiliate Program, at any time, and for any reason we deem appropriate with or without prior notice to you, by disabling the Links and/or providing you with written notice.
Incidents that may cause Concussion to terminate this Agreement include, but are not limited to: (a) if we suspect that you or your agent are responsible for the improper functioning of Links or Promotional Content, or if you otherwise interfere with or fail to maintain the Tracking Code; (b) a violation of any of the Restricted Activities in Section 8; or (c) if Concussion determines you are diluting, tarnishing, blurring, or adversely affecting Concussion’ proprietary rights.
Upon termination, Concussion will deactivate your account and all accounts that are linked to you. You shall no longer accrue payments in your account, including but not limited to subsequent Qualified Actions where the clicks on the Links occurred prior to termination.
In the event of termination of this Agreement by Concussion, authorization to access the Affiliate Program is automatically revoked and will be deemed unauthorized.
If Concussion terminates this Agreement, you will not be eligible to re-apply to the Affiliate Program, and will not be allowed to participate in the Affiliate Program as an agent for a Third Party Concussion-Affiliate, without Concussion’s express written permission.
6.4. Termination of Offers.
Offers may be discontinued at any time.
Upon termination of this Agreement, you shall pay Concussion any outstanding balance within thirty (30) days of the termination date. Upon termination of this Agreement, and provided termination is not due to your breach of this Agreement, Concussion will pay any outstanding payments to you within ninety (90) days of the termination date. Upon termination of this Agreement, any permissions granted under this Agreement will automatically and by right terminate, and you must immediately upon notice of termination remove all Promotional Content and Links to Program Sites.
Upon termination of this Agreement or one or more Offers, you must immediately cease use of and delete all Links, Concussion’s or Advertiser’s intellectual property, and cease representing yourself as an Concussion-Affiliate for such one or more Offers.
7. TRACKING AND REPORTING
For Concussion to track Qualified Actions obtained from your Media, you must include and maintain an official Tracking Code in the Links, which Tracking Code must be provided to Concussion. You may not modify the Tracking Codes in any Links or Promotional Content.
8. RESTRICTED ACTIVITIES
8.1. Compliance in General.
You must use Promotional Methods that comply with the law, this Agreement, the IO, and all other terms and conditions of the Offers you apply for and are accepted to, including terms, conditions, guidelines, and policies of any third party service you use in connection with the Affiliate Program. A third party service includes, but is not limited to, email providers, social networking services, and ad networks. You acknowledge and agree to comply with the standards set forth in this Section and all other terms of this Agreement.
8.2. Compliance with Applicable Laws, Concussion Policies, and Section 5 of the U.S. Federal Trade Commission Act.
Your participation in the Affiliate Program must at all times be in compliance with all applicable policies presented to you in writing by Concussion (expressly including, without limitation, the Concussion Compliance Policy) and all applicable laws, regulations, decisions, and best practices in any country that you target with your Promotional Method and that are applicable to promoting Program Sites, such as, consumer protection and advertising laws, regulations or directives, including Section 5 of the U.S. Federal Trade Commission Act and any future interpretation by the Federal Trade Commission of Section 5 as it relates to Affiliate Programs or advertising generally.
8.3. Code of Conduct.
8.3.1. Non-Bona Fide Transactions. You will not cause any clicks or transactions to be made that are not in good faith including, but not limited to using invisible methods to generate impressions, clicks or transactions that are not initiated by the affirmative and genuine action of an end user, or using any cookie, device, program, robot, iframe or hidden frame, pop-up window or any other operation or process that interferes with our ability to properly identify and track transactions.
8.3.2. Compliance with FTC Act, CAN-SPAM, TCPA, PIPEDA, TCPA, TSR, FISA, COPL and other laws. You must strictly comply with the federal CAN-SPAM Act of 2003 (the “Act”) and, if applicable, the EU ePrivacy Directive, and all implementing laws, regulations and applicable codes of conduct thereof. All emails sent in connection with the Affiliate Program must include the appropriate party’s opt-out link. From time to time, we may request – prior to your sending emails containing linking or referencing the Affiliate Program – that you submit the proposed final version of your email to Concussion for approval by sending it to Michael Mourgides at [email protected] or your Concussion representative. After Concussion approves your email it may be transmitted to third parties.
It is solely your obligation to ensure that the email complies with the Act. You agree not to rely upon Concussion’ approval of your email for compliance with the Act, or assert any claim that you are in compliance with the Act based upon Concussion’ approval.
9. Furthermore, you shall be solely responsible for any liability arising out of or relating to the content of all Media and any other materials to which end-users (each a “Consumer”) can link to therefrom. You hereby agree that all Media and Links do not and shall never: (a) misrepresent you or any of the products or services being promoted on your behalf; or (b) violate any applicable federal, state or local law or regulation relating to the Internet, false advertising, and/or unfair competition or business practices, including, but not limited to, privacy laws (including the right to share lead contact information with third-parties), the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”) and the e-mail marketing laws of the several states that are not pre-empted by CAN-SPAM, Section 5 of the Federal Trade Commission Act (“FTC Act”), FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, the Telemarketing and Consumer Fraud and Abuse Prevention Act, Personal Information Protection and Electronic Documents Act (“PIPEDA”), the Telephone Consumer Protection Act (“TCPA”), the Telemarketing Sales Rule (“TSR”), the Gramm-Leach-Bliley Act, Health Insurance Portability and Accountability Act of 1996, the Fighting Internet and Wireless Spam Act (“FISA”), Canada’s Online Protection Legislation (“COPL”) (or more colloquially, “CASL”), and the regulations promulgated thereunder (collectively, “Applicable Laws and Regulations”). If any such Applicable Laws and Regulations are amended or modified, in whole or in part, then you shall ensure that the Media and Links comply fully with all applicable requirements thereof, on and after the effective date of any such amendment or modification. You shall also provide Concussion with access to updated “do not e-mail” lists or other suppression lists (collectively, “Suppression Files”) in connection with each advertising campaign. You shall be solely responsible for complying with all Applicable Laws and Regulations regarding maintaining and updating any Publisher-generated Suppression Files. You hereby confirms the authenticity and accuracy of all claims made throughout all Media and Links; and you acknowledge and agree that Concussion has no obligation to review Media and Links for legal, regulatory or compliance purposes. Concussion may, without prior notice or liability, refuse or suspend any advertisement campaign if Concussion determines, in its sole discretion that such campaign may expose Concussion to litigation, liability or risk of adverse publicity, or is otherwise deemed inappropriate.
You and your agents will not click on Promotional Content containing your own Tracking Code.
You agree to promote the Program Site in a manner that uses ethical and legal business practices, that does not mislead the end-user, and that delivers bona fide end-user transactions.
You will not be compensated for invalid click activity consisting of any clicks and impressions that may artificially inflate a publisher’s earnings. This includes, but is not limited to, clicks or impressions generated by an Concussion-Affiliate clicking on his or her own Ads, automated clicking tools or traffic sources, robots, or other deceptive software. To be considered valid, clicks and conversions must result from genuine user interest. Any method that artificially generates clicks, impressions, or activity is strictly prohibited.
You agree to ensure that all materials posted on your Media or otherwise used in connection with the Affiliate Program, notwithstanding the Links or Promotional Content provided to you by Concussion, do not infringe or violate the intellectual or proprietary rights of third parties. This includes, but is not limited to, incorporating a third party’s trademark or a term confusingly similar to it into your URL, and infringing on the intellectual or proprietary rights of a third party, such as, copyrights, trademark rights, patent rights, and rights of publicity.
9.2. Obligations of the Publisher.
You agree to have sole responsibility for the development, operation, and maintenance of all content on or linked to your Media.
You further agree to ensure that all materials posted on your Media or otherwise used in connection with the Affiliate Program are not: (a) illegal, harmful, threatening, defamatory, obscene, sexually explicit, deceptive, pirated, libelous, or harassing; (b) promote violence; (c) promote discrimination (whether based on sex, religion, race, ethnicity, nationality, disability, or age); (d) promote illegal activities, (e) profane, or (f) otherwise contains material Concussion considers objectionable.
You further agree not to make any representations, warranties, or other statements concerning Concussion or Advertisers, or any of their respective products or services, except as expressly authorized in writing by Concussion.
You may not in any manner misrepresent or embellish your relationship with Concussion or Advertisers, including, but not limited to, expressing or implying that Concussion or Advertiser supports, sponsors, endorses, or contributes money to any charity or other cause. You agree to ensure that your Media does not copy or resemble the look and feel of the Program Site, or create the impression that your Media is part of the Program Site, without prior permission from Concussion.
9.4. Terms and Conditions of Offers.
You agree to always prominently post and make available to end-users any terms and conditions in connection with each Affiliate Program Offer, or as required by applicable laws regarding such Offers.
9.5. Online Auction Restrictions.
You agree not to place any of Concussion’ Ads on any online auction web site including, but not limited to, eBay.com and Amazon.com.
9.6. Editorial Adjacencies.
You agree to strictly comply with any editorial adjacency guidelines as set forth upon login or on the applicable IO incorporated by reference herein. You further agree to make commercially reasonable efforts to correct such violations within twenty-four hours’ notice by Concussion.
10. CAMPAIGN-SPECIFIC METHODS
10.1. In General.
The following additional campaign-specific terms will apply to any Special Promotional Methods set forth below:
10.1.1. Email Campaign Requirements. You must download the Suppression List (the “List”) provided by Concussion and filter your email list by removing email addresses that appear on the List. You may only send emails to the remaining addresses on your list. Concussion will provide an opt-out method in all Links. If you receive an opt-out request directly, you must immediately forward it to Concussion at [email protected] All emails sent by you that contain Links may not include any content other than the Links, except as required by applicable law.
Failure to download the List and remove all emails from the database before mailing, or marketing to the List may result in Commission withholdings, removal, or suspension from all or part of the Affiliate Program, possible legal action, and any other rights or remedies available to Concussion pursuant to this Agreement or otherwise.
10.1.2. Advertising Campaigns. No Links can appear to be associated with, or positioned on, chat rooms or bulletin boards unless otherwise agreed by Concussion in writing. Any pop-ups or pop-unders used for the Affiliate Program shall be clearly identified as the Concussion-Affiliate served in the title bar of the window. Any client-side ad serving software you use shall only be installed on an end-user’s computer if the function of the software is clearly disclosed to the end-user prior to installation, the installation is pursuant to an affirmatively accepted and plain-English end-user license agreement, and the software can be easily removed according to generally accepted methods.
10.1.3. Publisher Network Campaigns. If you maintain your own Publisher network, you agree to place the Links therein for access and use by those Publishers participating in your Publisher network (“Third Party Publishers”). You agree to expressly forbid Third Party Publishers from modifying the Links in any way. You further agree to maintain your Publisher network according to the highest industry standards, and are prohibited from permitting a party to be a Third Party Publisher whose web site or business model involves Objectionable Content. You must require, confirm, and verify that all Third Party Publishers affirmatively accept this Agreement prior to obtaining access to the Links. You must promptly terminate any Third Party Publisher who engages in activity, or could reasonably be expected to engage in activity, in violation of this Agreement. If you, Concussion, or an Advertiser, suspect a Third Party Publisher of wrongdoing, you must disclose to Concussion the identity and contact information for such Third Party Publisher. You further agree to promptly remove and terminate the access of such a Third Party Publisher to future Concussion Offers upon written notice from Concussion. Unless Concussion has received truthful and accurate contact information for a Third Party Publisher, and such Third Party Publisher has affirmatively accepted this Agreement as recorded by Concussion, Publisher shall remain liable for all acts or omission of any Third Party Publisher. Under no circumstances will Concussion be liable for any acts or omissions of a Third Party Publisher.
11.1. In General.
For the purposes of this Agreement, the term “Confidential Information” shall mean: (a) any and all oral or written information that is identified, marked or otherwise identified as confidential and is provided by one Party to the other or that should reasonably be known, by the other Party to be treated as confidential; (b) either Party’s proprietary information; (c) information otherwise disclosed by either Party in a manner consistent with its confidential nature; (d) the terms and conditions of this Agreement and/or any IO, including but not limited to pricing information; and (e) other confidential or proprietary information, including, but not limited to, suppression lists, technical processes and other unpublished financial information, trade secrets, product and business plans, projections and marketing data. Neither Publisher nor Concussion shall disclose or use the other Party’s Confidential Information for any purpose other than the purposes contemplated by this Agreement, unless such disclosure or use is allowed by written permission of the other Party. Notwithstanding any other provisions hereof, either Party may disclose the other Party’s Confidential Information to the extent required by Applicable Laws and Regulations, but only after five days’ prior written notification to the other Party of such required disclosure. The Parties acknowledge that, as a result of the provision of services pursuant to this Agreement, one Party may disclose Confidential Information (“Disclosing Party”) to the other Party (“Receiving Party”). Therefore, the Receiving Party agrees that it will make no disclosure of the Disclosing Party’s Confidential Information to any third party without obtaining the Disclosing Party’s prior written consent. Nothing contained in this Agreement shall be construed as granting or conferring rights by license or otherwise in any Confidential Information disclosed under this Agreement. This Section 10 shall survive any termination or expiration of this Agreement for a period of at least three years thereafter. Confidential Information does not include any information that: (i) is at the time of disclosure available to the general public or at a later date becomes available to the general public through no violation of this Agreement; (ii) as shown by written records, was specifically known to, or in possession of, the Receiving Party at the time of its disclosure by the Disclosing Party or its agent(s) free of any confidentiality obligation; (iii) as shown by written records, is acquired by the Receiving Party through a third-party which is not thereby breaching any obligation of confidence to the Disclosing Party known to the Receiving Party; or (iv) is independently developed by the Receiving Party without reference to any of the Disclosing Party’s Confidential Information. In the event that the Receiving Party becomes legally compelled (by deposition, interrogatory, request for production of documents, valid subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information, the Receiving Party will provide the Disclosing Party with prompt prior written notice of such requirement so that it may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or the Disclosing Party waives compliance with the provisions hereof, the Receiving Party may furnish only such portion of the Confidential Information that is legally required to be furnished. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the Disclosing Party shall be further entitled to seek injunctive relief.
12. LIMITED LICENSE AND INTELLECTUAL PROPERTY
12.1. Promotional Content.
Upon your acceptance to the Affiliate Program, Concussion will grant you a revocable, nonexclusive, nontransferable, royalty-free license to use the Links and Promotional Content, and to access our web site through the Links in accordance with the terms and conditions of this Agreement, for the limited purpose of identifying your Media as a participant in the Affiliate Program and assisting in increasing sales through the Program Site(s).
You may not alter, modify, manipulate or create derivative works of the Links or any Concussion graphics, creative, copy or other materials owned by, or licensed to, Concussion in any way. You may only use the Links to the extent that you are a member of the Affiliate Program in good standing. We may revoke your license anytime by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any exclusive rights to any of Concussion’s trademarks, service marks, copyrights, or trade secrets. You agree that Concussion may use any suggestion, comment, or recommendation you provide to Concussion without compensation. All rights not expressly granted in this Agreement are reserved by Concussion.
Concussion may revoke your license to use certain Links or Promotional Content at any time for any reason, or for no reason, in its sole discretion either orally or in writing.
12.3. Use of Your Marks.
You authorize Concussion to use your trademarks, service marks, trade names, company names, and copyrighted material that you provide to us through the Affiliate Program to promote your participation with the Offer and/or the Affiliate Program.
12.4. Your Use of Concussion Proprietary Rights.
You acknowledge that you obtain no proprietary rights in Concussion, our Advertisers or Publishers’ trademarks, service marks, trade names, URLs, copyrighted material, or other intellectual property. You further agree not to challenge such rights, or use them in a manner that would, in our sole discretion, blur or dilute, tarnish or adversely affect our proprietary rights.
12.5. Retention of Rights.
Any and all proprietary rights, goodwill and other benefits and rights resulting from the use hereunder of trademarks, trade names or company name inures to the benefit of the owner.
13.1. In General.
From time to time Concussion may make changes to this Agreement. Concussion will not notify you of these changes. You are responsible for ensuring that you are in compliance with any changes Concussion makes to this Agreement and any other terms and conditions incorporated herein.
15. REPRESENTATIONS AND WARRANTIES
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.
You warrant that you are acting in your professional capacity and not as a consumer, and that you are over eighteen (18) years of age.
13.2. Non-Infringement Warranty.
You represent and warrant that:
13.2.1. you have all appropriate authority to operate any and all content on your Media;
13.2.2. your Media, your Promotional Methods, any Promotional Content you create, and any intellectual or proprietary property used pursuant to Section 8.4 above do not and will not infringe such rights of a third party;
13.2.3. you shall remain solely responsible for any and all Media owned and/or operated by you and all of your Promotional Methods;
Concussion may review all content on your Media or used by you in your Promotional Methods.
THE AFFILIATE PROGRAM, LINKS, PROMOTIONAL CONTENT, AND ANY PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH ARE PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT RESTS WITH YOU.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, CONCUSSION DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, 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 CONCUSSION’S SECURITY MEASURES ARE SUFFICIENT; (d) CORRECTNESS, ACCURACY OR LIABILITY; OR (e) AGAINST INTERFERENCE WITH ENJOYMENT OF YOUR INFORMATION OR WEBSITE.
THOUGH CONCUSSION MAY REVIEW YOUR BEHAVIOR AS PART OF ITS NETWORK QUALITY EFFORTS, WE MAY NOT BE HELD LIABLE FOR PUBLISHER’S OR AN CONCUSSION-AFFILIATE’S BREACH OF THIS AGREEMENT, AND WHERE APPLICABLE, A PARTICULAR OFFER’S TERMS AND CONDITIONS. CONCUSSION IS IN NO CIRCUMSTANCES RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY THIRD PARTY OR ANY WEBSITE, OR THE CONTENT OF ANY WEBSITE OR THAT ANY PARTY MAKES AVAILABLE.
CONCUSSION MAKES NO REPRESENTATION OR GUARANTEE WITH RESPECT TO THE AVAILABILITY OR UPTIME OF THE NETWORK, THE TRACKING FUNCTIONALITY, OR ANY PARTICIPATING SITE AND CONTENT. CONCUSSION OR THE ADVERTISERS MAY CONDUCT MAINTENANCE AT ANY TIME WITH OR WITHOUT NOTICE TO YOU.
COMMISSION PAYMENTS ARE DEPENDENT UPON ADVERTISERS PROVIDING SUCH FUNDS TO CONCUSSION. CONCUSSION IS ONLY LIABLE TO YOU FOR COMMISSIONS TO THE EXTENT THAT WE HAVE RECEIVED SUCH FUNDS FROM THE ADVERTISERS. YOU AGREE TO RELEASE CONCUSSION FROM ANY CLAIM FOR COMMISSION IF WE HAVE NOT RECEIVED SUCH FUNDS FROM THE ADVERTISER.
THIS AGREEMENT DOES NOT CONTAIN ANY OBLIGATIONS, REPRESENTATIONS OR WARRANTIES BY THE ADVERTISER, AND DOES NOT GRANT YOU ANY RIGHTS AGAINST THE ADVERTISER.
CONCUSSION DOES NOT GUARANTEE THAT YOU WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
18. LIMITATION OF LIABILITY
IN NO EVENT SHALL CONCUSSION BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROMOTIONAL CONTENT, PROGRAM SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE, OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF CONCUSSION.
IN NO EVENT WILL CONCUSSION BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY/WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT CONCUSSION HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
CONCUSSION’S CUMULATIVE LIABILITY TO PUBLISHER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO PUBLISHER BY CONCUSSION IN COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT.
NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST CONCUSSION PURSUANT, OR IN ANY WAY RELATED TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT.
19.1. Publisher Indemnification Obligations.
You shall defend, indemnify, and hold harmless Concussion, Advertisers, and their respective partners licensors, directors, officers, employees, owners, contractors, and agents (collectively, the “Indemnified Party”) against all claims, liabilities, and expenses claimed or incurred by an Indemnified Party as a result of any third party claim directly or indirectly arising from or related to:
19.1.1. any breach by you or your agents of this Agreement, or if applicable, the terms and conditions of a particular Offer incorporated by reference herein to this Agreement;
19.1.2. any violation by you or your agents of applicable laws or regulations, including but not limited to Section 5 of the U.S. Federal Trade Commission Act relating to unfair methods of competition and deceptive advertising;
19.1.3. distribution or use of Links or Promotional Content by you or your agents in using, displaying or distributing them;
19.1.4. any claim that the Indemnified Party is obligated to pay tax obligations in connection with this Agreement or any terms and conditions incorporated by reference herein; and
19.1.5. any violation or alleged violation by you or your agents of any rights of another, including breach of a person or entity’s copyrights, trade names, trademarks, service marks, patent rights and rights of publicity.
If a claim gives rise to a duty of indemnification under this Section, the Indemnified Party shall promptly notify you and will cooperate with you at your expense in defense of such claim.
The Indemnified Party will be entitled, at its own expense, to participate in the defense of such claim. Should any claim give rise to a duty of indemnification you and/or your agents are obligated to participate in the defense of such claim if requested by Concussion or an Advertiser. Participation in the defense shall not waive or reduce any of your obligations to indemnify or hold the Indemnified Party harmless.
You will not settle any claim stated in this Section without the Indemnified Party’s prior written consent, and you will indemnify for any reasonable attorney’s fees or other costs incurred by an Indemnified Party in investigating or enforcing this Section.
20. CREDIT CARD AND LINE OF CREDIT USE AND LIMITATIONS
Through the Affiliate Program, Concussion may make available to you a credit card or line of credit (the “Credit Line”) that may be used only for the limited purpose of advertising and floating media buys while running Concussion’s Offers. Publisher agrees to use the Credit Line for lawful purposes only, and agrees not to run Ads that do not comply with the requirements of the campaign(s) as set out in this Agreement and the IO. Publisher shall only run campaigns that are in compliance with all applicable state and Federal laws including the laws of the Publisher’s jurisdiction.
20.2. Limitations on Use.
Publisher agrees to use the credit card solely for advertising purposes as set forth on the IO and in this Agreement. Publisher agrees to abide by the Credit Line limit as stated in the IO. Publisher further agrees to reimburse Concussion for any non-compliant charges made on the Credit Line.
In the event that both of the following conditions occur, Publisher shall have thirty days from the latter occurrence to reimburse Concussion for all credit extended to Publisher: (1) Publisher expended the full amount of credit made available via the Credit Line stated in the applicable IO; and (2) Publisher’s advertising campaign is operating at a loss. Concussion reserves the right to pursue all possible remedies including taking legal action to enforce this Section of the Agreement.
21. MEDIATION AND ARBITRATION
21.1. Negotiation, Mediation, and then Final Binding Arbitration. In the event of any dispute regarding the subject matter of this Agreement or payment thereunder, both parties agree to try for fifteen days to resolve such dispute informally. If the parties cannot resolve the dispute informally, then parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted for mediation according to the JAMS Mediation Rules, and if the matter is not resolved through mediation, then it shall be submitted for final and binding arbitration pursuant to the JAMS Arbitration Rules. The place of arbitration will be Cook County, Illinois. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The term “dispute” is as broad as it can be. It includes any claim or controversy between any of the parties to this Agreement concerning the subject matter herein, except disputes relating to the enforcement or validity of any of the parties’ licenses or intellectual property rights.
22.2. Exceptions; Intellectual Property.
20.2.1. You agree that Concussion retains all rights in its designs and other intellectual property, including copyrights, trademarks, and trade secrets. Concussion owns the exclusive copyright and authorship in all designs and works created by Concussion, regardless if you contributed to their creation.
22.2.2. Concussion reserves the right to pursue any claim or controversy relating to its intellectual property rights, including copyrights, trademarks, and trade secrets, not by arbitration, but by a state or federal court located in the State of Illinois, Cook County. Recovery is not limited to the liability set forth in Section 15, and may include statutory or punitive damages, and injunctive relief.
22.3. If Concussion is the Prevailing Party in any of the proceedings set forth in this section, Publisher shall be liable for all reasonable attorneys’ fees and expenses incurred. “Prevailing Party” shall be defined: (1) as a claimant that is awarded net 51% of its affirmative claim, after any offsets for claims or counterclaims by the other party, and (2) as a defendant/respondent against whom an award of less than 50% of a claimant’s claim is granted. To the extent that an arbitrator determines that Publisher has failed to prevail in that arbitration, the arbitrator shall allocate to Publisher the costs of the arbitration, including reasonable attorneys’ fees and fees payable to the arbitrator.
23.1. Remedy for Fraud or Breach.
Concussion reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if:
23.1.1. Concussion determines you have violated this Agreement,
21.1.2. Concussion receives any complaints about your participation in the Affiliate Program, which Concussion reasonably believes to violate this agreement, or
23.1.3. any Qualified Action is later determined to have not met the requirements set forth in this Agreement.
Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach.
In the event of a material breach of this Agreement, Concussion reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third Party that has been directly damaged by your actions.
24. GOVERNING LAW
24.1. This Agreement is governed by the laws of the State of Illinois, regardless of any conflict of laws principles.
24.1. This Agreement, any applicable IO’s, the Compliance Policy, other Concussion policies that may be executed in the future, and where applicable, additional terms and conditions incorporated herein, constitutes the entire agreement between Concussion and the Publisher with respect to your participation in the Affiliate Program, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. You agree that Concussion shall not be subject to or bound by any Publisher terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether Concussion “clicks through” or otherwise indicates its acceptance thereof. In entering this Agreement you have not relied on any warranties, representations or other promises outside of this Agreement.
25.1. Publisher may not assign any part of this Agreement without Concussion’s prior written consent.
25.2. Concussion may assign this Agreement at any time with notice to Publisher. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto.
26. SURVIVAL AND SEVERABILITY
26.1. The provisions of Sections 10, 15, 16, 18, 21, 22, 23, and 24 and any accrued payment obligations shall survive the termination of this Agreement.
26.2. Except as expressly authorized herein, this Agreement may not be modified without the prior written consent of both parties.
26.3. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties.
27. RELATIONSHIP OF THE PARTIES
27.1. Each Party to this Agreement is an independent contractor in relation to the other Party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the Parties. Neither Party shall have the authority or power to bind the other or to contract in the name of or create liability against the other in any way or for any purpose.
28.1. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.