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Publisher Terms and Conditions
1. In covenant with Promero, Inc, (“Promero’), prior to accepting and deploying any email or banner advertising, Publisher agrees, represents and warrants the following:
2. Approval of Publisher:
a. Registration with Promero shall not confer any right on Publisher to market or promote any Programs (as defined below) made available by Promero on behalf of its clients (the "Advertisers"). All prospective publishers need official approval from Promero before they can become Publishers. Only approved Publishers are permitted to market or promote any Programs. Promero reserves the right to withhold or refuse approval for any reason, whatsoever. To the extent that Publisher works with a network of affiliates to circulate Advertiser Programs, Publisher shall be obligated to ensure that all such affiliates are aware of and in compliance with these Terms and Conditions. Liability arising from such affiliates shall be the sole responsibility of Publisher. Minimum Eligibility Requirements.
i. In order to be eligible to become a Publisher, all websites, affiliated websites and e-mail distribution lists (collectively the "Media") must meet the following criteria:
ii. All Publishers that wish to send e-mail advertisements must have permission based opt-in databases with functional unsubscribe mechanisms;
iii. Publisher’s e-mail customer(s) are email addresses which are guaranteed to be 100% opt-in. Proof of collections, including source IP address and date stamp, shall be readily available and shall be delivered to Promero within 48 hours upon request should a SPAM complaint be registered.
iv. Publisher websites must be content-based, not simply a list of links or advertisements, nor can the sites be centered around making money off of the Advertisers;
v. Publisher websites must have a top-level domain name; Publisher shall not falsify its domain names or use a non-responsive IP address. The same domain name must be used in all email references as well as the unsubscribe link.
vi. Publisher shall not, and does not, falsify the subject line of its e-mails to mislead readers about the content of the electronic message. All subject lines will be provided by Promero or Promero advertiser and must be used in exact form.
vii. Publisher agrees to populate the ‘From’ field within the electronic communication with actual list source that the user subscribed to.
viii. All e-mail sent by Publisher, including e-mail sent on behalf of Promero or Promero advertiser shall include a valid option for the recipient to unsubscribe from receiving future messages form the Publisher and responsive contact information from the Publisher where e-mail recipient may unsubscribe.
ix. The offer URL should be masked as a redirect to the Publisher’s website before forwarding to the actual offer link.
x. All creative will be hosted by Publisher and stored in folder whose name is not specific to Promero or Promero advertiser or any of its online/offline properties.
xi. Publisher shall inform the respondent upon online collection of the e-mail address for what marketing purpose the respondent’s e-mail address will be used (either online URL or via e-mail).
xii. Publisher as not, does not, and shall not harvest e-mail addresses with the intent to send bulk unsolicited commercial e-mail without consumers’ knowledge or consent. “Harvest’ for the purposes hereof is defined as compiling or stealing e-mail addresses through anonymous collection procedures such as via a Web spider, through chat rooms, or form other publicly displayed areas listing personal or business electronic addresses.
xiii. Publisher shall not send bulk unsolicited commercial e-mail to an e-mail address without a prior business or personal relationship. ‘Business or personal relationship’ for purposes hereof means any previous correspondence, transaction activity, customer service activity, personalized marketing message, third party permission use or proven offline contact.
xiv. Publisher will not edit or modify, the submitted e-mail materials in any way, including, but without limitation, resizing the e-mail, without approval. Publisher shall use all such e-mails in strict compliance with this agreement and any written instructions provided by Promero or Promero advertisers.
xv. Publisher will not use Promero or Promero advertiser’s trade names, trademarks, logos or email material in a public announcement (including, but not limited to, through any press release, web page, e-mail description) regarding the existence or content of this agreement without prior written approval by Promero or Promero advertiser.
xvi. Unless Publisher has received prior approval for each specific campaign, Publisher may not offer incentives to users to click on ads; incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.;
xvii. Publisher websites must be fully functional at all levels; no "under construction" sites or sections; and
xviii. Spawning process pop-ups and exit pop-ups are prohibited.
xix. Test e-mails must be received in the exact format they will be deployed and approved before any deployment occurs.
xx. Any recipient email address used in this campaign will receive the e-mail only once.
b. Publisher Website or Email.
i. The content of Publisher's Media must comply with all applicable laws and regulations (including all laws respecting intellectual property rights) and, in any event, shall not include the following:
ii. Racial, ethnic, political, hate-mongering or otherwise objectionable content;
iii. Investment, money-making opportunities or advice not permitted under law;
iv. Gratuitous violence or profanity;
v. Material that defames, abuses, or threatens physical harm to others;
vi. Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.;
vii. Software Pirating (e.g., Warez, Hotline);
viii. Hacking or Phreaking;
ix. Obscenity and any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic; and
x. Any illegal activity whatsoever.
3. Program Insertion Order
a. The Program Insertion Order (“Program’) will specify the amount and terms under which Publisher will receive payment when the applicable Program's requirements are fulfilled. Compensation is derived from a specified campaign type (“Campaign”) identified in a Program, such as Lead Campaign or Sale Campaign. The definition of the Campaign associated with a Program is set forth in the Program's specifications, and such definition shall govern. If Publisher accepts a Program, Publisher agrees to place that Program's advertising creative (including the subject and from lines, the Advertiser Can-Spam disclosures and any other disclosures provided therein) ("Ad") on Publisher's Media, in accordance with the terms of the relevant Program (the "Program Terms") and these Terms and Conditions. Publisher shall display the approved Ad and will not alter it in any way. Failure to adhere to this requirement may, in addition to all other remedies available to Promero, result in termination of Publisher. Promero may change a Program at any time unless otherwise specified in the Program Terms, upon reasonable advance written notice to Publisher. Similarly, Publisher may drop previously accepted Programs at any time unless otherwise specified in the Program Terms, upon reasonable advance written notice (which notice shall be given no later than 15 days prior to the effective date of termination). Promero is responsible for displaying and administering all active Programs and tracking the payments owed.
4. License
a. Promero grants Publisher a revocable, non-transferable, non-exclusive limited license to use the iLeadMachine back office software administrative web interface (the ‘Site’), Ads and any data, reports, information or analyses arising out of such use solely for the purpose of marketing or promoting the Programs hereunder and subject to these Terms and Conditions and the applicable Program Terms. Publisher acknowledges and agrees that Publisher does not have, nor will it claim any right, title or interest in the Ad, the Site, applications, data, methods of doing business or any elements thereof, or any content provided in the Program (including the Ads). Publisher may only access to the ‘Site’ via web browser, or in a manner approved by Promero. Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from Promero that allows Promero to measure ad performance and provide its service. In addition, Publisher acknowledges that all non-public information, data and reports received from Promero hereunder or as part of the services hereunder is proprietary to and owned by Promero. If instructed to do so by Promero and/or if Publisher shall be terminated by Promero, Publisher will immediately destroy and discontinue the use of any Promero data, including Site Data, and any other material owned by Promero or the Advertisers.
5. Fraud
a. Promero actively monitors traffic for fraud. If fraud is detected, Publisher's account will be made inactive pending further investigation. Publisher accounts are flagged that:
i. Have click-through rates that are much higher than industry averages and where solid justification is not evident to the reasonable satisfaction of Promero;
ii. Have ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks reported;
iii. Have shown fraudulent leads as determined by the Advertisers;
iv. Have much higher conversions per click rates than industry averages and where solid justification is not evident to the reasonable satisfaction of Promero; or
v. Use fake redirects, automated software, and/or fraud to generate false results from the Programs.
vi. If Publisher fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre- population of forms or mechanisms not approved by Promero), as determined solely by Promero, Publisher will forfeit its entire commission for all programs and its account will be terminated. If Publisher is notified that fraudulent activities may be occurring on its Media, and Publisher fails to take prompt action to stop the fraudulent activities, then, in addition to any other remedies available to Promero, Publisher shall be responsible for all costs and legal fees arising from these fraudulent activities.
6. Payment
a. Publisher will be paid per the terms of each Program. Every advertiser campaign must be active and approved at the time of the action resulting in a payout, if any payout is created on a non-active advertiser campaign, the result will be denial of payout to the subscribed publisher. Promero retains the rights to determine when advertisers are active or non-active. Promero shall pay any amounts due approximately on the 1st and 15th of each month. However, Promero reserves the right to offset future amounts owed to Publisher to the extent that Promero has previously paid Publisher for a campaign for which Promero has not been paid by the Advertiser. In addition, Promero reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by Advertisers for invalid leads or sales. Promero shall compile, calculate and for (a) cost per acquisition (CPA) campaigns post such data on the Site or for (b) cost per click (CPC), cost per impression (CPM) and co-registration campaigns electronically deliver such data, whichever is required to determine Publisher's billing and compensation. Any questions regarding the data provided by Promero need to be submitted in writing within 48 hours, otherwise the information will be deemed accurate and accepted as such by Publisher. If Publisher contests Promero' data, Publisher shall provide a written report to Promero identifying, in detail, the discrepancies, between the Publisher's data and Promero' data. Promero shall, in good faith, consider such documentation, but shall have final authority in determining the correct data. All amounts will be paid in US dollars. No checks will be issued for any amounts less than $50 US Dollars (the "Payment Threshold"). All such amounts below the Payment Threshold shall be aggregated and paid when the Payment Threshold has been met. Promero will not pay for any leads or sales that occur before a Program is initiated, or after a Program terminates. Invoices submitted to Promero and payments made to Publisher shall be based on the leads or sales as reported by Promero. Promero will not be responsible to compensate Publisher for leads or sales that are not recorded due to Publisher's error. Promero may require a Publisher to provide a W-9, and similar such information, as a condition to payment.
b. Publishers will receive payment as defined for each campaign at the exchange site http://www.ilmexchange.com , less a fee equal to 30%. Example: 50% of sale where the sale is $100, the CPA generates $50 and the Publisher is paid $35 ($50 less 30%).
7. Termination
a. Promero reserves the right, in its sole and absolute discretion, to terminate a Program and remove any advertisements at any time for any reason, upon written notice to Publisher. Promero also reserves the right to terminate Publisher's access to the Site at any time without notice.
b. Termination notice will be provided via e-mail and will be effective immediately, meaning, among other things, that Publisher must immediately cease all advertising activities. All moneys then due to Publisher will be paid during the next billing cycle. The representations, warranties and obligations contained in paragraphs 7, 9, 10, 11 and 13.2 shall remain in full force and effect after termination of this Agreement. In addition, all payment obligations accruing prior to the termination date shall survive until fully performed.
8. Representations and Warranties/Covenants
a. Mutual Representations. Each party represents and warrants that: (a) it has the right to enter into and fully perform the services contemplated herein, consistent with these Terms and Conditions; (b) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with these Terms and Conditions; and (c) at all times while any Program remains in effect, it shall comply with all applicable laws and regulations. Neither party makes any guarantee, representations or warranties, express or implied, as to the level of consumer response that will result from the Programs.
9. Publisher Representations. Publisher represents and warrants as follows:
a. a. Publisher's Media is currently in compliance with all applicable laws (including without limitation the Can-Spam Act, effective January 1, 2004 (the "Can-Spam Act");
b. Publisher's Media does not contain or promote, nor links to another website that contains or promotes, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content, product, service or activity;
c. Publisher's database consists of only permission based opted-in e-mail addresses; and
d. Publisher owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on Publisher's Media.
10. Publisher Covenants.
a. Publisher covenants that it shall not:
b. send unsolicited commercial e-mail (spam) (i.e., it will send commercial e-mails in connection with any Programs to only those e-mail addresses that have consented to receive such e-mails);
c. post any specific messages to newsgroups, chat rooms, bulletin boards or any other places regarding any Programs unless expressly approved in writing from Promero;
d. promote via website or link to websites containing any pornographic, racial, ethnic, political, software pirating (e.g. Warez) or hacking, hate-mongering, or otherwise objectionable or illegal content, or any other content referenced in paragraph 1.2;
e. use the Site in any manner other than what is specifically contemplated herein;
f. engage in any kind of deceitful, misleading or other unfair trade practices, or fraudulent or other unlawful practice when marketing any Programs; and
g. while an approved Publisher and for 180 days thereafter, participate in any performance based advertising relationship with any Advertiser within Promero's network, unless a previously existing business relationship between Advertiser and Publisher can be demonstrated to the reasonable satisfaction of Promero. In this connection, both parties agree and acknowledge that if Publisher violates its obligations hereunder, Promero will be entitled to damages in the amount of fifty percent (50%) of the gross revenues resulting from sales conducted by Advertiser through the advertising or marketing efforts of Publisher.
11. Publisher covenants that it shall:
a. conduct the web advertising campaign for Advertiser in accordance with the highest industry standards;
b. ensure that any data collected for any lead generation, co-reg, opt-in or opt-out (collectively "Co-Reg") campaign is collected exclusively from the site or sites, which have been previously approved by Promero (and Advertiser, if so requested by Promero).
c. comply with all applicable law, including without limitation the CAN-SPAM Act. Without limiting the generality of the foregoing, if employing e-mail, Publisher shall (and shall cause its affiliates to):
d. refrain from falsifying e-mail header information (including, without limitation, source, destination and routing information);
e. refrain from seeking or obtaining unauthorized access to computers for the purposes of sending commercial e-mail;
f. include within any e-mail sent: a valid street address, a clear and conspicuous identification that any e-mail message is an advertisement or solicitation, and a clear and conspicuous and functioning opt-out notice;
g. comply with all legal obligations with respect to opting out or unsubscribing consumers from Publisher's e-mail mailing lists, as well as Advertiser's e-mail list if applicable;
h. not use any subject or from line that is materially false or misleading, or use subject lines that is ambiguous as to the content of the e-mail (if permitted to use a subject or from line, other than those provided by Promero);
i. to the extent that Promero provides an opt-out or unsubscribe list (the "Suppression List") to Publisher in connection with any Program, Publisher shall regularly scrub its database against and the Suppression List and shall not at any time send any commercial e-mails to any individuals on the Suppression List;
j. not use the Suppression List in any manner other than for the purpose contemplated by clause 6 above and Publisher shall not obtain any ownership interest or rights in and to any Suppression List;
k. Publisher shall alert Promero in the event that any litigation or investigation ensues concerning Publisher's or its affiliates' e-mail practices (irrespective of whether such litigation relates to Publisher's relationship with Promero).
12. TERMINATION: Publisher acknowledges that breaches of any of the foregoing representations and covenants may, in the sole discretion of Promero, result in the immediate termination of Promero' relationship with Publisher and Publisher shall forfeit all rights to any compensation theretofore owed to it by Promero. The foregoing rights shall be in addition to any other remedies available to Promero. Publisher acknowledges and agrees that Promero shall not be responsible for the Advertisers' violation of any applicable laws or regulations, including, without limitation, the CAN-SPAM Act.
13. Privacy Policy
a. Publisher shall maintain and post in a conspicuous manner on all its websites involved in the Programs, a privacy policy no less protective of consumer's privacy interests than the Promero model privacy policy. Click here for the Promero's model privacy policy. This model privacy policy (the "Policy") is provided as a service to Promero' Publishers to provide an example of the level of consumer privacy protection that it expects its Publishers to adhere to with respect to the collection of personally identifiable information from its consumers. Publishers are not obligated to adopt the exact policy, indeed, the Policy may not be right for Publisher's particular business and legal requirements. Publishers are, however, expected to provide at least the same degree of protection of their consumers' privacy as contemplated in the Policy. Promero makes no representations or warranties whatsoever regarding this Policy, and disclaims any responsibility and liability whatsoever resulting from Publisher's use, in whole or in part, of the Policy or its development or use of any privacy policy based on the Policy.
14. Customer Information; Non-Disclosure
a. All information submitted to Publisher by an end-user customer pursuant to a Program is proprietary information of Promero, its affiliates, and/or the Advertisers. Such customer information is confidential and may not be disclosed by Publisher. Publisher agrees not to reproduce, disseminate, sell, distribute or commercially exploit any such proprietary information in any manner.
15. Limitation of Liability; Disclaimer of Warranty
a. Except as provided in paragraph 11 of these Terms and Conditions, in no event will either party be liable to the other for any lost profits or any special, incidental, consequential, exemplary, punitive or other indirect damages of any nature, for any reason, whether based on breach of contract, tort (including negligence), or otherwise and whether or not either has been advised of the possibility of such damages.
16. 16. THE INFORMATION, CONTENT AND SERVICES ON THE SITE OR SERVICES DESCRIBED IN THIS AGREEMENT ARE PROVIDED ON AN "AS IS" BASIS. PUBLISHER USES THE SITE OR SERVICES AND RUNS THE PROGRAMS AT ITS OWN RISK. OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, PROMERO DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTY OF NON-INFRINGEMENT.
17. Representation: Promero makes no representations and warranties whatsoever, and disclaims any responsibility and liability, regarding the content or nature of any Ad or Program made available on the Site, or any product or service advertised in connection therewith.
18. Indemnity
a. Publisher will defend, indemnify, and hold harmless Promero, the Advertisers, and their affiliates, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney's fees and expenses) (collectively "Claims") arising from any breach of any of these Terms and Conditions or any Program Terms. Promero reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder. Without limiting Publisher's indemnity obligations under this paragraph 11, in the event that any Publisher fails to perform its obligations in connection with any Program hereunder or otherwise fails to comply with any provision of the applicable Program Terms or these Terms and Conditions, Publisher agrees that Advertiser shall have the right to bring an action against Publisher, whether at law or in equity, to enforce the applicable Program Terms and these Terms and Conditions.
19. Force Majeure
a. Neither party shall be deemed in default of these Terms and Conditions to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.
20. General
a. Entire Agreement. These Terms and Conditions, together with the terms for each of the Programs constitutes the entire agreement between the parties and supersedes all prior agreements or understandings between the parties.
21. Controlling Law. These Terms and Conditions, the terms of the Programs and the relationship contemplated thereby, shall be governed by the laws of the State of Florida, without giving effect to principles of conflicts of law. Each party, to the extent permitted by applicable law, hereby irrevocably and unconditionally (i) submits to the general jurisdiction of the federal and state courts located in Broward County, Florida; (ii) agrees that any action or proceeding concerning this agreement will be brought exclusively in such courts; and (iii) waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding in any such court was brought in an inconvenient court and agrees not to claim or plead the same.
22. Waiver. No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.
23. 13.5. Assignment. Publisher may not assign any of its rights hereunder without the prior written consent of Promero, which may be withheld for any reason.
24. Severability. In the event that any provision of these Terms and Conditions is found invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be deemed to apply only to the maximum extent permitted by law, and the remainder of these Terms and Conditions shall remain valid and enforceable according to its terms.
25. Relationship. The parties agree that Promero is acting as an independent contractor in performing the Services and that the relationship between the Promero and Publisher shall not constitute a partnership, joint venture or agency. Neither Promero nor any of Promero's employees or agents (collectively referred to herein as the "Employees") (i) is an employee, agent or legal representative of Publisher, or (ii) shall have any authority to represent Publisher or to enter into any contracts or assume any liabilities on behalf of Publisher. Promero retains all the rights and privileges of sole employer of its Employees, including, without limitation, the right to control, hire, discipline, compensate and terminate such Employees. Neither Promero nor any of its Employees shall have any right to receive any employee benefits as are in effect generally for Publisher employees.
26. Notice.Any notice, communication or statement relating to these Terms and Conditions shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission or verified e-mail; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to (a) Advertiser at the address provided in the registration, and (b) Promero at 1100 Park Central Blvd, Suite 2500 Pompano Beach, Florida 33064.
27. NON-CIRCUMVENT. The Publisher shall respect the integrity and tangible value of the contact/compensation structure and shall not in any manner whatsoever, either at the present time, or at any future time, attempt to circumvent the validity and integrity of the contact process, as initially defined, and as initially acted upon, in any of the transactions either entered into, or which the Publisher is desirous of entering into. In the course on any attempted transactional process, any contracts introduced by Promero to Publisher are considered the property of Promero. Publisher accepts and understand that any overt or convert action of circumvention of the respected process shall constitute a serious damage of trust, and of legality, and will subject the trespasser to judicial action, recompense and possible damages.
28. FAILURE TO COMPLY; Failure to comply with any of these terms will result in nonpayment of invoices for deployment services as well as damages as to be determined.
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