Last Updated: Feb 3, 2025
Digistore24 Inc. (“Company”) operates the sales platform located at Digistore24 (the “Sales Platform”), which enables consumers to purchase software, services, or other goods (collectively, “Products”) from Company and the owners or manufacturers of Products made available to consumers through the Sales Platform (“Vendors”). The Sales Platform also enables third-party advertisers (“Affiliates”) to promote Products on behalf of Company and Vendors. The program whereby Affiliates promote Products is referenced herein as the “Affiliate Program”.
The following General Terms and Conditions (the “GTC” or “Agreement”) is a binding agreement between Company and its Vendors and Affiliates (collectively referred to hereinafter as “Contractual Partner” unless otherwise stated). By submitting an application, accessing, or using the Sales Platform, Contractual Partner confirms that it has read the Agreement and expressly consents to all the terms and conditions contained herein and any additional terms and conditions specified on the Sales Platform.
THIS VENDOR AGREEMENT (this “Agreement”) is entered into by and between Digistore24 Inc. (“Company”) and You (“You” or “Vendor”) with Company and Vendor are referred to herein collectively as the “Parties,” and each individually as a “Party.”
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Purpose. Company is a service provider that operates a sales platform (“Platform”), located at https://www.digistore24.com/, that enables consumers to purchase products and services (collectively, “Products”) from it and other vendors who make their products and services available to consumers. Company and Vendor desire to have Vendor sell and promote its products and services on Company’s Platform. This Agreement contains the terms and conditions that govern Vendor’s access to and use of the Platform. By registering for or using the Platform, you agree to be bound by the terms of this Agreement.
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Enrollment and Account Creation. Vendor must complete the registration process before being permitted to sell its Products on the Platform. Company may accept or reject enrollment applications at its sole discretion. Use of the Platform is limited to vendors who may lawfully enter into and form contracts under applicable law. As part of the application, you must provide us with your legal name, address, phone number, and e-mail address, as well as any other information we may request including information to process and remit Vendor Payments. Any information you provide must correspond to Vendor’s business name or to the name of an individual legally authorized to act on behalf of Vendor. Any personal data you provide will be handled in accordance with Company’s Privacy Policy. Vendor is responsible for maintaining the confidentiality of any credentials used to access the Platform, and agrees not to share such credentials with any third party. Vendor is responsible for all transactions with Company under its account, and agrees to immediately notify Company of any unauthorized use of such credentials for any other breach of security related to Vendor’s account. Vendor agrees that Company is not liable for any loss or damage arising from Vendor’s failure to comply with any of the foregoing obligations.
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Product Registration and Listing. Upon creating an account, Vendor will be permitted to register individual Products for sale using the Platform. By registering a Product, Vendor authorizes Company to list the product on the Platform and make it available to consumers for purchase. Vendor will provide accurate and complete Product information for each Product registered and listed for sale on the Platform, and agrees to promptly update that information as necessary to ensure it remains accurate and complete throughout the Products’ lifetime. Vendor represents and warrants that all Products registered and listed for sale on the Platform comply with all applicable laws, regulations, and guidelines, do not contain any sexually explicit, defamatory, or obscene materials, are not unreasonably dangerous, and further agree to provide a continuing guarantee of compliance with all applicable laws, regulations, and guidelines. Company reserves the right, at its own discretion, to refuse to register any Product for sale on the Platform. At any time, Company may, at its own discretion, with or without notice to Vendor, remove Products from the Platform.
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Sale of Products to Consumers. Company will provide Vendor a link that Vendor may integrate into its sales page (“Link”). Consumers who view Vendor’s sales page and choose to purchase the Product will be directed to the Platform to complete the order. If the consumer completes an order on the Platform, Company will purchase the corresponding product from Vendor. Company will then sell the product directly to consumer. Upon completion of the order, Company will notify Vendor of the consumers’ order via email, API, or some other mutually agreeable method. Company shall pay Vendor directly for the Product as discussed in Section 5. All order forms, receipts, order confirmation forms, shall reflect that the consumer purchased the Product directly from Company. For the avoidance of doubt, consumers’ contract to purchase the Product shall be between Company and the consumer.
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Payments and Withholdings.
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Vendor Payments. Vendor shall specify a non-binding price recommendation for each Product. When a consumer completes a purchase, Company shall pay Vendor the non-binding sales price and any shipping and handling fees associated with delivery of the Product and collected by Company at checkout (“Sales Price”), less any applicable sales taxes and a fee for Company’s services pursuant to the then current fee schedule or separate agreement with the Vendor with respect to a specific Product (“Vendor Payments”). All Product refunds, returns, and chargebacks and related processing and bank fees will be deducted from the Vendor Payments. Vendor Payments shall be issued to Vendor via the payment method specified at the time of creating an account. Vendor Payments shall be issued within sixty (60) days of a consumer’s purchase date, or sixty (60) days after the expiration period during which a consumer may request a refund, exercise their rights under a money-back guarantee, or initiate a chargeback, whichever is longer. Without limiting the foregoing, Company reserves the right, at its sole discretion and without notice, to extend the period in which Company may issue refunds and accept returns from customers to three hundred sixty five (365) days from the consumer’s date of purchase, in which Vendor shall not receive until after Company processes all eligible consumer refunds and returns.
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Withholdings. Notwithstanding anything to the contrary herein, Company reserves the right to withhold Vendor Payments in whole or in part if (i) Company reasonably suspects that Vendor has breached this agreement, violated any applicable law, rule, or regulation; (ii) Company reasonably suspects or anticipates consumer refunds, returns, chargebacks (iii) Company reasonably suspects Vendor’s Products are defective; or (iv) Company, in its sole discretion, determines that Vendor did not adequately provide Company information necessary to provide customer support for Vendor’s products purchased through the Platform.
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Minimum Vendor Payments. Company reserves the right to delay disbursement of Vendor Payment if the amount owed to Vendor is less than $100.00 (“Minimum Vendor Payment”). In the event that the Minimum Vendor Payment is not reached, Company shall withhold the Vendor Payment until such time as the minimum payment threshold is satisfied.
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Fee Schedules; Product Specific Fee Agreements. Company’s fee schedules are incorporated by reference to this agreement. The current fee schedules are available on company website. Company may modify its fee schedule at any time without notice. Modifications to the fee schedule will be effective for orders placed on or after 12:00 AM Eastern time the day after notice is given. The Parties may choose a separate, product-specific fee arrangement, in which case such an agreement will be signed by both Parties. Company may terminate any product-specific fee agreement upon notice, in which the Company’s then current fee schedule will apply to any product orders.
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Order Fulfillment; Delivery Errors and Nonconformities. Company is not responsible for fulfillment of any orders made on our Platform. Vendor agrees to fulfill all Product orders, including packing the Products in a commercially reasonable manner that complies with any applicable packaging and labeling requirements, providing any warnings or instructions necessary to safely use your Products with the shipped Products, and shipping the Products on or before its expected shipment date. Vendor may not substitute the ordered Product unless Company provides express written permission. Vendor must deliver the Product in accordance with the shipping method selected by the consumer. Vendor is solely responsible for any shipping, handling, and other expenses associated with delivering Products to consumers. Vendor is solely responsible for determining accurate shipping costs and providing that information to Company. Vendor is responsible for any non-performance, non-delivery, misdelivery, theft, or other mistake or act in connection with the fulfillment of Product orders. Vendor is also responsible for any non-conformity or defect in, any public or private recall of, or safety alert of any of Vendor’s Products. Vendor agrees to notify Company within forty-eight (48) hours of having knowledge of any such public or private recalls, or safety alerts.
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Additional Vendor Obligations. Vendor shall (i) provide a valid e-mail address which Company may use to send inquiries, and answer such inquiries within two (2) business days; (ii) report all complaints in relation to any Product within two (2) business days, including reporting of the threat of any legal or regulatory enforcement action; (iii) support Company in responding to any complaints by taking any necessary steps and appropriate actions for which it agrees to bear all expenses; (iv) comply with all applicable laws and regulations concerning collection of taxes associated with Product purchases, and agrees to assume full responsibility for the timely payment of any taxes due; and (v) fulfill all incentives or promotions it makes to any Company affiliates.
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Advertising Rules. When advertising or promoting the Products, Vendor shall at all times comply with all applicable laws and regulations as well as the Advertising Rules, located in Appendix A, which incorporated by reference herein (the “Advertising Rules”).
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Vendor Representations and Warranties. Vendor represents and warrants that:
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It has full right and legal authority to execute this Agreement;
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Its Products comply with all applicable laws, rules, and regulations, are fit for their ordinary purpose, and are properly packed and secured in a commercially reasonable manner so as to reach end consumers in working condition. If Vendor is not the original manufacturer of the Products, Vendor shall ensure its Product descriptions and specifications comply with all product descriptions or specifications provided by the original manufacturer;
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It shall comply with all Advertising Rules located in Appendix A and incorporated by reference into this Agreement;
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It shall comply with all applicable intellectual property laws;
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It is the holder of all rights in Products offered for sale, and owns or has the legal right to use and distribute all content, copyrighted material, and intellectual property in marketing materials it uses to market the Products, including but not limited to Product descriptions, information, images, customer reviews and feedback, and any other materials on its website, as well as any content or information provided to Company pursuant to this Agreement;
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It shall prominently post and make available to end consumers on Vendor’s website a privacy policy that clearly, conspicuously, and accurately discloses all information collection, use and sharing practices, including providing for the collection of such personally identifiable information in connection with this Agreement and the provision of such personally identifiable information to Company;
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It shall comply with the terms and conditions, guidelines, and policies of any third-party services it may use in connection with this Agreement, including but not limited to e-mail providers, social networking services and advertising networks, including but not limited to their terms of service, privacy policies, promotional guidelines, advertising guidelines, intellectual property policies, and branding and promotion policies, and agrees Company has made no determination as to whether any third party requirements comply with applicable laws, rules, and regulations;
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If Vendor chooses to use Company’s affiliate program to promote any of its Products, Vendor shall make available to Company the graphic and textual links and other creative materials and copy associated with any promotion that affiliates may display on websites owned or controlled by affiliates, in emails sent by affiliates, and in affiliate’s online advertisements (“Approved Copy”). All express or implied advertising claims in Vendor’s Approved Copy must comply with the Advertising Rules incorporated into this agreement. Vendor shall maintain a file containing the substantiation for all express or implied claims in the Approved Copy. Vendor shall provide Company a copy of all substantiation for its advertising claims upon forty-eight hours written notice.
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Recordkeeping. The Parties shall maintain thorough and accurate records relating to this Agreement and the information they receive pursuant to this Agreement. Upon request by Company, Vendor shall provide to Company reasonable additional assurance of compliance with this Agreement, which may include evidence of due diligence, copies of emails and advertising materials, copies of all information pertaining to complaints received by Vendor, and all such other information that Company may request. Vendor agrees that Company or its designee, shall have the right, at its sole cost and expense and without payment of any expenses of Vendor, to audit and/or copy requested records during normal business hours upon written notice at least five (5) business days before the commencement of the audit.
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Disclosure Obligations. Vendor represents and warrants that it has disclosed, prior to executing this Agreement, the existence of any past federal or state decrees, orders, or consent agreements, and any pending formal or informal government investigations or prosecutions by the Federal Trade Commission, any other federal or state governmental or regulatory body or agency, or any industry regulatory authority. If Vendor becomes involved or named in any action, investigation, complaint or other proceeding by or before any governmental or regulatory authority, or any private party, Vendor will immediately provide notice to Company of such action, investigation, complaint or other proceeding, in which event Company may terminate this Agreement immediately and without notice to Vendor. If Vendor becomes aware of a breach of this Agreement by Vendor, Vendor will inform Company within twenty-four (24) hours of the breach, and provide Company with detailed information of the breach and the corrective action taken to resolve the breach.
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Consumer Data. Company shall have the immediate and exclusive right to use, exploit, and sell any information about consumers or any other information obtained in connection with traffic driven to Company’s website (“Consumer Data”). Vendor shall have no right to or interest in the Consumer Data other than the right to be paid in accordance with the terms of Agreement. Notwithstanding the foregoing provisions, in addition to the other confidentiality provisions set forth in Section 14, Vendor shall use at least the same level of care to maintain the confidentiality of any Consumer Data in its possession and, except as expressly permitted by Company or otherwise specified in this Agreement, shall not disclose, sell, or otherwise distribute the Consumer Data to any third parties without Company’s prior written consent.
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Intellectual Property Rights. Vendor grants Company a non-exclusive, irrevocable, sublicensable, worldwide right to use and exploit the Product and corresponding advertising material in a comprehensive manner for commercial marketing purposes. This grant expressly includes all forms of offering and promoting the Products online, in particular the inclusion in fee-based or free online services, price search engines, blogs, and websites. To the extent the Product is a digital product, Vendor further grants Company the following additional rights of use: authorization to permit the end customer to permanently store the Product; the right of duplication, making publicly accessible and dissemination, i.e., the right to duplicate, make publicly available or publicly perform the Product with the aid of any available technical capabilities, in particular by means of digital integration into a website operated by Company; the right to make available on demand, i.e. the right to store the Product, to hold it ready for public access, to transfer it to one or more persons who seek access and to analogue or digital electronic databases, electronic data networks, and telecommunications services networks; the right to public performance; and the right to modify the Product itself or have it modified by third parties subject to preservation of author’s rights, to edit the Product, in particular for purposes of integrating the Product into the Sales Platform. In connection with the performance of this contract, Vendor grants Company the right to use the respective title of the Products as well as names, logos, images, trademarks, and business designations both of the Vendor and author of the Product including expressly for promotional purposes. Without limiting the foregoing, Vendor grants Company the right to sub-license the rights granted herein.
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Confidentiality.
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During the term of this Agreement, Company may disclose to Vendor certain information (either oral, written or digital) including, but not limited to, data, research, product plans, products, services, pricing, business and financial information, customer and vendor lists, mailing lists, marketing plans, opportunities, trade secrets, markets, software, developments, inventions, processes, designs, drawings, engineering, technical data, know-how, hardware configuration information, marketing or financial data (collectively, “Confidential Information”). Vendor shall not disclose to any third party, nor permit any other person or entity access to Company’s Confidential Information, except as required to perform the obligations or exercise rights under this Agreement. Vendor shall immediately notify Company in writing of all circumstances surrounding any possession, use, or knowledge of Confidential Information by any person or entity other than those authorized by this Agreement.
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The term “Confidential Information” shall not include any information which: (a) at the time of the disclosure or thereafter is or becomes generally available to the public other than as a result of its disclosure by Vendor in violation of this Agreement, (b) was or becomes available to Vendor on a non-confidential basis from a source other than Company, (c) is independently developed by Vendor without the use of any Confidential Information, or (d) was in the possession of Vendor prior to being disclosed to the Recipient by the Disclosing Party.
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Upon termination of this Agreement, Vendor shall, upon the request of Company, return or destroy all Confidential Information of Company and shall certify compliance within ten (10) days following written request.
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Vendor may disclose Company’s Confidential Information upon the order of any competent court or government agency or as necessary in any legal proceeding, provided that Vendor informs the Company prior to any such disclosure.
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Vendor agrees that its obligations in this Section 14 are necessary and reasonable in order to protect Company and its business, and Vendor agrees that the remedy of damages would be inadequate to compensate Company for any breach by Vendor of its obligations set out under this Section 14. Accordingly, Vendor agrees that, in addition to any other remedies that may be available, Company shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by Vendor, without limiting any other rights and remedies to which Company may be entitled to at law, in equity or under this Agreement.
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Indemnification. Vendor agrees to indemnify, defend and hold harmless Company and its representatives from and against any and all actions, claims, investigations, demands, proceedings, liabilities, damages, judgments, settlements, fines, penalties, costs, and expenses, including attorneys’ fees and related costs, that: (a) arise from any act or omission of Vendor; or (b) arise from or relate to a breach of this Agreement by Vendor. This includes, but is not limited to, indemnification arising from all actions, claims, investigations, demands, proceedings, liabilities, damages, judgments, settlements, fines, penalties, costs, and expenses, including attorneys’ fees and related costs that may result from Vendor’s failure to disclose, or delay in disclosing, any legal investigations as required by this Agreement.
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Remedies. If Company learns that Vendor may not be in compliance with the terms of this Agreement, Company’s rights include without limitation the right to (a) immediately terminate this Agreement without additional liability, (b) refuse to remit Payments, and (c) collect money damages and obtain other legal remedies, including attorney’s fees and costs.
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LIMITED LIABILITY. COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING OUT OF ANY COURSE OF DEALING. COMPANY DOES NOT WARRANT THAT THE PRODUCTS, PROMOTIONS, PLATFORM, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY COMPANY WILL MEET VENDOR’S SPECIFIC REQUIREMENTS, ARE ACCURATE, COMPLETE, OR CURRENT OR THAT THEIR OPERATION WILL BE ERROR FREE OR UNINTERRUPTED. THE PRODUCTS, PROMOTIONS, PLATFORM, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY COMPANY ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND VENDOR AGREES TO USE OF THE SAME AT ITS OWN RISK. IN NO EVENT SHALL COMPANY OR ITS REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES, OR LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN TORT, CONTRACT OR OTHER THEORY. IN NO EVENT SHALL THE AGGREGATE LIABILITY BY COMPANY OR ITS REPRESENTATIVES TO VENDOR OR ANY OTHER PARTY UNDER THIS AGREEMENT EXCEED $10,000.
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Choice of Law, Venue, and Attorney’s Fees. This Agreement shall be governed by and construed in accordance with the laws of Florida. For any dispute arising under this Agreement, the Parties hereby agree to submit to personal jurisdiction in Florida and agree that the exclusive venue shall be the federal or state courts located in Florida. In the event of any legal proceeding between the Parties, the prevailing party shall be entitled to an award of its reasonable attorney’s fees and have remedy in law and/or equity including, but not limited to, appropriate injunctive relief without the necessity of posting a bond or other security or specific performance.
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Term/Termination. Company may terminate its relationship with Vendor for any reason or revoke access to the Platform, with or without notice. Vendor may terminate this Agreement at any time, with or without cause, upon sixty (60) days written notice to Company.
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Miscellaneous. Vendor may not assign this Agreement without the prior written consent of Company. This Agreement shall not be construed to create any employment relationship, partnership, joint venture, or agency relationship between the Parties or to authorize a Party to enter into any commitment or agreement binding on the other. Except as provided to the contrary herein, those provisions of the Agreement that by their nature and context are intended to survive the termination of this Agreement, shall survive any termination of this Agreement. Unless otherwise specified, the rights and remedies granted to a Party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity. The waiver by either Party of a breach, right or obligation shall not constitute a waiver of any other or subsequent breach, right or obligation. If any provision of this Agreement is found to be invalid or unenforceable for any reason, the remainder of this Agreement shall remain in full force and effect. Except as otherwise provided herein with respect to the Company’s applicable fee schedules, this Agreement sets forth the entire agreement between the Parties and supersedes all prior proposals, agreements and representations between the parties, whether written or oral, regarding the subject matter herein.
THIS AFFILIATE AGREEMENT (this “Agreement”) is entered into by and between Digistore24 Inc. (“Company”) and You (“You” or “Affiliate”) with Company and Affiliate referred to herein collectively as the “Parties,” and each individually as a “Party.”
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Purpose. Company operates a sales platform enabling consumers to purchase products and services from it and other merchants who make their products and services available to consumers. Company and Affiliate desire to have Affiliate promote Company’s products and services.
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Services. Beginning on the Effective Date and until such time as this Agreement is terminated as set forth herein, Affiliate will cause Company’s products and services to be promoted through web sites, emails, banner ads, and/or other advertisements (collectively, “Advertisements”) for the purpose of generating sales or leads for Company (“Services”).
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Marketing Copy. Company shall provide to Affiliate advertising and marketing copy and creative materials (collectively “Company Advertising/Marketing Copy”) that Affiliate may use to promote Company’s products and services. In the alternative, Affiliate may create and use other advertising and marketing copy and creative materials to promote Company’s products and services (“Affiliate Advertising/Marketing Copy”) provided that (i) all Affiliate Advertising/Marketing Copy must first be delivered for Company’s approval and (ii) Company provides express written approval of the Affiliate Advertising/Marketing Copy before it is published. Affiliate may not use any other materials to promote Company’s products and services other than Company Advertising/Marketing Copy and Affiliate Advertising/Marketing Copy. No material changes shall be made to any Company Advertising/Marketing Copy or Affiliate Advertising/Marketing Copy without Company’s prior written consent. In the event that Company instructs Affiliate to cease using certain Company Advertising/Marketing Copy or Affiliate Advertising/Marketing Copy, Affiliate shall cease all use within one business day.
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Third Party Affiliates. Affiliate represents and warrants that it shall not use sub-affiliates, third party affiliates, or its own network, each a “Third-Party Affiliate” for purposes of this Agreement, without Company’s prior written consent. Without limiting the foregoing, Affiliate shall not broker promotions to any Third-Party Affiliate, or to any directly enrolled affiliates, without Company’s prior written permission. If Company permits Affiliate to engage Third-Party Affiliates to provide Services hereunder then the provisions set forth below apply:
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Affiliate shall contractually bind, to all terms of this Agreement, all of its Third-Party Affiliates who perform Services under this Agreement. Thus, Affiliate shall require and confirm that all Third-Party Affiliates affirmatively accept, through verifiable means, terms substantively identical to this Agreement prior to obtaining access to any Company Advertising/Marketing Copy and Affiliate Advertising/Marketing Copy. If a Third-Party Affiliate fails to adhere to the requirements set forth herein, in addition to other remedies available to Company, Affiliate may be terminated at Company’s sole discretion, and Affiliate shall indemnify Company for any resulting third party claims against it;
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Affiliate shall not permit any party to be a Third-Party Affiliate whose advertising or business model concerns content or marketing channels prohibited by this Agreement;
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Affiliate agrees that for the purposes of this Agreement, the acts and omissions of its Third-Party Affiliates shall be deemed Affiliate’s acts and omissions regardless of whether such Third-Party Affiliates bound themselves to this Agreement or any other agreement. Affiliate is responsible for any Third-Party Affiliate’s breach of this Agreement regardless of whether Third-Party Affiliates execute this Agreement or any other agreement. Without limiting the foregoing, Affiliate shall defend and indemnity Company for any act or omission by any Third-Party Affiliate;
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Affiliate shall periodically audit Third-Party Affiliates, and permit Company to audit Third-Party Affiliates upon written request, to ensure Third-Party Affiliates are in compliance with the law and this Agreement. Affiliate shall promptly terminate any Third-Party Affiliate who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. Without limiting foregoing, at Company’s request, Affiliate shall provide reasonable assistance to enable Company to monitor compliance with all applicable laws and provisions under this Agreement;
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Affiliate, upon written notice from Company, shall immediately remove any Third-Party Affiliate from disseminating Advertisements or providing Services in connection with this Agreement, and terminate their access to all Marketing Copy;
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Affiliate agrees that Company is under no obligation to pay a Third-Party Affiliate. Company further reserves the right to withhold or refuse Payments to Affiliate, and charge back or obtain a refund from Affiliate for prior Payments, in the event that any of its Third-Party Affiliates breach this Agreement or the law.
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Advertising Rules.In providing the Services under this Agreement, Affiliate shall at all times comply with all applicable laws and regulations as well as the Advertising Rules attached as Appendix A and incorporated by reference herein (the “Advertising Rules”).
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Payment. Payments paid to Affiliate shall be specified on sales platforms for corresponding products and services. Affiliate’s Payment is based on the product or service to be marketed and will be agreed upon individually. With the exception of promotions designated as “Cost Per Action,” if an end-consumer returns, requests a refund, or initiates a chargeback for a product or service, Company shall deduct the corresponding amount from Affiliate’s Payment. With the exception of promotions designated as “Cost Per Action,” if a chargeback, refund, or return is initiated after the corresponding Payment has been paid to Affiliate, Company reserves to deduct such amount from future Payments to Affiliate. Affiliate shall not receive a Payment if an Affiliate is also a merchant on Company’s sales platform and buys its own products or services. Company reserves the right, in its sole discretion, to withhold or set off any Payments owed under this Agreement for reasons including, but not limited to, third-party claims or disputes, suspected fraud, shipping issues, or other circumstances that, in the Company’s judgment, warrant such action.
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Recordkeeping. The parties shall maintain thorough and accurate records relating to this Agreement and the information it receives pursuant to this Agreement. Upon request by Company, Affiliate shall provide to Company reasonable additional assurance of compliance with this Agreement, which may include evidence of due diligence, copies of emails and advertising materials, copies of all information pertaining to complaints received by Affiliate, identity verification documents, and all such other information that Company may request. Affiliate agrees that Company or its designee, shall have the right, at its sole cost and expense and without payment of any expenses of Affiliate, to audit and/or copy requested records during normal business hours upon written notice at least five (5) business days before the commencement of the audit. Affiliate agrees to provide Company, upon request, with access to data that tracks actions, the number of impressions delivered, click-throughs, and related information for each advertisement on a real time basis (i.e., reporting information). Affiliate shall also place tracking code(s) (sometimes known as “pixels”) on Affiliate’s site(s) with populated transaction variables, as requested by Company, for network tracking and reporting purposes.
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Disclosure Obligations. Affiliate represents and warrants that it has disclosed, prior to executing this Agreement, the existence of any past federal or state decrees, orders, or consent agreements, and any pending formal or informal government investigations or prosecutions by the Federal Trade Commission, any other federal or state governmental or regulatory body or agency, or any industry regulatory authority. If Affiliate becomes involved or named in any action, investigation, complaint or other proceeding by or before any governmental or regulatory authority, or any private party, Affiliate will immediately provide notice to Company of such action, investigation, complaint or other proceeding, in which event Company may terminate this Agreement immediately and without notice to Affiliate. If Affiliate becomes aware of a breach of this Agreement by Affiliate, Affiliate will inform Company within twenty-four (24) hours of the breach, and provide Company with detailed information of the breach and the corrective action taken to resolve the breach.
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Proprietary Information. Company hereby grants to Affiliate a revocable, non-exclusive, worldwide license to use, reproduce, publish, display, and transmit the name, logos, trademarks, service marks, trade dress, logos, graphics, artwork, text, and proprietary information contained in the Company Advertising/Marketing Copy. Affiliate shall have no interest in or right to the Company Advertising/Marketing Copy except as set forth herein, and Company shall retain all rights to, titles and interest in its Proprietary Information and Company Advertising/Marketing Copy.
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Consumer Data. Company shall have the immediate and exclusive right to use, exploit consumer information obtained in connection with traffic driven to Company’s website (“Consumer Data”). Affiliate shall have no right to or interest in the Consumer Data other than the right to be paid in accordance with the terms of Agreement. Notwithstanding the foregoing provisions, in addition to the other confidentiality provisions set forth in Section 11, Affiliate shall use at least the same level of care to maintain the confidentiality of any Consumer Data in its possession and, except as expressly permitted by Company or otherwise specified in this Agreement, shall not disclose, sell, or otherwise distribute the Consumer Data to any third parties without Company’s prior written consent.
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Confidentiality.
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During the term of this Agreement, Company may disclose to Affiliate certain information (either oral, written or digital) including, but not limited to, data, research, product plans, products, services, pricing, business and financial information, customer and vendor lists, mailing lists, marketing plans, opportunities, trade secrets, markets, software, developments, inventions, processes, designs, drawings, engineering, technical data, know-how, hardware configuration information, marketing or financial data (collectively, “Confidential Information”). Affiliate shall not disclose to any third party, nor permit any other person or entity access to Company’s Confidential Information, except as required to perform the obligations or exercise rights under this Agreement. Affiliate shall immediately notify Company in writing of all circumstances surrounding any possession, use, or knowledge of Confidential Information by any person or entity other than those authorized by this Agreement.
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The term “Confidential Information” shall not include any information which: (a) at the time of the disclosure or thereafter is or becomes generally available to the public other than as a result of its disclosure by Affiliate in violation of this Agreement, (b) was or becomes available to Affiliate on a non-confidential basis from a source other than Company, (c) is independently developed by Affiliate without the use of any Confidential Information, or (d) was in the possession of Affiliate prior to being disclosed to the Recipient by the Disclosing Party.
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Upon termination of this Agreement, Affiliate shall, upon the request of Company, return or destroy all Confidential Information of Company and shall certify compliance within ten (10) days following written request.
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Affiliate may disclose Company’s Confidential Information upon the order of any competent court or government agency or as necessary in any legal proceeding, provided that Affiliate informs the Company prior to any such disclosure.
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Affiliate agrees that its obligations in this Section 11 are necessary and reasonable in order to protect Company and its business, and Affiliate agrees that the remedy of damages would be inadequate to compensate Company for any breach by Affiliate of its obligations set out under this Section 11. Accordingly, Affiliate agrees that, in addition to any other remedies that may be available, Company shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by Affiliate, without limiting any other rights and remedies to which Company may be entitled to at law, in equity or under this Agreement.
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Indemnification. Affiliate agrees to indemnify, defend and hold harmless Company and its representatives from and against any and all actions, claims, demands, proceedings, liabilities, damages, judgments, settlements, fines, penalties, costs, and expenses, including attorneys’ fees and related costs, that: (a) arise from any act or omission of Affiliate or Third-Party Affiliate; or (b) arise from or relate to a breach of this Agreement by Affiliate. Affiliate agrees that, for the purposes of this Agreement, the acts and omissions of its Third-Party Affiliates and other agents shall be deemed Affiliate’s acts and omissions.
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Remedies. If Company learns that Affiliate may not be in compliance with the terms of this Agreement, Company’s rights include without limitation the right to (a) immediately terminate this Agreement without additional liability, (b) refuse to pay for any sales or leads attributable to the non-compliance, and (c) collect money damages and obtain other legal remedies, including attorney’s fees and costs.
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LIMITED LIABILITY. COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING OUT OF ANY COURSE OF DEALING. IN NO EVENT SHALL COMPANY OR ITS REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN TORT, CONTRACT OR OTHER THEORY. IN NO EVENT SHALL THE AGGREGATE LIABILITY BY COMPANY OR ITS REPRESENTATIVES TO AFFILIATE OR ANY OTHER PARTY UNDER THIS AGREEMENT EXCEED $10,000.
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Choice of Law, Venue, and Attorney’s Fees. This Agreement shall be governed by and construed in accordance with the laws of Maryland. For any dispute arising under this Agreement, the Parties hereby agree to submit to personal jurisdiction in Maryland and agree that the exclusive venue shall be the federal or state courts located in Florida. In the event of any legal proceeding between the Parties, the prevailing party shall be entitled to an award of its reasonable attorney’s fees and have remedy in law and/or equity including, but not limited to, appropriate injunctive relief without the necessity of posting a bond or other security or specific performance.
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Term/Termination. Either party may terminate this Agreement at any time, effective immediately, with or without cause, upon providing written notice to the other party. Upon termination, Affiliate shall retain access to the Company's sales platform until their account is deleted, unless otherwise specified by the Company.
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Witholdings. Notwithstanding anything to the contrary herein, Company reserves the right to withhold Payments in whole or in part if (i) Company reasonably suspects that Affiliate has breached this agreement, violated any applicable law, rule, or regulation; or (ii) Company reasonably suspects or anticipates consumer refunds, returns, chargebacks as a result of Affiliate’s actions or omissions.
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Miscellaneous. Affiliate may not assign this Agreement without the prior written consent of Company. This Agreement shall not be construed to create any employment relationship, partnership, joint venture, or agency relationship between the Parties or to authorize a Party to enter into any commitment or agreement binding on the other. Except as provided to the contrary herein, those provisions of the Agreement that by their nature and context are intended to survive the termination of this Agreement, shall survive any termination of this Agreement. Unless otherwise specified, the rights and remedies granted to a Party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity. The waiver by either Party of a breach, right or obligation shall not constitute a waiver of any other or subsequent breach, right or obligation. If any provision of this Agreement is found to be invalid or unenforceable for any reason, the remainder of this Agreement shall remain in full force and effect. This Agreement sets forth the entire agreement between the Parties and supersedes all prior proposals, agreements and representations between the parties, whether written or oral, regarding the subject matter herein.
These Advertising Rules apply to any activities by any Affiliate engaged by Company to promote Company through web sites, emails, banner ads, and/or other advertisements (collectively, “Advertisements”).
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General Compliance. Affiliate shall publish or otherwise distribute the Advertisements in strict compliance with all applicable laws, regulations, and guidelines, including without limitation the Federal Trade Commission Act, the Food Drug and Cosmetic Act, the Dietary Supplement Health and Education Act, Federal Trade Commission Endorsements Guides, the CAN-SPAM Act of 2003 and all state anti-spam laws such as California Business & Professions Code Section §§ 17529.5, 1798.83 as set forth in greater detail herein, state and data privacy regulations such as the Children’s Online Privacy Protection Act, the California Online Privacy Protection Act and the California Consumer Privacy Act, and the California Health and Safety Code § 25249.6 (“Proposition 65”), and any other applicable federal, state, and local consumer protection laws, regulations, and standards.
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Telemarketing, Faxing, and Text Messages. Unless expressly approved by Company, Affiliate is prohibited from publishing or otherwise distributing Advertisements by telemarketing, fax, or text messaging in any form to any device. Should Company approve such publishing or distribution of Advertisements by telemarketing, fax, or text messaging, Affiliate shall do so in strict compliance with each of the following requirements:
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comply with all applicable federal, state, and local laws, ordinances, rules, regulations and codes concerning telemarketing and text message marketing, including but not limited to the Telephone Consumer Protection Act (47 C.F.R. § 227) (“TCPA”), the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6101-6108), the Telemarketing Sales Rule (16 C.F.R. Part 310), Federal Communications Commission rules implementing the TCPA and court decisions interpreting the TCPA, and all federal and state “Do Not Call” laws, rules, and requirements;
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shall obtain “prior express written consent” from every recipient to which it places any telephone call or sending any text messages, as that term is defined under the TCPA, TSR, and decisions and orders issued by the Federal Communications Commission and interpreting courts;
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shall not place any calls to telephone numbers listed on the U.S. national Do Not Call list and all state Do Not Call lists, as well as any other lists that may be provided to Affiliate by Company;
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shall comply with all applicable laws, rules, and requirements concerning disclosures, opt-outs, and revocation of consent;
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shall implement written policies and procedures to comply with applicable laws, rules, and regulations concerning telemarketing;
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shall maintain an internal “Do Not Call” list of consumers who have requested not to receive telephone solicitations from or on behalf of Affiliate and shall not make any outbound calls or send outbound text messages to any telephone numbers or consumers listed on Affiliate’s internal “Do Not Call” list. Affiliate shall inform Company immediately, but in no less than 24 hours, after receiving any “do not call” request from a consumer or revocation of consent to receive telephone calls or text messages concerning Company or its products and services.
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Return and Cancellation Policies. Affiliate shall abide by Company’s return and cancellation policies and any other applicable terms and conditions of sale. Affiliate shall not promote any Product in a manner that suggests, whether explicitly or implicitly, that the consumer’s purchase is subject to terms that are different from Company’s return policy, cancellation policy, or any other applicable terms and conditions without Company’s prior express written consent.
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Intellectual Property. Affiliate shall not use any trademark, service mark, trade name, trade dress, logo, copyright, or other intellectual property of Company (including the names of branded products) except with the written permission of Company. Further, Affiliate shall not promote or provide services to any other business or person that uses any trademark, service mark, trade name, trade dress, logo, copyright, or other intellectual property of Company (including the names of branded products) except with the written permission of Company. Except to the extent that a third-party has given written permission, Affiliate shall not use any trademark, service mark, trade name, trade dress, logo, copyright, or other intellectual property of any third-party.
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Claims. Affiliate agrees to not misrepresent Company or its products and services. Affiliate shall not make any claim about the features, attributes, characteristics, efficacy, actual or anticipated results, or other qualities of any of Company’s products and services (collectively, “Claims”) unless Company has provided such Claims to Affiliate specifically for use in Advertisements. Affiliate shall defend, indemnify and hold Company harmless, and assume full and sole responsibility, for Claims used in any Advertisement that Company did not provide and/or approve for Affiliate’s use.
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No Alteration of Advertisements. Affiliate agrees not to alter, modify or otherwise change any Advertisements or other content provided or previously approved by Company without the prior written approval of Company.
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Restrictions. No Advertisements published or otherwise distributed by Affiliate shall:
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contain content that is: an invasion of privacy, degrading, libelous, unlawful, deceptive, profane, obscene, pornographic, tends to ridicule or embarrass, or is in bad taste, at the sole discretion of Company;
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spawn malicious, false, or deceptive pop-ups or exit pop-ups, or spyware, plug-ins, pop-under technology, or similar downloadable applications;
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generate leads that are not initiated by the affirmative acts of a consumer (i.e. the consumer clicking on the Advertisement);
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promote any illegal activity including, without limitation, gambling, illegal substances, software piracy, or hacking;
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spoof, or redirect, traffic to or from any adult-oriented web sites or other web sites not specifically designated by Company as a landing page;
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use surveys;
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use Advertisements as a rebate system;
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broker promotions to any networks or third parties without Company’s written permission;
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No Incentivized Lead Generation. Affiliate shall not use incentives, points, rewards, cash, or prizes to consumers in return for their response to an Advertisement.
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Search Engine Optimization. Unless expressly approved by Company, if Affiliate distributes Advertisements by using search engine optimization techniques, including without limitation search engine text ads, Affiliate shall not:
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Use for any purpose Google Search Advertising (AdWords).
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Use any technique that generates organic or paid search results based on any Marks of Company or any brand name of Company.
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Use any technique that generates organic or paid search results based on the Marks of any competitor of Company or any brand name of any competitor of Company, or any other third party.
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Display search results under any “negative keywords” provided by Company.
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Directly link any search results to a web site hosted and/or operated by Company.
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Engage in the practices known as “double serving” and “cloaking” where a marketer uses its own jump page to then link into Company’s web page via pre-pop functionality.
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Use any advertising method or engage in any activity that is prohibited by or violates the then-current applicable rules of the search engine provider.
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Email Content Requirements. When using email as a promotional method, Affiliate shall ensure that:
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Emails comply with all applicable statutes, including CAN-SPAM (15 U.S.C. § 7701) and all state anti-spam laws such as California Business & Professions Code § 17529.
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Emails use only creatives, from lines and subject lines provided by Company or approved by Company in writing. Affiliates are prohibited from removing or altering subject and from lines provided by Company or approved by Company in writing.
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Emails have accurate email header information (including source, destination, date and time, and routing information) and accurate, non-misleading subject lines and from lines.
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Emails include an originating email domain name that is openly and accurately registered to the person or entity who transmitted the message. The use of an originating email domain name that is privately registered, or registered with information that is false, fails to identify the person or entity who transmitted the email message or fails to provide accurate contact information for the person or entity who transmitted the email message, is prohibited. Affiliate must not use email accounts or domain names that use information that falsifies the identity of the registrant.
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Emails include a valid physical postal address of the sender.
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Emails include no gibberish language, including any foreign languages or symbols.
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Emails not have a false or misleading subject line that attempts to disguise or conceal the content of the email, or Affiliate as the sender of the email.
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Emails include a clear and conspicuous identification that the message is an advertisement or solicitation. Such an identification shall state “This is an advertisement” per subsection (g) below.
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Emails include (i) clear and conspicuous notice of the recipient’s right to opt-out of receiving future emails from Company; and, (ii) a functioning return email address or other Internet-based mechanism that a recipient may use to make such an “opt-out” request. Such a notice shall state:
This is an advertisement. If you would prefer not to receive future marketing messages from us, click here or write to [Sender Name], [Street Address], [City], [State] [Zip Code].
Acceptable methods include (i) having an unsubscribe link in each email delivered which is unique to the recipient, (ii) having a link to a non-password protected website where the individual can ‘opt-out’ from receiving further email solicitations from Affiliate, or (iii) allowing the recipient to respond to a functioning return electronic email address with a message that is either blank or has ‘Unsubscribe’ in the subject line. In every case, the unsubscribe process must be both easy to use and effective. The opt out mechanism must remain active for at least thirty (30) days from the date of the email.
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Email Suppression and Monitoring Requirements. When using email as a promotional method, Affiliate shall take the following action to facilitate suppression and monitoring:
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All unsubscribe requests must be honored within ten (10) days from receipt of request, and Affiliate shall maintain electronic or tangible records confirming the removal of such emails from Affiliate’s lists for verification by Company.
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Within one (1) day of a consumer’s opt-out request, Affiliate shall provide the unsubscribe request to Company.
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Affiliate must remove from any email transmission list any email address associated with any person who previously requested not to receive email solicitations from or on behalf of Company (“Suppression List”).
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Affiliate is responsible for any sending of email messages as well as proper usage of the Suppression List.
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Affiliate must not sell, lease, exchange or otherwise transfer or release any opt-out email address on the Suppression List or as otherwise collected by Affiliate or Company, except as required by law.
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Affiliate must provide reasonable assistance to enable Company to monitor email messages to ensure compliance with the Advertising Rules.
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Affiliate must monitor the activity of any other person sending email to ensure compliance with the Advertising Rules.
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Affiliate must not send email messages to email addresses that have been improperly obtained, including addresses harvested from the Internet without consent and randomly generated addresses.
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Affiliate must not send email messages from accounts obtained using scripts or other automated means of registering for multiple email accounts.
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Affiliate shall not send emails for the purpose of harvesting the email addresses in order to send future unsolicited emails.
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Upon request from Company (which may be by phone or email), Affiliate shall immediately stop sending any emails that contain a particular advertisement or advertising material, or that pertain to a particular campaign or offer.
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Prior to any emailing, Affiliate must scrub against Affiliate and Company’s suppression files, and thereafter Affiliate must scrub against Affiliate and Company’s suppression files at least every seven (7) days.
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Endorsements and Testimonials. Affiliates are prohibited from using an Endorsement or Testimonial, unless Company has received, reviewed and provided express, prior written consent to such advertising. “Endorsement” or “Testimonial” (collectively “Testimonial”) means any advertising message (including but not limited to consumer testimonials, celebrity or expert endorsements, blogs, verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name, logo or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experience of a party other than Company. This restriction includes the following:
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Affiliate shall not use any Testimonial unless such Testimonial complies with the Federal Trade Commission’s Revised Endorsements and Testimonials Guides (16 CFR Part 255 of the Code of Federal Regulations).
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Consistent with this, the Endorser may not use false Testimonials, and all Testimonials must reflect the honest opinions, findings, beliefs and/or experience of the Endorser, and shall not convey an expressed or implied representation that would be deceptive if made directly by Company.
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Further, no Testimonial may contain representations for which the Affiliate does not have substantiation or that would be considered deceptive.
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If the Testimonial represents that the Endorser uses Company’s product or service, the Endorser must have been a bona fide user of it at the time the Testimonial was given, and Affiliate may use the testimonial only as long as the Affiliate has good reason to believe that the Endorser continues to subscribe to the views presented.
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The advertisement must include a clear and conspicuous disclosure of any material connection between the Affiliate disseminating the advertisement and Company. Examples of “material connections” that must be disclosed include, but are not limited to: (i) compensation or consideration (benefits or incentives such as money, loaner products, review items, rewards, points, prizes, free or discounted items or services, promotional items or services, in-kind gifts, samples, coupons, or special access privileges) provided by Company to Affiliate, or (ii) a relationship between Company and the Affiliate (such as a present or former employment or agency relationship or some other contractual or other relationship that may or may not be anticipated by the reader of the advertisement).
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Fraud. Affiliates shall not use any deceptive or misleading practice, method or technology including, but not limited to, the use of any adware, malware, device, programs, robots, iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear as if a live consumer viewed an Advertisement and/or thereafter performed a payable action. Affiliates shall not make use of any stolen credit card or debit card numbers or pre-paid credit or debit cards to perform any payable action or otherwise impersonate any live consumer, or engage in any form of banking fraud, credit card fraud, or otherwise. By way of example, other indicators of fraud include an Affiliate who (a) generates multiple leads from the same IP address, (b) has conversion rates significantly higher than Company’s average, (c) has EPC values significantly higher than Company’s average, (d) places Company’s or Company’s links on incentivized websites without Company’s prior written consent, or (e) generates multiple leads using proxy servers. Company reserves the right to withhold payment to the Affiliate in the event that Company determines that Affiliate may have engaged in fraud.
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Privacy Policy. If Affiliate uses a website to promote Company’s products and services, it must include a clear and conspicuous privacy policy that complies with the requirements of privacy laws such as Cal. Bus. & Prof. Code § 22575-22579 (a California statute) and specifically states that consumer information collected through the site will be shared with third parties for marketing, fulfillment, or any other purposes.
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Complaint Notification. Affiliate must notify Company of any complaint received by Affiliate regarding any Advertisements within twenty-four (24) hours of receiving such complaint.