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Terms & Conditions
These Terms and Conditions (“Terms and Conditions”) are agreed to and by and between Duo Studios Incorporated d/b/a The Credit People (“TCP”) and the party submitting an application to become a TCP Publisher. The term “Publisher” shall mean the entity identified in the contact information of this application as well as any of Publisher’s affiliates, independent contractors, or other marketing partners, all of which must be subject to Advertising Standards that are at least as restrictive as those outlined in this Agreement. The terms and conditions contained in this Agreement apply to Publisher’s participation with TCP’s affiliate program (“Affiliate Program”). Any advertising Publisher performs for TCP, whether or not explicitly identified within any insertion order (“Insertion Order”), is subject to the Terms and Conditions, except in cases where an Insertion Order conflicts with the Terms and Conditions, in which case the relevant Insertion Order terms shall apply. The Terms and Conditions together with the applicable Insertion Order will together constitute a legally binding Agreement (“Agreement”) entered into by TCP and the Publisher. If application is rejected and/or denied, no agreement will be formed.
BY SUBMITTING AN APPLICATION, PARTICIPATING IN AN OFFER, OR BY DOWNLOADING, INSTALLING, ACTIVATING OR USING ANY CONTENT FOR ADVERTISING PURPOSES AVAILABLE THROUGH THE AFFILIATE PROGRAM OR PROVIDED TO PUBLISHER BY TCP, PUBLISHER IS AGREEING TO COMPLY WITH, AND BE BOUND BY, THE TERMS AND CONDITIONS OF THIS AGREEMENT IN THEIR ENTIRETY WITHOUT LIMITATION OR QUALIFICATION AS WELL AS ALL APPLICABLE LAWS AND REGULATIONS. THE INDIVIDUAL ACCEPTING THIS AGREEMENT REPRESENTS THAT HE OR SHE (A) IS AN AUTHORIZED REPRESENTATIVE OF THAT ENTITY; (B) HAS THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT; AND (C) AGREES TO BE BOUND BY THIS AGREEMENT ON BEHALF OF THAT ENTITY.
Publisher acknowledges TCP may update these Terms and Conditions from time to time at TCP’s sole discretion, and Publisher agrees to be bound by TCP’s most current version hereof. It is Publisher’s responsibility to review these terms and conditions regularly for any changes.
DEFINITIONS
The following definitions and rules of interpretation apply in this Agreement:
“Conversion” means a Sale, Lead, Click, Ad Impression, Qualified Call, or other event, that has been specified as eligible for remuneration by TCP.
“Affiliate ID” means a unique numeric or alphanumeric identification value assigned exclusively to the Publisher.
“Contact” or “Sale” means an individual who has signed up either electronically or orally for Service Products using the appropriate Affiliate ID and who has made the first scheduled payment for Service Products.
“Lead” means the use of true and accurate information to complete all fields applicable to an Offer. A Lead is generated pursuant to the terms of this Agreement and does not include any invalid lead (including, but not limited to, an invalid, disconnected phone number; invalid email; no such person; never requested or uninterested in product or service offered under Offer; immediate hang-up; not a U.S. citizen; assuming prize incentive; under 18; etc.) or duplicate lead (including, but not limited to, a Lead similar to a prior Lead received within a ninety (120) day period). No deceptive advertising will be used to obtain Leads sent to TCP.
“Ad Impression” means a display of an advertisement for TCP by the Publisher.
“Advertising Materials” means any trademarks, advertising content, images, text, video, data, proprietary materials provided under this agreement or other material created by or provided by TCP.
“Affiliate Program” means participating in the promotion of TCP or its products in accordance with this Agreement.
“Transfer” means a phone call from a lead or customer of Publisher in which Publisher transfers the call to an TCP Call Center.
“Service Products” means credit report repair services or products offered by TCP.
“TCP Call Center” means a call center chosen by TCP.
“Confidential Information” means any confidential, non-public or proprietary information concerning either party’s products, services, or operations, including without limitation: information concerning either party’s financial affairs, partnerships, marketing plans or strategies, current or future business opportunities, current or future products or services, technology, websites, computer or other programs, sales leads, relationships with third-party companies, reports, trade secrets, ideas, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, process, financial data, list of actual or potential customers or suppliers or contacts, an advertisement and/or offer before publication, this Agreement, and any other information which is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use, and which Publisher should reasonably know is confidential or proprietary.
“Offer” means (a) offers provided by TCP to Publisher that may include one or more unique landing pages with tracking links that Publisher may use to collect Leads, and (b) offers created by Publisher that are preapproved in writing by TCP. TCP shall provide real-time reporting for all Leads delivered by Publisher under this Agreement, and all numbers used for the purpose of tracking and/or billing will be based on such real-time reporting system.
“Branded Keywords” means any and all TCP Trademarks. In the event Publisher is uncertain whether a particular search term is protected, it is the obligation of Publisher to seek prior written approval from TCP for use of such term.
“Clawback” means a reversal of a payment previously earned that is later rescinded or corrected. TCP may Clawback a payment for any transaction that is fraudulent or for which an applicant requests a refund or cancels. TCP may deduct Clawbacks from any amount owing to Publisher.
“TCP Website” means a specific web site for that particular Offer, or TheCreditPeople.com. Furthermore, each Offer may have additional terms that are incorporated as part of this Agreement.
“Approved Lead” means a Lead approved by TCP’s sole discretion for remuneration.
“Approved Sale” ” means an individual person who, in TCP’s sole discretion (i) accesses TCP Website via the Link or a TCP Call Center via Transfer or phone call through a Tracking Phone Number, where the Link is the last link used by the individual to access a TCP Website, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method intended to appear like an individual, real live person, (iii) is not using pre-populated fields, (iv) has signed up either electronically or orally for Service Products, has successfully made the first two scheduled payments for Service Products, and (v) is not later determined by TCP to fit into one of the foregoing categories or otherwise be a fraudulent, incomplete, unqualified, duplicate user, or created in violation of the Terms and Conditions within this Agreement.
“Qualified Call” means an inbound call which met the guidelines set forth within mutually agreed Insertion Order and in accordance with the Advertising Standards in this Agreement.
“Business Day” means a day other than a Saturday, Sunday or US national public holiday.
“Click” means the intentional and voluntary following of a Link by a Visitor made available by Publisher.
“Commission” means the amount payable to the Publisher in return for marketing TCP or Service Products, in accordance with an Offer or Insertion Order and this Agreement.
“Confidential Information” means any information disclosed by or relating to a party, including: information arising during the Term of this Agreement; information about a party’s business affairs; information about a party’s operations, products or trade secrets; information about a party’s technology (including any know-how and source code) and any derivatives of any part of any of them and which (i) is marked or identified as confidential; or (ii) would be regarded as confidential by a reasonable business person.
“FTC Guidance” means the published cases and guidelines from the United States Federal Trade Commission, including without limitation the guidance on substantiation of claims, privacy, data security, native advertising and disclosure guidance for influencers and spokespeople.
“GDPR” means the EU General Data Protection Regulation 2016/679.
“Intellectual Property Rights” means all copyrights and related rights, patents rights to inventions, utility models trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights (including any database rights in the Network), topography rights, moral rights, rights in confidential information (including know- how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Interface” means the intranet, website, and software platforms operated by TCP available to Publisher through login access that may include but is not limited to data resulting from Publisher’s involvement in Affiliate Program, billing information, Publisher contact information, Commissions paid or owed if available, creatives, and any functionality accessed or made available through such platform made available at http://login.thecreditpartners.com/ or https://secure.thecreditpeople.com/ or another TCP owned domain with which Publisher can access via login.
“Tracking Phone Number” means a phone number provided by TCP to Publisher that connects to a TCP Call Center.
“Link” means a graphic or textual hyperlink directed to or eventually to a TCP Website.
“Visitor” means any Person who follows a Link.
“Advertising Standards” means any applicable advertising laws, regulations or standards, including without limitation any FTC Guidance, any generally accepted self-regulatory codes of practice, and any other “Guidelines and Requirements” provided by TCP.
GUIDELINE AND REQUIREMENTS
Advertising and Data Collection guidelines: Any Leads, Contacts, and/or data Publisher provides to TCP shall be obtained, collected, and compiled using methods that fully comply with all (federal and state) applicable laws, rules, and/or regulations, including, without limitation, the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the Unfair & Deceptive Acts & Practices law (also known as “UDAAP”), the Children's Online Privacy Protection Act, and the CAN SPAM Act, 15 U.S.C. § 7701 et seq. and all amendments thereto, all laws governing deceptive trade practices and/or online marketing and advertising, all other applicable federal, state, county, and local laws, ordinances, regulations and codes, and any additional guidance that TCP in good faith believes to be appropriate. TCP must approve in writing all advertising and messaging that Publisher uses for marketing on behalf of TCP in advance of its commercial use. TCP will provide approved creative for marketing purposes. Publisher may not use any content or information from public websites maintained by TCP, including textual content, graphics, pictures, etc., without prior written approval from TCP. Publisher will obtain pre-approval in writing from TCP prior to making any changes to any material or requirements provided by TCP to Publisher. TCP must approve in writing, in advance of its commercial use, all advertising and/or messaging that Publisher uses to (a) deliver any Lead and/or Contact to TCP, and/or (b) obtain, collect, and compile data that Publisher provides to TCP. Publisher will be solely liable for any and all damages, losses, expenses, costs (including reasonable attorneys’ fees) and other liabilities arising out of or related to Advertising Standards, advertising, creative, and/or messaging not pre-approved in writing by TCP.
Telemarketing guidelines: (1) Data Collection. Any data Publisher provides to TCP for telemarketing shall consist of records of persons who (i) have made an inquiry (as that term is used in the Telemarketing Sales Rule and applicable state law, sufficient to satisfy the requirements of an Established Business Relationship as defined in the Telemarketing Sales Rule and applicable state law) regarding Service Products, and (ii) have not subsequently requested to be added to Publisher’s internal do-not- call list pursuant to the National Do Not Call Registry. Publisher agrees to add any records of persons to Publisher’s internal do-not-call list anytime TCP requests in writing, or if a record or phone number is added to that Publisher’s “Opt-Out” list made available within any Interface made available to Publisher by TCP. Publisher will comply with opt-out and/or do-not-call (DNC) requests in a timely fashion. Publisher agrees that any and all data it provides to TCP and/or the TCP Call Center will not be shared or marketed with any other party, individual or entity that has any business, research and development, sales, services or other pursuits similar in nature, purpose or otherwise competitive with products or services offered by TCP. Once a Transfer occurs, Publisher will not in any way, directly or indirectly, individually or on behalf of any other person or entity or other third party, contact the relevant individual related to the Transfer, nor shall Publisher in any way utilize for Publisher’s benefit the data in connection with the relevant individual related to the Transfer. (2) Record Keeping. Publisher shall maintain records, and will supply such records to TCP upon request, evidencing (i) compliance with the National Do Not Call Registry, (ii) maintenance and compliance with an internal do-not-call list, and (iii) the inquiry including, without limitation, the person receiving the inquiry or applicable IP addresses, and time/date stamps.
Email guidelines: (1) Messages. All Publisher email messages will comply with the CAN-SPAM Act and other applicable laws, rules, and regulations. All Publisher email messages will (a) contain an unsubscribe link in all commercial email; (b) contain a physical address in the creative; (c) clearly show in the creative that an individual is receiving an advertisement and/or marketing message; and (d) contain “Subject” and “From” lines that are not misleading. (2) Data Collection. Any data Publisher provides to TCP for email marketing shall consist of records of persons who have given Affirmative Consent (as defined in the CAN SPAM Act and applicable state law) to receive third party commercial email advertising messages regarding Service Products and have not subsequently sent an unsubscribe request revoking this Affirmative Consent. Publisher will comply with opt-out and/or unsubscribe requests in a timely fashion. (3) Record Keeping. Publisher shall maintain records, and will supply such records to TCP, evidencing (i) maintenance and compliance with a regularly updated suppression list containing current unsubscribe requests of individuals and/or entities (in accordance with the CAN-SPAM Act) that have indicated they do not wish to receive subsequent email marketing, and Publisher will promptly notify TCP of any and all opt-out and/or unsubscribe requests, and (ii) the Affirmative Consent including, without limitation, the language used to obtain the Affirmative Consent to receive email, applicable IP address(es), and time and date stamps of the Affirmative Consent.
Organic Search guidelines: Publisher is prohibited from link farming, page cloaking or other deceptive practices to manipulate natural search rankings. In general, a search engine and an end user should see the same content on a website. All titles and descriptions used for search listing must be current, accurate, and not deceptive.
Paid Search guidelines: Publisher is prohibited from bidding on Branded Keywords. Publisher is further prohibited from utilizing paid search to link directly to the TCP Website without the use of a landing page or written permission by TCP.
Claims, Statements, and Advice guidelines: Publisher is prohibited from making any statement or giving any advice that is untrue or misleading, especially but not limited to claims of specific outcomes arising from TCP Service Products or which upon the exercise of reasonable care should be known to be untrue or misleading. Publisher is prohibited from making any statement or giving any advice or counsel that contradicts federal or state credit repair laws, and from speaking on behalf of TCP.
Publisher Transparency guidelines: In all advertising, Publisher shall clearly differentiate between the Publisher and TCP. Publisher is prohibited from portraying any website as a website owned and/or operated by TCP. Publisher shall not suggest, imply, or otherwise communicate in any way that Publisher is contacting anyone on behalf of TCP or represent itself as TCP or that Publisher is partnered, affiliated, owned or operated by TCP. Publisher may not portray itself as a credit repair organization providing any credit repair services that are being performed by TCP.
Endorsements and Testimonials guidelines: Each and every Publisher advertisement will comply with and follow the Federal Trade Commission Guides Concerning the Use of Endorsements and Testimonials in Advertising located at 16 C.F.R. Part 255 (“FTC Guides”). Each and every Publisher advertisement that includes Publisher’s endorsement of and/or personal experience with the Service Products and/or TCP shall contain a clear and conspicuous identification that Publisher is either being paid or has received a promise of compensation in exchange for the endorsement, pursuant to the FTC Guides.
Permission guidelines: Publisher warrants, represents, covenants, and acknowledges that it holds all necessary rights to permit lawful use of the Leads and/or Contacts provided to TCP for the purposes of this Agreement. Publisher warrants, represents, covenants, and acknowledges that it will obtain and record the prior express written consent (as defined in the Federal Trade Commission’s Telemarketing Sales Rule and the Federal Communications Commission’s regulations implementing the Telephone Consumer Protection Act, as well as applicable state law) of each consumer related to any Lead, Contact, and/or data provided to TCP, and will provide a copy to TCP upon request. Publisher will obtain electronic signatures of each consumer’s prior express written consent by saving electronic records of a consumer’s electronic opt-in and/or recording verbal authorizations, and will provide the following to TCP upon request: (a) for all printed documentation, Publisher will (i) provide the consumer’s name, telephone number and IP address as well as the time and date of the opt-in and the URL from which the consumer opted in; and (ii) provide a screenshot of the language used to obtain prior express written consent; and (b) for all phone scripts, Publisher will (i) provide the consumer’s name and telephone number as well as the time and date of the opt-in; and (ii) provide a recording of the language used to obtain the prior express written consent along with the verbal authorization of the consumer constituting his or her electronic signature. Upon request Publisher will provide to TCP auditable records for every call that results in a Lead and/or Contact sent to TCP. Publisher will maintain a record of a consumer’s electronic signature to the prior express written consent by recording the verbal authorizations.
Applications guidelines: Publisher is prohibited from promoting TCP via downloadable applications, also known as spyware, adware, or similar applications. Using software that redirects traffic is strictly forbidden.
Telephone Transfers guidelines: (1) Call Procedure. Publisher’s call center representatives (i) receiving inbound calls from those customers who call into Publisher’s call centers, and (ii) making outbound calls, including any Interactive Voice Response system, (collectively “Publisher’s call center representatives”), will determine each customer’s interest in Service Products by presenting a script (“Script”) approved by TCP. Publisher’s call center representatives shall read the Script verbatim. Any updates or modifications to the Script must be approved by TCP, and any updates or changes to the Script requested in writing by TCP must be done within one business day. (2) Marketing and Transfers. All marketing performed via the telephone shall: (a) follow all Do Not Call (“DNC”) rules, whether federal or state protocols and regulations, (b) employ a quality review process that includes call recording systems, for quality assurance and review, and inform consumers of recording procedures as required, (c) employ a quality review process, including random review, targeted audit, random audit, rectifying complaints, etc., (d) properly present and not overpromise the services related to the Script approved by TCP, (e) not “force” consumers into selecting options; for example, if a consumer states “he or she is not interested” twice, the call should end, and (f) clearly identify the phone representative as being from or with Publisher and not representing themselves as a representative of TCP. (3) Permission to Transfer. Publisher’s call center representatives will, upon a customer’s expression of interest in the products or services identified in the Script, obtain from such customer (prior to any Transfer) the customer’s express and explicit consent and permission for the Publisher’s call center representative to Transfer. (4) Ethical Conduct. Publisher’s call center representatives will devote their reasonable best efforts before transferring the customer to ensure they are aware that any other service or product provided by Publisher is not contingent on the utilization or purchase of Service Products. (5) Telecommunication Costs. Publisher shall be solely responsible for all telecommunications costs related to all calls prior to the Transfer of the customer to an TCP Call Center.
Limited License & Intellectual Property
All Advertising Materials are the property of TCP or its content suppliers or vendors and protected by copyrights, trademarks, trade secrets, or other proprietary rights or the terms set forth in this Agreement and these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. This Agreement does not grant any title or ownership interests in any Advertising Materials or Offers to Publisher. Publisher shall have the non-exclusive, limited, revocable right to advertise using the Advertising Materials and/or Offers only in accordance with the terms and conditions of this Agreement. The benefit and goodwill arising from all uses of trademarks shall inure solely to the benefit of the respective trademark owner. Publisher shall have only those revocable rights in or to the Advertising Materials or property of TCP explicitly granted to Publisher pursuant to this Agreement.
At no time during this Agreement shall Publisher challenge or assist others to challenge the registration (trademark or otherwise) of any Advertising Materials, nor shall Publisher attempt to register for its own benefit any Advertising Materials or any materials that are substantially and/or confusingly similar to the Advertising Materials.
For the term of this Agreement, TCP grants Publisher a limited, non-exclusive, non-transferable license to copy, display and use trademarks or Advertising Materials in connection with Affiliate Program in a manner in compliance with this Agreement. The license granted herein shall terminate concurrently with the term of this Agreement
Termination
This Agreement shall commence on the date of TCP’s approval of Publisher’s application for Affiliate Program and shall continue thereafter until terminated as provided herein. Publisher may terminate Publisher’s participation in the Affiliate Program at any time by removing all Links and/or Advertising Materials from Publisher has made available to public, and deleting all copies of Links and Advertising Materials. TCP may terminate Publisher’s participation in one or more Offers or this Agreement at any time and for any reason which TCP deems appropriate with or without prior notice to Publisher by disabling the Links, inactivating Interface access, or providing Publisher with a written notice. Upon termination of Publisher’s participation in one or more Offers or this Agreement for any reason, Publisher will immediately cease all use of, and delete, all Links, Advertising Materials, Tracking Phone Numbers, and all TCP intellectual property, and will cease representing itself as a TCP affiliate and cease involvement in Affiliate Program. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
Ownership of Data: TCP will retain the sole and exclusive right, title and interest in and to the Leads, Contacts, and all data provided to TCP from the Publisher’s participation in Affiliate Program or Offer and in accordance with the terms and conditions of this Agreement unless explicitly identified in an agreed Insertion Order.
Fraud
Publisher is expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other publishers or falsify information in connection with referrals, Leads, Contacts, or Conversions through Links or calls through a Tracking Phone Number or the generation of commissions or exceed Publisher’s permitted access to their Interface. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. TCP shall make all determinations about fraudulent activity in its sole discretion. In the event that TCP determines that Publisher has engaged in fraud/fraudulent activities, TCP reserves all rights and remedies, including, but not limited to, seeking restitution, reimbursement and pursuing regulatory sanction and criminal prosecution related to such activities.
Representations and Warranties
Publisher hereby represents and warrants to TCP in addition to the Terms and Conditions of this Agreement that:
1. Publisher has the power and authority to enter into and perform its obligations under this Agreement;
2. at all times, will comply with all Advertising Standards, applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, CAN-SPAM, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws (collectively, “Laws”);
3. at all times, the Publisher will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;
4. will not target to end-users under the age of eighteen (18) and will take reasonable actions to prevent the solicitation of minors in accordance with all applicable laws;
5. prior to loading any computer program onto an individual’s computer including, without limitation, programs commonly referred to as adware and/or spyware, and cookies, Publisher shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such computer program and/or cookies;
6. Publisher is not, nor is Publisher acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control (“OFAC”); and
7. Publisher is not, nor is Publisher acting on behalf of any person or entity that is, a Specially Designated National (“SDN”), as OFAC may so designate from time to time.
8. Intellectual Property: Each party represents and warrants to the other that no intellectual property used to perform this Agreement will infringe any third party patent, copyright, trade secret, or other proprietary right. Each party warrants, represents, covenants and acknowledges to the other that the use, reproduction, distribution, transmission or display of any advertisement used in connection with the Offer, including but not limited to any web sites, newsletters, or other advertising or promotional content (“Advertisement”), any data regarding users of such Advertisement, and any material to which users can link, or any products or services made available to users, through or as a result of the Advertisement, shall not (i) materially violate any federal, state and local laws, rules and regulations or any rights of any third party including, without limitation, laws relating to advertising, the Internet, privacy, e-mail, data protection, and unfair business practices; (ii) contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law; or (iii) use any trademark, trade name, or corporate name of the other party other than for the purposes of the Offer.
9. Conflicting Obligations: Each party represents and warrants to the other that it is not currently bound by any other agreement, restriction, or obligation which in any way interferes or is inconsistent with this Agreement. Neither party shall assume any such obligation or restriction while this Agreement remains in force.
10. Practices: To the extent that Publisher provides any advertising covered by such practices, Publisher represents and warrants that it will comply with the Advertising Standards within this Agreement.
Disclaimer: THE ADVERTISING MATERIALS, OFFERS, AND SERVICE PRODUCTS IN CONNECTION THEREWITH, ARE PROVIDED TO PUBLISHER “AS IS”. TCP EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TCP DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET PUBLISHER’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR-FREE OR UNINTERRUPTED. TCP DOES NOT GUARANTEE THAT PUBLISHER WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
INDEMNIFICATION
Publisher shall irrevocably defend, indemnify and hold TCP and each of its employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving Publisher’s breach or violation of this Agreement. TCP is also obligated to pay any taxes in connection with Publisher’s participation hereunder.
CONFIDENTIAL INFORMATION
Publisher acknowledges and agrees that any Confidential Information received from TCP during the course of this Agreement is a valuable trade secret, constituting the confidential and proprietary property of TCP. TCP has taken steps that are reasonable under the circumstances to protect the confidentiality of such information. Such information derives economic value from not generally being known to and not readily being ascertainable by others.
Ownership: Both parties further agree that all Confidential Information and all documents that contain, reflect or are generated from Confidential Information are the sole and exclusive property of the party making a disclosure of its own Confidential Information (the “Disclosing Party”).
Non-Use and Non-Disclosure: Both parties shall: (i) stringently protect the confidentiality of all Confidential Information and, (ii) not disclose Confidential Information to any third party, except as needed in connection with the performance of its obligations under this Agreement to the benefit of the Disclosing Party, and even then only to third parties that have signed a non-disclosure agreement containing provisions substantially similar to and at least as protective as the terms of this Agreement, and (iii) will not use, copy, or modify Confidential Information except as authorized for the benefit of the Disclosing Party. A party may disclose the other party’s Confidential Information if required by law so long as the other party is given prompt written notice prior to disclosure and the party assists in obtaining an order protecting Confidential Information from public disclosure. Neither party will disclose the existence of this Agreement or the terms of this Agreement to any third party without the prior written consent of the other party, except (i) as required by applicable laws, or (ii) to qualified legal, accounting, or other professionals who represent the party and are obligated to maintain this Agreement in confidence. Neither party will make public the relationship between the parties or the existence of this Agreement without the prior written consent of both parties.
All confidentiality provisions shall survive termination of this Agreement for any reason and will continue to remain enforceable.
NON-SOLICITATION
Neither TCP nor Publisher shall knowingly or intentionally solicit each other’s affiliates and/or publishers. Trade conferences, generalized advertisements, and communications sent to multiple affiliates and/or publishers about opportunities shall not be considered a knowing or intentional solicitation. Should an affiliate and/or publisher of its own accord contact TCP or Publisher, TCP or Publisher shall be free to pursue an affiliate relationship with that affiliate.
GENERAL PROVISIONS & REMEDIES
In addition to any other rights and remedies available to TCP under this Agreement TCP reserves the right to delete any actions submitted through Publisher Links or obtained from phone calls, text messages, or other forms of communication generated by Publisher and withhold and freeze any unpaid commissions or charge back paid commissions to Publisher’s account if (i) TCP determines that Publisher has violated any term in this Agreement, (ii) TCP receives any complaints about Publisher’s participation in the Affiliate Program which TCP reasonably believes is in violation of this Agreement or (iii) any Qualified Sales or Qualified Calls is later determined to have not met the requirements set forth in this Agreement. Such withholding or freezing of commissions, or charge backs for paid commissions, shall be without regard as to whether or not such commissions were earned as a result of such breach or violation. In the event of a material breach of this Agreement, TCP reserves the right to disclose Publisher’s identity for supplying contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by Publisher’s actions. Such suspension will be in addition to TCP’s available rights and remedies.
This Agreement is governed by Utah law without reference to its conflict-of-laws principles and will be deemed to have been entered into and wholly performed within Utah.
In the event of any dispute, question, controversy or claim (collectively “Dispute”) arising out of or relating to this Agreement, the parties shall meet and attempt in good faith to satisfactorily resolve the Dispute. Any Dispute that the parties cannot resolve shall be settled by mediation in accordance with the rules of the American Arbitration Association. Any Dispute not resolved by mediation within sixty (60) days after submission by either party shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association then in force. The arbitration hearing shall take place in Salt Lake City, Utah, which the parties agree is reasonable. The decision of the arbitrator shall be final and binding on the parties. The parties agree that each may bring any Dispute against the other only in his/her/its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. The parties hereby voluntarily, knowingly, irrevocably and unconditionally waive any right to have a jury participate in resolving any Dispute between or among them arising out of or in any way related to the Agreement.
Attorney Expenses and Relief: If any litigation or arbitration proceeding is commenced in connection with this Agreement, the prevailing party, if any, will be entitled to payment by the other party of its reasonable attorney fees (including allocated costs for in house legal services), costs and necessary disbursements incurred in such action or proceeding, as determined by the court or arbitrator. Any breach of a party’s obligations with respect to intellectual property or confidentiality rights will cause irreparable injury for which there are no adequate remedies at law. The aggrieved party will be entitled to seek equitable relief in addition to all other remedies and money damages that may be available, without the posting of bond or other security, or if required, then the minimum bond or security so required.
Assignment: Either party may assign its obligations under this Agreement upon giving written notice to the other party, except that neither party shall assign its obligations under this Agreement to a direct competitor of the other party without the other party’s prior written consent.
Any notices under the Agreement shall be sent to the addresses set forth in the relevant Insertion Order (or in a separate writing agreed to in writing by the parties) by facsimile, mail or express delivery service and deemed given upon receipt.
The waiver or failure of either party to exercise any right provided for in this Agreement will not be deemed a waiver of any further or future right under this Agreement, and will not act to amend or negate the rights of the waiving party.
If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of the Agreement shall be valid and shall remain in full force and effect to the extent permitted by law.
This Agreement is the final, full and exclusive statement of the agreement between TCP and Publisher with respect to the subject matter set forth herein. It supersedes all prior agreements and inducements relating to the subject of this Agreement. No promise or agreement made at or after the execution of this Agreement is binding unless it is written and signed by both parties. Section headings are for convenience of reference only, will not be construed to limit or extend the meaning of any provision and will not be relevant in interpreting this Agreement. As used in this Agreement, the terms “include” and/or “including” mean by way of example and not limitation. Each party acknowledges and agrees that it has had the opportunity to seek independent legal and financial advice and has either done so or waived its opportunity to do so, and therefore no presumptions with respect to the drafter shall apply in connection with interpreting this Agreement.
Agreement Execution: This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument.
The provisions of this Agreement reflect an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. This voluntary allocation was a material part of the bargain between the parties and the economic and other terms were negotiated and agreed to by the parties in reliance on that allocation.
Relationship: The parties are independent contractors. Under no circumstances will the employees of one party be deemed the employees of the other. This Agreement does not grant authority for either party to act for the other in an agency or other capacity, or to make commitments of any kind for the account of or on the behalf of the other.
Any amendment or modification to this Agreement must be in writing signed by both parties.