LinkConnector Affiliate Terms and Conditions
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Knowledgehut INC
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In the event of any inconsistency between the provisions of the Level 2 or Level 3 terms and conditions and the Level 1 terms and conditions,
the terms and conditions set forth in Level 1 (LinkConnector Terms and Conditions) shall control, regardless of the inconsistency.
In the event of any inconsistency between the provisions of the Level 3 terms and conditions and the Level 2 terms and conditions,
the terms and conditions set forth in Level 2 (Merchant Terms and Conditions) shall control, regardless of the inconsistency.
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+ LinkConnector Terms and Conditions
INTRODUCTION: LinkConnector Corporation (“LinkConnector”), of 1001 Winstead Drive, Suite 300, Cary, North Carolina 27513, provides you access to LinkConnector’s Merchant Affiliate Programs subject to your compliance with the terms and conditions below (“Agreement”). Please read this Agreement carefully. By enrolling or participating as an Affiliate, defined herein, with LinkConnector (“LC Affiliate”), you agree to be bound by these terms and conditions and are eligible to receive compensation from a Merchant based on tracked actions of your End Users related to the promotion of a Merchant’s products or services. As of November 1, 2019; and in consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged; Affiliate and LinkConnector agree as follows…
1. DEFINITIONS.
The following terms shall have the meanings set forth below:
“Account Detail” means Affiliate name, Affiliate Sites, Affiliate’s contact information—including, but not limited to any contact name, email address, physical address, tax ID and telephone number.
“Adware” means any software application, residing on an End User’s machine, with their permission, which is used by LC Affiliate in conjunction with an Affiliate Program.
“Affiliate” means a person or company that agrees to promote Merchant Services or the Merchant Site in accordance with Merchant Terms and Merchant Campaign Terms in exchange for a Commission.
“Affiliate Event” means an individual action by an End User; such as a Click Event, Lead Event, Sale Event, Revenue Event, or Go Event; within an approved Campaign that is tracked and recorded in a LinkConnector Transaction Table for which payment has been promised to an LC Affiliate by the Merchant.
“Affiliate Program” means a pay-for-performance program where an Affiliate receives a commission for sending an End User to the Merchant Site which then generates an Affiliate Event.
“Affiliate Promotion” means any link, banner, and other creative used by an Affiliate on any electronic device (e.g., laptop, desktop, mobile phone, etc.) or printed material (e.g., magazine ad, signage, etc.) to promote a merchant’s product or services with the intention of receiving compensation from the merchant through their Affiliate Program.
“Affiliate Site” means the Internet World Wide Web presence operated by or for LC Affiliate, (as modified to comply with the provisions of this Agreement, and future versions, upgrades, successors and replacements thereof).
“Affiliate Transaction” means any Event caused by the action of an End User which is recorded by LinkConnector and written to the LinkConnector Transaction Table.
“Campaign” means a logical grouping of Merchant Links and Events in the LinkConnector network through which Merchants manage their program. By way of example, a Campaign might be called ‘Book Sales’ and include Merchant Links which promote only books and Events which record only sales for books.
“Click Event” is an Affiliate Event that allows the Merchant to credit LC Affiliates for incoming clicks originating from an Affiliate Promotion to the Merchant Site. The minimum commission payable to Affiliates for a Click Event is typically $0.02 per click.
“Commission” is the amount payable to Affiliates for Affiliate Events. The Merchant, generally in the form of either a percentage of the sale amount or a flat fee, determines commission amounts.
“Cookie Duration” is an Event property representing the period in which an End User can return to Merchant Site and an LC Affiliate might still receive a Commission.
“Data Protection Regulation” means any applicable data protection, privacy or similar laws that apply to data processed in connection with this Agreement, including for EU citizens any regulations implementing the Data Protection Directive 95/46/EC or GDPR (as applicable) or Privacy and Electronic Communications Directive 2002/58/EC and for US citizens, FTC Guidance, US state and federal legislation relating to data privacy and security.
“End User” means an Internet user who clicks to the Merchant Site using a Merchant Link.
“End User Data” means all information and data of an End User collected by LC Affiliate, including, but not limited to, name, address, telephone number and email address.
“Event” is an Affiliate Event.
“Event State” is an Affiliate Event designated as a Valid Event, Pending Event, or Invalid Event.
“Go Event” is an Affiliate Event that allows the Merchant to credit LC Affiliates for outgoing clicks from the Merchant Site. The minimum commission payable to LC Affiliates for a Go Event is typically $0.02 per event.
“Intellectual Property” means all industrial and intellectual property rights existing from time to time including any patents, design rights, registered designs, trademarks, service marks, copyrights, moral rights, trade secrets, know-how, and all applications and registrations therefore, and all goodwill associated therewith.
“Invalid Event” is an Affiliate Event that has been disapproved by Merchant or LinkConnector for payment to LC Affiliate.
“Lead Event” is an Affiliate Event that allows the Merchant to credit LC Affiliates for End User Data obtained when an End User performs a specified action such as filling out a form, registering for a service, or downloading a file from the Merchant’s Site. The minimum commission payable to LC Affiliates for a Lead Event is typically $1.00 per lead.
“LinkConnector Affiliate Manager” is the web-based interface that can be accessed with one username and password which LC Affiliate uses to manage its Merchant Affiliate Program(s). The LinkConnector Affiliate Manager is accessible on LinkConnector’s login page at Account Login.
“LinkConnector Affiliate Code” is any HTML (Hypertext Markup Language, the authoring language used to create documents on the World Wide Web.), JavaScript, or any other program code and tags provided to the LC Affiliate via the LinkConnector Affiliate Manager or directly by LinkConnector. This code is intended to be either placed as provided into the HTML of approved Affiliate Sites or used in other approved methods of Affiliate Promotion.
“LinkConnector Services” means the various related content, links, products and services provided by LinkConnector on or through the LinkConnector Site.
“LinkConnector Site” means the Internet World Wide Web presence operated by or for LinkConnector, located on the Internet through the http://www.LinkConnector.com URL (as modified to comply with the provisions of this Agreement, and future versions, upgrades, successors and replacements thereof).
“LinkConnector Transaction Table” means a table in LinkConnector’s online database that contains information about End User actions related to Merchant Links, Events, and related Affiliates.
“Marks” means logos, trademarks, trade names, service marks or other identifying emblems, words or designs of LinkConnector or LC Affiliate, as the case may be, to designate and identify itself or the particular products or services its offers.
“Merchant” means a person or company that offers an Affiliate Program through LinkConnector and agrees to pay Affiliates for promoting Merchant Services.
“Merchant Affiliate Program” means all of the Merchant’s past and present Campaigns within the LinkConnector Services.
“Merchant Campaign Terms” are the terms set by the Merchant as conditions for participating in a particular Merchant’s Campaign. At a minimum they include this Agreement in its entirety, the Merchant’s Terms and any Campaign-specific terms reflected in the Merchant Campaign information available to LC Affiliate online through the LinkConnector Affiliate Manager.
“Merchant Link(s)” means an advertisement in the form of a banner, text link, or object (e.g., HTML creative, Flash creative, etc.) used in an Affiliate Promotion. When clicked, the link directs an End User to the Merchant Site.
“Merchant Service(s)” means the product(s) or service(s) offered by the Merchant through the Merchant Site.
“Merchant Site” means the Internet World Wide Web presence operated by or for Merchant, (as modified to comply with the provisions of this Agreement, and future versions, upgrades, successors and replacements thereof).
“Merchant Terms” are the terms set by the Merchant as conditions for participating in their Merchant Affiliate Program. At a minimum they include this Agreement in its entirety and any account-specific terms reflected in the Merchant Campaign information available to LC Affiliate online through the LinkConnector Affiliate Manager.
“Pending Event” is an Affiliate Event that is being considered for approval as a Valid Event or disapproval as an Invalid Event by Merchant or LinkConnector.
“Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”) who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Revenue Event” is an Affiliate Event that allows the Merchant to reward an Affiliate beyond any Commissions paid for individual Merchant Transactions.
“Sale Event” is an Affiliate Event that allows the Merchant to credit LC Affiliates for purchases by an End User of Merchant Services on the Merchant Site. The minimum commission payable to LC Affiliates for a Sale Event is typically $1.00 per sale.
“Server-Side Cookie” is information, stored by LinkConnector, about End User actions related to Affiliate Promotion. This information is stored in a LinkConnector Transaction Table at the time of a click from the End User to the Merchant Site.
“Service Level Guarantee” means the LinkConnector Site will be unavailable to the general public for no more than forty-eight (48) aggregate hours during any thirty (30) day period, excluding routine maintenance which shall occur during the hours of 2 a.m. to 7 a.m. Eastern Time no more than twice per month.
“Service Level Minimums” means industry standard service levels for like services, including, without limitation, standards for supporting online transactions, providing accurate and secure transmission of personal, credit card and other information, prevention of unauthorized access to End User Data, and availability of the Affiliate Site to End Users.
“Spyware or Malware” means any software application, residing on an end user machine, without their permission, which is used by LC Affiliate in conjunction with an Affiliate Program.
“Valid Event” is an Affiliate Event that has been approved by Merchant or LinkConnector for payment to LC Affiliate.
All other initially capitalized terms shall have the meanings assigned to them in this Agreement.
2. LICENSES/OWNERSHIP OF LINKCONNECTOR SITE.
2.1 Rights Granted by LC Affiliate.
(a) License; License Restrictions. LC Affiliate grants to LinkConnector a nonexclusive, nontransferable, royalty-free (without right to sublicense) license to use and display, during the Term of this Agreement, LC Affiliate Marks, solely for the purpose of linking to the Affiliate Site. LinkConnector agrees that LC Affiliate Marks are and will remain the sole property of LC Affiliate and agrees not to contest the ownership of such LC Affiliate Marks, nor misappropriate LC Affiliate Marks for LinkConnector’s own use. Affiliate reserves all rights to control the use of LC Affiliate Marks, and LinkConnector shall not change or modify LC Affiliate Marks in any manner without prior written authorization from LC Affiliate.
(b) Reservation of Rights. Except as expressly granted in this Agreement, LinkConnector shall have no other rights of any kind in LC Affiliate Marks or the Affiliate Site. Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppel or otherwise, a license to any of LC Affiliate’s Intellectual Property or proprietary technology other than the use of LC Affiliate Marks in accordance with the terms of this Agreement. LinkConnector acknowledges that LC Affiliate Marks and the Affiliate Site are the sole property of LC Affiliate, and this Agreement only grants LinkConnector a limited right to link to the Affiliate Site under the terms and conditions of this Agreement. The LC Affiliate Marks may not be used as a feature or design element of any other logo without prior written authorization from LC Affiliate.
2.2 LinkConnector Ownership Rights. All content, writings, graphics, tables, sounds and other materials on the LinkConnector Site, the design, layout and general look and feel of the LinkConnector Site, and all Intellectual Property embodied therein or pertaining thereto, (other than LC Affiliate supplied materials or LC Affiliate Marks on the LinkConnector Site) shall remain the sole and exclusive property of LinkConnector or its licensors. LinkConnector will retain sole control and ownership over the look and feel, content, layout and design of the LinkConnector Site. Nothing under this agreement shall be construed as granting to LC Affiliate any license or right in or to any Intellectual Property of LinkConnector.
3. RIGHTS AND OBLIGATIONS OF THE PARTIES.
3.1 LinkConnector’s Rights and Obligations.
(a) LinkConnector shall meet the Service Level Guarantee.
(b) LinkConnector shall be solely and exclusively responsible for all operation, hosting, and maintenance on the LinkConnector Site.
(c) LinkConnector shall provide automated, real-time tracking; reporting; and analysis of Merchant Links and Events on every Affiliate Transaction recorded for LC Affiliate.
(d) LinkConnector shall provide monthly Commission processing and payment for LC Affiliate on behalf of Merchant.
(e) LinkConnector has the right to not accept individuals, or any multi-level marketing, franchised, reseller, or third-party websites, and reserves the right to not accept Affiliates in certain vertical markets or Affiliates it deems, in its sole discretion, harmful to LinkConnector.
(f) LinkConnector reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Affiliate Site for any reason at any time, with or without notice to LC Affiliate and regardless of whether such Affiliate Site was previously accepted.
(g) LinkConnector or Merchant may change the Event State for Events to Invalid Event in the LC Affiliate Account in circumstances of (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide Event; (iv) LC Affiliate’s failure to comply with Merchant Campaign Terms; and (v) non-receipt of payment from, or refund of payment to, the User by the Merchant for a Sale Event. A Merchant shall not have the right to invalidate Affiliate Transactions because of a Merchant’s determination that Commissions or fees were paid out through other promotional efforts.
(h) LinkConnector has the right to consider assigning an Affiliate Event to any Affiliate not using Adware, before considering such assignment to any Affiliate using Adware.
(i) LinkConnector shall observe any applicable Data Protection Regulations.
(j) LinkConnector shall provide Data Subjects, defined herein, with information about how Personal Data is being processed on the LinkConnector Site.
(k) LinkConnector shall notify LC Affiliate in accordance with section 12.7 without undue delay upon becoming aware of a breach affecting Personal Data. Additionally, LinkConnector shall provide LC Affiliate with sufficient information to allow LC Affiliate to meet any obligations to report or inform Data Subjects of the breach under or in connection with any applicable Data Protection Regulation.
3.2 LC Affiliate’s Rights and Obligations.
(a) LC Affiliate shall be solely and exclusively responsible for all operation, hosting, and maintenance on Affiliate Site(s) and shall meet Service Level Minimums on any Affiliate Site used in a Merchant Affiliate Program.
(b) Except as provided herein, LC Affiliate may not modify LinkConnector Affiliate Code without prior written consent from LinkConnector or the affected Merchant. LC Affiliate may not alter, copy, modify, take, sell, reuse, or divulge any LinkConnector Affiliate Code, except as is necessary to partake in a Merchant Affiliate Program. Requests for changes to LinkConnector Affiliate Code should be sent to in accordance with section 12.7.
(c) If LinkConnector Affiliate Code is not provided by LinkConnector in the form of JavaScript, LC Affiliate is obligated to update Merchant Links to earn Commissions, when notified by LinkConnector that a Merchant Link has changed.
(d) LC Affiliate agrees and represents that all information provided for the purpose of enrolling as an Affiliate will be accurate, complete and current. LC Affiliate is responsible for keeping account information up to date using the Affiliate Manager, including, but not limited to, financial information and contact name, phone number, and email.
(e) In addition to and without limiting LC Affiliate obligations under this Agreement, the LC Affiliate is obligated to abide by any Merchant Terms and Merchant Campaign Terms applicable to any Campaign in which LC Affiliate participates. If any conflict arises amongst this Agreement and the Merchant Terms and/or Merchant Campaign Terms, this Agreement shall prevail. If any conflict arises between the Merchant Terms and the Merchant Campaign Terms, the Merchant Terms shall prevail.
(f) LC Affiliate is obligated to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation) and any other laws or regulations that govern email marketing and communications when promoting any Merchant Affiliate Program.
(g) LC Affiliate may use approved Adware only after receiving written approval from LinkConnector, which LinkConnector may withhold at its sole discretion. LC Affiliate may not use Spyware or Malware.
(h) LC Affiliate agrees not to pursue any Affiliate Program directly with any Merchant for which the LC Affiliate has had a relationship in LinkConnector with a Merchant’s Affiliate Program in the previous six (6) months. LC Affiliate further agrees to contact LinkConnector, in accordance with section 12.7, if contacted directly by any Merchant with the intent to establish any Affiliate Program outside of LinkConnector providing the LC Affiliate has had a relationship with a Merchant’s Affiliate Program in LinkConnector in the previous six (6) months.
(i) LC Affiliate agrees that all communications with Merchants using LinkConnector’s internal e-mail system provided as part of the LinkConnector Services will be solely related to the promotion or execution of the Merchant Affiliate Program.
4. EXCLUSIVITY.
4.1 The LC Affiliate is not barred by this agreement from participating in any other Affiliate Program offered by a LinkConnector competitor or from participating in any in-house Merchant Affiliate Program.
5. PAYMENTS.
5.1 Commissions. LC Affiliate will receive commission (“Commission”) for all Valid Events.
5.2 Payment Terms.
(a) All payments are based on Affiliate Events, designated as a Valid Event, Invalid Event, or Pending Event, which are accounted and audited by LinkConnector. The Event State shall be considered binding on LC Affiliate.
(b) LC Affiliate will be paid on funded Commissions typically within twenty (20) business days after the end of a calendar month. All accounts will be settled in U.S. dollars ($US). No payments will be issued for any amounts less than $100, if issued by check; or for any amounts less than $50, if issued by any other payment method (each collectively known as “Minimum Payment”). Any Commissions earned less than the Minimum Payment will carry over to the next month. If LinkConnector terminates this Agreement in accordance with section 11.2(a) or if LC Affiliate terminates this Agreement in accordance with section 11.2(b) and earned Commissions of less than the Minimum Payment are owed to LC Affiliate, such Commissions shall be forfeited to LinkConnector. If a Minimum Payment has not been earned for over 365 days, Commissions older than 365 days shall be forfeited to LinkConnector. Also, if a Commissions check is not cashed within 120 days, those Commissions shall be forfeited to LinkConnector.
(c) Every Affiliate account based in the United States must have a unique Employer Identification Number (EIN) or Social Security Number, as applicable, associated with the account. If LC Affiliate is based in the United States, payments exceeding six hundred dollars ($600.00) per calendar year will be made to LC Affiliate only after they provide proper tax identification information.
(d) Any bank service fees incurred by LinkConnector due to an error in LC Affiliate account information are LC Affiliate’s responsibility and will be deducted from Commissions due to LC Affiliate.
(e) LinkConnector is hereby released by LC Affiliate for any claim for payment of a Commission until such time as LinkConnector has received payment from the relevant Merchant. LC Affiliate recourse for any earned Commissions not paid to LC Affiliate shall be to make a claim against the relevant Merchant(s), and LinkConnector disclaims any and all liability for such payment.
(f) If LinkConnector discovers that LC Affiliate was overpaid in error for any reason, LinkConnector has the right to recover the overpayment from future Commissions earned by LC Affiliate.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1 By LinkConnector. LinkConnector represents, warrants and covenants that (i) it has sufficient rights to grant LC Affiliate the rights and licenses set forth herein; (ii) to the best of its knowledge, the LinkConnector Services and the LinkConnector Site do not and will not violate any applicable law or regulation; (iii) the execution, delivery and performance of this Agreement by it does not conflict with any agreement to which it is a party or by which it may be bound; (iv) it has full legal authority to enter into this Agreement and to carry out the provisions hereof; (v) to the best of its knowledge, the LinkConnector Services and the LinkConnector Site do not infringe in any manner any copyright, patent, trademark, trade secret or other Intellectual Property right of any third party; (vi) to the best of its knowledge, the LinkConnector Services and the LinkConnector Site do not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, or has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (vii) the LinkConnector Services and the LinkConnector Site are not false or misleading; (viii) the LinkConnector Services and the LinkConnector Site do not produce, provide or are in any manner related to pornographic products or services (which LinkConnector shall have complete discretion to define); and (ix) the LinkConnector Services and the LinkConnector Site are neither defamatory, libelous, militant, hateful, slanderous or threatening.
6.2 By LC Affiliate. LC Affiliate represents, warrants and covenants that (i) it has sufficient rights to grant LinkConnector the rights and licenses set forth herein; (ii) to the best of its knowledge, the LC Affiliate and the Affiliate Site do not and will not violate any applicable law or regulation; (iii) the execution, delivery and performance of this Agreement by it does not conflict with any agreement to which it is a party or by which it may be bound; (iv) it has full legal authority to enter into this Agreement and to carry out the provisions hereof; (v) to the best of its knowledge, the LC Affiliate and the Affiliate Site do not infringe in any manner any copyright, patent, trademark, trade secret or other Intellectual Property right of any third party; (vi) to the best of its knowledge, the LC Affiliate and the Affiliate Site do not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, or has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (vii) the LC Affiliate and the Affiliate Site are not false or misleading; (viii) the LC Affiliate and the Affiliate Site do not produce, provide or are in any manner related to pornographic products or services (which LinkConnector shall have complete discretion to define), or their subsidiaries or foundations funded by such companies whose function is to improve acceptance of such products by the public; (ix) the LC Affiliate and the Affiliate Site are neither defamatory, libelous, militant, hateful, slanderous or threatening (which LinkConnector shall have complete discretion to define); and (x) that LC Affiliate will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software) without prior permission from LinkConnector, which LinkConnector may withhold at its sole discretion.
7. DISCLAIMERS; LIMITATION OF LIABILITY.
7.1 Disclaimer of Warranties. EXCEPT AS SET FORTH IN SECTIONS 3 AND 6, LC AFFILIATE’S OBLIGATION TO MEET SERVICE LEVEL MINIMUMS, AND LINKCONNECTOR’S OBLIGATION TO MEET A SERVICE LEVEL GUARANTEE, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE AFFILIATE SITE(S) OR THE LINKCONNECTOR SERVICE INCLUDING, BUT NOT LIMITED TO, A WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY.
7.2 Limitation of Liability. EXCEPT AS PROVIDED IN SECTION 9, IN NO EVENT SHALL EITHER PARTY, OR ITS RESPECTIVE AFFILIATES, SUBSIDIARIES, PARENT COMPANIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES, BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, POTENTIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, LOST PROFITS OR LOST REVENUES) EVEN IF A PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. FORCE MAJEURE.
8.1 A party shall not be considered to be in default in the performance of any obligations under this Agreement when a failure of performance shall be due to an uncontrollable force. The term “uncontrollable force,” as used in this Agreement, shall mean an unanticipated event which is not reasonably within the control of the affected party and which by exercise of reasonable due diligence, such affected party could not reasonably have been expected to avoid, overcome or obtain or cause to be obtained a commercially reasonable substitute therefor. Such causes may include, without limitation, the following: flood, earthquake, tornado, storm, fire, terrorist attack, explosion, public emergency, civil disobedience, labor dispute, labor or material shortage, sabotage, restraint by court order or public authority (whether valid or invalid), and action or non-action by or inability to obtain or keep the necessary authorizations or approvals from any governmental agency or authority; however, no party shall be relieved of its obligations hereunder, if its failure of performance is due to removable or remediable causes which such party fails to remove or remedy using commercially reasonable efforts within a reasonable time period. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give prompt notice of such fact to the other, followed by written confirmation of that notice, and shall exercise due diligence to remove such inability with all reasonable dispatch.
9. INDEMNIFICATION.
9.1 By LC Affiliate. LC Affiliate agrees to indemnify, defend and hold harmless LinkConnector and its officers, directors, employees, agents, successors and assigns from and against any and all losses, liabilities, damages, penalties and claims and all related costs and expenses (including reasonable attorneys’ fees) related to claims made by third parties against LinkConnector: (i) alleging that Affiliate Marks or other Intellectual Property infringe the patents, copyrights, trademarks or service marks or other Intellectual Property rights of such third parties; (ii) arising out of or relating to Affiliate Site(s) or the Affiliate Marks; or (iii) due to a breach by LC Affiliate of its warranties, representations, obligations or covenants or otherwise breaches this Agreement.
9.2 By LinkConnector. LinkConnector agrees to indemnify, defend and hold harmless LC Affiliate and its officers, directors, employees, agents, successors and assigns from and against any and all losses, liabilities, damages, penalties and claims and all related costs and expenses (including reasonable attorneys’ fees) related to claims made by third parties against LC Affiliate: (i) alleging that LinkConnector’s Marks or other Intellectual Property infringe the patents, copyrights, trademarks or service marks or other Intellectual Property rights of such third parties; or (iii) due to a breach by LinkConnector of its warranties, representations, obligations or covenants or otherwise breaches this Agreement.
9.3 Procedures. The Indemnified Party shall (i) promptly notify the Indemnifying Party in accordance with section 12.7 of such suit, claim, or proceeding; (ii) give the Indemnifying Party reasonable information, assistance and cooperation required to defend such suit, claim, or proceeding; and (iii) allow the Indemnifying Party to control the defense of any such action and all negotiations for its settlement or compromise. The Indemnified Party may be represented in the defense of any such claim, at the Indemnified Party’s expense, by counsel of the Indemnified Party’s selection. The Indemnifying Party shall have no liability for settlements or costs incurred without its consent. The Indemnifying Party shall not enter into any settlement that imposes liability or restrictions on the Indemnified Party without the Indemnified Party’s prior written consent, such consent not to be unreasonably withheld or delayed.
10. OWNERSHIP OF USER DATA; CONFIDENTIALITY.
10.1 Confidentiality. LinkConnector and LC Affiliate agree that any and all information identified by the other as “Confidential” and/or “Proprietary”, or which, under all of the circumstances, ought reasonably to be treated as Confidential and/or Proprietary, will not be directly or indirectly disclosed to any third person without the express consent of the other party for a period of three (3) years following termination of this Agreement and that neither party will make use of Confidential Information except under the terms of this Agreement. These confidentiality obligations shall not apply to any information which: (i) is or subsequently becomes available to the general public other than through a breach by the receiving party; (ii) is already known to the receiving party before disclosure by the disclosing party; (iii) is developed through the independent efforts of the receiving party; (iv) the receiving party rightfully receives from a third party without restriction as to confidentiality or use; or (v) is requested pursuant to a subpoena; provided, that the party responding to such subpoena gives the other party reasonable notice and opportunity to intervene to quash such subpoena.
10.2 Privacy of Consumer Financial Information. Notwithstanding anything in this Agreement to the contrary, if it is necessary for LC Affiliate to disclose any End User Data to LinkConnector for any reason, LinkConnector agrees that at no time shall LinkConnector use or disclose any such End User Data that LinkConnector may obtain in connection with this Agreement, except as required by law; provided that nothing herein shall require LC Affiliate to disclose End User Data to LinkConnector.
11. TERM OF AGREEMENT AND TERMINATION.
If LC Affiliate is dissatisfied with LinkConnector, any Merchant Affiliate Program, or with any of the terms and conditions contained herein, LC Affiliate’s sole and exclusive remedy is to terminate Affiliate account. LC Affiliate may cancel their account with LinkConnector at any time by sending notice in accordance with section 12.7.
11.1 Term. The term of this Agreement shall begin on the date the LC Affiliate applies for an account and shall continue until terminated by any of the actions enumerated in section 11.2.
11.2 Termination. This Agreement will terminate in the event of any of the following:
(a) Immediately after a material breach, provided that the non-breaching party gives the other notice in accordance with section 12.7 of a material breach by the other of this Agreement and a request for a cure, unless the breach is cured that day.
(b) Immediately once notice of termination by either party is received by the other party in accordance with section 12.7.
11.3 Effect of Termination.
(a) Upon termination of this Agreement, all licenses granted to LC Affiliate and LinkConnector hereunder shall automatically terminate.
11.4 Survival. Sections 5 (to the extent the payment obligations accrue prior to termination), 7, 9, 10, 11.3 and 12 shall survive any expiration or termination of this Agreement.
11.5 Suspension. LinkConnector reserves the right, at its sole discretion to suspend the LC Affiliate if it suspects a material breach of section 3.2. If LinkConnector takes action to suspend, LinkConnector may do so immediately, but LinkConnector is not relieved of its obligation to notify the LC Affiliate per section 11.2(a).
12. GENERAL
12.1 Choice of Law. The Parties agree that this Agreement shall be governed by and interpreted in accordance with the laws of the State of North Carolina (including by not limited to the Uniform Electronic Transactions Act as enacted in North Carolina), without regard to conflict of laws provisions thereof. Furthermore, the parties agree that any dispute (including litigation) that arises between the parties shall have its venue in the state or federal courts of Wake County, North Carolina.
12.2 Assignment. LC Affiliate may not assign all or any portion of this Agreement without the prior written consent of LinkConnector, which consent may be withheld at LinkConnector’s sole discretion.
12.3 Relationship of the Parties. No partnership, joint venture, employment, agency, franchise, or other form of agreement or relationship is implied or intended by this Agreement. The parties shall be independent contractors for all purposes in connection with this Agreement.
12.4 Entire Agreement. The parties agree that this Agreement constitutes the entire agreement between the parties as of the date hereof with respect to the subject matter hereof and supersedes all prior and contemporaneous communications, whether oral or written. The parties agree that this Agreement may be modified or amended from time to time hereafter by LinkConnector as it deems necessary and LC Affiliate agrees (in consideration for LinkConnector agreeing to continue doing business with LC Affiliate) to be bound by such amendments after indicating their agreement through LinkConnector’s Affiliate Manager.
12.5 Press Releases. Neither party shall issue any press release or announcement relating to the relationship contemplated by this Agreement without the prior written consent of the other party.
12.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
12.7 Notices. All notices, requests, consents, and other communications under this Agreement from LC Affiliate shall be in writing and shall be deemed delivered (i) two business days after being sent by registered or certified mail, return receipt requested, postage prepaid or (ii) one business day after being sent via a reputable nationwide overnight courier service guaranteeing next business day delivery. If from LinkConnector to LC Affiliate, immediately upon email to the primary contact email address is deemed an acceptable means of notification. In each case to the intended recipient as set forth below:
If to LC Affiliate by email to the primary contact email address listed in the account summary,
If to LinkConnector, at 1001 Winstead Drive, Suite 300, Cary, North Carolina 27513, Attention: Choots Humphries, or via email using the form available at http://www.linkconnector.com/member/contact.htm or at such other address or addresses as may have been furnished in writing by LinkConnector to the other Party in the manner set forth in this section, with a copy to Richard Stephenson, Stephenson & Stephenson, LLP, 1100 Crescent Green, Suite 220, Cary, NC 27518 regarding any legal communications.
12.8 Section Headings. Section headings are for descriptive purposes only and shall not be used to interpret the meaning of this Agreement.
12.9 Attorneys’ Fees. If either party fails to pay any amounts due under this Agreement or otherwise breaches this Agreement and the non-breaching party retains an attorney to collect such amounts or remedy such breach, then the breaching party shall be obligated to pay any amounts due herein including said non-breaching reasonable attorneys’ fees incurred in collecting such amounts and court costs.
12.10 Non-Waiver. No delay or omission of either party in exercising any right accruing upon any default of the other party shall impair any such right or be construed to be a waiver thereof, and every such right may be exercised at any time during the continuance of such default. A waiver by either of the parties of a breach or a default under any of the terms and conditions of this Agreement by the other party shall not be construed to be a waiver thereof. A waiver by either of the parties of a breach or a default under any of the terms and conditions of this Agreement by the other party shall not be construed to be a waiver of any subsequent breach or default of any other term or condition of this Agreement.
12.11 Tax Status and Obligations. LinkConnector is not obligated to provide LC Affiliate with tax and/or legal advice and nothing communicated by LinkConnector to LC Affiliate shall be construed as such. LC Affiliate is obligated to independently assess and comply with all relevant tax and legal requirements and is responsible for its own sales tax collection and reporting obligations arising from Commissions earned through the Merchant Affiliate Programs. Any Merchant information provided to LC Affiliate, including Merchant address, shall be provided accurately; however, LC Affiliate, not LinkConnector, is responsible for verifying the accuracy of information provided to LinkConnector by a Merchant.
+ Merchant Terms and Conditions
Affiliate shall comply with the following restrictions (the “Restrictions”):
• SEM traffic : Brand bidding is strictly not allowed and the concerned person if found will be blocked for life time
• Approval of Materials. Through its promotional efforts to generate Valid Leads, Valid Clicks and/or Valid Sales, Affiliate shall obtain our written approval for (i) any text, images, web pages or any material or content on the website/ and/or blogs before Affiliate publishes any Links, Listings, our Content or Non-standard Implementation; (ii) any search terms, URLs(Uniform Resource Locator) and search result descriptions before being used by Affiliate to market the content on search engines or elsewhere on the internet; and (iii) any changes to domain names and our Client-related text and/or images. In the event that the we provide Affiliate with edits and changes to any of the above materials, Affiliate shall, after incorporating such edits and changes, re-submit such material for final written approval by us; only upon receipt of our final written approval may Affiliate begin generating Valid Leads, Valid Clicks and/or Valid Sales through the Affiliate Site. Notwithstanding subsection (i) above, during Company’s review of the content on website and/or blog, Company may provide Affiliate with non-live Links or Listings which Affiliate may make live only upon Company’s written approval. In the event that Company requires edits or changes to an approved Content after traffic generation has begun, Affiliate will implement such required edits or changes as soon as practicable but in any event within five (5) days of Company’s request. In the event that Affiliate materially modifies content, it shall obtain Company’s written approval prior to publishing the Links, Listings, Company Content or Non-standard Implementations on such materially modified content on the website and/or blog.
b. Inappropriate Content; Malware. The Affiliate hereby commits and shall abide by such commitment that the content shall not contain any (i) pornographic or offensive material, (ii) software trading, hacking or phreaking content, (iii) illegal music reproduction, downloads or content, or (iv) any other illegal content. Affiliate shall not distribute any spyware, adware, trojans, viruses, worms, spybots, keyloggers or any other form of malware.
c. Links and Listings. Affiliate will use the Links and Listings in the exact form in which Company delivered them and will not alter, modify, delete, disable or impede the display of the Links or Listings in any manner. Affiliate agrees that it will promptly, upon Company’s request, modify or alter the Links, Listings or tracking software in accordance with Company’s instructions. Notwithstanding the foregoing, Affiliate may append tracking parameters or dynamic parameters (limited to such dynamic parameters as directed by Company) to the Links or Listings in accordance with Company’s rules regarding appending such parameters, as provided from time to time.
d. Company Content. Affiliate will use the Company Content (i) in exactly the form in which its is delivered to Affiliate, unless modification to any such Company Content is approved by Company in writing; (ii) only until Company has requested that Affiliate discontinue its use, at which time Affiliate shall discontinue such use within two (2) business days of such request; and (iii) in the manner approved by the Company.
e. Non-standard Implementation. Affiliate will use any Non-standard Implementation in exactly the manner approved by the Company.
f. Misrepresentation; Compliance with Laws. Through its promotional efforts to generate leads, clicks and/or sales, Affiliate shall not (i) misrepresent Company or any Company Client (or any of their respective products or services), or (ii) violate any applicable laws, including, but not limited to, privacy laws (including the right to share lead contact information with third-parties).
g. Call centres; E-mail; Affiliate shall not generate any leads and/or sales through (i) any call centre (including verifying any leads and/or sales via any call centre) without entering into a separate agreement or amending this Agreement; (ii) any type of email promotions which contain any Company or Company Client brands or any Links, Listings, Company Content or Non-standard Implementations without entering into a separate agreement or amending this Agreement; or (iii) any social media application groups or channels without the prior written approval of Company.
h. Spamming; Incentives; Pop-ups. Affiliate will not (i) engage in the practice of search engine "spamming” (i.e., the inappropriate use of search engine optimization tactics such as doorway pages or cloaking); (ii) provide visitors with any incentive or compensation on the website and/or blog for visiting his pages unless the incentive is approved in advance by the Company; or (iii) use any Links, Listings or Non-standard Implementations in pop-ups without obtaining Company’s prior approval.
• Selection of Clients. Affiliate’s selection of Company Clients to be included in any Advertisements is subject to Company’s review and approval, which approval shall not be unreasonably withheld.
• Roles and Responsibilities:
• The Affiliate shall be supplied with the Creative’s by Company which shall be placed on the Affiliate’s website and/or blog and/or emails. Company shall closely assess and monitor the placement of such Advertisement and would restrict the Affiliate from placing any ads on sites which are either prohibited or opposed to public policy.
• The Affiliate shall be assigned campaigns based on Company’s requirement (For the purpose of this AGREEMENT the term “campaign” shall mean a series of advertisement messages sharing a common marketing theme which makes up an integrated marketing communication) and such campaigns shall be periodically reviewed by Company at regular interval of time. Company shall reserve the right to terminate or pause any such campaign should it in its reasonable view consider that such campaign is not meeting the expected parameters specified by Company.
• The Affiliate shall not reverse, modify, change, alter or vary any part or form of the Advertisement without obtaining a prior written consent from Company.
• The Affiliate undertakes to not and shall not authorize or encourage any third party to: (a) generate impressions of or clicks on any Advertisement through any automated, deceptive, fraudulent or other invalid means, including but not limited to repeated manual clicks and automated query tools; (b) place statements near any Advertisement that encourages users to click on the Advertisement (e.g., “Please click here”) or to visit the third-party advertiser (e.g., “Please visit our sponsor”); (c) in any way minimize or obstruct the display of any Advertisements, or edit, modify, filter or change the order of the information contained in any Advertisements; (d) attempt to edit the website tags, source codes, links, pixels, modules, software development kits or other data provided by Company.
• Company shall at all times be kept indemnified against any losses or claims arising from its Clients or any third party due to the acts of the Affiliate, including but not limited to i) detection of any fraudulent activity; ii) a spam complaint received from any of the recipients of the mail; iii) sending repetitive mails or iv) for infringing any of the provisions of this Agreement v) for any acts and/or omissions against the Public Policy vi) Infringement of Intellectual Property Rights of the Company and/or any Third Party vii) Infringement of any applicable law for the time being in force. The Affiliate shall be solely liable for any penalties levied upon Company by its Clients due to the acts of the Affiliate and Company shall require for the Affiliate to make good any losses incurred by Company under this AGREEMENT for the reasons specified herein under.
• Representations and Warranties of Affiliate.
Affiliate represents and warrants that:
• Affiliate has the right and authority to enter into this Agreement.
• Affiliate, if an individual, is at least eighteen (18) years of age.
• Affiliate shall obtain all necessary licenses for any sales events, telemarketing or otherwise and shall obey all applicable laws, regulations and rules of any applicable government body or agency or other authority.
• Company has made no representations whatsoever about any and accepts no liability relative to any other website which may be accessed through the Company’s Website or through a link from the Company’s Website to another website or for the content or the use thereof.
• Affiliates’ website content, if any, is solely owned by Affiliate and does not infringe on the rights of any third party, including but not limited to intellectual property rights, and is not defamatory, libellous, unlawful or otherwise objectionable and Affiliate shall not provide, promote, distribute, place or otherwise publish or host any website that includes content which is libellous, defamatory, obscene, pornographic, abusive, fraudulent or which violates any law.
• Intellectual Property:
Notwithstanding anything to the contrary, all the Intellectual Property created by the Affiliate shall be in the nature of “Work made for Hire” including any copyrights, designs, patents, layouts, mask works and shall be the exclusive property of the Company and the Affiliate hereby assigns all rights in relation to such Intellectual Property to the Company on a word wide and perpetual basis. Company retains ownership of all right, title and interest to any and all Intellectual Property developed, owned, created or licensed by Company without access to or use of any Intellectual Property Rights of Affiliate, including the Advertisements, any customer lists, improvements, enhancements or modifications thereto made by Company or any third party (“Company Rights”). To the extent such material is in Affiliate’s possession or control, Affiliate will take all reasonable and necessary measures to protect the Company Rights. Except for the licenses set forth in this AGREEMENT, nothing in this Agreement grants to Affiliate any rights to any of the foregoing.
• Limitation of Liability:
Except for Affiliate’s obligations in terms of confidentiality and data privacy, in no event will either party or their respective employees, shareholders, directors, agents, suppliers or affiliates be liable to the other party or any third party for any loss profit or any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to this agreement. The foregoing limitation will not apply to the party’s indemnification obligations. In no event will Company’s liability under this agreement exceed fees paid by Company to Affiliate in the One year period prior to the date of the event that gave rise to the liability.
• Confidentiality:
The Affiliate undertakes and agrees that in consideration of the engagement with the Company some Confidential Information may be shared during the subsistence of this Agreement for the purposes of rendering services and further covenants to abide by the following:
• Unless otherwise agreed to in advance and in writing by the Company, Affiliate will not, except as required by law or court order, use the Confidential Information for any purpose whatsoever other than the performance of the Services or disclose the Confidential Information to any third party.
• The Affiliate shall not either directly or indirectly both during and after the term, without the Company’s prior written permission disclose, divulge, disseminate, publish, lecture upon, sell or transfer to any Person or permit any Person to examine or make copies of any documents, writings, drawings, materials or records that contain or are derived from any Confidential Information.
• The Affiliate shall comply and do all things necessary to permit the Company to comply with all applicable laws and with the provision of contracts executed by the Company relating to the Intellectual Property or to safeguarding of information including the signing of any Confidentiality Agreement required in connection with rendering of the services under this Agreement.
• The Affiliate understands that the Company shall never insist or require the Affiliate to divulge Confidential Information that he/she has received as part of the previous engagements and the Affiliate covenants and assures that he/she shall remain responsible at all times to protect any such Confidential Information in accordance with the obligations of the previous Agreements.
• Non-Solicitation:
During the Term and for a period of at least one year after the termination of this Agreement, the Affiliate shall not solicit, influence or attempt to influence any Client or Customer whether directly through itself or indirectly through any other Person to direct its purchases of the Company’s Products and/or the Services to himself or any other Person whether in competition with the business of the Company or not.
The Affiliate shall not, during the term of this Agreement and for a period of One (01) Year therefrom, solicit or attempt to solicit or influence any person employed or engaged by the Company whether as an Employee, Consultant, Advisor or in any other manner rendering services to the Company, to terminate or otherwise cease such Employment or engagement with the Company or become the Employee of or directly or indirectly offer services in any form or manner to himself or any third party including company, firm, partnership who renders the services in competition with the business of the Company.
• Indemnification:
Affiliate agrees to indemnify, defend and hold harmless Company and its officers, directors and Consultants against any third party claims, damages and penalties, and all related costs and expenses (including reasonable attorneys’ fees) based on i) Affiliate’s breach of any confidentiality obligations under this AGREEMENT; ii) infringement of any provisions or applicable laws caused by gross negligence or wilful misconduct; iii) any claims arising out of a breach of any clauses of this Agreement.
• Independent Contractor:
The Affiliate agrees that all services will be rendered by it as an independent contractor and that this Agreement does not create an employer-employee relationship between the Affiliate and the Company. The Affiliate shall have no right to receive any employee benefits provided by the Company to its employees. Affiliate also agrees to pay all taxes due in respect of the payments received and to indemnify the Company for any obligation that may be imposed on the Company to pay any such taxes or resulting from Affiliate’s being determined not to be an independent contractor. This Agreement does not authorize the Affiliate to act for the Company as its agent or to make commitments on behalf of the Company.
• Data Protection:
1. For the purpose of this provision, the terms ‘personal data’, ‘process/processing’, ‘data controller’, ‘data processor’, ‘data subject’ shall have the same meaning as under the applicable data protection and privacy law and regulation and notably as in Directive 95/46/EC and any subsequent applicable legislation that may replace them (such as the European General Data Protection Regulation 2016/679).
2. In the event that the Services and/or Deliverables involve the collection of individual’s names and/or other personal data for the purpose of controlling or processing such data, Affiliate shall obtain the necessary consent from the relevant individuals or ensure that it otherwise has the right under the relevant applicable data protection laws and regulations to receive such data.
3. Affiliate acknowledges and agrees that any data including without limitation, personal data must be processed solely for the purpose for which it is provided. Affiliate acknowledges and agrees that at all times personal data are processed in compliance with applicable data protection and privacy regulations and ensures that its employees, contractors and/or agents comply with the relevant provisions of the applicable data protection and privacy law and regulation and with the following obligations. The Parties agree that Affiliate shall:
i. use the highest industry standards and data controls and take technical and organizational security measures to safeguard and protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure, access, in particular when the processing involves the transmission of data over a network, and against all other unlawful forms of processing. Affiliate agrees to provide a detailed list of such security measures and controls taken at Company’s request;
ii. promptly inform Company about:
? any breach (actual or threatened) of data provided to Affiliate and the steps it has taken to mitigate such breach;
? any request received directly from the data subjects concerned;
? defend, indemnify and hold harmless Company, its affiliates, its customers/students/leads from and against any and all liabilities, costs, expenses (including legal expenses), damages, injury, fines, claims, losses that arise from or in respect of use or misuse of data by Affiliate or otherwise attributable to any data breach pursuant to this Agreement;
• Affiliate acknowledges and agrees that in case of any breach by Affiliate to the above obligations, Company is entitled to terminate the Agreement.
• Assignment
The Services to be performed by Affiliate hereunder are personal in nature, and Company has engaged Affiliate as a result of the expertise relating to such Services. Affiliate, therefore, agrees that it will not assign, sell, transfer, delegate or otherwise dispose of this Agreement or any right, duty or obligation under this Agreement without the Company’s prior written consent. Nothing in this Agreement shall prevent the assignment by the Company of this Agreement or any right, duty or obligation hereunder to any third party.
• Anti- Bribery Provisions:
Neither Party, nor any of its subsidiaries or affiliates, nor any director, officer, agent, employee or other person associated with or acting on behalf of such Party, as the case may be, has: (i) used any funds received under this Agreement for any unlawful payment to any foreign or domestic political parties or other; (ii) violated or is in violation of any applicable anti-corruption or anti-bribery laws in India; (iii) violated or is in violation of any applicable law or regulation implementing the OECD Convention of Combating Bribery of Foreign Public Officials in International Business transactions, or any applicable provision of the U.S. Foreign Corrupt Practices Act of 1977 as amended, or the U.K. Bribery Act, 2010, or any other similar law in any other jurisdiction; (iv) taken or is receiving any offer, payment, gift or anything else of value knowing that all or some portion of what is taken will be used in violation of the provisions of the enactments specified above;
• Injunctive Relief
Affiliate acknowledges that a violation of Clause 7 or 8 would cause immediate and irreparable harm to the Company for which money damages would be inadequate. Therefore, the Company will be entitled to injunctive relief for Affiliate’s breach of any of its obligations under the said Articles without proof of actual damages and without the posting of bond or other security. Such remedy shall not be deemed to be the exclusive remedy for such violation but shall be in addition to all other remedies available at law or in equity.
• Governing Law:
This Agreement shall be governed by and construed in accordance with the laws of Delaware, without giving effect to any choice of law or conflict of law provisions. The Parties consent to the exclusive jurisdiction and venue in the courts of Delaware.
• General
• This Agreement constitutes the entire agreement of the Parties on the subject hereof and supersedes all prior understandings and instruments on such subject. This Agreement may not be modified other than by a written instrument executed by duly authorized representatives of the Parties.
• No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion. Failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of such provision or any other provision(s) of this Agreement.
• Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the Parties and enforced as modified. All other terms and conditions of this Agreement shall remain in full force and effect and shall be construed in accordance with the modified provision.
• The Affiliate shall not, while engaged by the Company or at any time thereafter, disparage the Company (or any affiliate) in any way that materially and adversely affects the goodwill, reputation or business relationships of the Company or the affiliate with the public generally, or with any of its customers, vendors or employees.
• Either Party shall be excused from any delay or failure in performance required hereunder if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, acts of war, fire, insurrection, strikes, lock-outs or other serious labour disputes, riots, earthquakes, floods, explosions or other acts of nature. The obligations and rights of the Party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the Parties’ respective obligations hereunder shall resume. In the event the interruption of the excused Party’s obligations continues for a period in excess of Thirty (30) calendar days, either Party shall have the right to terminate this Agreement upon Seven (07) calendar days’ prior written notice to the other Party.
• Further Assurances. Each of the Parties hereto agrees to execute and deliver, or cause to be executed and delivered, all such instruments, and to take all such action as the other Party may reasonably request in order to effectuate the intent and purposes, and to carry out the terms of, this Agreement.
• SEM traffic : Brand bidding is strictly not allowed and the concerned person if found will be blocked for life time
• Approval of Materials. Through its promotional efforts to generate Valid Leads, Valid Clicks and/or Valid Sales, Affiliate shall obtain our written approval for (i) any text, images, web pages or any material or content on the website/ and/or blogs before Affiliate publishes any Links, Listings, our Content or Non-standard Implementation; (ii) any search terms, URLs(Uniform Resource Locator) and search result descriptions before being used by Affiliate to market the content on search engines or elsewhere on the internet; and (iii) any changes to domain names and our Client-related text and/or images. In the event that the we provide Affiliate with edits and changes to any of the above materials, Affiliate shall, after incorporating such edits and changes, re-submit such material for final written approval by us; only upon receipt of our final written approval may Affiliate begin generating Valid Leads, Valid Clicks and/or Valid Sales through the Affiliate Site. Notwithstanding subsection (i) above, during Company’s review of the content on website and/or blog, Company may provide Affiliate with non-live Links or Listings which Affiliate may make live only upon Company’s written approval. In the event that Company requires edits or changes to an approved Content after traffic generation has begun, Affiliate will implement such required edits or changes as soon as practicable but in any event within five (5) days of Company’s request. In the event that Affiliate materially modifies content, it shall obtain Company’s written approval prior to publishing the Links, Listings, Company Content or Non-standard Implementations on such materially modified content on the website and/or blog.
b. Inappropriate Content; Malware. The Affiliate hereby commits and shall abide by such commitment that the content shall not contain any (i) pornographic or offensive material, (ii) software trading, hacking or phreaking content, (iii) illegal music reproduction, downloads or content, or (iv) any other illegal content. Affiliate shall not distribute any spyware, adware, trojans, viruses, worms, spybots, keyloggers or any other form of malware.
c. Links and Listings. Affiliate will use the Links and Listings in the exact form in which Company delivered them and will not alter, modify, delete, disable or impede the display of the Links or Listings in any manner. Affiliate agrees that it will promptly, upon Company’s request, modify or alter the Links, Listings or tracking software in accordance with Company’s instructions. Notwithstanding the foregoing, Affiliate may append tracking parameters or dynamic parameters (limited to such dynamic parameters as directed by Company) to the Links or Listings in accordance with Company’s rules regarding appending such parameters, as provided from time to time.
d. Company Content. Affiliate will use the Company Content (i) in exactly the form in which its is delivered to Affiliate, unless modification to any such Company Content is approved by Company in writing; (ii) only until Company has requested that Affiliate discontinue its use, at which time Affiliate shall discontinue such use within two (2) business days of such request; and (iii) in the manner approved by the Company.
e. Non-standard Implementation. Affiliate will use any Non-standard Implementation in exactly the manner approved by the Company.
f. Misrepresentation; Compliance with Laws. Through its promotional efforts to generate leads, clicks and/or sales, Affiliate shall not (i) misrepresent Company or any Company Client (or any of their respective products or services), or (ii) violate any applicable laws, including, but not limited to, privacy laws (including the right to share lead contact information with third-parties).
g. Call centres; E-mail; Affiliate shall not generate any leads and/or sales through (i) any call centre (including verifying any leads and/or sales via any call centre) without entering into a separate agreement or amending this Agreement; (ii) any type of email promotions which contain any Company or Company Client brands or any Links, Listings, Company Content or Non-standard Implementations without entering into a separate agreement or amending this Agreement; or (iii) any social media application groups or channels without the prior written approval of Company.
h. Spamming; Incentives; Pop-ups. Affiliate will not (i) engage in the practice of search engine "spamming” (i.e., the inappropriate use of search engine optimization tactics such as doorway pages or cloaking); (ii) provide visitors with any incentive or compensation on the website and/or blog for visiting his pages unless the incentive is approved in advance by the Company; or (iii) use any Links, Listings or Non-standard Implementations in pop-ups without obtaining Company’s prior approval.
• Selection of Clients. Affiliate’s selection of Company Clients to be included in any Advertisements is subject to Company’s review and approval, which approval shall not be unreasonably withheld.
• Roles and Responsibilities:
• The Affiliate shall be supplied with the Creative’s by Company which shall be placed on the Affiliate’s website and/or blog and/or emails. Company shall closely assess and monitor the placement of such Advertisement and would restrict the Affiliate from placing any ads on sites which are either prohibited or opposed to public policy.
• The Affiliate shall be assigned campaigns based on Company’s requirement (For the purpose of this AGREEMENT the term “campaign” shall mean a series of advertisement messages sharing a common marketing theme which makes up an integrated marketing communication) and such campaigns shall be periodically reviewed by Company at regular interval of time. Company shall reserve the right to terminate or pause any such campaign should it in its reasonable view consider that such campaign is not meeting the expected parameters specified by Company.
• The Affiliate shall not reverse, modify, change, alter or vary any part or form of the Advertisement without obtaining a prior written consent from Company.
• The Affiliate undertakes to not and shall not authorize or encourage any third party to: (a) generate impressions of or clicks on any Advertisement through any automated, deceptive, fraudulent or other invalid means, including but not limited to repeated manual clicks and automated query tools; (b) place statements near any Advertisement that encourages users to click on the Advertisement (e.g., “Please click here”) or to visit the third-party advertiser (e.g., “Please visit our sponsor”); (c) in any way minimize or obstruct the display of any Advertisements, or edit, modify, filter or change the order of the information contained in any Advertisements; (d) attempt to edit the website tags, source codes, links, pixels, modules, software development kits or other data provided by Company.
• Company shall at all times be kept indemnified against any losses or claims arising from its Clients or any third party due to the acts of the Affiliate, including but not limited to i) detection of any fraudulent activity; ii) a spam complaint received from any of the recipients of the mail; iii) sending repetitive mails or iv) for infringing any of the provisions of this Agreement v) for any acts and/or omissions against the Public Policy vi) Infringement of Intellectual Property Rights of the Company and/or any Third Party vii) Infringement of any applicable law for the time being in force. The Affiliate shall be solely liable for any penalties levied upon Company by its Clients due to the acts of the Affiliate and Company shall require for the Affiliate to make good any losses incurred by Company under this AGREEMENT for the reasons specified herein under.
• Representations and Warranties of Affiliate.
Affiliate represents and warrants that:
• Affiliate has the right and authority to enter into this Agreement.
• Affiliate, if an individual, is at least eighteen (18) years of age.
• Affiliate shall obtain all necessary licenses for any sales events, telemarketing or otherwise and shall obey all applicable laws, regulations and rules of any applicable government body or agency or other authority.
• Company has made no representations whatsoever about any and accepts no liability relative to any other website which may be accessed through the Company’s Website or through a link from the Company’s Website to another website or for the content or the use thereof.
• Affiliates’ website content, if any, is solely owned by Affiliate and does not infringe on the rights of any third party, including but not limited to intellectual property rights, and is not defamatory, libellous, unlawful or otherwise objectionable and Affiliate shall not provide, promote, distribute, place or otherwise publish or host any website that includes content which is libellous, defamatory, obscene, pornographic, abusive, fraudulent or which violates any law.
• Intellectual Property:
Notwithstanding anything to the contrary, all the Intellectual Property created by the Affiliate shall be in the nature of “Work made for Hire” including any copyrights, designs, patents, layouts, mask works and shall be the exclusive property of the Company and the Affiliate hereby assigns all rights in relation to such Intellectual Property to the Company on a word wide and perpetual basis. Company retains ownership of all right, title and interest to any and all Intellectual Property developed, owned, created or licensed by Company without access to or use of any Intellectual Property Rights of Affiliate, including the Advertisements, any customer lists, improvements, enhancements or modifications thereto made by Company or any third party (“Company Rights”). To the extent such material is in Affiliate’s possession or control, Affiliate will take all reasonable and necessary measures to protect the Company Rights. Except for the licenses set forth in this AGREEMENT, nothing in this Agreement grants to Affiliate any rights to any of the foregoing.
• Limitation of Liability:
Except for Affiliate’s obligations in terms of confidentiality and data privacy, in no event will either party or their respective employees, shareholders, directors, agents, suppliers or affiliates be liable to the other party or any third party for any loss profit or any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to this agreement. The foregoing limitation will not apply to the party’s indemnification obligations. In no event will Company’s liability under this agreement exceed fees paid by Company to Affiliate in the One year period prior to the date of the event that gave rise to the liability.
• Confidentiality:
The Affiliate undertakes and agrees that in consideration of the engagement with the Company some Confidential Information may be shared during the subsistence of this Agreement for the purposes of rendering services and further covenants to abide by the following:
• Unless otherwise agreed to in advance and in writing by the Company, Affiliate will not, except as required by law or court order, use the Confidential Information for any purpose whatsoever other than the performance of the Services or disclose the Confidential Information to any third party.
• The Affiliate shall not either directly or indirectly both during and after the term, without the Company’s prior written permission disclose, divulge, disseminate, publish, lecture upon, sell or transfer to any Person or permit any Person to examine or make copies of any documents, writings, drawings, materials or records that contain or are derived from any Confidential Information.
• The Affiliate shall comply and do all things necessary to permit the Company to comply with all applicable laws and with the provision of contracts executed by the Company relating to the Intellectual Property or to safeguarding of information including the signing of any Confidentiality Agreement required in connection with rendering of the services under this Agreement.
• The Affiliate understands that the Company shall never insist or require the Affiliate to divulge Confidential Information that he/she has received as part of the previous engagements and the Affiliate covenants and assures that he/she shall remain responsible at all times to protect any such Confidential Information in accordance with the obligations of the previous Agreements.
• Non-Solicitation:
During the Term and for a period of at least one year after the termination of this Agreement, the Affiliate shall not solicit, influence or attempt to influence any Client or Customer whether directly through itself or indirectly through any other Person to direct its purchases of the Company’s Products and/or the Services to himself or any other Person whether in competition with the business of the Company or not.
The Affiliate shall not, during the term of this Agreement and for a period of One (01) Year therefrom, solicit or attempt to solicit or influence any person employed or engaged by the Company whether as an Employee, Consultant, Advisor or in any other manner rendering services to the Company, to terminate or otherwise cease such Employment or engagement with the Company or become the Employee of or directly or indirectly offer services in any form or manner to himself or any third party including company, firm, partnership who renders the services in competition with the business of the Company.
• Indemnification:
Affiliate agrees to indemnify, defend and hold harmless Company and its officers, directors and Consultants against any third party claims, damages and penalties, and all related costs and expenses (including reasonable attorneys’ fees) based on i) Affiliate’s breach of any confidentiality obligations under this AGREEMENT; ii) infringement of any provisions or applicable laws caused by gross negligence or wilful misconduct; iii) any claims arising out of a breach of any clauses of this Agreement.
• Independent Contractor:
The Affiliate agrees that all services will be rendered by it as an independent contractor and that this Agreement does not create an employer-employee relationship between the Affiliate and the Company. The Affiliate shall have no right to receive any employee benefits provided by the Company to its employees. Affiliate also agrees to pay all taxes due in respect of the payments received and to indemnify the Company for any obligation that may be imposed on the Company to pay any such taxes or resulting from Affiliate’s being determined not to be an independent contractor. This Agreement does not authorize the Affiliate to act for the Company as its agent or to make commitments on behalf of the Company.
• Data Protection:
1. For the purpose of this provision, the terms ‘personal data’, ‘process/processing’, ‘data controller’, ‘data processor’, ‘data subject’ shall have the same meaning as under the applicable data protection and privacy law and regulation and notably as in Directive 95/46/EC and any subsequent applicable legislation that may replace them (such as the European General Data Protection Regulation 2016/679).
2. In the event that the Services and/or Deliverables involve the collection of individual’s names and/or other personal data for the purpose of controlling or processing such data, Affiliate shall obtain the necessary consent from the relevant individuals or ensure that it otherwise has the right under the relevant applicable data protection laws and regulations to receive such data.
3. Affiliate acknowledges and agrees that any data including without limitation, personal data must be processed solely for the purpose for which it is provided. Affiliate acknowledges and agrees that at all times personal data are processed in compliance with applicable data protection and privacy regulations and ensures that its employees, contractors and/or agents comply with the relevant provisions of the applicable data protection and privacy law and regulation and with the following obligations. The Parties agree that Affiliate shall:
i. use the highest industry standards and data controls and take technical and organizational security measures to safeguard and protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure, access, in particular when the processing involves the transmission of data over a network, and against all other unlawful forms of processing. Affiliate agrees to provide a detailed list of such security measures and controls taken at Company’s request;
ii. promptly inform Company about:
? any breach (actual or threatened) of data provided to Affiliate and the steps it has taken to mitigate such breach;
? any request received directly from the data subjects concerned;
? defend, indemnify and hold harmless Company, its affiliates, its customers/students/leads from and against any and all liabilities, costs, expenses (including legal expenses), damages, injury, fines, claims, losses that arise from or in respect of use or misuse of data by Affiliate or otherwise attributable to any data breach pursuant to this Agreement;
• Affiliate acknowledges and agrees that in case of any breach by Affiliate to the above obligations, Company is entitled to terminate the Agreement.
• Assignment
The Services to be performed by Affiliate hereunder are personal in nature, and Company has engaged Affiliate as a result of the expertise relating to such Services. Affiliate, therefore, agrees that it will not assign, sell, transfer, delegate or otherwise dispose of this Agreement or any right, duty or obligation under this Agreement without the Company’s prior written consent. Nothing in this Agreement shall prevent the assignment by the Company of this Agreement or any right, duty or obligation hereunder to any third party.
• Anti- Bribery Provisions:
Neither Party, nor any of its subsidiaries or affiliates, nor any director, officer, agent, employee or other person associated with or acting on behalf of such Party, as the case may be, has: (i) used any funds received under this Agreement for any unlawful payment to any foreign or domestic political parties or other; (ii) violated or is in violation of any applicable anti-corruption or anti-bribery laws in India; (iii) violated or is in violation of any applicable law or regulation implementing the OECD Convention of Combating Bribery of Foreign Public Officials in International Business transactions, or any applicable provision of the U.S. Foreign Corrupt Practices Act of 1977 as amended, or the U.K. Bribery Act, 2010, or any other similar law in any other jurisdiction; (iv) taken or is receiving any offer, payment, gift or anything else of value knowing that all or some portion of what is taken will be used in violation of the provisions of the enactments specified above;
• Injunctive Relief
Affiliate acknowledges that a violation of Clause 7 or 8 would cause immediate and irreparable harm to the Company for which money damages would be inadequate. Therefore, the Company will be entitled to injunctive relief for Affiliate’s breach of any of its obligations under the said Articles without proof of actual damages and without the posting of bond or other security. Such remedy shall not be deemed to be the exclusive remedy for such violation but shall be in addition to all other remedies available at law or in equity.
• Governing Law:
This Agreement shall be governed by and construed in accordance with the laws of Delaware, without giving effect to any choice of law or conflict of law provisions. The Parties consent to the exclusive jurisdiction and venue in the courts of Delaware.
• General
• This Agreement constitutes the entire agreement of the Parties on the subject hereof and supersedes all prior understandings and instruments on such subject. This Agreement may not be modified other than by a written instrument executed by duly authorized representatives of the Parties.
• No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion. Failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of such provision or any other provision(s) of this Agreement.
• Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the Parties and enforced as modified. All other terms and conditions of this Agreement shall remain in full force and effect and shall be construed in accordance with the modified provision.
• The Affiliate shall not, while engaged by the Company or at any time thereafter, disparage the Company (or any affiliate) in any way that materially and adversely affects the goodwill, reputation or business relationships of the Company or the affiliate with the public generally, or with any of its customers, vendors or employees.
• Either Party shall be excused from any delay or failure in performance required hereunder if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, acts of war, fire, insurrection, strikes, lock-outs or other serious labour disputes, riots, earthquakes, floods, explosions or other acts of nature. The obligations and rights of the Party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the Parties’ respective obligations hereunder shall resume. In the event the interruption of the excused Party’s obligations continues for a period in excess of Thirty (30) calendar days, either Party shall have the right to terminate this Agreement upon Seven (07) calendar days’ prior written notice to the other Party.
• Further Assurances. Each of the Parties hereto agrees to execute and deliver, or cause to be executed and delivered, all such instruments, and to take all such action as the other Party may reasonably request in order to effectuate the intent and purposes, and to carry out the terms of, this Agreement.
+ Campaign Terms and Conditions
| Email Marketing Allowed: | Yes |
| Search Engine Marketing Allowed: | Yes |
| Search Engine Marketing Restrictions: | No TM or TM Plus bidding. |
| Coupons Allowed: | Yes |
| Naked Coupon Capable: | No |
| Incentive/Rewards Sites Allowed: | Yes |
International traffic welcome.