Terms and Conditions.
This Agreement is a legal and binding agreement between the Company and you and will govern your use of the Company’s website (www.seccosquared.com, or any successor site the Company may designate, the “Site”) and your participation in the Network. Each of you and the Company may be referred to herein individually as a “Party”, and collectively as “Parties”. You agree to use the Site, participate in the Network, and use any additional services offered by the Company in the future, in accordance with the terms of this Agreement.
Company reserves the right to modify the Site and this Agreement at any time and from time to time, without specific notice to you. Any such modification of this Agreement will be effective upon its posting to the Site. Your continued use of the Site and/or participation in the Network after any such modification will constitute your consent to such modification. The current version of this Agreement will be posted on the Site. You should review the current version of this Agreement prior to each use of the Site.
1. Background and Use of the Site.
The Site allows the Company to post offers of advertising programs sponsored by the Company or its affiliates on the system (“Program(s)”). The Programs will specify the amount and terms under which you will receive payment (“Bounty”) when the Program's requirements are fulfilled. Bounties are generated upon completion of a specified event (“Event”) identified in a Program, such as clicks, click-throughs, sales, registrations, impressions and leads. The definition of the Event associated with a Program is set forth in the Program's specifications, and such definition will govern in the event of a conflict with the terms of this Agreement. If You accept a Program, you agree to place such Program's advertising creative on your media properties, such as your website, affiliated websites or email distribution lists (“Media”), in accordance with the terms of such Program. The Company may change or discontinue a Program at any time, unless otherwise specified. Similarly, you may discontinue previously accepted Programs at any time, unless otherwise specified. The Company is responsible for displaying and administrating all active Programs and tracking the payments owed. The Company will compile, calculate and electronically deliver data required to determine your billing and compensation. The Company's figures and calculations shall be final and binding.
You shall not post any materials included in, or in support of, any Program (including advertisements, offers, etc.) on message boards, job boards, chat rooms, and social networking sites, including, without limitation, myspace.com, facebook.com, tagged.com, craigslist.org, etc., unless such posting is authorized by the express terms of the applicable Program or in writing by the Company. The Company will not pay for any actions generated through such means unless so authorized. If you engage in any of the foregoing actions without such authorization, the Company may immediately terminate your access to the Site and participation in the Network.
You shall not use incentives to generate traffic or otherwise complete an Event. The Company will have no obligation to pay for actions based on, or which are the result of, incentives.
All persons or entities who wish to participate in the Network as an affiliate marketer must obtain prior approval from the Company (any such approved person or entity, an “Affiliate”). Only Media that have been reviewed and approved by the Company are permitted for use in connection with the Site and the Network. The Company reserves the right to withhold or refuse approval in its sole discretion.
A. Without limiting the foregoing, eligible Media will, at a minimum, have the following features:
- Be content-based, not simply a list of links or advertisements, nor can a website be centered around making money off of the Company’s Merchants.
- Be written in English and contain only English language content.
- Have a top-level domain name.
- Cannot offer incentives to users to click on ads; incentives include, without limitation, awarding cash, points, prizes, contest entries, etc.
- Be fully functional at all levels; no 'under construction' sites or sections.
- Spawning process pop-ups and exit pop-ups are prohibited.
As used herein, the term “Merchant” means any advertising customer of the Company.
B. You represent and warrant to the Company that your participation in the Network will not, and the content of any Media used by you will not, violate the rights of any person or entity, including, without limitation, violation of any privacy rights and/or infringement of any intellectual property rights (including, without limitation, trademarks or copyrights). No Media used by you will include, promote or facilitate any of the following:
- Racial, ethnic, political, hate-mongering or otherwise objectionable content
- Investment, money-making opportunities or advice not permitted under law
- Gratuitous violence or profanity
- Material that defames, abuses, or threatens physical harm to others
- Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.
- Software Pirating (e.g., Warez, Hotline)
- Hacking or Phreaking.
- Any illegal activity whatsoever
- Any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic
If you are approved to participate in the Network, the Company grants you a non-transferable, non-exclusive, revocable, limited license to use the Site and any data, reports, information or analyses arising out of such use, subject to the terms and conditions set forth herein. You acknowledge and agree that you do not have, and you will not claim, any right, title or interest in or to the Site software, applications, data, methods of doing business or any elements thereof. You may access the Site only via web browser, email or in a manner approved by the Company. You shall not alter any Site integration tags. Altering tags may jeopardize your ability to be paid for Events.
The Company actively monitors traffic for fraud. If the Company determines, in its sole discretion, that you have engaged in fraudulent activity, your status as an Affiliate, your access to the Site and your participation in the Network will be suspended pending further investigation.
If you add leads or clicks, or inflate leads or clicks, by fraudulent traffic generation (as determined by the Company in its sole discretion), such as pre-population of forms or mechanisms not approved by the Company, you will forfeit your right to receive any Bounties or other payments due to you from Programs, and your account and status as an Affiliate and participant in the Network will be terminated. The Company reserves sole judgment in determining fraud.
Without limiting the foregoing, it is your obligation to prove to the Company that they are NOT committing fraud. The Company may withhold any payments owed to you in connection with any Program until you provide evidence satisfactory to the Company that you are not defrauding the Company and its Merchants. The Company may base a finding of fraud on any of the following:
A. click-through rates that are much higher than industry averages and where solid justification is not evident;
B. your use of ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks reported;
C. generation of fraudulent leads as determined by the applicable Merchant;
D. use of fake redirects, automated software, and/or fraud to generate clicks or leads from Programs; and/or
E. use of illegal content or gateway traffic (including pirated or illegal material, facebook spam, social network spam, or any type of spam).
You will be eligible for payment for each completed Event.
The Company will pay a Bounty owed to you NET 30 days from the date of invoice; provided that the Company’s obligation to pay any Bounty, any commission or any other amount that may be otherwise owed to you is subject to the Company’s actual receipt of payment from the applicable Merchant whose Program generated such obligation. If the Company does not receive payment from the applicable Merchant, the Company will have no payment obligation to you. Subject to the foregoing, the Company will facilitate payment by disbursing the earned portion of lump sum aggregate payments to you upon receipt of payment from the applicable Merchant.
Without limiting the foregoing, the Company reserves the right, without limitation, to deduct from any payment owed to you hereunder an amount equal to any charge-backs, refunds, deductions and/or similar adjustments (collectively, “Adjustments”) demanded by any Merchant in connection with any Program and/or Event. If the Company incurs any Adjustment, the Company may deduct such amount from any future compensation owned to you hereunder. In the alternative, at the Company’s written request, you will promptly return to the Company the amount of any Adjustment.
All accounts will be paid in US dollars (US$). No checks will be issued for any amounts less than Twenty US Dollars (US$20). Your Affiliate account must have a unique, valid taxpayer identification number (TIN) or valid Social Security number.
The Company will not pay for any Events that occur before a Program is initiated, or after a Program terminates. Invoices submitted to the Company and payments made to you will be based on the Events and corresponding Bounties as reported by the Company. The Company will not be responsible to compensate you for Events that are not recorded due to your error.
In no event will the Company be obligated to pay any Bounty or other compensation to you that relates, or is in any way attributable, to fraudulent activity.
This Agreement will commence upon your acceptance of its terms (as described above) and remain in effect until terminated. You may terminate this Agreement on three (3) business days' prior notice delivered to the Company. The Company may terminate this Agreement, your status as an Affiliate, your participation in the Network and/or your access to the Site, at any time in its sole and absolute discretion (i.e., for any or no reason) without giving you prior notice. Without limiting the foregoing, the Company reserves the right, in its sole and absolute discretion, to terminate a Program and remove any advertisements at any time.
Without in any way limiting the foregoing, the Company may site any of the following as grounds for terminating your status as an Affiliate and your participation in the Network:
A. you are in any way in breach of this Agreement;
B. your Media contains material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable;
C. your use of names, trademarks, trade names, drawings, logos and symbols associated with a Merchant, or variations and/or misspellings of any of them, in URLs to the left of the top level domain name (e.g., '.com,' '.net,' '.uk,' etc.); and/or
D. your providing the Company with fraudulent, inaccurate or expired contact information or engaging in other fraudulent activity.
This Agreement will terminate immediately upon the dissolution or insolvency of either Party.
Termination notice may be provided via e-mail. If you engage in fraudulent activity, payment will be revoked as determined solely by Company.
Sections 5, 6, 7, 8, 9, 10, 13, 15 and 16 shall remain in full force and effect after termination of this Agreement. All payment obligations accruing prior to the termination date will survive such termination.
6. Representations and Warranties.
You represent and warrant to the Company that:
A. you will comply with all applicable laws, rules and regulations (including, without limitation, the CAN-SPAM Act of 2003, as amended (the “CAN-SPAM Act”)), and your Media is in compliance with all applicable laws and does not contain or promote, or links to another website that contains, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content;
B. you have the right, power, and authority to enter into this Agreement; and this Agreement constitutes your legal, valid and binding obligation and is fully enforceable against you in accordance with its terms;
C. you acknowledge that that the Company will enter into similar agreements with other persons and entities who will participate in the Network in direct competition with you;
D. your use of the Site, your participation in the Network, and your performance hereunder, will not: (i) be fraudulent, deceptive and/or misleading; (ii) invade the right of privacy or publicity of any third person; (iii) involve any libelous, obscene, indecent or otherwise unlawful material; and (iv) otherwise infringe upon the rights of any third parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity;
E. you agree not to promote via website or link to websites containing any pornographic, racial, ethnic, political, software pirating (e.g., Warez) or hacking, hate-mongering, or otherwise objectionable content;
G. you own or have the legal right to use and distribute all content, copyrighted material, products, and services displayed on your Media;
H. you will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from the Company that allows the Company to measure ad performance and provide its service (“Site Data”);
I. if instructed to do so by the Company and/or if this Agreement terminates, you will immediately remove and discontinue the use of any Site Data;
J. you agree to display the creative exactly as it appears on the Program and will not alter any creative that has been submitted to the Site;
K. you are responsible for all costs and legal fees associated with, or resulting from, fraudulent activities occurring on your Media;
7. Customer Information; Non-Disclosure.
All information submitted by end-user customers pursuant to a Program is proprietary to and owned by the Company or its affiliates. Such customer information is confidential and may not be used or disclosed by you. In addition, you acknowledge that all non-public information, data and reports received from the Company hereunder or as part of the services hereunder are proprietary to and owned by the Company. All proprietary information is protected by copyright, trademark and other intellectual property law. You shall not reproduce, disseminate, sell, distribute or commercially exploit any proprietary information in any manner. These non-disclosure obligations will survive the termination of this Agreement.
For purposes of this Agreement, the term "Confidential Information" means any non-public information of the Company that the Company designates as being confidential or which, under the circumstances surrounding disclosure, reasonably ought to be treated as confidential. You shall maintain the confidentiality of Confidential Information and refrain from disclosing any Confidential Information to any other party at anytime, even after termination of this Agreement. You will not use any Confidential Information except as expressly permitted by, or as required to achieve the purposes of, this Agreement.
8. Limitation of Liability; Disclaimer of Warranty.
ACCESS TO THE NETWORK AND THE SITE, AND ALL INFORMATION, CONTENT, PROGRAMS AND SERVICES ON THE SITE, ARE PROVIDED ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS, AND ALL WARRANTIES, EXPRESSED AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE NETWORK, THE SITE AND PROGRAMS MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. THE COMPANY AND THE COMPANY PARTIES WILL HAVE NO LIABILITY, WHATSOEVER, TO YOU OR ANY THIRD PARTY, FOR YOUR USE OF, OR INABILITY TO USE, THE NETWORK, THE SITE AND/OR THE PROGRAMS. WITHOUT LIMITING THE FOREGOING, THE COMPANY AND THE COMPANY PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR SIMIILAR DAMAGES), WHETHER BASED IN BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT THE FOREGOING LIMITATIONS, THE COMPANY WOULD NOT PROVIDE YOU WITH ACCESS TO THE NETWORK, THE SITE AND THE PROGRAMS. THE COMPANY MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE NETWORK.
THE COMPANY AND THE COMPANY PARTIES HEREBY DISCLAIM ANY AND ALL LIABILITY FOR ANY AND ALL DAMAGES CAUSED BY OR THROUGH THE NETWORK, THE SITE OR ANY PROGRAM. YOUR PARTICIPATION IN THE NETWORK AND ACCESS AND/OR USE OF THE SITE AND THE PROGRAMS IS DONE SOLELY AT YOUR OWN DISCRETION AND AT YOUR RISK.
IN NO EVENT WILL THE COMPANY AND/OR THE COMPANY PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CONSUMERS OBTAINING SERVICES THROUGH YOUR MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM YOUR USE OF THE SITE OR PARTICIPATION IN THE NETWORK.
IF ANY OF THE FOREGOING LIMITATIONS AND DISCLAIMERS IS HELD TO BE INVALID UNDER APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY OF THE COMPANY AND THE COMPANY PARTIES TO YOU AND/OR ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES WILL BE AN AMOUNT EQUAL TO AGGREGATE BOUNTIES YOU HAVE RECEIVED THROUGH THE NETWORK.
You shall indemnify, defend and hold the Company and its affiliates, and their respective owners, shareholders, members, directors, managers, employees, agents, successors and assigns (collectively, the “Company Parties”), harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of, resulting from, or otherwise relating to: (a) your improper use of the Network and/or the Site; (b) your improper operation of a Program; (c) breach or violation of this Agreement; (d) any allegation that you have infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; (e) any third party claim based upon, resulting from or relating to your participation in the Network, in any manner whatsoever; and/or (f) your negligence or willful misconduct.
10. Governing Law; Jurisdiction.
This Agreement will be construed and governed by the laws of the State of New York, without regard to conflicts of law principles. You expressly consent to the exclusive venue and personal jurisdiction of the state and federal courts located in New York County, New York for any actions arising from or relating to this Agreement.
If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had not been contained herein.
12. Force Majeure.
Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters, interruption in internet service or any other cause which is beyond the reasonable control of such Party.
13. Attorneys' Fees.
You shall pay the Company’s costs and expenses, including reasonable attorneys' fees, in any action or proceeding arising out of this Agreement.
14. IMPORTANT NOTICE: The CAN-SPAM Act.
Unless otherwise indicated in a Program, YOU MAY NOT USE E-MAIL MARKETING IN A PROGRAM. If e-mail marketing is permitted, such permission will be set forth in the terms of the applicable Program, and you must comply with all provisions of this Agreement concerning e-mail transmissions.
If e-mail marketing is permitted in a Program, you shall conduct such email marketing in compliance with the CAN-SPAM Act, in all respects, including, without limitation, the provisions thereof that regulate the form (what information must be included and the required format) commercial email must take. The CAN-SPAM Act requires, inter alia, that all commercial email contain the following:
- Clear and conspicuous identification that the message is an advertisement or solicitation, if the email is unsolicited
- Clear and conspicuous notice of the opportunity to opt-out
- A truthful subject line.
- A functioning mechanism to opt-out.
- A valid postal address for the sender.
- Labeling of unsolicited sexually explicit material.
15. Proprietary Rights.
The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to the Network, the Site and the Programs are protected under applicable copyrights, trademarks and other proprietary rights (including, without limitation, intellectual property rights). The copying, redistribution, use or publication by you of any such matters or any part of the Network, Site and/or Programs, except as expressly allowed hereunder, is strictly prohibited. You do not acquire ownership rights to any content, document or other materials viewed through the Site. The availability of the Network, Site and/or Programs does not constitute a waiver of any rights related thereto.
All trademarks are and will remain the property of their respective owners.
The Company may use your name, likeness and/or logo, your website address and any associated information in its marketing materials and press releases, without compensation to you.
You shall not create, publish, distribute or permit any written material that makes reference to the Company without the Company’s prior written consent.
A. This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to such subject matter.
B. The Parties are independent contractors, and nothing in this Agreement creates any partnership, joint venture, agency, franchise, sales representative or employment relationship between the Parties. You have no authority to make or accept any offers or representations on behalf of the Company. You shall not make any statement that contradicts the provisions of this Section.
C. All notices shall be sent to the addresses submitted by you when signing up for the service by certified mail, fax, email or courier.
D. This Agreement will be binding on, inure to the benefit of and be enforceable against the Parties and their respective successors and permitted assigns. You shall not assign any of your rights or delegate any of your obligations hereunder.
E. The Company’s failure to enforce any provision of this Agreement will not be deemed a waiver of such provision or of the right to enforce such provision.
F. Your unauthorized or unlawful use of the Network will result in irreparable injury to the Company for which money damages would be inadequate. In any such event, the Company will have the right, in addition to other remedies available to it pursuant to this Agreement, at law or otherwise, to seek injunctive relief without the need to post a bond.
G. If any part of this Agreement is held to be invalid or unenforceable, such part will be construed in a manner consistent with applicable law and the remaining parts will remain in full force and effect.
H. During the term of this Agreement and for a period of one (1) year thereafter, you shall not supply marketing and/or promotional services to any Merchant directly or through another affiliate program.