T3LEADS - AFFILIATE AGREEMENT
Last Updated: December 12. 2009
This is T3Leads Affiliate Agreement (the “Agreement”) is entered into by and between D and D Marketing, Inc., with its principal business location at 15503 Ventura Blvd, Suite 300, ENCINO, CA 91436 (“T3Leads”) and you (“Affiliate” or “you”), in connection with your use of the affiliate network owned and operated by T3Leads (“Network”). The Network can be accessed at www.t3leads.com (the “Site”). Please be advised that this Agreement is subject to change at any time, in T3Leads’ sole discretion. Changes may include, without limitation, changes in the payout structure, payment procedures and other Network-related policies. Your continued use of the Network after such modification and notification thereof constitutes your consent to such changes. Your participation in the Network constitutes agreement by you to the version of this Agreement in effect at that time. Affiliate agrees that Affiliate is relying solely on this Agreement in making Affiliate’s decision to enroll and that Affiliate is not relying on any representation, guarantee or statement other than as stated in this Agreement.
Registration
To begin the enrollment process, you must submit a complete and accurate Affiliate application (“Application”). To join the Network, you must be an entity or an individual of at least eighteen (18) years of age, with the requisite equipment and Internet connection to access the Network and Site. T3Leads will evaluate your Application and promptly notify you of your Application acceptance or rejection via the email address that you supply as a part of your Application. If any of the information supplied as part of your Application changes, at any time, you must immediately inform T3Leads of same to reflect such changes in your Affiliate profile.
Network/License
Upon T3Leads’ acceptance of your Application, T3Leads shall grant to you a non-exclusive, non-transferable, revocable and limited license to: (a) participate in marketing campaigns offered through the Network (“Campaigns”); (b) use the Creative Materials (as defined hereinbelow) made available via the Network solely and exclusively in connection with your efforts to generate leads (“Leads”), valid sales or other compensable activities (“Compensable Transactions”) in connection with such Campaigns; and (c) have the opportunity to earn bonus payments for individuals that you refer to the Network that become Affiliates. Each Campaign shall have specific terms governing payments to affiliates (“Commissions”), as well as the applicable Compensable Transactions.
Creative Material
T3Leads will provide Affiliate with access to three (3) forms of advertisements on the Site for download, use and publication by Affiliate subject to the license set forth above, and the other provisions of this Agreement: (a) a registration form with fields tailored to each Campaign (“iFrame Creative”); (b) text links, banner ads, pop-ups and other material (“Banner Ads”); and (c) a pre-designed web page to be used with Affiliate’s chosen uniform resource locator (“URL”) (“Private Feed” and together with the iFrame Creative and Banner Ads, the “Creative Material”). Affiliate must obtain T3Leads’ prior written approval before publishing a Private Feed. T3Leads may change or revise the Creative Material that is made available hereunder at any time, in its sole discretion, and Affiliate agrees to use only the most recent version of the Creative Material that is posted on the Site. Affiliate may not alter, modify or otherwise change the iFrame Creative in any manner, whatsoever. Affiliate may only alter, modify or otherwise change the Banner Ads and Private Feed upon obtaining the prior written approval of T3Leads for each instance of modification. T3Leads may terminate Affiliate’s right to use the Creative Material for any reason at any time, in its sole discretion. Other than where Affiliate receives T3Leads’ prior written approval in each instance, Affiliate may only use Creative Material that is supplied by T3Leads and that is posted on the Site. Use, or the attempted use, of any other marketing materials in connection with the Network without obtaining T3Leads’ prior written approval in each instance will result in the immediate termination of this Agreement, without notice. T3Leads retains full and sole ownership of all Creative Material and other information developed by T3Leads and supplied to Affiliate from time to time in connection with this Agreement.
Placement of Creative Material
Affiliate agrees that T3Leads may, in its sole discretion, direct the placement of the Creative Material. Unless such direction is given, and subject to the terms and conditions of this Agreement, the applicable Campaign and all applicable laws, rules and regulations, Affiliate may display the iFrame Creative and Banner Ads: (a) as often and in as many areas of the websites owned, operated or controlled by Affiliate (“Affiliate Websites”); and/or (b) in creative for distribution to those e-mail addresses listed in the e-mail databases owned, operated or controlled by Affiliate (“Affiliate Databases”). Notwithstanding the foregoing, Affiliate must comply, immediately, with any and all requests by T3Leads to modify, alter or otherwise change the positioning, placement, frequency and/or other editorial decisions related to the Creative Material. Affiliate must immediately remove Creative Material upon receiving notice from T3Leads or upon the termination or expiration of this Agreement or any applicable Campaign.
Restrictions on Use of Creative Material
Unless authorized, Affiliate may not, nor knowingly permit any Sub-Affiliate (as that term is defined hereinbelow) to, use third-party trademarks in any manner to direct traffic to any Affiliate Websites including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name of any third party, or any derivative of any such trademark, service mark or brand name. Affiliate may not allow the Creative Material to be placed on any non-Affiliate Websites without the prior express written consent of T3Leads. Affiliate must place or use the Creative Material only with the intention of delivering valid Compensable Transactions. Affiliate may not, nor knowingly permit any person to, activate the Creative Material or inflate the amount of Compensable Transactions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing a Compensable Transaction. Affiliate agrees and acknowledges that it shall not, nor shall it permit any Sub-Licensees to: (a) use incentivized offers, create the appearance of incentivizing offers, establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Compensable Transactions, or otherwise attempt to induce Internet users to click on any of the Creative Material through use of any other incentives, without obtaining the prior written approval of T3Leads; (b) place any statement in close proximity to the Creative Material requesting that e-mail recipients or Internet users “click” on or fill-out the applicable Creative Material (e.g., “Please click here”); (c) place misleading statements in close proximity to the Creative Material; (d) take control of a user's computer by delivering advertisements that a user of a computer cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; (e) install or execute on another's computer one or more additional software program(s) without consent of the user (in addition, Affiliate must clearly provide instructions to disable the software, such that the software is easily identifiable and the removal can be performed without undue effort or knowledge by the user of the computer); and/or (f) distribute spyware or other similar harmful software. T3Leads will only accept Compensable Transactions generated from U.S. citizens. T3Leads.com will not accept Compensable Transactions generated from public or open proxy servers, from IP addresses that have bot activity or from pay-per-view or pay-per-surf programs. T3Leads reserves the right to demand detailed information regarding the source locations of Compensable Transactions.
Transaction Tracking Codes
Unless otherwise stated in writing by T3Leads, each piece of Creative Material made available to Affiliate in connection with any Campaign must include, in unaltered form, the T3Leads special transaction tracking codes as embedded in all such Creative Material (the “Transaction Tracking Codes”). Affiliate will not knowingly, modify, circumvent, impair, disable or otherwise interfere with any Transaction Tracking Codes and/or other technology and/or methodology required or made available by T3Leads to be used in connection with any and all Creative Material.
Term and Termination
The term of this Agreement will begin upon T3Leads’ written acceptance of Affiliate’s submitted Application and will end when terminated by either party as set forth herein. Affiliate may terminate this Agreement at any time upon three (3) days’ prior written notice to T3Leads. T3Leads may terminate Affiliate’s participation in the Network and/or this Agreement immediately upon notice at any time and for any reason, in T3Leads’ sole discretion. Affiliate is only eligible to earn Commissions (as defined hereinbelow) in connection with Compensable Transactions (as defined hereinbelow) generated during the term of this Agreement. Upon termination of this Agreement for any reason: (a) Affiliate shall immediately cease to use and remove from the Affiliate Websites any and all Creative Material and/or other materials made available to Affiliate in connection with Affiliate’s participation in the Network; (b) Affiliate shall immediately cease transmitting any and all e-mails in connection with any Campaign; (c) any and all licenses and rights granted to Affiliate in connection with this Agreement shall immediately cease and terminate; and (d) any and all Confidential Information (as defined hereinbelow), Creative Material or proprietary information of T3Leads that is in Affiliate’s possession or control must be immediately returned or destroyed. If requested, Affiliate will certify in a writing signed by Affiliate or an authorized officer of Affiliate that all such confidential and/or proprietary information has been returned or destroyed.
Payments.
(a)General. T3Leads shall pay Commissions according to the payment terms of the applicable Campaign as set forth by T3Leads in the Network and/or on the Site. T3Leads will not pay any Commissions to Affiliate: (i) unless T3Leads has documentation to support such Commissions within the T3Leads database and Data (as defined hereinbelow); (ii) that occur before Affiliate is accepted into the Network; and/or (iii) that occur after termination of this Agreement or any applicable Campaign. T3Leads reserves the right to withhold and/or cancel Commission payments due and owing to Affiliate at any time, in its sole discretion, when T3Leads believes that Affiliate is in breach of any term of this Agreement. Affiliate shall be responsible for paying any and all applicable taxes (if any) due to all taxing authorities arising from, or in connection with, Affiliate’s participation in the Network. T3Leads may require Affiliate to provide a W-9, or similar tax identification information, as a condition precedent to receiving any Commission payments. All Payments shall be in U.S. Dollars.
(a)Schedule. T3Leads shall pay Commissions based on the Compensable Transactions recorded by the Transaction Tracking Codes approximately fifteen (15) days after the fifteenth day and last day of a given calendar month, respectively, for Commissions earned during the prior fifteen (15) day period. All determinations made by T3Leads in connection with the Transaction Tracking Codes, Compensable Transactions and any associated Commissions due to Affiliate shall be final and binding on Affiliate. Where Affiliate generates over One Thousand Dollars ($1,000.00) in weekly Commissions during any one (1) week, Affiliate may request to be paid on a weekly basis, approximately fifteen (15) days after the end of such week, for Commissions earned during the prior week; provided, however, that should Affiliate generate less than One Thousand Dollars ($1,000.00) in Commissions for any subsequent week, Affiliate shall return to the regular payment schedule for that week’s earnings.
(c)Payment Threshold. Payments will be made to Affiliate provided that the applicable Affiliate account has reached a minimum of One Hundred Dollars ($100.00) (“Payment Threshold”) in accrued Commissions. Accounts that have accrued a balance that has not reached the Payment Threshold will continue to roll over to the next billing period until an amount equal to or greater than the Payment Threshold has been met. Upon termination of this Agreement, all legitimate funds due to Affiliate, even amounts below the Payment Threshold, will be paid during the next billing cycle.
(d)Referrals. Affiliate shall receive additional payments (“Referral Revenue”) for each individual that Affiliate refers to T3Leads where such individual also becomes an active Affiliate participating in the Network (“Referral”). The Referral Revenue shall be equal to three percent (3%) of the gross revenue that T3Leads actually collects from Advertisers as a result of the applicable Referral’s participation in the Network as an Affiliate. To qualify as a Referral, the individual referred by Affiliate must not: (a) have previously registered, or attempted to register, with T3Leads as either an Affiliate or Advertiser; or (b) provide a fraudulent, incomplete and/or duplicate Application. In addition, in order qualify as a Referral, the individual referred by Affiliate must: (i) identify Affiliate as the party that referred him or her to T3Leads at the time that the prospective Referral registers with T3Leads; (ii) complete an Application; and (iii) have the Application approved by T3Leads. T3Leads will verify and approve all Referrals in accordance with its standard verification procedures. Where Affiliate is found tampering with or engaging in fraud in connection with this Referral program, Affiliate will: (A) be disqualified from receiving any associated Referral Revenue; (B) have his or her Affiliate account terminated; and (C) will be subject to any and all remedies available to T3Leads at law and in equity resulting from such fraud. T3Leads may terminate and/or modify the Referral program at any time in its sole discretion.
(e)Conditions for Payment/Data. T3Leads, in its sole discretion, may withhold any and all payments due and owing to Affiliate until such time as the applicable Advertiser has paid T3Leads for the associated Campaign. T3Leads reserves the right to reduce any and all payments owed to Affiliate where Advertiser has offset payments owed to T3Leads. Please be advised that, T3Leads’ services do not involve investigating or resolving any claim or dispute involving Affiliate and any Advertiser or other third party. T3Leads shall compile, calculate and post on the Site data derived from the Transaction Tracking Codes and otherwise that T3Leads has used to determine Commissions due to Affiliate (“Data”). Any questions or disputes regarding the Data must be submitted in writing to T3Leads within five (5) business days of the date that the Data is posted on the Site; otherwise, the information contained therein will be deemed accurate and accepted by Affiliate. T3Leads will investigate and resolve any Data-related questions or disputes in its sole discretion. If, due to any impairment of the Transaction Tracking Codes or any other reason, T3Leads is unable or fails to provide Affiliate with accurate and/or complete Data, T3Leads shall calculate Compensable Transactions (“Projected Compensable Transactions”), based upon: (i) Affiliate’s average bi-monthly Compensable Transactions recorded by T3Leads for the applicable Campaign, prorated for any shorter or longer period of time, where Data is available to calculate a bi-monthly average; or (ii) such amount that T3Leads reasonably determines is due and owing, in its sole discretion, where Data needed to calculate Affiliate’s average monthly Compensable Transactions is unavailable. T3Leads shall not be responsible to pay Affiliate on any eligible Commissions where: (A) the applicable Compensable Transaction involves the generation of Leads, and the applicable Leads delivered by Affiliate are either fraudulently obtained or comprised of consumers that have previously registered for, opted-in to and/or are already a member and/or an applicable Campaign customer of the applicable Advertiser, as the case may be; and/or (B) the subject e-mail recipient did not opt-in to receiving e-mail marketing from Affiliate.
Sub-Affiliates
For purposes of this Agreement, any business partners or associates of Affiliate that participate in or perform any activities for Affiliate as a part of the Network shall be deemed to be “Sub-Affiliates.” Any and all Sub-Affiliates must be pre-approved by T3Leads. T3Leads reserves the right to withhold or refuse approval of any Sub-Affiliate for any reason whatsoever, and T3Leads may revoke its approval of a Sub-Affiliate at any time for any reason whatsoever. All Sub-Affiliates must meet the same criteria for approval and must comply with the same terms and conditions as required of the Affiliate under this Agreement. Affiliate is responsible for the acts and/or omissions of its Sub-Affiliates and T3Leads may revoke approval of Affiliate’s participation in any Campaign based on the acts or omissions of that Affiliate’s Sub-Affiliates. T3Leads reserves the right to use all legal measures necessary in order to ensure that Affiliate and its Sub-Affiliates are in compliance with this Agreement. Affiliate shall fully and unconditionally indemnify T3Leads for any and all actions of any Sub-Affiliate including, but not limited to, payment of legal fees and costs if necessary.
E-mail Marketing Policy
Should Affiliate market any Campaign to its Affiliate Database, Affiliate must, upon the request of T3Leads, be able to produce the name, date, time, IP address and referral URL where the applicable consumers granted Affiliate affirmative consent, as defined by applicable law (“Affirmative Consent”), to send such e-mail marketing messages. Prior to the sending of any commercial e-mail in connection with the Network, Affiliate shall provide T3Leads with a list of Internet protocol (“IP”) addresses and domain names that it, or its Sub-Affiliates, intend(s) to use in connection with the particular Campaign. Affiliate represents and warrants that, at all times, it will comply with all applicable state and federal laws, rules and Federal Trade Commission implementing regulations (including, but not limited to, CAN-SPAM and any international laws, rules and regulations), as well as any published rules or guidelines of the Internet access service, networks, domains and/or e-mail service providers, with respect to its e-mail marketing. When performing e-mail marketing of any kind and on behalf of any Advertiser, Affiliate represents and warrants that Affiliate shall transmit commercial e-mail only to those recipients that have given Affiliate Affirmative Consent to receive e-mail advertising from Affiliate and have not revoked such consent as of the date that the commercial e-mail was transmitted to such recipient. Affiliate and its Sub-Affiliates must: (a) refrain from falsifying e-mail header and transmission information (including, without limitation, source, destination and routing information); (b) not use any “subject” or “from” line that is materially false or misleading (without limiting the generality of the foregoing, Affiliate may NOT use brand names and/or trademarks of another party (e.g., Milton Bradley or Apple) in the “subject” or “from” lines or body of any commercial e-mail transmission.); (c) refrain from seeking or obtaining unauthorized access to computers for the purpose of sending any and all commercial e-mail; (d) include within all commercial e-mail sent: (i) a valid street address for Affiliate; (ii) a clear and conspicuous opt-out notice and functional opt-out mechanism that must remain active for at least thirty (30) days from the date that the subject e-mail was transmitted; (iii) clear and conspicuous language in the body of the email identifying the message as an advertisement or solicitation by use of either header or footer information which states that the message is an advertisement or solicitation; and (iv) process unsubscribe requests within three (3) days of receipt of same; (d) not use proxies or relays to send email; (e) not use email addresses obtained via harvesting or dictionary attack; (f) at least once a week, scrub the Affiliate Database against the T3Leads suppression list (“Suppression List”) as same will be made available on the Site, subject to the provisions contained hereinbelow; and (g) immediately notify T3Leads in the event that any complaint, investigation and/or litigation ensues concerning Affiliate’s or any Sub-Affiliate’s e-mail practices (whether or not such complaint, investigation and/or litigation relates to Affiliate’s relationship with T3Leads). Affiliate is solely responsible for all consumer complaints relating to e-mail campaigns conducted by Affiliate. Affiliate represents and warrants that it will respond to all consumer complaints within forty-eight (48) hours of notification. In addition to all other available remedies, T3Leads may withhold and suspend Commission payments until any and all outstanding consumer complaints are resolved. All costs associated with such required actions shall be deducted from Affiliate Commissions. In the event that any state or federal law, rule or regulation governing e-mail communications is enacted or amended after the effective date of this Agreement setting forth standards more restrictive than those set forth herein, the more restrictive standards contained in such enacted or amended law, rule or regulation shall apply to all Affiliates with or without notice from T3Leads of such change in the law. Affiliate acknowledges that any failure to comply with this Section 10 may, in T3Leads’ sole discretion, result in the immediate termination of this Agreement and the forfeiture of any and all rights to any Commissions otherwise owed to Affiliate by T3Leads.
Suppression Lists
With respect to any Suppression List generated in connection with, or made available by and through the Network, Affiliate agrees to: (a) use such Suppression List, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of this Agreement; (b) regularly use such Suppression List to remove any and all e-mail addresses or domains contained therein from future commercial e-mail mailings; (c) not use the Suppression List for purposes of e-mail marketing (or provide the Suppression List to any third party for said purposes) and not send, or cause to be sent, any commercial e-mail messages to an e-mail address or domain appearing on any Suppression List; (d) not use any Suppression List for purposes of e-mail appending in any manner whatsoever; (e) hold any Suppression List made available by T3Leads in trust and confidence and use same solely for the suppression purposes set forth herein; (f) not retain a copy of any Suppression List made available by T3Leads following termination of this Agreement; and (g) not disclose any Suppression List made available by T3Leads to any employee, consultant, subcontractor or third party individual, corporation or entity without first ensuring said party’s written agreement to be bound by the terms of this Agreement regarding Suppression Lists. Such agreement shall be immediately forwarded to T3Leads, upon request. T3Leads reserves the right to withhold its consent to such disclosure and may, within its discretion, accordingly bar the disclosure of any and all Suppression Lists made available by T3Leads or any Advertiser. Affiliate shall upload its own list of suppressed e-mail addresses to the applicable area of the Site (“Suppression List Upload Section”), if such a Suppression List Upload Section is provided by T3Leads. If the Suppression List Upload Section is provided by T3Leads, and no such e-mail addresses are supplied by Affiliate, T3Leads may conclude that no such addresses exist. Affiliate further agrees and acknowledges that: (i) it has downloaded and removed the domains located on the Federal Communications Commissions (“FCC’s”) wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all current data used in T3Leads mailings; and (ii) any and all new data that it acquires, regardless of its source, will be scrubbed against the FCC’s wireless domain names list and that the domain names contained therein will be removed before sending any T3Leads mailings. Affiliate shall maintain electronic or tangible records evidencing the removal of any email addresses from Affiliate’s lists for verification by T3Leads as required or requested.
Audit
Affiliate agrees that at all times during the term of this Agreement it shall maintain accurate books and records relating to its use of the Creative Material and Suppression Lists (as that term is defined below). Affiliate agrees that T3Leads, or any designee of T3Leads that is legally bound to obligations of confidentiality and non-disclosure, shall have the right during the term of this Agreement to reasonably examine, inspect, audit and review all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to Affiliate at least seven (7) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be at T3Leads’ sole cost and expense and shall be strictly limited to those books and records that specifically relate to Affiliate’s use of the Creative Material and Suppression Lists. Notwithstanding the foregoing, if T3Leads uncovers any material misconduct associated with Affiliate’s use of the Creative Material and/or Suppression Lists, then the audit shall be at the sole cost and expense of Affiliate.
Representations and Warranties
Affiliate hereby represents and warrants that: (a) this Agreement has been duly and validly executed and delivered by Affiliate and constitutes Affiliate’s legal, valid and binding obligation which is fully enforceable against it in accordance with its terms; (b) Affiliate will only transmit commercial e-mail to those recipients that have given Affiliate Affirmative Consent to receive e-mail advertising from Affiliate, and have not revoked such consent as of the date that the commercial e-mail was transmitted to such recipient; (c) Affiliate’s performance hereunder, including the use and operation of the Affiliate Websites (and any and all material appearing or linked to therein) and Affiliate Databases, will comply with all applicable state and federal laws, rules and Federal Trade Commission implementing regulations including, without limitation, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, the CAN-SPAM Act of 2003the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws (collectively, “Laws”); and (d) Affiliate understands and agrees that T3Leads will enter into similar agreements with other T3Leads affiliates in direct competition with Affiliate. Affiliate will be solely responsible for the development, operation and maintenance of the Affiliate Websites, Affiliate Database and for any and all materials that appear on the Affiliate Websites. Such responsibilities include, without limitation: (i) the technical operation of the Affiliate Websites and all related equipment; (ii) creating and posting content, descriptions and references on the Affiliate Websites; (iii) the accuracy and propriety of materials posted on the Affiliate Website; (iv) ensuring that materials posted on the Affiliate Websites do not violate or infringe upon the rights of any third party and are not defamatory, obscene, libelous, harmful, illegal or otherwise offensive; (v) ensuring that the Affiliate Websites comply with all applicable laws, rules and regulations; (vi) ensuring that Affiliate’s use of the Affiliate Database will comply with all applicable Laws; (vii) ensuring compliance by any Sub-Affiliates with the terms of this Agreement including, without limitation, compliance with Laws, e-mail marketing policy, Suppression List usage and privacy terms; (viii) ensuring that each such Affiliate Website shall, at all times during the term of this Agreement, maintain a privacy policy (“Affiliate Privacy Policy”) that complies with applicable law; (ix) that the Affiliate Privacy Policy shall explain that each such Affiliate Website allows third parties to serve the Creative Material within its media; and (x) that the Affiliate Privacy Policy explains that each such Affiliate Website is allowed to share any information collected therein with third parties, such as Advertiser as contemplated hereunder.
DISCLAIMERS/LIMITATION OF LIABILITY:
THE NETWORK, SITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CREATIVE MATERIAL ARE PROVIDED ON AN "AS IS” AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS 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, SITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CREATIVE MATERIAL MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. T3LEADS HAS NO LIABILITY, WHATSOEVER, TO AFFILIATE OR ANY THIRD PARTY, FOR AFFILIATE’S USE OF, OR INABILITY TO USE, THE NETWORK, SITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND/OR CREATIVE MATERIAL. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, T3LEADS IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN T3LEADS AND AFFILIATE. THE NETWORK, SITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CREATIVE MATERIAL WOULD NOT BE PROVIDED TO AFFILIATE WITHOUT SUCH LIMITATIONS. T3LEADS MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE NETWORK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY AFFILIATE FROM T3LEADS THROUGH THE NETWORK, SITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES OR CREATIVE MATERIAL SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. ALL RESPONSIBILITY AND/OR LIABILITY FOR ANY AND ALL DAMAGES CAUSED BY, AND/OR THROUGH, THE NETWORK, SITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CREATIVE MATERIAL IS EXPRESSLY DISCLAIMED. AFFILIATE UNDERSTANDS AND AGREES THAT PARTICIPATION IN THE NETWORK AND ACCESS AND/OR USE OF SITE AND CREATIVE MATERIAL IS DONE SOLELY AT AFFILIATE’S OWN DISCRETION AND AT AFFILIATE’S OWN RISK. AFFILIATE IS ALSO SOLELY RESPONSIBLE FOR ANY USE, OR ALLEGED USE, OF THE NETWORK, SITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CREATIVE MATERIAL THAT MAY INFRINGE UPON A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. UNDER NO CIRCUMSTANCES SHALL T3LEADS BE LIABLE TO AFFILIATE OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH AFFILIATE’S MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM AFFILIATE’S PARTICIPATION IN THE NETWORK. T3LEADS’ MAXIMUM AGGREGATE LIABILITY TO AFFILIATE AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE EQUAL TO THE MONEY PAID BY T3LEADS TO AFFILIATE DURING THE PRECEDING THREE (3) MONTHS.
Proprietary Rights
The organization, graphics, design, compilation, magnetic translation, digital conversion, software and other matters related to the Site, Network, Creative Material, Transaction Tracking Codes, Data and Suppression Lists made available by T3Leads are protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights. The usage, copying, redistribution and/or publication by Affiliate of any part of the Site, Network, Creative Material, Transaction Tracking Codes, Data and Suppression Lists made available by T3Leads, other than as contemplated hereunder, are strictly prohibited. Affiliate does not acquire any ownership rights to the Site, Network, Creative Material, Transaction Tracking Codes, Data and Suppression Lists made available by T3Leads. The availability of the Site, Network, Creative Material, Transaction Tracking Codes, Data and Suppression Lists made available by T3Leaddoes not constitute a waiver of any rights related thereto.
Publicity
T3Leads may use Affiliate’s personal information in any manner consistent with the T3Leads Privacy Policy, which is hereby incorporated into, and made part of, this Agreement. For additional information regarding the T3Leads’ usage of Affiliate information collected, please refer to the T3Leads Privacy Policy located at the Site. Affiliate shall not create, publish, distribute or permit any written material that makes reference to T3Leads without first submitting such material to T3Leads and receiving T3Leads’ prior written consent, which T3Leads may withhold in its sole discretion.
Confidentiality
For purposes of this Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of this Agreement by one party (“Disclosing Party”) to the other party (“Receiving Party”), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to: (a) a party’s business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, processes, methodologies, trade secrets, customer and vendor lists, personally identifiable customer information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format; (b) the material terms of this Agreement and/or any associated Advertisers and/or Campaigns; and (c) any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in this Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers: (i) who need to know such information in order for the Receiving Party to perform its obligations hereunder; and (ii) who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof: (A) is generally available to or known to the public through no wrongful act of the receiving party; (B) was independently developed by the Receiving Party without the use of Confidential Information; or (C) was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The information and services provided through the Network and the Creative Material are proprietary in nature and, by enrolling, Affiliate acknowledges that Affiliate is not a competitor of T3Leads and agrees not to share this information with any competitors of T3Leads. The Receiving Party agrees that monetary damages for breach of the confidentiality provisions contained herein may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond. This Section 17 shall survive any termination of this Agreement for a period of five (5) years.
Non-Circumvention
Affiliate recognizes that T3Leads has proprietary relationships with the affiliates, Advertisers and other third-parties that participate in the Network. Affiliate agrees not to circumvent T3Leads’ relationship with such affiliates, Advertisers and third-parties, or otherwise offer, make available, provide, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by affiliates in the Network for any affiliate, Advertiser or third-party publisher that is known, or should reasonably be known, by Affiliate to participate in the Network, during the term of this Agreement and for the six (6) month period following termination or expiration of this Agreement. Notwithstanding the foregoing, to the extent that Affiliate can show that any such affiliate, Advertiser or third-party already obtained such services from Affiliate prior to the date of this Agreement, then Affiliate shall not be prohibited from continuing such relationship. Affiliate agrees that monetary damages for its breach, or threatened breach, of this Section 18 will not be adequate and that T3Leads shall be entitled to: (a) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (b) liquidated damages from Affiliate in the amount equal to one hundred percent (100%) of the fees paid to Affiliate in violation of this Section 18 for the prior six (6) month period; and/or (c) any and all other remedies available to T3Leads at law or in equity. 19. Indemnification. Affiliate agrees to indemnify, defend and hold harmless T3Leads, its parents, affiliates and/or subsidiaries, and each of their respective officers, directors, partners, members, managers, employees, agents and attorneys, from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from or related to: (a) Affiliate’s, or a Sub-Affiliate’s, breach of this Agreement and/or any representation or warranty contained herein; (b) the Affiliate Websites, Sub-Affiliate websites, Affiliate Database, Sub-Affiliate databases and/or Affiliate’s or any Sub-Affiliate’s marketing practices; (c) any third party allegation or claim against T3Leads relating to a violation of any Laws; (d) any allegation that Affiliate or a Sub-Affiliate has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; (e) any non-Campaign related content, goods or services offered, sold or otherwise made available by Affiliate on and through the Affiliate Websites, Sub-Affiliate websites, Affiliate Database, Sub-Affiliate databases or otherwise; (f) any claim that T3Leads is obligated to pay any taxes in connection with Affiliate’s participation in the Network; and/or (g) Affiliate’s participation in the Network, in any manner whatsoever. T3Leads reserves the right to participate in the defense at its sole expense. You agree that you will not settle any claim without the prior written approval of T3Leads. Affiliate shall immediately notify T3Leads if Affiliate receives notice of any complaints, inquiries or investigations related to the Affiliate Websites, Sub-Affiliate websites, Affiliate Database, Sub-Affiliate databases or any other violations in connection with Affiliate’s or any Sub-Affiliate’s business whether or not Affiliate is obligated to indemnify T3Leads for such claim hereunder.
Force Majeure
Affiliate agrees that T3Leads will not be liable, or be considered to be in breach of this Agreement, on account of T3Leads’ delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond T3Leads’ reasonable control and that T3Leads is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, T3Leads will give Affiliate notice and will use commercially reasonable efforts to minimize the impact of any such event.
Miscellaneous
This Agreement shall be treated as though it were executed and performed in Sherman Oaks, California and shall be governed by and construed in accordance with the laws of the State of California (without regard to conflict of law principles). Any dispute arising out of or relating to this Agreement shall be resolved in a binding arbitration under the auspices of the American Arbitration Association in Sherman Oaks, California in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. In addition to all other rights and remedies a party may have, the prevailing party in any arbitration or legal action shall be entitled to an award of its reasonable attorneys’ fees and costs. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. This binding arbitration provision shall not, however, prevent either party from seeking equitable or injunctive relief in a court of competent jurisdiction. To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against T3Leads and its employees, officers, directors, members, representatives and assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney's fees and court costs that T3Leads incurs in seeking such relief. This Agreement does not constitute a waiver of any of your rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided above. This provision preventing you from bringing, joining or participating in class action lawsuits is an independent agreement. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. Affiliate agrees that any unauthorized and/or unlawful use of the Network would result in irreparable injury to T3Leads for which monetary damages would be inadequate. In such event, T3Leads shall have the right, in addition to other remedies available to it pursuant to this Agreement, to immediate injunctive relief against Affiliate without the need to post a bond. Nothing contained in this Agreement shall be construed to limit any legal remedies available to T3Leads. T3Leads and Affiliate are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. T3Leads’ failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Any attempt by any individual, whether or not an Affiliate, to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Network, is a violation of both criminal and civil law and T3Leads will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity. This Agreement will be binding on, inure to the benefit of and be enforceable against the parties and T3Leads’ successors and assigns. Affiliate is not permitted to transfer any rights and obligations pursuant to this Agreement. Any attempt to do so will result in the immediate termination of this Agreement. For technical/general questions, please contact: admin@t3leads.com.
D and D MARKETING, INC
15503 Ventura Blvd, Suite 300
Sherman Oaks, CA, 91436
PHONE NUMBERS:
1-877-77-T3LEADS
1-877-778-3532
FAX NUMBER:
1-818-728 - 1364
