T3LEADS - AFFILIATE AGREEMENT
This Affiliate Agreement shall govern the relationship between D and D Marketing, Inc. (d/b/a T3Leads), with its principal business location at 16350 Ventura Blvd., Suite D #821, Encino, CA 91436 (“T3Leads”), and you, the company or the individual, as an affiliate (“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 Affiliate Agreement is subject to change at any time, in T3Leads’ sole discretion. 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 Affiliate Agreement in effect at that time.
I. Network. Affiliate agrees to provide the services identified and set forth in this Agreement (“Services”). In connection with the Services, T3Leads shall grant to Affiliate a non-exclusive, non-transferable, revocable and limited license to: (i) participate in marketing campaigns offered through the Network (“Campaigns”); and, (ii) use the Creative Materials (as defined herein below) made available via the Network solely and exclusively in connection with Affiliate’s efforts to generate leads (“Leads”), valid sales, or other compensable activities (“Compensable Transactions”) in connection with such Campaigns. Affiliate shall also have the opportunity to earn bonus payments for individuals that Affiliate refers to the Network that also become affiliates.
II. Creative Material.
(A) Use. 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. The three (3) forms of advertisements are: (i) a registration form with fields tailored to each Campaign (“iFrame Creative”); (ii) text links, banner ads, pop-ups, and other material (“Banner Ads”); and (iii) 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”). T3Leads may terminate Affiliate’s license to use the Creative Material at any time, with or without notice, for any reason or no reason at all, in its sole discretion. Affiliate must obtain T3Leads’ prior express written consent 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. Except with T3Leads’ prior express written consent, Affiliate may not alter, modify the Banner Ads and Private Feed, or use other Creative Material than that which is supplied by T3Leads and posted on the Site. Any such actual or attempted alteration, modification, or use will result in the immediate termination of this Agreement, without notice. T3Leads retains full and sole right, ownership, and interest in all Creative Material, and in any copyright, trademark, or other intellectual property rights in the Creative Materials and other information developed by T3Leads and supplied to Affiliate from time to time in connection with this Agreement.
(B) Placement. Affiliate agrees that T3Leads may, in its sole discretion, direct the placement of 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: (i) as often and in as many areas of the websites owned, operated or controlled by Affiliate (“Affiliate Websites”); and/or (ii) 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 immediately comply with any and all directions by T3Leads to modify, alter, or otherwise adjust the placement, frequency, and/or other editorial decisions related to the Creative Material. Affiliate must place or use Creative Material only with the intention of delivering valid Compensable Transactions. Affiliate must immediately remove Creative Material upon receiving notice from T3Leads or upon the termination or expiration of this Agreement or any applicable Campaign.
(C) Restrictions. Affiliate is solely responsible for the development, operation, and maintenance of Affiliate Websites and all materials that appear thereon. In connection with or arising from Affiliate’s performance hereunder, Affiliate shall not (nor permit or encourage any person or entity to): (i) inflate the amount of Compensable Transactions through any deceptive or misleading practice, method, or technology (including, without limitation, through 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); (ii) accept Compensable Transactions generated from public or open proxy servers, IP addresses that have bot activity, or from pay-per-view or pay-per-surf programs; (iii) 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; (iv) install or execute on another's computer one or more additional software program(s) without consent of the user, or if such program(s) are installed with the consent of the user, 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; (v) violate or infringe any intellectual property or proprietary right of any third party (e.g., trademarks, service marks, brand names, copyrights, etc.); or (vi) promote any Creative Material that: (a) contains pornographic or other sexual material; (b) promotes hate-mongering in any form (e.g., racial, political, ethnic, etc.); (c) contains gratuitous displays of violence or obscenity; (d) defames, misrepresents, abuses, or threatens physical harm to others; (e) contains incentivized offers (or the appearance thereof) that induce or attempt to induce users to click on any Creative Material; (f) promotes any type of illegal substance or activity; (g) is unfair, deceptive, misleading, or otherwise fraudulent; or (h) misrepresent an affiliation with a person/entity, including, without limitation, an affiliation with a credit union.
(D) No legal advice. T3Leads’ specifications and/or recommendations with respect to, without limitation, the Services, Campaigns, Creative Materials, Leads, Compensable Transactions, Affiliate Websites and/or Affiliate Databases (the “Specifications”) should not, under any circumstances, be construed and/or relied upon as legal and/or regulatory compliance advice. In consideration for your use of the Network, you agree to discharge, release and waive any and all claims, disputes, grievances, and causes of action, whether asserted or unasserted, and whether known or unknown, which you might have against T3Leads arising out of the Specifications. This release and discharge specifically includes, but is not limited to, any and all claims arising under the Laws (defined herein below) that you may have or that may arise in the future regarding the Specifications. You acknowledge that you understand the significance and consequence of this release and specific waiver of all known and unknown claims regarding the Specifications, and are aware of provision Section 1542 of the California Civil Code. You should contact your attorney to obtain advice with respect to any particular advertising issue and the Specifications. You have been provided ample opportunity to independently conduct your own due diligence and to seek the advice of separate and independent legal counsel of your own choosing and understand and acknowledge the significance and consequence of these releases, and the specific waiver of Section 1542. You expressly consent that this Affiliate Agreement and the releases set forth herein shall be given full force and effect according to each and all of their express terms and provisions, including those relating to unknown and unsuspected Specification related claims, demands and causes of action. You knowingly and voluntarily waive any and all rights and benefits conferred upon you by the provisions of Section 1542, and any other comparable statute or law which may exist under the laws of the State of California and/or under the laws of your own state of residence and/or principal place of business, and acknowledge that this waiver is an essential and material term of these releases.
III. Tracking. T3Leads shall include in each of the Creative Materials a special transaction tracking code (the “Transaction Tracking Code”). Affiliate shall not modify, circumvent, impair, disable, or otherwise interfere with any Transaction Tracking Code and/or other technology or methodology required or made available by T3Leads to be used in connection with any and all Creative Materials. All determinations made by T3Leads in connection with the Creative Materials and Compensable Transactions shall be final and binding on Affiliate. T3Leads expressly reserves the right to seed applicable data in order to monitor Affiliate’s compliance with the terms of this Agreement and applicable laws, rules, and regulations.
(A) Calculation. T3Leads shall calculate Affiliate Commissions based on Compensable Transactions recorded by the Transaction Tracking Codes. T3Leads shall compile, calculate, and post on the Site data derived from the Transaction Tracking Codes and supplementary sources used by T3Leads 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, for any reason (including, without limitation, impairment of the Transaction Tracking Codes), 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 needed to calculate such a bi-monthly average is available; or (ii) such amount that T3Leads reasonably determines is due and owing, in its sole discretion, where Data needed to calculate such a bi-monthly average is unavailable. All determinations made by T3Leads in connection with the Transaction Tracking Codes, Compensable Transactions, Projected Compensable Transactions, and any associated Commissions due to Affiliate shall be final and binding on Affiliate.
(B) Payment. T3Leads shall pay Commissions approximately fifteen (15) days after the fifteenth (15th) day and last day of a given calendar month, respectively, for Commissions earned during the prior fifteen (15) day period. Such payments shall only be made to Affiliate provided the applicable Affiliate account has reached a minimum of One Hundred Dollars ($100.00) (“Payment Threshold”) in accrued Commissions. Affiliate accounts that have accrued a balance below the Payment Threshold shall continue to roll over to the next payment period until an amount equal to or greater than the Payment Threshold has been met. Should Affiliate net more than One Thousand Dollars ($1,000.00) in weekly Commissions during any one (1) week, Affiliate may request in writing to be paid Commissions on a weekly basis, beginning approximately fifteen (15) days after the end of such week, for Commissions earned during the prior week. However, should Affiliate thereafter net One Thousand Dollars ($1,000.00) or less in Commissions for any subsequent week, Affiliate shall return to the regular payment schedule for that week’s earnings, with or without notice from T3Leads. All payments shall be in U.S. Dollars. 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. T3Leads may, in its sole discretion, withhold payments until such time as an applicable Advertiser has paid T3Leads for a corresponding Campaign. T3Leads reserves the right to reduce any and all payments owed to Affiliate where an Advertiser has offset payments owed to T3Leads. T3Leads shall not be obligated to pay Affiliate for Commissions where, in T3Leads’ sole discretion, T3Leads believes that Affiliate: (i) is in breach of this Agreement; or, (ii) has violated any applicable law, rule, or regulation in connection with or arising from performance hereunder. Upon termination of this Agreement, T3Leads shall pay Affiliate Commissions, even amounts below the Payment Threshold, during the next payment period, subject of course to T3Leads’ right to withhold and/or cancel Commission payments to Affiliate as set forth elsewhere herein. T3Leads shall not pay Affiliate any Commissions that arise: (i) before Affiliate is accepted into the Network; or, (ii) after termination of this Agreement or any applicable Campaign and/or IO.
(C) Referral Revenue. Affiliate shall receive payments (“Referral Revenue”) for each individual that Affiliate refers to T3Leads who also becomes an active Affiliate participating in the Network (“Referral”). The Referral Revenue shall be equal to three percent (3%) of the gross revenue T3Leads 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: (i) must not have previously registered, or attempted to register, with T3Leads as either an Affiliate or Advertiser; (ii) must not provide a fraudulent, incomplete, and/or duplicate Application; (iii) must identify Affiliate as the party that referred him or her to T3Leads at the time that the prospective Referral registers with T3Leads; (iv) must complete an Application; and (v) must have the Application accepted 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 be: (i) disqualified from receiving any associated Referral Revenue; (ii) terminated from the Network; and (iii) 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. All determinations made by T3Leads in connection with Referrals and Referral Revenue shall be final and binding on Affiliate.
V. Data Ownership. T3Leads shall have sole ownership of and full right to use any and all Leads and data contained therein generated by Affiliate in connection with this Agreement. Affiliate shall have no rights in and to any such Leads or data contained therein. Without limiting the generality of the foregoing, Affiliate shall not: (i) transfer, export, display, forward, or otherwise share any such Leads or data contained therein to or with any third party; or, (ii) use any such Leads or data contained therein on Affiliate’s own behalf in any manner not expressly authorized by T3Leads.
VI. Sub-Affiliates. For purposes of this Agreement, any partner, associate, contractor, representative, or agent of Affiliate that participates in or performs any activities for Affiliate as a part of the Network shall be deemed to be a “Sub-Affiliate”. 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 or no reason at all, and T3Leads may revoke its approval of any Sub-Affiliate at any time, with or without notice, for any reason or no reason at all. All Sub-Affiliates must meet the same criteria for approval and must comply with the same obligations as required of the Affiliate under this Agreement. Affiliate shall be responsible for the acts and/or omissions of its Sub-Affiliates.
VIII. E-mail Marketing. E-mail marketing campaigns by or on behalf of Affiliate in connection with this Agreement may only be undertaken with T3Leads’ prior express written consent. Prior to the sending of any commercial e-mail by or on behalf of Affiliate, Affiliate shall provide T3Leads with a list of IP addresses and domain names that Affiliate intends to use in connection with the given Campaign. Affiliate must, upon the request of T3Leads, be able to produce the name, date, time, IP address, and referral URL where applicable consumers granted Affiliate affirmative consent (as defined by applicable law (“Affirmative Consent”)) to receive commercial e-mails. Affiliate represents and warrants that any and all commercial e-mails sent by or on behalf of Affiliate in connection with this Agreement will: (i) at all times, comply with the CAN-SPAM Act of 2003, the Privacy and Electronic Communications Regulations 2003, any and all FTC implementing regulations, and all other applicable laws, rules, and regulations; and, (ii) only be sent to those recipients who have given Affiliate Affirmative Consent to receive such commercial e-mails and who have not revoked such Affirmative Consent as of the date any such commercial e-mail is sent. Without limiting the generality of the foregoing, Affiliate must: (i) not falsify e-mail header and/or transmission information (including, without limitation, source, destination, and routing information); (ii) not use any “subject” or “from” line that is materially false, misleading, or deceptive; (iii) clearly and conspicuously identify the message in the body as an advertisement or solicitation; (iv) include a valid physical postal address; (v) clearly and conspicuously explain how recipients can opt out of receipt of further e-mails; (vi) include a functional opt-out mechanism that will remain active for at least thirty (30) days from the date that the subject e-mail was transmitted; (vii) process opt-out requests within ten (10) business days; (viii) not use proxies or relays to send commercial e-mails; (ix) not seek or obtain unauthorized access to computers for the purpose of sending commercial e-mail; (x) regularly scrub Affiliate’s mailing list against T3Leads’ suppression list (“Suppression List”) as set forth elsewhere herein; (xi) and immediately notify T3Leads of any complaint, investigation, and/or litigation concerning Affiliate’s e-mail marketing practices (whether or not any such complaint, investigation, or litigation relates to Affiliate’s relationship with T3Leads). Affiliate is solely responsible for any and all consumer complaints relating to e-mail campaigns conducted by or on behalf of Affiliate. Affiliate shall respond to all consumer complaints within forty-eight (48) hours of notification. In addition to all other available remedies, T3Leads retains the right to withhold and/or cancel Commission payments unless and until any and all such consumer complaints are resolved to T3Leads’ satisfaction. In the event that any applicable law, rule, or regulation 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 any such enacted or amended law, rule, or regulation shall apply, with or without notice from T3Leads. Affiliate acknowledges that any failure to comply with this section 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.
IX. Suppression Lists. With respect to any Suppression List generated in connection with, or made available by and through the Network, Affiliate shall: (i) 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; (ii) regularly use such Suppression List to remove any and all e-mail addresses, telephone numbers, or domains contained therein from future commercial e-mail mailings; (iii) not use the Suppression List for purposes of e-mail, or provide the Suppression List to any third party for said purposes, and not send, or cause to be sent, any commercial e-mail to an e-mail address, telephone number, or domain appearing on any Suppression List; (iv) not use any Suppression List for purposes of e-mail appending in any manner whatsoever; (v) hold any Suppression List made available by T3Leads in trust and confidence and use same solely for the suppression purposes set forth herein; (vi) not retain a copy of any Suppression List made available by T3Leads following termination of this Agreement; and (vii) not disclose any Suppression List made available by T3Leads to any employee, consultant, subcontractor, 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 sole 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 and telephone numbers 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 or telephone numbers are supplied by Affiliate, T3Leads may conclude that no such addresses exist. Affiliate further agrees and acknowledges that: (i) Affiliate 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 any commercial e-mail marketing campaigns in connection with this Agreement; and (ii) any and all new data that Affiliate 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 commercial e-mail marketing campaigns in connection with this Agreement. Affiliate shall maintain electronic or tangible records evidencing the removal of any email addresses or telephone number from Affiliate’s lists for verification by T3Leads as required or requested.
X. Term and Termination. The term of this Agreement will begin upon T3Leads’ written acceptance, in T3Leads’ sole discretion, of Affiliate’s Application to join the Network 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 suspend and/or terminate Affiliate’s participation in the Network and/or this Agreement at any time, with or without notice, for any reason or no reason at all, in T3Leads’ sole discretion. Grounds for suspension and/or termination shall include, without limitation, the failure to adhere to state and federal fair trade practice laws, rules, regulations and ordinances, such as false advertising, trademark infringement, unlawfully modifying ad copy, misrepresentation of affiliation with person/entity, and/or representing an affiliation with a government entity and/or credit union. Upon suspension and/or termination of this Agreement for any reason: (i) 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; (ii) Affiliate shall immediately cease and desist from transmitting or causing to transmit any and all e-mails in connection with any Campaign; (iii) any and all licenses and rights granted to Affiliate in connection with this Agreement shall immediately cease and terminate; and (iv) any and all Confidential Information (as defined herein below), Creative Material, or proprietary information of T3Leads that is in Affiliate’s possession or control must be immediately returned or destroyed. If requested, Affiliate or an authorized officer of Affiliate shall certify in signed writing that all such confidential and/or proprietary information has been returned or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive suspension/termination of the Agreement shall survive and remain in effect in accordance with their terms.
XI. Representations and Warranties. Affiliate hereby represents and warrants that: (i) 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; (ii) Affiliate’s performance hereunder will comply with the terms of this Agreement and all applicable laws, rules and regulations including, without limitation, the Gramm-Leach Bliley Act, 15 U.S.C. §§6801-6809, Regulation P, 12 C.F.R. pt. 1016, Regulation Z, 12 C.F.R. 1026, the Electronic Transfer Act, 15 U.S.C §1693, Regulation E, 12 C.F.R. pt. 205, the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§6101-6108, the Telemarketing Sales Rule, 16 C.F.R. pt. 310, the Fair Credit Reporting Act (U.S.C. §1681m(a)), Regulation V, 12 C.F.R. pt. 1022 the Federal Trade Commission Act, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act (42 U.S.C. 227), provisions relating to the National Do Not Call Registry ((16. C.F.R. Part 310) and applicable state Do Not Call List requirements), the Truth-in-Lending Act (15 U.S.C. 1601 et seq.), the Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.), the Fair Debt Collection Practices Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act including but not limited to Section 1031 and 1036, 12 U.S.C §§5531, 5536, Section 5 of the FTC Act, the Home Mortgage Disclosure Act, the Real Estate Settlement Procedures Act, the Secure and Fair Enforcement for Mortgage Licensing (SAFE) Act, the Fair Debt Collection Practices Act, the Federal Communications Act, the California Financial Privacy Act and any other relevant State or Federal consumer financial laws (collectively, “Laws”); (iii) Affiliate’s performance hereunder will not violate or infringe any intellectual property or proprietary right of any third party; (iv) Affiliate understands and agrees that T3Leads will enter into similar agreements with other T3Leads affiliates in direct competition with Affiliate. (v) Buyer will maintain all documents and records necessary to demonstrate compliance with Laws, and it will provide evidence of such upon reasonable request (vi) Affiliate will not engage in any short messaging service (“SMS”) marketing campaigns in connection with this Agreement
XII. 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. TO THE FULLEST EXTENT OF THE LAW, T3LEADS MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE, NON-INFRINGEMENT, AND MERCHANTABILITY), REPRESENTATIONS, OR GUARANTEES; EXPRESS, IMPLIED, VERBAL, OR OTHERWISE. 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. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY AFFILIATE FROM T3LEADS SHALL CREATE ANY WARRANTY, REPRESENTATION, AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. IN NO EVENT SHALL T3LEADS BE RESPONSIBLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE, EVEN IF T3LEADS HAS BEEN 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. 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 COMMISSIONS PAID BY T3LEADS TO AFFILIATE DURING THE PRECEDING THREE (3) MONTHS.
XIII. Indemnification. Affiliate (the “Indemnitor”) shall 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 (collectively, the “Indemnitee”) from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs, or settlement costs) arising from or related to: (i) Indemnitor’s participation in the Network; (ii) any breach or alleged breach of this Agreement, any applicable IOs, or any representation or warranty contained herein by Indemnitor, its Sub-Affiliates, or each of their respective officers, directors, partners, members, managers, employees, agents and attorneys; or (iii) any violation or alleged violation of any applicable law, rule, or regulation by Indemnitor, its Sub-Affiliates, or each of their respective officers, directors, partners, members, managers, employees, agents and attorneys. Indemnitee shall promptly notify the Indemnitor in writing of any such claim (although failure to provide such notice shall not relieve the Indemnitor of its liability or obligation hereunder). Indemnitor shall have reasonable control of the defense and settlement of any such claim and the Indemnitee shall cooperate with all reasonable requests of the Indemnitor (at the Indemnitor’s expense) in defending or settling a claim. Subject to the foregoing clause, the Indemnitee may join in the defense or settlement of any such claim with counsel of its choice, at its own expense. All costs and expenses incurred by the Indemnitor in providing the foregoing indemnity shall be paid by the Indemnitor.
XIV. 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: (i) 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; (ii) the material terms of this Agreement and/or any associated Advertisers and/or Campaigns; (iii) any information marked or designated by the Disclosing Party as confidential; and (iv) the existence of this Agreement. 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: (i) is generally available to or known to the public through no wrongful act of the Receiving Party; (ii) was independently developed by the Receiving Party without the use of Confidential Information; or (iii) 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 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 shall survive any termination of this Agreement for a period of five (5) years.
XV. Non-Circumvention. Affiliate recognizes that T3Leads has proprietary relationships with 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 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, Affiliate shall not be prohibited from continuing such relationship. Affiliate agrees that monetary damages for its breach, or threatened breach, of this section will not be adequate and that T3Leads shall be entitled to: (i) injunctive relief, including temporary and preliminary relief, without the requirement to post a bond; (ii) liquidated damages from Affiliate in the amount equal to one hundred percent (100%) of the fees paid to Affiliate for the prior twelve (12) month period; and/or (iii) any and all other remedies available to T3Leads at law or in equity.
XVI. Other Provisions.
(A) 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 which 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.
(B) Assignment. Affiliate may not assign, transfer, or delegate any of its rights or obligations under this Agreement or any IO without the prior written consent of T3Leads, and any attempts to do so shall be null and void. Subject to the foregoing limitation, the Agreement, together will any and all IO(s) will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns.
(C) Disputes; Choice of Law/Venue. This Agreement, together with any and all IO(s), shall be treated as though it were executed and performed in Los Angeles, California and shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any choice of law or conflict of law rules or provisions. Any dispute arising out of or relating to this Agreement must be brought in the federal or state courts located in the County of Los Angeles, California. Should a dispute arise concerning this Agreement or the breach of the same by any party hereto, T3Leads expressly reserves the option to require Affiliate to first submit the dispute for resolution by non-binding arbitration before the American Arbitration Association in Los Angeles, California, in accordance with the then current Commercial Arbitration Rules. Any award rendered shall be final and conclusive, and a judgment thereon may be entered in any court of competent jurisdiction. Nothing contained herein shall be construed to preclude T3Leads from seeking injunctive relief in order to protect its rights pending an outcome in arbitration, nor limit any legal remedies available to T3Leads. T3Leads may, in its sole discretion, elect to file an action in any court of competent jurisdiction in Los Angeles County, California, in lieu of and despite the alternative dispute resolution provision above. T3Leads shall be entitled to an award of its reasonable costs and expenses (including, without limitation attorneys’ fees), in any action or proceeding in connection with, arising out of, or under the Agreement. Any claim under this Agreement, other than for indemnity and defense must be filed within one (1) year of the time such claim arose, regardless of any law to the contrary, otherwise such claim will be forever barred. Nothing in this Agreement, either express or implied, is intended to or shall confer upon any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. To the extent permitted by law, Affiliate agrees that Affiliate will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that Affiliate may have against T3Leads and its employees, officers, directors, members, representatives and assigns. Affiliate agrees to the entry of injunctive relief to stop such a lawsuit or to remove Affiliate as a participant in the suit. Affiliate agrees to pay the attorney's fees and court costs that T3Leads incurs in seeking such relief.
(D) Modification. This Agreement and all applicable IO(s) represent the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or verbal, between the parties.
(E) Non-Waiver; Severability. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
(F) Status of the Parties. T3Leads and Affiliate are independent contractors. This Agreement shall not be construed to create any employment, partnership, joint venture, agency, franchise, or sales representative relationship between the Parties. Affiliate shall have no authority to bind T3Leads into any agreement, nor shall Affiliate be considered to be an agent of T3Leads in any respect.
(G) Audit Rights. Affiliate shall maintain true and correct books containing a record of all information pertinent to its participation in the Network during the term of this Agreement and for any applicable statute of limitations period. T3Leads or its agent shall be entitled to review, at T3Leads’ expense, during regular business hours and upon not less than five (5) days' written notice, such relevant books and records for the purpose of verifying Affiliate’s compliance with the terms of this Agreement and all applicable laws, rules, and regulations. Any such review will be made not more than twice in each calendar year during the term of the Agreement unless a prior audit has disclosed a breach of this Agreement or violation of any applicable laws, rules, or regulations. If T3Leads discovers any breach of this Agreement or violation of any applicable laws, rules, or regulations, then the audit shall be at the sole cost and expense of Affiliate.
(H) Electronic Signatures. You acknowledge and agree that by clicking on the button labeled “Create My Account” or such similar links as may be designated by T3Leads to accept this Agreement, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submission constitutes your agreement and intent to be bound by this Affiliate Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY T3LEADS. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
Date Effective: February 14. 2014
Last Updated: February 10. 2014
D and D MARKETING, INC
16350 Ventura Blvd, Suite D #821
Encino, CA, 91436