Read this carefully before submitting an Affiliate Profile (the "Application") for participation in the Infopay Affiliate Network (the "Program"). This is a binding agreement (the "Agreement") between the individual submitting the Application or the entity on whose behalf the Application is submitted ("you") By submitting the Application, you fully and unconditionally agree to the terms and conditions set forth in this Agreement.
You represent and warrant that: (i) the information you submit in your Application is truthful and accurate; (ii) you have reached the age of majority in your home state; (iii) if you are an entity, the person submitting the Application has the full right, power and authority to enter into this Agreement on behalf of such entity; and (iv) your execution and performance of this Agreement does not and will not violate any agreement by which you are bound. You agree that you will keep your contact information in the Application up-to-date, with a functioning email address at all times. You further agree to respond within twenty-four (24) hours to any email communication from us.
2. Program Administration.
3. Use of Our Links.
3.1 Our Links.
If your Application is accepted by us you may use, subject to the terms and conditions of this Agreement, the banners, custom search box (including teaser results), text and corresponding links to our sites (collectively, the "Links") available at Infopay Affiliate center (the "Site"). The Links make it possible to track and report all of the qualified purchases acquired through the website(s) identified in your Application ("Your Site"), provided that cookies have not been disabled on the web browser used to connect to the relevant Infopay website. It is your responsibility to integrate the Links into Your Site properly, in accordance with the instructions available at the Site. We will not be liable to you with respect to your failure properly to integrate the Links into Your Site, including to the extent such failure may result in any reductions of amounts that would otherwise be paid to you.
3.2 Use and Placement of Links.
You may display the Links only on Your Site and in email sent in accordance with this Agreement. You agree not to modify any Links in any way without our prior express written permission.
3.3 Your Site.
You are solely responsible for, and we hereby disclaim all liability for, the development, operation, hosting, and maintenance of, and all costs associated with, Your Site. You agree that Your Site will not copy or resemble the look and feel of, or create the impression that it is part of, our website(s). You agree that Your Site will, at all times during the Term of the Agreement, comply with all applicable laws, rules and regulations, including, without limitation, all laws, rules and regulations applicable to the collection, use, disclosure, retention and security of individuals' personal information.
We may reject your Application or terminate your participation in the Program at any time, without notice or liability to you, if Your Site is deemed, in our sole discretion, to be unsuitable. Unsuitable websites include, but are not limited to, those that display, promote, encourage or link to:
(a) Illegal content, products, services, materials or activities;
(b) Content that is harassing, libelous, defamatory, abusive, threatening, harmful, pornographic, obscene or that is otherwise tortious, offensive or objectionable (in our sole judgment) or which may give rise to liability or violate any law;
(c) Content that infringes on the intellectual property rights or other rights of any person or entity;
(d) Content that contains, downloads or installs any viruses, worms, bugs, Trojan horses or other harmful code, files or programs designed to, or capable of, interrupting, destroying or limiting the functionality of any computer software or hardware or telecommunications equipment;
(e) Content intended to attract children under 18 years of age;
(f) Content that disparages us;
(g) Content that mentions or promotes any product or service of a competitor of ours;
(h) Content that discloses any personally identifying information or private information about any person with his or her legally sufficient consent; or
(i) Content that promotes or encourages violence against any government, organization or individual or that provides instruction, information or assistance in causing such violence.
4. Permitted Marketing.
4.1 Requirements for All Marketing.
You agree that you are responsible for all of the marketing activities you conduct as a Program member, including but not limited to keyword marketing and email marketing ("Marketing Activities"), and that you are individually liable for any damages or losses incurred by your violation of this Agreement and/or any applicable law, rule or regulation.
Without limiting the generality of the foregoing requirement, you agree that, in promoting the Links:
(a) You shall not engage in Marketing Activities which advertise or claim that the Site offers (a) information regulated by the FCRA, or (b) medical records, credit reports, driving records, insurance records, birth certificates, marriage certificates, death certificates, or divorce certificates;
(b) You shall not engage in Marketing Activities which advertise or offer information that may be used to (i) establish an individual's legibility for personal credit or insurance; (ii) assess risks associated with existing consumer credit obligations; or (iii) evaluate an individual for employment, promotion, reassignment or retention (including employment of household workers such a nannies, housekeepers, or contractors) or in conjunction with assessing the merits of entering into any other personal business transaction with another individual ("Unacceptable Claims").
(c) You will not engage in Marketing Activities that we deem, in our sole discretion, to be inappropriate;
(d) You will not engage in Marketing Activities that advertise or offer searches or reports on a free or no charge basis unless the specific free trial links are provided by InfoPay;
(e) You will not engage in Marketing Activities that advertise or offer unlimited searches or reports, except in connection with searches or records offered in the "unlimited" section of the Member's area of the Site.
(f) You will not use pop-up or pop-under advertisements;
(g) You will clearly and conspicuously include, without modification, all terms and conditions that we instruct you to include;
(h) You will not engage in Marketing Activities that advertise, offer or promise rebates, coupons, vouchers or other consideration in connection with purchases from us; and
(i) You will not promote the Links by using the names, trademarks and/or logos of our competitors.
You further agree that we may, at any time and in our sole discretion, demand that you promptly and permanently remove or revise any claim, copy, creative, search listing or other promotional material, or cease any or all Marketing Activities, that we deem inappropriate for any reason.
4.2 Additional Requirements for Keyword Marketing.
When promoting the Links on Your Site via external paid search engines, you must follow these guidelines:
(a) The phrase 'Affiliate Site.' must be included, exactly as it appears here, at the end of each keyword submission, so that users will be aware that they are accessing our website through Your Site;
(b) You must not give the impression that you are us or that you represent us through the use of phrases such as 'Official Site'; and
(c) You will not use the names or trademarks of our competitors.
4.3 Additional Requirements for Email Marketing.
You will fully comply with the email marketing and privacy laws, rules and regulations of any jurisdiction into which you transmit email promoting the Links on Your Site. When promoting the Links on Your Site through email marketing sent to residents of the U.S., you will fully comply with the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, all rules and official guidance promulgated by the Federal Trade Commission ("FTC") pursuant to the Act, the Federal Communication Commission's rules and orders regulating the transmission of commercial email to wireless devices and all other applicable federal, state and local laws and regulations (collectively, for purposes of this Section 4.3, the "CAN SPAM Act"). In addition, without limiting the foregoing, you agree that you will comply with the following requirements:
(a) Address List.
a. You will take commercially reasonable efforts to ensure, prior to a campaign promoting the Links, that your email list ("Email List") has been filtered to remove duplicate address, undeliverable or otherwise "bounced" addresses and those that appear to be invalid.
a. You may not promote the Links in emails sent through open proxies, from email or Internet Protocol ("IP") addresses registered through fraud or false pretenses, or to persons whose addresses were gathered in any automated process, harvesting or screen scraping, or through any means in violation of an Internet Service Provider's ("ISP") policies, or as the result of randomly generated combinations of characters.
b. You must include complete and accurate transmission and header information in each email, as well as a "from" line that accurately identifies you as the initiator of the message.
c. Upon our request, you will promptly provide a full list of domain names, routing information and IP addresses that will be, are being or were used to send emails promoting the Links. In addition, upon our request, you will promptly provide an explanation of the transparency of the return domain names, the List Owners' contact information and all other information that permits email recipients to identify senders. If at any time your and/or List Owners' IP addresses or domain names are mass-blocked or blacklisted, you will inform us immediately.
a. You must obtain our written approval of your proposed campaign and email message (including the subject and from lines) at least three (3) business days in advance of the proposed mailing. Please send all approval requests to "email@example.com" Each message must be truthful, not misleading and capable of substantiation.
b. The subject line must accurately reflect the content of the message.
c. You must clearly disclose that each email is an advertisement.
d. You must clearly and conspicuously state your true name and valid postal address in the body of the email.
(d) Opt-Out Mechanism and Compliance.
a. You must include the following disclosure in a clear and conspicuous location in each email message: "To unsubscribe from this advertiser's email list, please click here: www.restrictedonly.com/confirmation/unsubscribe.php." You may not alter the disclosure or the link without our prior written permission.
b. If you receive a request from an email recipient that he or she receive no further email promoting our sites, products or services, then you must not send that person any such email, and you must relay the opt-out request to us within two (2) business days of receiving it. Please send all requests to "firstname.lastname@example.org"
c. You must purge from the Email Lists that you use to promote the Links, regardless of the list source, any email addresses that we provide for purging (the "List"). You will conduct such purges at the last possible, commercially reasonable moment, but not more than twenty-four (24) hours before each list is sent an email promoting the Links.
d. You will not (and will not allow others to) sell, remarket or use the List or the email address of any person who has opted out for any reason other than to comply with this Agreement and the law.
(e) Other Requirements.
a. Upon our request, you will promptly identify, in writing, any measures you have taken to comply with service providers' email policies.
b. You agree that you are an "initiator," as that term is defined in the CAN SPAM Act, of messages advertising the Links.
(f) Monitoring: By Us.
a. You acknowledge and agree that we may, in our discretion, monitor your emailing activities under this Agreement. Without limitation, we may do so through the use of a third-party monitoring service.
(g) Monitoring: By You.
a. You agree that you will implement reasonable procedures to ensure, on an ongoing basis, that your unsubscribe capabilities function in accordance with the requirements of the CAN SPAM Act. Without limiting the foregoing, this means that you will, at a minimum, do the following:
i. Establish email accounts with at least five (5) major private email account providers, including Hotmail, Yahoo, AOL, Lycos and Google, and add such addresses to the lists to which you transmit email promoting the Links;
ii. For each such address, use the unsubscribe mechanism contained in the email to opt out of future emails; and
iii. Repeat this procedure on a regular basis, at least once every two (2) weeks for the term of this Agreement.
b. If, at any time, your monitoring reveals that your unsubscribe procedures are not functioning as required by the CAN SPAM Act or the terms of this Agreement, you will immediately notify us and take immediate steps to remedy the problem(s).
(h) Termination. In addition to the termination provisions contained in Section 12 of this Agreement, if you violate any of the provisions of this Section 4.3, you will be subject to immediate termination, including the forfeiture of any referral fees earned but not yet paid, as well as possible legal action, including but not limited to reporting to the proper authorities.
5. Limited License to Use the Links.
We hereby grant to you a limited, nonexclusive, revocable license to display the Links on Your Site and in email messages sent pursuant to the terms of this Agreement, solely as necessary for, and for the purpose of, promoting the products associated with the Links and identifying you as a participant in the Program. We reserve all proprietary rights in and to the Links not expressly granted herein. You acknowledge that all use of the Links by you inures solely to the benefit of us and that you do not acquire any rights in the Links as a result of such use. You will remove any outdated Links immediately upon our request. You may not sublicense, assign or transfer your license, and any attempt at such sublicense, assignment or transfer is void. We may revoke this license at any time by giving you written notice, and you agree upon receipt of such notice to immediately cease using all Links.
6. Referral Fees and Payments.
Unless otherwise specified, referral fees are based on a per site basis and are on Net Sales. Commissions are set at the merchant level and on a per link level. Net sales are defined as gross sales minus refunds, chargebacks and chargeback fees.
Payments are made once per month by PayPal or Check.
7. Policies and Pricing.
Customers purchasing our products through the Program will be deemed our customers. All rules, policies, terms, conditions and procedures concerning customer orders, customer service and our product sales will apply to those customers. We may change our policies and procedures, including pricing, at any time. We, at our sole discretion, will determine the prices to be charged for products sold under the Program in accordance with its own pricing policies. Prices and availability of our products may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.
8. Electronic Notices.
By participating in the Program, you agree to receive electronic communications from us. You agree that any notice or other communication that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
9. Modification of This Agreement.
We may modify this Agreement at any time by posting a notice or a new Agreement on the Site, but such new Agreement will be effective no sooner than thirty (30) days after such notice or new Agreement is posted. YOUR SOLE REMEDY AND RECOURSE IN THE EVENT ANY SUCH MODIFICATION IS UNACCEPTABLE TO YOU IS TO TERMINATE THIS AGREEMENT, PROVIDED THAT WE WILL PAY TO YOU ALL AMOUNTS DUE TO YOU PRIOR TO YOUR TERMINATION. Such termination by you in the event of a modification will be effective immediately upon our receipt of notice thereof. Your continued participation in the Program after such thirty (30) day period has passed will constitute your acceptance of the modification(s).
You may not announce your use of the Links on Your Site unless you first receive our written approval of such announcement. We may announce your use of the Links on Your Site in our sole discretion.
11. U.S. Export Controls.
Any software available on the Site is subject to U.S. export controls. No software may be downloaded from the Site or otherwise exported or re-exported in violation of U.S. export laws.
12. Term and Termination.
This Agreement will be effective on the date we accept the Application and will continue until either party terminates this Agreement as set forth herein (the "Term"). You may terminate this Agreement by ceasing to promote our sites, products and services. We may terminate this Agreement immediately, or restrict your participation in the Program, without notice or liability to you, in the event that you breach this Agreement. In such event, you will forfeit all amounts earned by you and not yet paid prior to termination. We also reserve the right to modify or discontinue any part of the Program at any time. 13. Limitation of Liability; Disclaimer; Indemnification. This Section 13 will survive the termination or expiration of this Agreement.
UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING IN CONNECTION WITH THIS AGREEMENT (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT YOU WILL REMAIN LIABLE TO US TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO THIS AGREEMENT. IN NO EVENT WILL OUR LIABILITY IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES NOT EXCLUDED IN THE IMMEDIATELY PRECEDING SENTENCE EXCEED THE AMOUNT PAID OR PAYABLE BY US TO YOU UNDER THIS AGREEMENT.
13.1 No Additional Warranties.
THE PROGRAM, OUR WEBSITES AND THE LINKS ARE PROVIDED "AS IS" AND "AS AVAILABLE." EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
You agree to defend, indemnify and hold harmless us, our related companies, and each such company's respective officers, directors, employees and agents from and against any claim, loss, damage, expense or cost, including reasonable attorneys' fees and costs, arising, directly or indirectly, in whole or in part, out of any claim, demand, action, suit, investigation, arbitration or other proceeding by a third party based on or in connection with: (i) your breach of any covenant, duty, representation or warranty contained in this Agreement; (ii) Your Site; (iii) your Marketing Activities, including but not limited to any Unacceptable Claims and any other covenant, representation or warranty made by you regarding our website(s) or our products or services; and (iv) your Email List.
14.1 Applicable Law; Jurisdiction.
This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflict of law provisions. You agree to submit to the exclusive jurisdiction of the federal and state courts of the Commonwealth of Massachusetts.
Any dispute concerning the Program or this Agreement shall be settled by binding arbitration in Boston, Massachusetts, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Judgment upon the award made by the Arbitrator(s) may be entered in any court having jurisdiction thereof. You acknowledge that agreeing to such binding arbitration constitutes a waiver of your right to a jury trial and that this agreement to arbitrate is voluntary and not legally required. If any arbitration or legal action or similar proceeding is instituted by either party concerning the payment of our fees or costs advanced hereunder, the prevailing party shall be entitled to collect its reasonable attorneys' fees in addition to any other relief the party may obtain.
Neither party will be liable for or be considered in breach of this Agreement on account of any delay or failure to perform as a result of any causes or conditions which are beyond such party's reasonable control and which such party is unable to overcome by the exercise of reasonable diligence.
14.4 No Waiver.
Our failure to enforce any provision of this Agreement will not constitute a waiver of that or any other provision.
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck, and the remaining provisions shall be enforced.
You will not assign this Agreement or your participation in the Program without our prior written consent
14.7 Relationship of Parties.
You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between us. You will: (a) have no authority to make or accept any offers or representations on our behalf; and (b) not make any statement, whether on Your Site or otherwise, that reasonably would contradict anything in this Section.
You acknowledge that you have read this Agreement, that you understand it and that you fully and unconditionally agree to it. You understand that we may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement and that we and our affiliates may operate websites that compete with Your Site.