1. Contact Information
2. Profile Information
3. Network Information
4. Additional Information
This Agreement constitutes the entire and only agreement between us and You, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Network (which include, without limitation, the website through which you access the Network and any services offered by the Company in connection with the Network now or in the future), the content and computer programs provided by or through the Network, and the subject matter of this Agreement. Company may change or update this Agreement at any time without specific notice to You. The current version of this Agreement will be posted on the Company’s web site or the administrative web site made available to you by the Company to access the Network (“Admin Site”), and you should review this Agreement prior to each use of the Network. We reserve the right, in our sole discretion, to make changes to the Agreement for any reason. We will provide you advance notice before the updated terms become effective. You agree that we may notify you of the terms by posting them on the Admin Site or other means of communication and your use after the effective date of the updated terms constitutes your agreement to the updated terms. Your continued use of the Network after any such modification shall constitute Your consent to such modification. You agree to use the Network only in accordance with this Agreement. If you do not so agree, You should not be part of the Network and shall not be entitled to any Payment or other benefits or rights under this Agreement.
Through the Admin Site, Company will make creative advertising images and data (“Programs”) of Advertisers available to you for placement on or distribution through Your media properties (“Media”), such as by posting on your web sites(s) or distributing to your email distribution lists. Each Program will include specific terms governing your use of the Program (“Program Terms”). You must place or distribute the Program through your Media in accordance with the Program Terms. The Program Terms will specify the amount and terms under which You may receive payment (“Bounty”) for placing or distributing the Program when the requirements set forth in the Program Terms are fulfilled. Bounties are generated from a specified event (“Event”) as specified in the Program Terms, such as clicks, click-throughs, sales, registrations, impressions and/or leads. Company and/or its Advertisers may change the Program Terms for any Program at any time upon notice to You, at which time You must promptly make any changes in your presentation or distribution of the Program to accommodate any such changes to the Program Terms, or immediately cease using the Program.
Company will track all active Programs and compile, calculate and electronically deliver data required to determine the compensation that may be owed to you as a Bounty under this Agreement. Upon delivery of any such report to you, you must submit any questions or disputes regarding Company’s data and calculations to Company in writing, including a detailed explanation for any such dispute, within 7 days of the report delivery date; otherwise, Company's figures and calculations shall be deemed accurate and accepted as such by You.
Participation in the Network is subject to our prior approval. We reserve the right to refuse acceptance of your application, in our sole discretion, with or without cause. If we accept Your application and later determine that acceptance was granted in error for any reason at our discretion, we may immediately terminate this Agreement upon notice to You.
You have an ongoing responsibility to update any information provided to us in your application, including Your list of Media that may be used to place or distribute Programs, to ensure that our files remain current. You acknowledge, agree and consent that we may communicate with you regarding your participation in the Network and any other aspect of the Network via email, telephone, mail, or any other means. We may, from time to time, send necessary communications relating to the Network and this Agreement to the email address then-currently associated with your Account. You will be deemed to have successfully received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your account is no longer current.
Upon our approval of Your application, you will receive an account and password (“Account”) to access the Admin Site. Upon termination of this Agreement for any reason, we will disable your Account. You are solely responsible for all activities that occur under Your Account. You are solely responsible for maintaining the security of your password. You may not disclose Your password to any third party for any reason (other than third parties authorized by you to use your Account in accordance with this Agreement). If your password is compromised you must immediately notify us. We will not be liable for any loss or damage arising from your failure to comply with the requirements of this paragraph.
Affiliate responsibilities are outlined in Exhibit A to this Agreement (“Affiliate Responsibilities”). If Affiliate uses Sub-Affiliates (as defined in Section 4), Affiliate is responsible for ensuring Sub-Affiliate’s compliance with the Affiliate Responsibilities.
If Affiliate contracts with or otherwise engages or arranges for other parties (“Sub-Affiliates”) to distribute Programs, Affiliate (a) must require each Sub-Affiliate to agree in writing to terms and conditions substantially similar to the terms and conditions stated Exhibit A – Affiliate Responsibilities and the Program Terms, and (b) remain solely responsible and liable to the Company and/or Advertiser(s), as applicable, for all of the actions (or failure to act) of any such Sub-Affiliates or any other parties working with, for, or under such Sub-Affiliates. Affiliate must keep records of all Sub-Affiliates and Programs distributed by Sub-Affiliates during the term that this Agreement remains effective and for a period of one (1) year thereafter. Affiliate must immediately comply with any demand made by the Company to terminate any Sub-Affiliate from distributing Programs; failure to comply immediately with this demand may result in Affiliate’s termination from the Network, loss of Bounties, and/or any other remedy available to the Company at its discretion.
Company grants You, if approved, a non-transferable, non-exclusive limited license to use the Network(s) and any data, reports, information or analyses arising out of such use, subject to the terms and conditions set forth herein. You acknowledge and agree that You do not have, nor will claim any right, title or interest in the Networks’ software, applications, data, methods of doing business or any elements thereof. You may only access the Network via web browser, email or in a manner approved by Company. Network integration tags must NOT be altered. Altering tags may jeopardize Your ability to be paid for Events as Company may determine.
Company actively monitors traffic for fraud. If we suspect fraud on the part of You and any of your Sub-Affiliates, Your account will be made inactive pending further investigation.
If You or any Sub-Affiliate fraudulently adds leads, clicks or conversions or inflate leads, clicks or conversions by fraudulent traffic generation (as determined solely by the Company, such as pre-population of forms or any mechanism not approved by Company), You will forfeit Your entire commission for all programs and Your account will be terminated. Company reserves sole judgment in determining fraud, and You agree to this clause.
It is the OBLIGATION of the Affiliate to prove to the Company that Affiliate or its Sub-Affiliate is NOT committing fraud. The Company will hold Your payment in “Pending Status” until You have satisfactorily provided evidence that You or your Sub-Affilaite is not defrauding the Network. Potential evidence of fraud that triggers the Company’s recourse under this section include, but are not limited to, the following:
You will be paid per the occurrence of an Event. Except as provided herein, the Parties understand and agree that payment will be owed to the Affiliate from the Advertiser via The Company on terms net 5 days after the end of the pay period unless otherwise mutually agreed to. The pay period runs weekly from Monday to Sunday. Unless otherwise specified, all accounts will be paid in US dollars ($US). No checks will be issued for any amounts less than $1,000.00 US Dollars. No wires will be issued for less than $1,000.00. Every Affiliate account must have a unique, valid taxpayer identification number (TIN) or valid Social Security number on file with the Company. If the Affiliate is Canadian, a business identification number and a harmonized sales tax number must be provided and kept on file with the Company. All payments are based on actual figures as defined, accounted and audited by the Company.
The Company reserves the right to suspend payments without notice if payment is not received from the Advertiser. If the Company does not receive payment from the Advertiser after engaging in best efforts to collect the funds, Company is not obligated to make the payment to You. However, pending Affiliate payouts may be negotiated in good faith on a case-by-case basis as the Company may determine. Company does not guarantee payments on behalf of the Advertiser.
Company will not pay for any Events that occur before a Program is initiated, after a Program terminates or for Events for a Program that the Affiliate was not invited to or is not assigned to promote. Invoices submitted to Company and payments made to You shall be based on the Events and corresponding Bounties as reported by the Company. The Company will not be responsible to compensate You for Actions that are not recorded due to Your error.
This Agreement is effective as of the date that you electronically submit Your application to participate in the Network, provided that this Agreement shall become null and void if Company denies your application for any reason. This Agreement may be terminated by either Party upon three (3) days' notice, or without notice by the Company in cases of violation of Section 3 or Exhibit A (Affiliate Responsibilities), 4 (Use of Sub-Affiliates), and 6 (Fraud) of this Agreement. This Agreement shall terminate immediately upon the dissolution or insolvency of either Party. The Company reserves the right, in its sole and absolute discretion, to terminate a Program and remove any advertisements at any time for any reason. The Company also reserves the right to suspend or terminate Your access to the Network at any time without notice.
Termination notice may be provided via e-mail, and will be effective immediately. All Bounties due to Affiliate, subject to the terms of this Agreement, will be paid during the next billing cycle.
If Affiliate defrauds the system, then payment is revoked as determined solely by Company. If Your e-mail address is not operative, Company’s actual attempt to send the Termination notice e-mail to Your last known address shall suffice as Termination notice hereunder.
The representations, warranties and obligations contained in Sections 7, 8, 9, 10, 11, and 12 of this Agreement shall remain in full force and effect after termination of this Agreement.
A. Affiliate represents and warrants that it will at all times comply with the materials obligations imposed on it under this Agreement, including but not limited to the requirements listed in Exhibit A of this Agreement. The failure to comply with any material obligation of this Agreement shall result in the loss of payment of Bounties, in addition to any other remedy available to the Company at law or in equity. Affiliate acknowledges that the Company makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement; and
B. Each Party represents and warrants to the other Party that:
As applicable, all information about consumers (“Customer Information”) submitted to the Affiliate by reason of Affiliate’s participation in distributing a Program through the Network is proprietary to and owned by the Company and/or its Advertiser(s). Such Customer Information is confidential and may not be disclosed by You or used for any purpose by You except as may be permitted by this Agreement or the Program Terms for any particular Program.
Each party agrees to use the other party's Confidential Information (defined below) solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party's Confidential Information or the Company’s Advertisers' Confidential Information (including Customer Information) to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party's performance of its obligations or exercise of its rights under this Agreement; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing party. As used in this Agreement, “Confidential Information” means any and all oral or written information that is identified as confidential and is provided by one Party to the other, or information which, under the circumstances surrounding the disclosure, reasonably ought to be treated as confidential.
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE NETWORK, OPERATION OF A PROGRAM, THE PRODUCTS OR SERVICE PROMOTED IN ANY PROGRAM, OR YOUR DISPLAY OF ANY PROGRAM CREATIVE ON YOUR MEDIA, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOST REVENUE, OR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR OTHER DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE PROGRAMS, NETWORK, AND THE INFORMATION, CONTENT AND SERVICES AVAILABLE ON AND THROUGH THE NETWORK AND ALL TECHNOLOGY, SOFTWARE, MATERIALS, DATA, OR IMAGES PROVIDED OR USED BY OR ON BEHALF OF US OR OUR LICENSORS IN CONNECTION WITH THE NETWORK (COLLECTIVELY, THE “NETWORK OFFERINGS”) ARE PROVIDED ON AN 'AS IS, WHERE IS' AND ‘AS AVAILABLE’ BASIS. YOU USE THE NETWORK AND RUN PROGRAMS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE NETWORK OFFERINGS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENTS, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORAMNCE, OR TRADE USAGE. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ON NETWORK OR PROVIDED BY COMPANY IS ACCURATE, COMPLETE OR CURRENT.
WE WILL NOT BE HELD RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTIONS, DAMAGE OR LOSS OF, ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. WE MAY DISCONTINUE THE NETWORK OR NETWORK OFFERINGS, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE OR OPERATION OF THE NETWORK OR NETWORK OFFERINGS, AT ANY TIME AND FROM TIME TO TIME. THE COMPANY SHALL NOT BE LIABLE FOR ANY ACTS OF ADVERTISERS OR OTHER CONTENT PROVIDERS WHOSE CONTENT OR OFFERS APPEAR ON THE NETWORK AND/OR IS MADE AVAILABLE TO YOU THROUGH THE NETWORK, NOR THE CONTENTS OF ANY OTHER ADVERTISEMENTS, WEB SITES, OR WEB PAGES.
You shall indemnify, defend and hold the Company harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys' fees) by third parties arising out of Your: (a) improper use of the Network; (b) improper operation of a Program; or (c) breach or violation of this Agreement. The Company shall indemnify, defend and hold You harmless from and against any and all claims allegations, liabilities, costs and expenses (including reasonable attorneys' fees) by third parties arising out of any actual infringement of intellectual property rights resulting from Your display of the Company’s advertising creative provided in connection with distributing a Program.
The Company may assign this Agreement to a subsidiary, affiliate or business successor. You may not assign this Agreement without the prior written consent of The Company, which shall not be unreasonably withheld. This Agreement shall be construed, interpreted and governed by the laws of the Province of Ontario and the applicable laws of Canada. You expressly consent to the exclusive venue and personal jurisdiction of the provincial and federal courts located in the City of Toronto, Ontario, Canada for any actions arising from or relating to this Agreement.
If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.
Affiliate provides its consent to Jumbleberry delivering from time to time electronic communications about Jumbleberry’s business, offerings and information via newsletters, blogs, emails or other electronic means. Advertiser acknowledges and agrees that it may opt out of this consent at any time and it is not a condition of entering into this Agreement to provide consent to receiving electronic communications from Jumbleberry.
Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters, interruption in internet service or any other cause which is beyond the reasonable control of such Party.
The Company shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding arising out of this Agreement.
This Agreement contains the sole and entire agreement and understanding between the Parties relating to the subject matter herein, and merges all prior discussions, whether through officers, directors, salespersons, employees or consultants. This Agreement is non-exclusive to the Company, and we shall have the right to enter into similar agreements with other third parties. Each Party is an independent contractor and not a partner, joint venture or employee of the other. All notices shall be sent to You to the addresses submitted by You on your application to participate in the Network by certified mail, overnight service (e.g., Federal Express), fax, email or courier. The Company reserves the right to change any conditions of this contract at any time, with or without notice. Your continued use of the Network after any change has been posted on the Admin Site constitutes your agreement to such change.
The following responsibilities apply to all affiliates (“Affiliates”) participating in the Jumbleberry Media Ltd. (“Company” or “we”) online advertising network (“Network”) as well as any sub-affiliates (“Sub-Affiliates”) that have entered into a contractual or other arrangement with an Affiliate to distribute advertiser (“Advertiser”) advertising through the Network. References below to “You” or “Affiliate” refers to any Affiliate or Sub-Affiliate described in this paragraph.
A. You are solely responsible for all aspects of any websites, banner ads, other online ads, email, messaging, social media, search engine optimization, and any other media property or tools (“Media”) used by You to display or distribute advertising, including but not limited to the development, operation, and maintenance of Your Media and all content that appears on or within Your Media. You must conduct all marketing and other activities related to your participation in the Network in full compliance with all then-current applicable laws, regulations, and guidelines, including but not limited to the Federal Trade Commission Act (“FTC Act”), the CAN-SPAM Act, Federal Trade Commission (“FTC”) regulations and guidelines implementing the FTC Act and the CAN-SPAM Act, and FTC Guides Concerning the Use of Endorsements. If the Affiliate is domiciled in Canada, in addition to the foregoing (where applicable), the Advertiser’s sole responsibility and liability shall also include but not be limited to fully complying with Canada’s Anti-Spam Legislation (“CASL”), Personal Information Protection and Electronic Documents Act (“PIPEDA”), regulations and guidelines implementing CASL and PIPEDA, and other federal and provincial laws, regulations, and guidelines.
B. Without limiting the foregoing, Your Media must meet the following requirements:
C. Consistent with the CAN-SPAM Act and analogous federal, state and/or provincial laws, regulations and rules, Affiliate must ensure that all email transmitted by Affiliate to promote an Advertiser’s product, service, or brand must include identification of the message as an advertisement or solicitation, a physical postal address for the “sender” of the message (as that term is defined in the CAN-SPAM Act, 15 U.S.C. § 7701 et seq.), and a functioning electronic mechanism by which the recipient of the message can request not to receive future commercial messages from the “sender.” Without limiting any of the foregoing responsibilities and requirements, Affiliate shall:
If the Affiliate is domiciled in Canada or emails are transmitted to persons domiciled in Canada, the Affiliate must ensure that it has received consent to send any “commercial electronic messages” pursuant to CASL or any of its rules and regulations.
D. Lists of email addresses used by Affiliate to transmit Programs shall be:
E. Affiliate agrees that prior to emailing any campaign available in the Network, it will download the most recent suppression file(s) for any particular campaign as made available by Company through the Program Terms or otherwise, and, for that campaign, will suppress all email addresses within its database that are found on such list. In addition, for any campaigns that include a domain suppression list, Affiliate agrees that prior to emailing the campaign it will download the most recent domain suppression list for any particular campaign and, for that campaign, will suppress all domains within its database found on such list.
F. Affiliate further agrees that it will download and remove from its email distribution lists the domains located on the FCC's wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from all current data used in all mailings. Affiliate further warrants that any new data that it acquires, regardless of its source, will be run against the FCC's wireless domain names list and that domain names contained therein will be removed before sending any mailings. Company retains the right to “seed” suppression lists to ensure Affiliate’s compliance with this section.
G. You shall not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Network tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service (“Network Data”). If instructed to do so by Company and/or if this Agreement terminates, You will immediately remove and discontinue the use of any Network Data. You acknowledge that Company does not represent, warrant, or make any specific or implied promises as to the successful outcome of any Programs. You agree to display the creative exactly as it appears on the Program and will not alter any creative that has been submitted to the Network. If any errors or undesirable results occur from Your use of the Network, Company shall not be responsible for losses and You may not be compensated.
H. Affiliate agrees that it shall comply with all terms applicable to distribution of a specific Advertiser program (“Program Terms”) as made available by Company through the Network.