Popular Marketing Terms and Conditions for Publishers
These Terms were last updated on August 15, 2018.
The following terms and conditions, together with any and all Codes of Conduct referenced herein, constitute the binding legal agreement (this "Agreement", "Terms and Conditions" or "T's and C's") between Ad Trust Marketing LLC dba Popular Marketing ("Company"), and you ("You" or "Publisher"), the user of the Company's website, www.popularmarketing.com (the "Site") and the Popular Marketing advertising network service (the "Service"). This Agreement governs Publisher's relationship with Company and the use of the Site. Publisher agrees to use the Site and any additional services offered by Company only in accordance with these Terms and Conditions. The Company reserves the right to make changes to the Site and these T's and C's at any time. Publisher's continued use of the Site after any such modification and notification thereof (which may be provided by e-mail to the email address provided in the course of Publisher's registration with Company) shall constitute Publisher's consent to such modification. If You do not agree to the terms and conditions contained within this Agreement in their entirety, You are not authorized to register as a Publisher or use the Site and/or Service in any manner or form whatsoever. In the event that Company and Publisher execute an insertion order ("IO") or other amendment or exhibit to this agreement for any campaign, the terms of the IO shall supersede these Terms and Conditions. If such IO has attached or refer to other Terms and Conditions the terms of this site shall still control unless otherwise explicitly agreed otherwise in the IO. Furthermore if Company updates these Terms and Conditions, as it may at its own discretion from time to time, then Publisher expressly agrees to be bound by the updated the Company Terms and Conditions as of the date the updated Terms and Conditions being posted via its continued of this site and its Publisher login regardless if a notice of the update was sent or if they were received by Publisher. Any and all inconsistent provisions between a prior Agreement and provisions contained in any updated Offer Descriptions shall be governed by the updated Company Terms and Conditions at all times if Publisher continues to use this site. Publisher understands it is their responsibility to check these Terms and Conditions from time to time to review for updated Terms.
1. Approval of Publisher
Completion of the Affiliate Signup form on the Site shall not confer any right on Publisher to market or promote any Programs (as defined below) made available by Company on the Site on behalf of its advertisers (the "Advertisers"). Nor shall it confer any right on Publisher to sell leads to Company's lead buyers (Advertisers and lead buyers are jointly referred to herein as the "Clients"). Official approval communicated via email to a prospective publisher is required before a prospective publisher can become a Publisher. In addition, all email Publishers will be required to fully and honestly answer the questions in the Affiliate Sign Up form. Failure to fully and honestly answer all required fields on the Affiliate Sign Up form will render the Publisher ineligible to join or remain in the network. The Company reserves the right to withhold or refuse approval for any reason whatsoever. Publisher shall promptly notify Company in the event of a material change in its business practices or strategy. The Company can withdraw approval of a Publisher at any time for any reason.
Minimum Eligibility Requirements: In order to be eligible to become a Publisher, all websites, affiliated websites, search listings, banner ads, e-mail distribution lists and other online advertising vehicles utilized to deliver Events (as defined below) on behalf of Company (collectively the "Media") must meet the following criteria, at a minimum: (a) Be content-based, not simply a list of links or advertisements, nor can the site be centered around making money off of our Clients; (b) Be written in English and contain only English language content; (c) Have a top-level domain name; (d) All Publishers that wish to send advertisements via email must have the consent of the consumer to send such email and each Publisher shall maintain records evidencing such consent including, without limitation, applicable IP addresses, source URL's and time/date stamps (the "Opt-in Information") and will supply such records to Company within one business day of request therefor; (e) Unless otherwise approved in writing by Company for each offer that Publisher wants to incentivize, Publishers may not offer direct or indirect incentives for any Company offer to users as means to enhance the performance of any Program (as defined below); Direct Incentives include but are not limited to awarding cash, points, prizes, contest entries, etc., and Indirect Incentives include, but are not limited to, text links, link outs, banners, iframed content or other Media that is displayed to users as part of a survey or sweepstakes entry even if the completion of the offer, or the click on the ad, is completely optional and has no bearing on a user receiving a gift or entry into a sweepstakes; Even if a Program allows for incentivization, Publishers must get written approval for each incentivizable Program they wish to incentivize prior to downloading and running any incentivizable Program; (f) Publisher websites must be fully functional at all levels (e.g., no "under construction" sites or sections); (g) Spawning process pop-ups are prohibited; and (h) Such other criteria as Company may from time to time determine, in its sole discretion.
Publisher Website Content: The content of Publisher's Media must comply with all applicable laws and regulations (including all laws respecting personal, intellectual property or copyrights) and, in any event, shall not include the following: (a) Racial, ethnic, political, hate-mongering or otherwise objectionable content; (b) Investment, money-making opportunities or advice not permitted under law; (c) Gratuitous violence or profanity; (d) Material that defames, abuses, or threatens physical harm to others; (e) Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.; (f) Software Pirating; (g) Hacking or Phreaking; (h) Obscenity and any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic; (i) Any reference to liquor, alcohol, tobacco, pornography, lotteries, firearms or ammunition; and (k) Any illegal activity whatsoever.
2. Use of the Site.
The Site allows Publishers to download creatives and tracking URLs for specific offers of Company's and its clients' advertising programs ("Program(s)"). Each Program will include the following parameters: Description (the "Offer Description"); Payout; Category; Landing Page (link to landing page); Link Types Allowed (i.e. All, Email only, Search only); Incentives Allowed (Yes/No); Region (i.e U.S. only); From Lines (approved from lines) and Subject Lines (approved subject lines) (collectively the "Program Terms"). Compensation is derived from a specified event ("Event") identified in each Offer Description, such as the submission of a lead form or a partial lead form or a sales transaction (collectively or individually an "Action"), or other Event such as a click, click-through, registration and impression. The Program Terms shall supersede any inconsistent terms in these T's and C's or previously executed IO’s or other Terms agreed to between the Parties for such Program. The Offer Description will specify, among other things, the Event as well as any additional terms affecting for which Publisher will receive payment as well as any additional terms affecting how Publisher is required to run the specific Program. Where applicable, an Action shall further be defined in the Offer Description. If Publisher accepts a Program, Publisher agrees to place that Program's advertising creative (including the email subject and from lines, lead generation opt-in copy, the Advertiser Can-Spam disclosures and any other disclosures provided therein) ("Ad") on Publisher's Media, in accordance with the Program Terms and, with regards to disclaimers, as included on the creatives provided on the Site. Publisher shall display the Ad exactly as it appears and is provided in creative section for that Program on the Site and will not alter it in any way without written approval from Company, including without limitation, modifying creatives, running text links without prior written Company approval, modifying text email copy, popping Company's landing page for a Program without prior written Company approval; altering email subject lines and email from lines without prior written Company approval. Failure to adhere to this requirement may, in addition to all other remedies available to Company, result in termination of Publisher and forfeiture of compensation to Publisher. The Company may change a Program at any time unless otherwise specified in the Program Terms, upon reasonable advance written notice to Publisher. The Company is responsible for displaying and administering all active Programs and tracking the payments owed.
3. Monitoring.
The Company shall endeavor to monitor, on its own or with the assistance of third parties, the Publishers for compliance with these Terms and Conditions. Without limiting the generality of the foregoing: (a) All Publishers will be monitored for compliance with applicable legal requirements, including with respect to honoring unsubscribe requests. If a third party performs the monitoring, such third party will share all such information with Company. Notwithstanding the above, Publishers are solely responsible, and may not rely upon Company or any third party monitoring service retained by Company for compliance with these T's and C's or applicable legal requirements, including but not limited to the honoring of unsubscribe requests and compliance with Email Legislation (b) Each unsubscribe list furnished to a Publisher shall be separately, technologically identified so that Company will be able to ensure that each Publisher is not disseminating or otherwise using the unsubscribe list other than in a manner required by applicable law.
4. License.
The Company grants Publisher a revocable, non-transferable, non-sublicensable, non-exclusive limited license to use the Site (including any Ads posted thereon) and any data, reports, information or analyses arising out of such use (the "Site Data") solely for the purpose of marketing or promoting the Programs hereunder and subject to these T's and C's and the applicable Program Terms. If a Publisher fails to adhere to the foregoing requirement, in addition to any other remedies available to Company, Publisher shall forfeit its rights to any and all amounts owed by Company to Publisher. Publisher acknowledges and agrees that Publisher does not have, nor will it claim any right, title or interest in the Site software, applications, data, methods of doing business or any elements thereof, or any content provided on the Site (including the Ads). Publisher may only access the Site via web browser, e-mail or in a manner approved by Company. Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service. In addition, Publisher acknowledges that all non-public information, data and reports received from Company hereunder or as part of the services hereunder is proprietary to and owned by Company. If instructed to do so by Company and/or if Publisher shall be terminated by Company, Publisher will immediately destroy and discontinue the use of any Company data, including Site Data, and any other material owned by Company or the Advertisers.
5. Fraudulent or Unapproved Marketing.
If fraudulent or unapproved marketing is suspected, Company may suspend the publisher account and block all traffic from any subaffiliate suspected of fraudulent or unapproved marketing pending further investigation. Fraudulent or unapproved marketing shall include, among others: (1) Events that are generated by a computer or not an individual user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person; (2) Actions created by using pre-populated fields to automatically complete all or substantially all of an application form; (3) Events where an individual receives any type of direct or indirect incentives; (4) Actions resulting from any form of advertisement not directly approved in writing by Company; (5) Actions produced through email marketing that is not compliant with the Can-Spam Act, 15 U.S.C. § 7704 et seq. (including all amendments) and Cal. Bus. & Prof. Code § 17500 (including all amendments); (6) Actions generated where publisher or its affiliate was popping Company's landing page without prior written Company approval; (7) Actions generated from text links on survey reg paths that link to Company's landing page without prior written Company approval; (8) Actions generated where publisher or its affiliate iframes Company's landing page without prior written Company approval; (9) Actions generated where publisher or its affiliate brokers Company's program to PCH.com without Company's prior written approval; and (10) Actions generated through any outside pay-per-click or pay-per-impression campaign that includes the use of third party trademark(s) or trade name(s) as search term(s) or which could otherwise reasonably be alleged to infringe upon the intellectual property rights of any third party. In determining whether fraudulent or unapproved marketing has occurred, lead to action ratios that are materially above average for the type of advertising (e.g., email, banners, pops or search) shall be considered relevant. In the event of fraudulent or unapproved marketing, Company need not return actual leads for all actions that Company does not pay publisher for. Failure by publisher or its affiliate to cooperate to the extent reasonably requested by Company in an investigation into suspected fraudulent or unapproved marketing will be considered determinative that fraudulent or unapproved marketing has occurred. In the event of fraudulent or unapproved marketing Company may withhold payment of publisher's commissions for all events from the specific program with fraudulent or unapproved marketing. In addition, in the event that publisher has already received payment for events occurring through fraudulent or unapproved marketing, Company reserves the right to seek a credit or remedy from future earnings or to demand reimbursement from publisher.
6. Payment
Publisher will be paid as described in the terms of a particular Program. If there are no payment terms described for a particular Program, Company shall pay any amounts due approximately 30 days after the end of each month, provided that Company may, in its discretion, withhold payments until such time as the Advertiser has paid Company for any Program. In addition to any other remedies that may be available to Company, in the event of any breaches by Publisher of these T's and C's, Publisher shall forfeit its rights to any amounts owed by Company to Publisher. The Company reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by Advertisers for invalid or duplicate Events, technical errors, tracking discrepancies and the like. The Company shall compile, calculate and electronically deliver data required to determine Publisher's billing and compensation. Any questions regarding the data provided by Company must be submitted in writing within 10 business days of receipt, otherwise the information will be deemed accurate and accepted as such by Publisher. Payments shall be made via ACH or wire or PayPal with any transaction fees being removed from the payment issued. Any claim of underpayment must be raised within 30 days of the payment. All amounts will be paid in U.S. dollars. No payments will be issued for any amounts less than $250 US Dollars (the "Payment Threshold"). All such amounts below the Payment Threshold shall be aggregated and paid when the Payment Threshold has been met. The Company will not pay for any Events that occur before a Program is initiated, or after a Program terminates. Invoices submitted to Company and payments made to Publisher shall be based on the Events as reported by Company. The Company will not be responsible to compensate Publisher for Events that are not recorded due to Publisher's error. The Company may require a Publisher to provide a W-9 and similar such information as a condition to payment.
7. Special Terms for Co-Registration Campaigns
With respect to Publishers who are running co-registration campaigns to generate leads ("Leads") for Advertisers, the following specific terms and conditions shall apply.
Approval of Publisher's Site(s): No Program may go live until such time as Company, and if necessary the applicable Advertiser, have approved, in writing: (a) all sites to be used by the Publisher for each Program, (b) the creative form used by Publisher to gather Lead data, and (c) the transfer of Leads in the form of either a successful post for real-time transfer or approval of the test file for batch or FTP files.
Publisher's Privacy Policy: Publisher represents and warrants that Publisher's privacy policy permits the collection, use and transfer of data as contemplated hereby and the Program Terms.
Scrubbing Leads: Each Program shall have its own criteria for determining the validity of a Lead (the "Lead Requirements"), which shall be detailed in the section entitled "Special Terms" included in the on-site offer summary and Company-provided program specifications. The Company shall only pay for Leads deemed valid by this system. At the sole discretion of the Company, Leads may also subsequently be deemed invalid ("Invalid Leads") as a result of: (a) Fraudulent or Unapproved Marketing and/or (b) non-compliance with co-registration programs including but not limited to exceeding Lead caps as communicated by a Company representative and/or going live with a co-registration offer prior to written approval of a creative and data transfer by an Company representative. The Company's proprietary Lead processing system is responsible for detecting and tracking all Invalid Leads.
Use of Leads: Publisher hereby acknowledges that the collection of the Leads is being done solely for the benefit of the Company or its Advertiser. Therefore, other than providing the Leads to the Company for delivery to the Advertisers, Publisher may not use, sell, transfer or assign or attempt to monetize the Leads for its own purposes. All right, title and interest in the Leads shall vest exclusively in the Company or its Advertisers.
No Alteration of Approved Co-Registration Forms: Publisher may not, in any way, alter or modify the co-registration forms without the prior written consent of the Company.
8. Termination
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, upon written notice to Publisher. The Company also reserves the right to terminate Publisher's access to the Site at any time without notice. Termination notice will be provided via e-mail and will be effective immediately, meaning, among other things, that Publisher must immediately cease all advertising activities. All moneys then due to Publisher, subject to the terms provide herein, will be paid during the next billing cycle. The representations, warranties and obligations contained in sections, 11, 12, 13, 14 and 16 shall remain in full force and effect after termination of this Agreement. In addition, all payment obligations accruing prior to the termination date shall survive until fully performed.
9. Representations and Warranties/Covenants
Mutual Representations: Each party represents and warrants that: (a) it has the right to enter into and fully perform the services contemplated herein, consistent with these T's and C's; (b) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with these T's and C's; and (c) at all times while any Program remains in effect, it shall comply with all applicable laws and regulations. Neither party makes any guarantees, representations nor warranties, express or implied, as to the level of consumer response that will result from the Programs.
Publisher Representations: Publisher represents and warrants the following: (a) Publisher's Media is currently in compliance with all applicable laws including without limitation the Can-Spam Act, 15 U.S.C. § 7704 et seq. (including all amendments), effective January 1, 2004 and any other federal or state legislation, regulation or other authority governing the distribution of email (collectively "Email Legislation"); (b) Publisher's Media neither contains nor promotes, nor links to any other website that contains or promotes libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content, products, services or activities; (c) Publisher's database consists of only permission based opted-in e-mail addresses; (d) Publisher owns or has the legal right to use and distribute all content, copyrighted material, products and services displayed on Publisher's Media; (e) If Publisher also maintains its own network of publishers ("Sub-Affiliates") or otherwise provides Events that have been obtained or derived through Media provided by third parties, such Sub-Affiliates or third parties will abide by all applicable state and federal laws, including but not limited to Email Legislation; Publisher further agrees that the indemnity provisions of section 14 below shall apply with equal force and effect to any act or omission by a Sub-Affiliate or third party retained, hired, or otherwise compensated by Publisher.
Publisher Covenants: Publisher covenants that it shall not: (a) send unsolicited commercial e-mail (spam) (i.e., it will send commercial emails in connection with any Programs to only those email addresses that have consented to receive such e-mails); (b) post any specific messages to newsgroups, chat rooms, bulletin boards or any other places regarding any Programs unless expressly approved in writing from the Company; (c) promote via website or link to websites containing any pornographic, racial, ethnic, political, software pirating or hacking, hate-mongering, or otherwise objectionable or illegal content, or any other content referenced in section 1 above; (d) use the Site or conduct marketing in any manner other than that which is specifically contemplated herein; (e) engage in any kind of deceitful, misleading or other unfair trade practices, or fraudulent or other unlawful practice when marketing any Programs; and/or (f) while an approved Publisher and for 180 days thereafter, participate in any advertising relationship with any Client unless a previously existing business relationship between Client and Publisher can be demonstrated to the reasonable satisfaction of the Company. In this connection, both parties agree and acknowledge that if Publisher violates its obligations hereunder, in addition to all other remedies available to Company, Publisher will forfeit any outstanding commissions owed and to and Company will it be entitled to liquidated damages in the amount of fifty percent (50%) of the gross revenues resulting from transactions between Publisher and Client. Publisher agrees and acknowledges that these liquidated damages are a fair and accurate estimate of Company's actual damages resulting from a breach of this provision and shall not be construed as penalty or punitive damages against Publisher. Publisher covenants that it shall: (a) Conduct the web advertising campaign in accordance with the highest industry standards; (b) Comply with (and is currently in compliance with) the Popular Marketing Code of Conduct for Email Publishers and the Popular Marketing Code of Conduct for Adware Publishers, which append this Agreement and are incorporated herein by reference; and (c) Provide within one business day after request therefor, the IP Information, together with such other related information that Company may request. Failure to provide such information may result in termination or suspension of the Publisher and/or the deactivation of all links in any Programs downloaded by Publisher. Publisher acknowledges that breaches of any of the foregoing representations and covenants may, in the sole discretion of the Company, result in the immediate suspension or termination of Company's relationship with Publisher and Publisher shall forfeit all rights to any compensation theretofore owed to it by Company. The foregoing rights shall be in addition to any other remedies available to Company. Publisher acknowledges and agrees that Company shall not be responsible for any Advertisers' violation of any applicable laws or regulations, including, without limitation, Email Legislation.
10. Privacy Policy
Publisher shall maintain and post in a conspicuous manner on all its websites involved in the Programs, a privacy policy that clearly and adequately describes how consumer information is collected, used, maintained and protected.
11. Confidentiality and Non-Disclosure
(a) Customer Information: All information submitted to Publisher by an end-user customer pursuant to a Program is proprietary information of the Company, its affiliates, and/or the Advertisers. Such customer information is confidential and may not be disclosed by Publisher. Publisher agrees not to reproduce, disseminate, sell, distribute or commercially exploit any such proprietary information in any manner. Publisher shall maintain such data in a secure manner, consistent with industry standards. All information provided to Publisher hereunder shall be kept strictly confidential.
(b) Mutual Confidentiality: During the term of this Agreement, and until such time as the Confidential Information (as defined below) is no longer protected as a trade secret under applicable law, neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. Confidential Information means information that: (1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use, and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Subject to the foregoing, Confidential Information shall include, without limitation, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, the advertisement before publication, and the terms of the IO. Confidential Information does not include information that: (i) has been independently developed by the receiving party without access to the other party's Confidential Information; (ii) has become publicly known through no breach of this section by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority. At the request of the disclosing party, the receiving party shall return all of the disclosing party's Confidential Information to the disclosing party. Neither Party shall make a public announcement regarding the existence, terms or content of this Agreement or any IO without the other Party's prior written approval.
12. Consent to Release of Information by Company
Publisher agrees that, in response to any warrant, subpoena, request for production of documents, or other legal process or request for information, documents, or testimony addressed to Company in any legal proceeding in any forum whatsoever, Company may release information pertaining to Publisher, any Sub-Affiliates, the Media and/or this Agreement.
13. Limitation of Liability; Disclaimer of Warranty
Except as provided in section 14 of these T's and C's, in no event shall Company or any Publisher be liable to the other for any lost profits or any special, incidental, consequential, exemplary, punitive or other indirect damages of any nature, for any reason, whether based on breach of contract, tort (including negligence), or otherwise and whether or not either has been advised of the possibility of such damages. The information, content and services on the site are provided on an "as is" basis. Publisher uses the site and runs the programs at its own risk. Other than as expressly set forth in these T's and C's, the Company disclaims all representations and warranties of any kind, express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose and warranty of non-infringement. The Company makes no representations and warranties whatsoever, and disclaims any responsibility and liability, regarding the content or nature of any Ad or Program made available on the Site, or any product or service advertised in connection therewith.
14. Indemnity
Publisher will defend, indemnify, and hold harmless the Company, the Advertisers, and their affiliates, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney's fees and expenses) (collectively "Claims") arising in whole or in part from any breach of any of these Terms and Conditions or any Program Terms, including but not limited to violations of applicable law, breach of IO, breach of Representations or Covenants or breach of Offer Descriptions. This includes claims that would constitute a breach or violation if true including alleged breaches by third Parties. The Company reserves the right, at its own or at Publisher's expense to be determined at Company's sole discretion, to assume the exclusive defense and control of any Claim. Alternatively, the Company may, at its sole discretion, tender the matter to Publisher's or Publisher's insurer's counsel, if any, for defense of any Claim. Publisher hereby acknowledges that the Advertisers are intended third party beneficiaries of the foregoing indemnification obligation.
15. Force Majeure
Neither party shall be deemed in default of these T's and C's to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.
16. General
Entire Agreement: These T's and C's, together with the Program Terms for each of the Programs. constitute the entire agreement between the parties and supersede all prior agreements or understandings between the parties. The parties agree and acknowledge that neither party has made any representation regarding the subject matter of these T's and C's other than as set forth in this Agreement.
Controlling Law: Controlling Law: Any pre-litigation dispute regarding these T's and C's, the terms of the Programs and the relationship contemplated thereby, shall be settled under the laws of the State of Illinois. Each party, to the extent permitted by applicable law, hereby irrevocably and unconditionally (i) submits to the general jurisdiction of the federal and state courts located in Austin, Texas, (ii) agrees that any action or proceeding concerning this agreement will be brought exclusively in such courts in one of the above two locations, and adjudicated pursuant to the substantive and procedural law of the forum state, without giving effect to principles of conflicts of law, and (iii) waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding in any such court was brought in an inconvenient court and agrees not to claim or plead the same.
Waiver: No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.
Construction: This Agreement is considered to have been drafted by both parties hereto such that the rule that ambiguities are construed against the drafter is not to be applied as against any party.
Assignment: Neither party may assign or transfer any of its rights, interests or obligations (whether directly, by operation of law or otherwise) hereunder without the prior written consent of the other party; provided, however, that the Company may assign or transfer its rights, interests and obligations hereunder to any affiliate, in connection with any reincorporation or in connection with any other transaction as a result of which the holders of voting capital stock of the Company hold less than a majority of the voting capital stock of assignee. Any purported assignment or transfer in violation of this section shall be null and void. Subject to the foregoing, the rights and obligations of the parties hereto shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.
Severability: In the event that any provision of this Agreement is found invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be deemed to apply to the maximum extent permitted by law, and the remainder of this Agreement shall remain valid and enforceable according to its terms.
Relationship: The parties agree that the Publisher is acting as an independent contractor in performing the Services and that the relationship between the Company and Publisher shall not constitute a partnership, joint venture or agency. Neither Company nor any of Company's employees or agents (collectively referred to herein as the "Employees") (i) is an employee, agent or legal representative of Publisher, or (ii) shall have any authority to represent Publisher or to enter into any contracts or assume any liabilities on behalf of Publisher. The Company retains all the rights and privileges of sole employer of its Employees, including, without limitation, the right to control, hire, discipline, compensate and terminate such Employees. Neither the Company nor any of its Employees shall have any right to receive any employee benefits as are in effect generally for Publisher employees.
Notice: Any notice, communication or statement relating to these T's and C's shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission or verified e-mail; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to (a) Publisher at the address provided in the Affiliate signup form online, and (b) Popular Marketing, LLC at 1801 E 51st St., Suite 365-295, Austin, TX 78723.
Popular Marketing Email Publisher Code of Conduct
Use of Commercial Email: Any Publisher of the Company shall be required to adhere to the following requirements if the Publisher intends to distribute promotional materials via commercial email (an "Email Campaign"):
Publisher's Database(s): Publisher's database shall consist of only permission based opted-in e-mail addresses, meaning that each consumer within the database has consented to receive commercial e-mails. In order to evidence such consent, Publisher shall maintain source URL, IP addresses and time/date stamps for all email addresses to whom Publisher is disseminating commercial email.
Compliance with Laws and Policies: Publisher shall (and shall cause its affiliates to) comply with all applicable laws, including Email Legislation. Without limiting the generality of the foregoing, Publisher shall (and shall cause its affiliates to):
1. Refrain from falsifying e-mail header information (including, without limitation, source, destination and routing information);
2. Refrain from seeking or obtaining unauthorized access to computers for the purposes of sending commercial e-mail;
3. Include within any e-mail sent: a valid street address, a clear and conspicuous identification that any e-mail message is an advertisement or solicitation, and a clear and conspicuous and functioning opt-out notice;
4. Comply with all legal obligations with respect to opting out or unsubscribing consumers from Publisher's e-mail mailing lists, as well as Advertiser's e-mail list, if applicable;
5. Abide by any and all publicly posted "acceptable use policy", "commercial e-mail policy" or similar requirements of internet service or e-mail service providers;
6. Not use any subject or from line that has not been provided by or approved in writing, by the Company;
7. Not initiate communications, including but not limited to telephone calls, to any consumer cellular phone number;
8. To the extent that Company provides an opt-out or unsubscribe list (the "Suppression List") to Publisher in connection with any Program, Publisher shall regularly scrub its database against and the Suppression List and shall not at any time send any commercial e-mails to any individuals on the Suppression List;
9. Not use the Suppression List in any manner other than for the purpose contemplated by clause 8., above, and Publisher shall not obtain any ownership interest or rights in and to any Suppression List; and
10. Not employ any third party trademark(s) or trade name(s) as search term(s) in any outside pay-per-click or pay-per-impression campaign or conduct such campaigns in any manner which could reasonably be alleged to infringe upon the intellectual property rights of any third party.
Suppression List Confidentiality: Publisher shall be obligated to maintain the confidentiality of any provided Suppression List and may not disseminate such list to any third parties. Upon the conclusion of any Email Campaign, Publisher shall destroy such Suppression List (and any copies thereof). If requested, Publisher shall provide a notarized affidavit confirming that the Suppression Lists have been destroyed and have not been shared with any third parties.
Litigation/Investigation: Publisher shall alert Company in the event that any litigation or investigation ensues concerning Publisher's or any Sub-Affiliates' e-mail practices (irrespective of whether such litigation relates to Publisher's relationship with Company).
Popular Marketing Adware Publisher Code of Conduct
Definitions:
"Adware" – any software application downloaded to a consumer's computer that includes and ad-serving mechanism.
"Bundle" – combining a software application with another software application for the purpose of distribution.
"EULA" – End user license agreement.
"Host Application" – A primary software application desired by a consumer that bundles a third-party software application.
"Malware" – any software application downloaded to a consumer's computer that is harmful to a consumer.
"Personally Identifiable Information" or "PII" – any information that can be used to identify an individual, including name, physical address, email address, telephone, number, social security number, tax identification number, passport number, driver's license number, birth certificate number, other government-issued identification number, credit card number, account number, access code or password.
"Spyware" – any software application downloaded to a user's computer that (a) collects information from a consumer without prior disclosure and consent from the consumer, and (b) exploits that information for profit.
Distribution of Software:
1. A Publisher may not download software on a consumer's computer without the consent of the consumer. The consumer shall be given the opportunity to review the EULA and privacy policy prior to the installation of the software.
2. If the Publisher distributes the software in a bundle with other applications, the Publisher must adhere to the following rules:
a. The software may not be bundled with Spyware or Malware applications.
b. Any bundled distribution of the software must disclose (i) a clear and concise description of the core functionality of the software (including a description of that functionality that is the source of revenue for the Publisher); (ii) the EULA and (iii) the Privacy Policy.
c. The consumer must consent to the download/installation of he software, and agree to the EULA, before installation.
d. All third-party bundling distributors should be contractually obligated to provide the appropriate disclosures and obtain the appropriate consents prior to distribution of the software.
e. The software may not be distributed using an Active X (or similar) install.
Information Collection and Use:
1. The software shall not collect any information from a consumer without (a) full disclosure of the information to be collected in a EULA or privacy policy that is made available to the consumer prior to installation; and (b) the consumer's consent to such EULA and privacy policy prior to installation.
2. The software should not match a consumer's online activity (including web pages viewed or accessed, consumer-selected content or keywords or search terms entered) with any PII about the consumer unless the consumer has affirmatively and knowingly opted-in to such activities.
Advertising:
1. The EULA must fully advise the consumer of how the advertising is going to be served (the physical manifestation) and the methodology by which advertising to be displayed is going to be selected (i.e., behavioral targeting, geographic targeting, etc.).
2. Consumers should be given a clear disclosure that the software includes an ad generating functionality in advance of downloading the software.
3. To the extent the software offers consumers the ability to opt-out of any advertising, those opt-out requests should be honored.
4. All advertisements must be clearly branded by the company or software that serves the advertisements.
Uninstall:
1. The software should be fully removable using the Add/Remove Programs feature in Windows.
2. The software should have its own uninstaller.
3. The uninstaller should remove all software files and setting, thereby entirely disabling the uninstalled software.
4. The software may not force the consumer to visit a website or provide feedback before uninstalling the software.
5. The software should not require Internet access to uninstall the software.
6. The software should not request PII from a consumer as a prerequisite to uninstalling the software.
7. The software should not reinstall itself, or any portion thereof, after is has been uninstalled (unless the reinstallation is intended to protect the consumer and the consumer is provided with notice of the reinstallation and information about how to properly uninstall the software).
Updates:
1. If an automatic update feature is used, the software should verify the integrity and publisher of any automatic updates using Verisign's secure certificate service (or similar service) and Microsoft's authenticode technology (or similar technology).
2. If an automatic update feature is used, updates should not change the core functionality of the software without providing additional disclosure to consumers and obtaining their consent to such new functionality.
Other Prohibited Activities:
1. If the software will change a consumer's browser start page or other search results page, that function should be disclosed in the EULA.
2. The software should not make use of a consumer's computer as a relay for activity such as spamming, messenger spam distribution, DDoS attacks, and accessing, using or controlling the computer unless the consumer has affirmatively and knowingly opted-in to such activities.
3. The software should not disconnect or alter a consumer's Internet connection.
4. The software should not, without the consent of the consumer, modify the consumer's list of bookmarks used to access web pages.
5. The software should not monitor keystrokes, emails, instant messages, open programs or documents unless the consumer has affirmatively and knowingly opted-in to such activities.
6. The software may not cause damage to, or remove, any component of the consumer's operating system or winsock files.
7. The software should not use intentionally deceptive means to remove or disable any security, anti-spyware or anti-virus software.
