CLICKSPEED PUBLISHER AGREEMENT
This Clickspeed Publisher Agreement ("Agreement") is entered into by and between Clickspeed Marketing, Inc., a Nevada corporation with a principal place of business at 6709 W. 119th Street, Suite 396, Overland Park, KS 66209 ("Clickspeed"), and each entity that applies to participate in the Clickspeed Publisher Program, effective as of the date Publisher submits an application for the Clickspeed Publisher Program (hosted at LSclicks.com).
These terms and conditions, govern your participation as a Publisher and member of the Clickspeed Publisher Program (the “Publisher Program”), an online, performance-based marketing network sponsored by Clickspeed. As used herein, the term “Publisher” shall refer to a web site, e-mail or search engine marketer or other distributor of Offers and the terms “you” and “your(s)” shall refer to the corporate or individual entity owning, either directly or indirectly, the referring URL of each Publisher.
From time to time, Clickspeed may amend, supplement or replace entirely these Terms & Conditions by
(i) Posting updated Terms & Conditions or supplements, amendments or exhibits thereto (collectively the “Updated Conditions”) on the Clickspeed web site and
(ii) If, in the reasonable judgment of Clickspeed, the Updated Conditions are material, notifying each affected party via e-mail at the address specified on the Account Information page of the Clickspeed web site. Thereafter, the Updated Conditions shall be deemed effective five (5) business days after the later of such posting or e-mail transmission (the “Effective Date”) AND you will be conclusively deemed to have consented to, and agreed to be bound by, the Updated Conditions UNLESS your termination notice is received by us prior to the Effective Date; provided, that no Updated Condition will affect your right to receive any Commissions earned by you prior to the Effective Date.
If this AGREEMENT is being executed in connection with an insertion order (IO), the applicable insertion order is incorporated herein by reference, and the terms of the AGREEMENT are hereby incorporated into the applicable insertion order by reference. In the event of any inconsistency between the applicable insertion order and the AGREEMENT, the applicable insertion order shall control. NO TERM OR CONDITION PLACED BY ADVERTISER IN AN APPLICABLE INSERTION ORDER SHALL BE BINDING UPON Clickspeed, UNLESS EXPRESSLY AGREED TO IN WRITING BY Clickspeed.
I. Application. You may apply to join the Clickspeed Publisher Program by completing the form insertions appearing on the account application page of the Clickspeed web site and then clicking the “Submit” button. By clicking on the “Submit” button and/or promoting Clickspeed’s offers you acknowledge that you have read, accepted and agreed to be bound by these Terms & Conditions, as they may be modified from time to time by any Updated Conditions.
Pre-Condition of Membership. As a condition to your membership, you represent and warrant, and covenant on an ongoing basis, that your web site:
(i) Does not violate any law or regulation governing (a) false or deceptive advertising, (b) sweepstakes or (c) gambling;
(ii) Does not contain any trade disparagement or libelous, defamatory or infringing content; and
(iii) Does not contain any machine-readable code that could be unintentionally downloaded onto a recipient’s computer (such as a worm, virus, Trojan Horse or other self-executing computer program);
(iv) Is written in English and contains only English language content;
(v) Cannot offer incentives to users to click-on ads or complete offers; incentives include but are not limited to awarding them cash, points, prizes, contest entries;
(vi) Does not place our advertisements into your framed environment.
II. Content Ineligible Websites. If Clickspeed, in the exercise of reasonable discretion, determines your web site to be ineligible, all commissions, whether earned or unearned, shall be forfeited. The content of the website and/or newsletter shall not contain the following:
(i) Explicit, vulgar or obscene language;
(ii) Posting or referencing of sexually explicit images or other offensive content;
(iii) Infringe on any personal, intellectual property or copyrights:
(iv) Gratuitous violence or profanity;
(v) Material that defames, abuses, or threatens physical harm to others or to you;
(vi) Promotion of illegal substances or activities;
(vii) Software Pirating (e.g., Warez, Hotline);
(viii) Hacking, Phreaking or any spoofing, redirecting, or trafficking websites in an effort to gain traffic.
III. Membership Approval. All websites, newsletters, companies, or individuals need official approval from Clickspeed before they can become a member of the Publisher Program. Only websites and newsletters that have been reviewed and approved are permitted to use the programs. Clickspeed reserves the right to withhold or refuse approval on any website, newsletter, company, or individual for any reason, whatsoever.
IV. User Name and Password. Upon submission of your application and upon approval of your membership, you will be issued a user name and a password. Your use of these identifiers is limited only to you, and may not, under any circumstances, be distributed to any other person, including without limitation any Sub-Publisher.
V. Offers. You may use your user name and password to access Clickspeed Offers. The Clickspeed Offer Library contains Offers along with associated commission schedules and restrictions or conditions specific to each Offer (including, but not limited to, restrictions on incentives that may be associated with any Offer) that may be downloaded by you only for the purposes described herein.
5.1 Integrity of Offers. You may not add, subtract or in any way alter or edit any Offer (including, for this purpose, any machine-readable code which may be a part of any Offer), nor may you make any use whatsoever of any Offer other than for the purposes of, and as contemplated by, this Agreement. Offers may only be published in accordance with the terms and restrictions associated therewith.
5.2 Offer Fraud. You may not, under any circumstances, fraudulently add leads or clicks or inflate leads, clicks or sales by fraudulent traffic generation (including without limitation pre-population of forms or through mechanisms not approved in writing by Clickspeed), as determined by Clickspeed in its sole discretion. By way of example and not limitation, Clickspeed flags accounts for fraud that: (a) have click-through rates that are much higher than industry averages and where solid justification is not evident; (b) have ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks reported; (c) have shown fraudulent leads as determined by our clients; and/or (d) use fake redirects, automated software, and/or fraud to generate clicks or leads from our programs. If Clickspeed flags your account for fraud, Clickspeed will hold any payments due to you in 'Pending Status' for a period of thirty (30) calendar days, during which time you may provide evidence that you are not engaging in fraud. In the event Clickspeed determines that you are engaging in fraud and you fail to prove otherwise to Clickspeed’s satisfaction during such period, you will forfeit your entire commission for all Advertisements and your account and this Agreement will be terminated. Clickspeed reserves sole judgment in determining fraud and you agree that Clickspeed’s determination in this regard shall be final, binding and non-appealable.
VI. Limited License. Clickspeed hereby grants to you a limited, non-exclusive, non-transferable, revocable, worldwide license right to
(i) Download one or more Offers for posting on your web site and
(ii) Use, in connection with publishing such Offers, all copyrighted, trade or service marked or other protected intellectual property contained therein for the purposes described in this Agreement.
VII. Rules Governing Sub-Publishing. A member of the Publisher Program may solicit non-member Publishers to distribute Offers (collectively “Sub-Publishers”), provided that each Sub-Publisher agrees in writing to be bound by and subject to the restrictions and conditions set forth in this agreement.
7.2 Relationship among Publisher, Sub-Publisher(s) and Clickspeed. Each Sub-Publisher shall, for purposes of these Terms & Conditions, be deemed to be an agent of the Publisher Program member, with the Publisher Program member responsible in all respects for the activities of its Sub-Publishers. Any breach by your Sub-Publishers of these Terms & Conditions shall be deemed a breach by you. It is understood and agreed between you and Clickspeed that
(i) Clickspeed is not and shall not be party to any agreement between you and any Sub-Publisher,
(ii) You are not authorized to make any commitments on behalf of Clickspeed to any Sub-Publisher, including but not limited to any payment or other commitment by Clickspeed, and
(iii) No license other than the license set forth in this agreement may be extended by you to any Sub-Publisher.
7.3 No Third-Party Beneficiary Status. Nothing in Clickspeed’s permission to engage Sub-Publishers may be construed as extending to any Sub-Publisher the status of third-party beneficiary of any agreement between Clickspeed and you, including without limitation these Terms & Conditions.
VIII. Special Rules Governing Click-Through Campaigns. From time to time, a Client may request a campaign wherein payment is based not on customer conversion but on the number of recipients clicking on an Offer (a “click-through rate” or “CTR”). For any CTR deal, you will not employ any device that has the effect of inflating the click-through rate, including but not limited to automatic page-spawning, automatic redirects, “robots” or incentives offered to any recipient.
Clickspeed reserves the right to audit any web site traffic at any time and for any reason, or no reason at all. Should Clickspeed determine, in the exercise of its reasonable business judgment, that you have employed any device to artificially inflate the click-through rate,
(i) Your membership in the Publisher Program will be immediately terminated,
(ii) Any unpaid Commissions attributable to the subject CTR deal will be immediately voided, whether or not earned and
(iii) Upon demand, you will return to Clickspeed immediately any Commissions attributable to the subject CTR deal that had been previously paid.
IX. Publisher Responsibilities Governing Email Advertisement. Publisher agrees and warrants that it will not send, transmit and/or distribute any Clickspeed Offer (as defined in the Agreement) via e-mail unless such e-mail is not deemed “SPAM e-mail” (as defined below). An e-mail shall be deemed to be “SPAM e-mail” if such e-mail satisfies any one or more of the following criteria:
(i) The e-mail fails to identify the Publisher as the sender of the e-mail;
(ii) The e-mail contains a falsified sender domain name or non-responsive IP address;
(iii) The e-mail contains or includes a false or misleading subject line that attempts to disguise or conceal the content of the e-mail;
(iv) The e-mail fails to notify the recipient that he or she may unsubscribe or “opt out” from further e-mail solicitations from the Distribution Partner/Publisher;
(v) The e-mail fails to contain or include a valid return e-mail address or other internet based mechanism whereby recipients can unsubscribe or “opt out” from receiving further e-mail solicitations from the Publisher. Such return e-mail address or other internet based mechanism shall remain valid for no less than thirty (30) days from the date of transmission of the e-mail and the Distribution Partner/Publisher shall implement all requests to unsubscribe or “opt out” within ten (10) days of receipt of such request;
(vi) The e-mail fails to contain or include a valid physical postal address for the Publisher (which shall not include a P.O. Box address);
(vii) The e-mail is sent to an individual who was not provided with an accurate, clear and conspicuous description of the marketing purposes for which his or her e-mail address may be used at the time such e-mail address was provided by the individual;
The e-mail fails to provide clear and conspicuous notice that the message is an advertisement or solicitation;
(ix) The e-mail is sent for the purpose (but not necessarily the sole purpose) of harvesting the e-mail addresses in order to send future unsolicited e-mails; or
(x) The e-mail contains nudity, profanity, sexually oriented materials, hate speech, or other obscene content.
9.1 CAN-SPAM ACT Publisher further agrees and warrants that it will comply with all local, state and federal laws (including, but not limited to, the “CAN-SPAM” Act, effective January 1, 2004) regarding the sending of e-mails.
9.2 Opt-in Information Clickspeed will notify Publisher of any complaint regarding their e-mail practices or any alleged violation of the above warranties. Within forty-eight (48) hours of notification, Publisher must respond to Clickspeed and provide source information as to any questionable e-mails including, but not limited to, the time, date, IP address and content of the questionable e-mails along with the applicable “opt-in” information (e.g. time, date and IP address of opt-in source) of the recipient. If the Publisher fails to provide source information satisfactory to Clickspeed to demonstrate that the Publisher did not send SPAM e-mail or otherwise breach the above warranties, then Clickspeed has the right to immediately suspend payment to and further performance of any services by the Publisher.
X. Compensation. Clickspeed will pay you commissions (“Commissions”) in the amounts, and at the times, set forth in the commission schedule associated with each Offer and posted in Clickspeed’s reporting system. Clickspeed shall pay Publishers for commissions “earned” within fifteen (15) days after the end of each calendar month. Regardless of the timing of any payment made by Clickspeed to Publisher hereunder, Clickspeed shall be authorized to recoup any commission paid to Publisher that specifically relates to
(i) Leads/sales returned or rejected by client within ninety days from the date of generation;
(ii) Overpayments to Publishers, duplicate entries or other clear bona-fide errors. It is your responsibility to advise us immediately of any change in any of the information furnished by you as part of your application.
10.1. When Commissions are Earned. Commissions will not be “earned” until Clickspeed receives payment from the Client. Notwithstanding the foregoing, Clickspeed may elect to advance to you commissions prior to those commissions having been earned. You acknowledge and agree that your receipt of commission payments prior to those payments having been earned is conditional and subject to Clickspeed’s right to demand return of unearned commissions for any reason or for no reason at all.
10.2. Clickspeed’s Records to Control. Clickspeed maintains records of all traffic passing over the Clickspeed Program. Clickspeed’s records shall govern all interpretations made under this Agreement, including but not limited to the calculation of Commissions.
10.3. Minimum Commission Requirement For Regular Payment. Clickspeed shall not be obligated to make any payment of Commissions to you unless the aggregate amount of earned Commissions equal or exceed one hundred dollars ($100.00). Any earned but unpaid Commissions shall carry over to the next regularly scheduled payment period.
10.4. Suspension of Payment. If Clickspeed determines, in the exercise of its reasonable business judgment, that you are in breach of any material term of this Agreement, Clickspeed will
(i) Use commercially reasonable best efforts to notify you promptly of such breach and
(ii) Suspend any payment of any earned but unpaid Commissions until such breach has been cured.
XI. Confidentiality. All information relating to your participation in the Publisher Program, including but not limited to your unique user name and password, the identities of any Clickspeed Client, Clickspeed’s commission rates and pricing strategies, any calculation of amounts paid to you hereunder and the number of sales, leads or customers acquired by you for any Client, shall be considered proprietary information of Clickspeed, shall be held in strictest confidence by you and will not, without the prior written consent of Clickspeed, be disclosed by you to any other person, in any manner whatsoever, in whole or in part, and will not be used by you directly or indirectly for any purpose other than confirming the correctness of the commission calculation.
11.1. Ownership and Proprietary Nature of Data and Reports. All data, including but not limited to campaign results, user data, statistical information, traffic analysis or other data produced or provided by you, shall be deemed to be the property of Clickspeed.
XII. Covenants of Clickspeed. Clickspeed covenants and agrees to use its commercially reasonable best efforts:
(i) To provide, monitor and maintain the necessary technology applications required to link you to the Client Web sites;
(ii) To provide you with Offers in appropriate format.
XIII. Termination. This Agreement may be terminated by either of us at any time and for any reason or for no reason at all. Termination may be effected by delivery to the non-terminating party of appropriate notice, delivered via e-mail, fax or other means of public communication, and will be effective on the earlier of
(i) Receipt by the non-terminating party or
(ii) One (1) business day following the sending of the termination notice.
13.1. Responsibilities Following Termination. Immediately upon termination, you will
(i) Remove any and all Offers from any web site owned or operated by you and/or
(ii) Suspend any e-mail campaign that has not already been sent. As a precondition to receiving any earned but unpaid compensation you will certify to us, via e-mail, that this condition has been met within two (2) business days following termination.
XIV. Liability Policies.
14.1. Warranties. NO WARRANTIES ARE MADE BY EITHER OF US AS TO THE SERVICES OR TECHNOLOGY DESCRIBED IN THIS AGREEMENT AND EACH PARTY HERETO EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT AS IT RELATES TO THE TECHNOLOGY AND SERVICES PROVIDED PURSUANT TO THIS AGREEMENT.
14.2. Limitation on Damages. Neither of us shall be liable to the other for any special, consequential (even if a party has been informed of the possibility of such damages), incidental, punitive or indirect damages, losses (including lost or imputed profits), costs or expenses of any kind arising out of these Terms & Conditions or your participation in or termination from the Publisher Program, however caused, and whether based in contract, tort (including negligence), products liability or any other theory of liability regardless of whether such party has been advised of the possibility of such damages, losses, costs or expenses. Except for liabilities resulting from willful misconduct or recklessness, any liability of one of us to the other shall not exceed the total amount of the Commissions actually paid by Clickspeed to you with respect to your participation in the Publisher Program.
14.3. Indemnification. Each Party agrees to indemnify, defend and hold harmless the other Party, its employees, agents, and affiliates from and against any and all third party claims, demands, liabilities, costs or expenses, including attorney’s fees and costs, arising from or related to its obligations or representations under this Agreement. Publisher shall further indemnify, defend and hold ClickSpeed harmless from any claim that Publisher has not paid or underpaid any commissions or other sums due to any third party provider of Leads or any third party claim based upon Publisher’s products or services. The indemnified Party shall have the option to tender its defense to the indemnifying Party, while retaining the right to select its own legal counsel and to fully participate in its defense including without limitation controlling strategy and settlement decisions, but excluding the obligation to satisfy the costs of defense
XV. Dispute Resolution. In the event of disputes between us arising from or concerning in any manner the subject matter of these Terms & Conditions or your participation in or termination from the Publisher Program, we shall first attempt to resolve the dispute(s) through good faith negotiation. In the event that the dispute(s) cannot be resolved through good faith negotiation, the parties shall refer the dispute(s) to a mutually acceptable mediator for hearing in Overland Park, KS. Thereafter, if mediation cannot resolve the dispute(s), we shall submit the dispute(s) to the American Arbitration Association for resolution through binding arbitration by a single arbitrator pursuant to the American Arbitration Association's rules applicable to commercial disputes. The arbitration shall be held in Overland Park, KS, and the decision reached by such arbitrator shall be entered as a judgment in any court of competent jurisdiction. The prevailing party in any dispute between the parties arising from this Agreement or other matter shall be entitled to recover its reasonable attorneys' fees and costs incurred in connection with such dispute.
XVI. Governing Law and Jurisdiction. This Agreement will be governed by, and construed and enforced in accordance with, the laws of the State of Kansas without regard to its conflicts of law principles. Publisher irrevocably submits to the jurisdiction of the state courts of Kansas and to the jurisdiction of the United States District Court for the District of Kansas, for the purpose of any suit, action or other proceeding relating to the subject matter of this Agreement.
XVII. Miscellaneous.
17.1. Transferability. Your right to participate in the Publisher Program is non-transferable, except in the event of a sale of all or substantially all of your assets or stock as part of an acquisition or merger, including any reorganization or reincorporation. Clickspeed may transfer its rights to the Publisher Program without restriction.
17.2. Public Statements. Any press release or other public announcement by you regarding your participation in the Clickspeed Publisher Program shall require the prior approval of Clickspeed.
17.3. Force Majeure. Neither of us shall be deemed in default of these Terms & Conditions to the extent that performance of our obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, 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.
17.4. Relationship. The relationship between us established by these Terms & Conditions is that of non-exclusive independent contractors. Neither of us may represent to any third party, or otherwise be deemed to be, an employee, agent, partner or joint venture with respect to the other.
17.5. Notices. Unless otherwise specified herein, any notice, communication or statement relating to these Terms & Conditions shall be in writing and deemed effective:
(i) Upon delivery when delivered in person;
(ii) Upon transmission when delivered by verified facsimile transmission; or
(iii) When delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally recognized overnight courier service to the address of the respective party as indicated above.
17.6. Waiver. The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under these Terms & Conditions shall not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect.
17.7. Corporate Authority; Non-Breach. Each party represents and warrants to the other that:
(i) Such party has all necessary right, power and authority to agree to these Terms & Conditions and to perform its obligations hereunder; and
(ii) Nothing contained in these Terms & Conditions or required by such party's performance hereunder will place such party in breach of any other contract or agreement to which it is bound or violate any applicable law, including obscenity, privacy and defamation laws and
(iii) The performance of either party’s obligations under these Terms & Conditions shall not infringe or violate upon the Intellectual Property or privacy rights of any third party.
17.8. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision (or part thereof) of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms. The individual submitting this application certifies that she/he is authorized to act on behalf of Publisher and that she/he, on behalf of Publisher, has read and accepted the terms, conditions and disclosures associated with this Agreement.
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