7REACH.COM AFFILIATE TERMS AND CONDITIONS
EFFECTIVE DATE: March 31, 2009
These Affiliate Terms and Conditions ("Agreement") govern the services provided by 7reach.com, a division of 7 Reach Media , LLC, a Floridalimited liability company with offices at 10211 Pines Blvd, Suite 215, Ft. Lauderdale, FL33026(�7Reach�). By using the services and becoming a marketing affiliate to 7reach.com, you (�Affiliate�) agree to be bound by this Agreement.
This Agreement may be amended from time to time in 7Reach Media �s �discretion and pursuant to applicable law. Amended versions of this Agreement will be effective upon posting at www.7reach.com.
As used in this Agreement, the following terms shall have the meanings set out below or as defined elsewhere in this Agreement:
Advertiser: means an entity that submits Offers and Creatives for placement in the 7Reach Media� network for the purpose of marketing, advertising and Lead generation.
Lead(s): means any action or activity specified by 7Reach Media� or its Advertisers and taken by a Consumer, for which 7Reach Media is to compensate Affiliate.
Creative: means a graphic file(s), language, text, copy or other creative work made available to Affiliate by 7Reach Media for use in marketing an Offer.
Invalid Leads: shall mean fraudulent, incomplete or duplicate Leads as further defined herein. Fraudulent Leads shall include Leads that result from Affiliate or its sub-publishers engaging in the entry of Consumer information without the consent of the actual Consumer such as adding or inflating leads or clicks by fraudulent traffic generation such as pre-population of forms or mechanisms not approved by 7Reach Media. Incomplete Leads include Leads in which the information sent to 7Reach Media does not contain all of the data or information required by 7Reach Media or its Advertisers. Duplicate Leads includes Leads that Affiliate sends to 7Reach Media that contains identical information Affiliate has previously sent to 7Reach Media.
Offer: An advertisement that contains a promotion or opportunity directed to Consumers that may be made available from time to time by 7Reach Media for publishing by Affiliate.
A. 7Reach Media hereby grants Affiliate the limited right to make 7Reach Offers and Creatives available for publication and to otherwise use such materials to generate Leads, in accordance with
(i) the terms and conditions set forth in this Agreement and
(ii) any additional terms of a particular Offer as specified by 7Reach Media or its Advertisers.
B .7Reach Media authorizes Affiliate to distribute Offers to Affiliate�s sub-publishers provided that Affiliate shall ensure and contractually require that all sub-publishers comply with the material terms of this Agreement and further provided that such sub-publisher has represented to Affiliate that:
(i) the content of its site(s) are not libelous, defamatory, infringing, pornographic, offensive to the general public, or violate any applicable law, rule or regulation;
(ii) all right, title and interest in the Offer and Creative is exclusively owned by 7Reach Media or its Advertisers and that sub-publisher has no right other than the limited right to display the Offer and Creative as sublicensed by Affiliate; and
(iii) such sub-publisher will not modify or alter the Offer or Creative in any manner except with the prior, written approval of 7Reach Media. Upon written request, Affiliate shall immediately disclose the name and contact information for any sub-publisher subject to investigation for unauthorized activity by 7Reach Media. 7Reach Media further reserves the right to �blacklist� certain sub-publishers from 7Reach Media Offers, and Affiliate shall ensure that any such sub-publishers are prohibited from marketing 7Reach Media Offers.
3. Term and Termination
Either party may terminate this Agreement on three business days� advance notice to the other party. In the event either party in good faith believes that the other party is in violation of applicable law or in breach of any terms of this Agreement, such party shall have right to terminate the Agreement imMedia tely upon written notice to the other party. 7Reach Media further reserves the right to terminate this Agreement and Affiliate�s participation in the services hereunder without prior notice to Affiliate. Upon any termination of the Agreement, any licenses granted hereunder shall imMedia tely terminate and Affiliate agrees to imMedia tely remove any unauthorized use of or reference to the Creative, Offer, 7Reach Media or its Advertisers from any website owned, operated or controlled by Affiliate or its sub-publishers.
All payments will be in United Statesdollars unless otherwise agreed to in writing by 7Reach Media. If Affiliate generates at least $1,000 revenue each week, Affiliate may apply to take advantage of 7Reach Media weekly wire payment, less applicable wire fee. Approval of such weekly wire application is at 7Reach Media�s sole discretion and may be revoked at any time. If Affiliate does not generate at least $1,000 per week in earnings or is not approved for weekly wire payment, then 7Reach Media will mail payment to Affiliate thirty (30) days after the end of the month. 7Reach Media does not guarantee payment to the Affiliate if the Advertiser does not pay 7Reach Media. Delinquent Advertiser payments received by 7Reach Media will be credited to the Affiliate in the month that they are received. All commissions are based upon the number of Leads reported by 7Reach Media and as recorded in 7reach.com. 7Reach Media may withhold payment to Affiliate in the event that 7Reach Media determines that Affiliate has engaged in unauthorized activity or the generation of Invalid Leads. 7Reach Media determines in its sole discretion unauthorized activity and Invalid Leads. Additionally, in the event that Affiliate has any other contractual relationship or account with 7Reach Media and such account carries a past due balance for amounts payable to 7Reach Media, 7Reach Media may offset and apply available 7reach.com earnings due hereunder against such past due amounts.
5. Affiliate Obligations.
A.Affiliate shall not modify or alter any Offer or Creative in any manner except with the prior, written approval of 7Reach Media. Affiliate will only run approved banners and text in its advertising of Offers and will not create its own banners or advertising text based on the Creative or Offer, unless expressly approved in writing from 7Reach Media. Affiliate will comply with any additional Advertiser restrictions applicable to an Offer, including but not limited to allowed or prohibited traffic type and banned search terms. Any unapproved use of Offers or Creative will result in the loss of payment of Leads.
B.Affiliate represents and warrants that it will at all times comply with the following requirements:
(a) Affiliate shall not place an Offer with inappropriate content, which includes, but is not limited to, content that
(i) promotes the use of alcohol, tobacco or illegal substances;
(ii) contains nudity, sex, pornography, adult-oriented content such as phone sex or escort services, expletives or inappropriate language;
(iii) promotes or contains gratuitous violence or other material that abuses or threatens physical harm;
(iv) promotes illegal or unethical activity, including but not limited to racism, hate, "spam," mail fraud, software pirating (e.g., Warez, Hotline), illegal gambling, illegal sweepstakes, pyramid schemes, illegal investment or money-making opportunities, and illegal advice such as how to build a bomb or counterfeit money;
(v) is libelous, defamatory, infringing, false, misleading or contrary to public policy;
(vi) is otherwise prohibited by Federal, state, or local law, rule or regulation applicable to any jurisdiction where the marketing occurs; and/or
(vii) may bring 7Reach Media and/or its associated Advertisers negative publicity.
(b) Any use of iframes that constitute a violation of the terms of Section 5A or Section 6, or any spoofing, redirecting or trafficking from adult-related websites in an effort to gain traffic, or websites that are point, lottery or rewards based and encourage users to click on Offers or use Offers to generate revenue for users to win points, get rewards, or other incentives are prohibited unless expressly approved in writing from 7Reach Media.
(c) Statements and/or Leads knowingly made that would result in civil or criminal liability of 7Reach Media or its Advertisers are expressly prohibited.
(d) Affiliate shall at no time, engage in, disseminate, promote or otherwise distribute any Offer through the use of contextual media , specifically downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable) if such use is prohibited by 7Reach Media or the Offer�s Advertiser. Affiliate agrees that any use of contextual Media �shall
(i) be only with the express and fully informed consent of the Consumer;
(ii) include a clear and conspicuous, functioning uninstall mechanism; and
(iii) be in compliance with all applicable laws, rules, and regulations relating to contextual Media �and this Agreement. 7Reach Media reserves the right to request additional information about Affiliate�s use of contextual media , and Affiliate agrees to promptly respond to any such request by 7Reach Media with complete and accurate information.
(e) Affiliate shall not violate any third party terms and conditions, which includes, but is not limited to unauthorized use of a third party web site for commercial gain or posting bulletins to non-owned accounts. Specifically with respect to third party social network sites, Affiliate agrees that it shall not
(i) engage in the transmission of junk mail, chain letters, or unsolicited mass mailing through spamming, spimming, emailing or any other form of mass communication;
(ii) use any automated mean, including but not limited to scripts, to add friends, send comments or messages, or post blogs;
(iii) impersonate any individual or entity or publishers any information that is false or misleading;
(iv) compromise user account integrity, including the gaming of logins and passwords, or attempting to collect, harvest or transfer the login or password details of third parties;
(v) impede the intended user experience or upload, post, transmit, share, store or otherwise make available any content which restricts or inhibits any third party from using or enjoying the site.
(f) Affiliate shall not use deceptive or misleading practices such as the use of spyware, devices, programs, robots, hidden pictures, redirects, spiders, computer scripts or other automated, artificial or fraudulent methods designed to appear as if a Consumer is generating a Lead.
(g) Affiliate shall not engage in any deceptive form of advertising which includes, but is not limited to, phishing (meaning sending an email to an individual falsely claiming to be an established legitimate enterprise in an attempt to scam or defraud the user into surrendering private or personal information, or any other similar activity).
(h) Affiliate shall neither market directly to nor collect personal information from anyone under age 13 without parental consent or otherwise violate The Children's Online Privacy Protection Act, as amended.
6.Mobile Marketing Obligations.
AAffiliate represents and warrants that with respect to any Offers involving wireless content subscription products or services published or otherwise marketed by Affiliate for 7Reach Media, Affiliate shall not:
(a) use the terms �free,� �complimentary,� �no charge,� �without charge,� or any other term that reasonably leads a consumer to believe that he or she may receive something of value, entirely or in part without a requirement of compensation in any form; or that tends to convey the impression to the consuming public that an article of merchandise or service is �free,� unless the initial representation to the Consumer also clearly and conspicuously states that the free item may be received by a Consumer pursuant to his or her authorization of billing for a paid subscription plan, the price of the plan, and its term, e.g., �Free ringtone with paid monthly subscription of $9.99/month,� or words of similar effect;
(b) advertise or promote any content that is available only through certain wireless carriers, unless the advertisement clearly and conspicuously discloses that the content is not available through all carriers and clearly and conspicuously discloses for each type of content the carriers that support each type of content being advertised;
(c) include a term or condition to an Offer�s acceptance whereby the consumer agrees to accept advertising or promotional messages delivered electronically to cell phones via text messaging, e-mail or otherwise, that are unrelated to the current Offer, unless expressly and specifically consented to by the Consumer;
(d) use prechecked boxes for acceptance of a term(s) or condition(s) of the Offer; and
(e) use any artist or content image without a valid license or that is not included in the most current version of the applicable content catalogue.
B.Affiliate further represents and warrants that with respect to any Offers involving wireless content subscription products or services published or otherwise marketed by Affiliate for 7Reach Media, Affiliate shall:
(a) respond to any audit request by 7Reach Media by (i) promptly providing any and all requested information and (ii) making all requested changes within the stated time from the sending of such request;
(b) use a minimum of 12 point font size (in conformity with web standard font size equivalents), a minimum color contrast value of 125 for all pricing disclosures, place all additional disclosures within the initial viewing area of the consumer (i.e. not requiring the consumer to scroll), and ensure that all disclosures are visible at all times (e.g. no �disappearing� terms and conditions;
(c) disclose the price and billing period of the recurring charge of the wireless content entirely within 125 pixels above, below, to the left, or to the right of the cell submit field and the P.I.N. code submit field. Price point must be disclosed in numerical format �0-9� and include dollar sign �$�. Price and term must not contain any other text.
(d) disclose the alternative wireless content available, if any, in a font no smaller than one half the font size of the primary offer description (but in no case smaller than 20 point font) and no further than 20 pixels from the primary offer description.
(e) disclose above the fold, that in the State of Florida a user must be 18 years old or older to participate in the Offer; and
(f) disclose on the cell submit page and the P.I.N. Code submit page, with a minimum of three lines of text above the fold, the following terms and conditions:
i.whether other charges may apply;
ii. if the offer is for a recurring subscription plan, that the consumer will be charged automatically with no further action on the part of the consumer, the frequency with which the charge will automatically be made to the account in the absence of cancellation of the plan, and that the consumer will continue to receive the charges until the consumer cancels the plan;
iii. how to cancel the plan;
iv. the mechanism for charging the consumer, e.g., �charges shall appear on your cell phone bill� or �payment will be deducted from your prepaid balance on your cell phone account;� and
v. include a hyperlink to the full terms and conditions of the Offer.
7. Email Obligations.
A. Affiliate represents and warrants that with respect to any use of email by Affiliate in connection with Offers, Affiliate shall at all times maintain strict compliance with the Controlling the Assault on Non-solicited Pornography and Marketing Act of 2003 (�CAN-SPAM�), and any amendments or modifications thereto. Specifically,
(a) Affiliate shall (and cause any party delivering emails on its behalf to):
1. not falsify email header information (including, without limitation, source, destination and routing information);
2. not seek or obtain unauthorized access to computers for the purposes of sending out commercial email, including without limitation use of an unauthorized open relay to facilitate distribution of emails;
3. not alter any �subject� or �from� line provided or approved in writing by 7Reach Media, or use any "subject" or "from" line that is false, misleading or not provided or approved in writing by 7Reach Media;
4. send emails only to those individuals who have opted-in to receive such emails; and promptly provide 7Reach Media with confirmation of the date and time of the opt-in upon 7Reach Media's reasonable request;
5. utilize a clear, conspicuous and functioning unsubscribe mechanism for opt-out requests from an email recipient, such unsubscribe or opt-out link must be active for at least 30 days from date the email was sent and all opt-out requests honored within five (5) days from date of receipt of such opt-out request;
6. not sell or transfer email addresses of those individuals whom it knows opted-out of receiving future email solicitations;
7. update all mailing lists using current suppression lists not more than five (5) calendar days prior to each mailing or as otherwise required by law;
8. not modify the date so as to pre- or post-populate the email message in the recipient�s inbox; and
9. notsend any unsolicited commercial email or other unsolicited online communication.
(b) Any email from Affiliate (and any party delivering emails on its behalf) shall:
1. Contain only Creative provided by 7Reach Media;
2. Have valid and traceable e-mail header information identifying the sendng party that received the opt-in from the recipient;
3. Within the body of the e-mail, include a valid physical street address or P.O. box associated with the sending party that received the opt-in;
iv. Include a clear and conspicuous identification that such email message is an advertisement or solicitation when the email is sent to an address in which there is no prior business relationship;
v. Include an approved �subject line� which accurately represents the product or service depicted within the email;
vi. Include an approved �from line� which accurately identifies the list name or sending party;
vii. use only email addresses with the name of the sending party that received the opt-in, and not use any non-sending party�s name in any mail-from or reply-to email addresses (e.g. �from� lines need to accurately identify the sender of the email); and
viii. reply-to address must be a functioning email address where sender can be contacted.
(c) The email addresses to be used in connection with any Offer shall be:
i. Collected and maintained in compliance with all federal and state laws, regulations and rules;
ii. Collected from websites and other online venues in compliance with the applicable websites� and or other online venues� privacy policies, and only where such privacy policies specifically allow for Affiliate to use such email addresses as contemplated hereunder; and
iii. Obtained and collected without employing email address harvesting, dictionary attacks and/or any other deceptive or illegal act and/or practice.
B. Affiliate agrees that prior to using email for any Offer it will download the most recent suppression file(s) for any particular Offer and Advertiser (if applicable) and, for that Offer, will suppress all email addresses within its database that are found on such suppression list. In addition, for any Offer that includes a domain suppression list, Affiliate agrees that prior to emailing the Offer it will download the most recent domain suppression list for the particular Offer and, for that Offer, will suppress all domains within its database found on such suppression list.
C. Affiliate agrees that it will download and remove 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 emailing for Offers. Affiliate further warrants that any new data that it acquires, regardless of its source, will be compared against the FCC's wireless domain names list and that domain names contained therein will be removed before sending any emails.
8. Mutual Representations and Warranties
A. Each party represents and warrants to the other party that
(i) such party, and any individual acting or purporting to act on behalf of such party, has the full corporate or organizational right, power, and authority to enter into the Agreement and to perform the acts required of it;
(ii) the execution of the Agreement by such party, and the performance by such party of its obligations and duties, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound, or any applicable federal, state or local law, rule or regulation;
(iii) each party shall render all services to the other party in a professional and commercially reasonable manner, in accordance with generally accepted industry standards; and
(iv) each party owns or has the authority and valid license to use all intellectual property and content on its website(s).
9. Limitation of Damages and Liability
A. Except as expressly set forth in this Agreement, NEITHER PARTY makes ANY warranties and expressly disclaims all warranties, express or implied, as to the subject matter of this Agreement, including implied warranties of merchantability and fitness for a particular purpose. IN NO EVENT SHALL 7REACH MEDIA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS OR REVENUES, OR HARM TO BUSINESS) EVEN IF IT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL 7REACH MEDIA'S LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY, BE GREATER THAN THE TOTAL AMOUNT PAID BY 7REACH MEDIA TO AFFILIATE HEREUNDER WITHIN THE THREE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
B. Each party agrees to indemnify, defend and hold harmless the other party and its respective subsidiaries, affiliated entities, members, agents, partners, officers, directors and employees from and against any loss, cost, claim, injury or damage (including reasonable attorneys' fees) resulting from third party claims or actions arising out of or in connection with a breach by the party of the terms and conditions of this Agreement, including the party�s representations or warranties.
Each party agrees to use the other party's Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party's Confidential 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 or any other agreement between the parties;
(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;
(c) any disclosure is made with the consent of the disclosing party. For the purposes of this Agreement �Confidential Information� includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, Advertisers, processes, techniques, know-how, or any information or data developed pursuant to the performance of the services. All data constituting a Lead belongs to 7Reach Media or its Advertiser; provided, however, that to the extent that any such Lead data collected by Affiliate from a Consumer not in connection with this Agreement (and not in violation of any Affiliate obligation under this Agreement) duplicates any such Lead data, Affiliate will own such duplicate information separately. Notwithstanding the foregoing, Affiliate agrees that 7Reach Media may divulge its personal and/or otherwise Confidential Information to an Advertiser, agency, legal or regulatory authority, person or entity relating to investigations, claims or actions alleging that Affiliate has violated this Agreement or any applicable law or regulation.
(a). Governing Law. The rights and obligations of the parties under or arising out of this Agreement shall be governed by and construed under the laws of the State of Floridawithout reference to its conflict of laws principles.
(b). Force Majeure. Neither party shall be deemed in default of this Agreement 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, terrorism, riot, act of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.
(c). Relationship. The relationship of Affiliate and 7Reach Media established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other.
(d). Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective:
(i) upon delivery when delivered in person;
(ii) upon transmission when delivered by verified facsimile or other confirmed electronic transmission;
(iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service (including but not limited to Federal Express) to the address of the respective party as indicated herein; or
(iv) in the event of material changes to this Agreement, notice shall be deemed effective upon posting at www.7reach.com.. Copies of all notices shall be sent to 7Reach Media, LLC, 10211 Pines Blvd, Suite 215, Ft. Lauderdale, FL33026, Attn: Legal Department.
(e). Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
( f). Waiver. The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement 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.
(g). Amendment. Changes, amendments or modifications of any provision of this Agreement shall be valid upon posting at www.7reach.com..
(h). 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 and supersedes any prior version of the 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.
(i) I. Dispute Resolution. In the event of disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, the parties shall first attempt to resolve the dispute(s) through good faith negotiation. Further, in the event of a dispute resulting in resort to litigation, each party consents to the exclusive jurisdiction of the federal and state courts in Ft. Lauderdale, FL, USAand any such litigation will be brought within such courts. The prevailing party in any action shall be entitled to recover its reasonable attorneys� fees and costs incurred.
(j). Survival. Any obligation of the parties relating to limitations on liability, confidentiality and indemnification shall survive termination or expiration of this Agreement.
(k) K. Interpretation. Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either party by reason of its drafting.