Advertiser Agreement

This Upleet Affiliate Network Advertiser Agreement ("Advertiser Agreement"), shall govern the relationship between Upleet Affiliate Network ("Upleet Affiliate Network" or "we") and the Advertiser ("Advertiser"), whereby Advertiser may obtain access to the Affiliate Network ("Upleet Affiliate Network") of registered third party affiliates ("Affiliates") and publishers ("Publishers"), and related technology and software ("Upleet Affiliate Network Ad Server"), to market customized advertisements and links provided by Advertiser and/or Upleet Affiliate Network ("Ads," as further defined below). The Upleet Affiliate Network, as well as the services provided by Upleet Affiliate Network in connection therewith ("Services"), are further described in the Insertion Order ("IO") attached hereto and incorporated herein by reference (the IO, together with this Advertiser Agreement, the "Agreement"). The terms of the IO shall supersede all contrary terms set forth in this Advertiser Agreement, unless expressly set forth to the contrary. In any instance where Advertiser is an agency entering into the Agreement on behalf of a client, any reference to "Advertiser" shall refer jointly to Advertiser as well as the applicable underlying client.

Upleet Affiliate Network/Services

  1. Advertiser agrees to accept and pay for, and Upleet Affiliate Network agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, Upleet Affiliate Network shall undertake marketing campaigns with Advertiser (each an "Ad Campaign") whereby Upleet Affiliate Network will distribute Advertiser's proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and similar online media (collectively, "Advertiser Ads") and/or, where applicable, Upleet Affiliate Network Ads (as defined below) through the Upleet Affiliate Network either:

    1. on Publisher websites via the Upleet Affiliate Network Ad Server for impressions-based Ad Campaigns ("CPM"); or

    2. by Affiliates via e-mail based marketing, search engine marketing, website based marketing and/or other online marketing means. In connection with such Ad Campaigns, Advertiser shall pay Upleet Affiliate Network commissions depending on the number of valid clicks, impressions, installs ("CPI"), applications and leads ("Leads"), and/or such other compensable activities generated on behalf of Advertiser as set forth in the subject Insertion Order (collectively, "Actions" under the Campaign Details, Traffic and Payments sections of the IO). The applicable Actions, the fees due to Upleet Affiliate Network for each Action and other applicable terms and conditions of the Ad Campaigns entered into hereunder shall be specified in each IO. Upleet Affiliate Network shall not be held liable or responsible for any actions or inactions of its Publishers or Affiliates.

  2. Ads

  3. Advertiser shall develop all aspects of the Advertiser Ads, other than where the parties agree that Upleet Affiliate Network shall assist in the development of Ads. The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Ads; other than those portions that Upleet Affiliate Network prepares on Advertiser's behalf (such portions hereinafter referred to as, the "Upleet Affiliate Network Ads" and together with the Advertiser Ads, the "Ads"). The parties understand and agree that Upleet Affiliate Network is the sole owner of any and all intellectual property rights associated with the Upleet Affiliate Network Ads, other than Advertiser's trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the Upleet Affiliate Network Ads. Under no circumstances shall Upleet Affiliate Network be authorized to use the Ads other than in connection with Advertiser's Ad Campaigns as set forth in the IO(s). Advertiser shall submit all Advertiser Ads to Upleet Affiliate Network for approval prior to the commencement of the subject Ad Campaign set forth in the applicable IO. Advertiser shall not alter, modify or otherwise change the Ads, or any other Ads-related feature, in any manner whatsoever, without obtaining Upleet Affiliate Network's prior express written consent, after the applicable Ad has been approved by Upleet Affiliate Network. Notwithstanding the foregoing, Upleet Affiliate Network shall have sole discretion with respect to the creation of the "subject" and "from" lines used in its e-mailing of any Ads. Upleet Affiliate Network reserves the right, in its sole discretion and without liability, to: change any of its Ad Guidelines at any time; and    to reject, omit, exclude or terminate any Ad for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad was previously acknowledged, accepted or published by Upleet Affiliate Network. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where Upleet Affiliate Network deems, in its sole discretion, that the Ads, including the applicable products and/or services promoted by such Ads ("Advertiser Products"), and any website linked to from such Ads, are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon Upleet Affiliate Network or any of its Publishers and/or Affiliates. Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and Upleet Affiliate Network shall, subject to the provisions set forth herein, comply with such request as soon as practical but in no event later than three (3) business days after its receipt thereof. Advertiser may cancel or suspend a CPM-based Ad Campaign, or an Ad associated with such a CPM-based Ad Campaign, effective within approximately twenty-four (24) business hours of Upleet Affiliate Network's receipt of Advertiser's cancellation notice, which Advertiser can deliver by logging into its Account and following the instructions on the applicable menu.

  4. Placement

  5. The positioning, placement, frequency and other editorial decisions related to Ads shall be made by Upleet Affiliate Network and/or its Affiliates and Publishers, as applicable, in their respective sole discretion. The applicable IO may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable IO or, in cases where "Run of Affiliate Network" or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distribution that Upleet Affiliate Network and/or its Affiliates and Publishers may determine, in their respective sole discretion.

  6. Ad Codes

  7. Unless otherwise stated in writing by Upleet Affiliate Network, each Ad used by Upleet Affiliate Network in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by Upleet Affiliate Network ("Ad Codes"). Advertiser will not knowingly modify, circumvent, impair, disable or otherwise interfere with any Ad Codes and/or other technology and/or methodology required or made available by Upleet Affiliate Network to be used in connection with any and all Ads. In connection with CPA-based Ad Campaigns, Advertiser agrees to pay Upleet Affiliate Network a default payment of Fifty Cents ($0.50) CPM on a net thirty (30) day basis in instances where conversion data cannot be supplied due to a failure of the Ad Codes and Advertiser's inability to provide such information, in the alternative. All determinations made by Upleet Affiliate Network in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, Upleet Affiliate Network's Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Affiliate or other third party.

 

  1. Payments

  2. The rates for Actions shall be set forth in the applicable IO(s). Upleet Affiliate Network will invoice Advertiser twice monthly. Unless otherwise set forth in the applicable IO, payment will be due to Upleet Affiliate Network within thirty (30) days of the date appearing on each invoice. If payment is not made in a timely manner, Upleet Affiliate Network may, at its option, immediately terminate the Agreement and/or any applicable IO(s). Interest will accrue on any past due amounts at the rate equal to the lesser of one and one half percent (1.5 per month or the maximum amount permitted by law. In addition, Advertiser shall be liable to Upleet Affiliate Network for all attorneys' fees and other costs of collection incurred in collecting such unpaid amounts. Advertiser agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by Upleet Affiliate Network.

  3. Term/Termination

  4. The Agreement shall continue for the term set forth in any underlying IO, provided that either party may terminate the Agreement and/or any IO at any time, upon five (5) business days' prior written notice. Upon termination or expiration of the Agreement for any reason:

    1. Advertiser will pay Upleet Affiliate Network all amounts then due and owing as of the termination date within thirty (30) days as set forth in Payment Section hereinabove;

    2. any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate; and

    3. any and all Confidential Information or proprietary information of either party that is in the other party's possession or control must be immediately returned or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.

  5. Warranty/Limitation of Liability

  6. THE Upleet Affiliate Network, SERVICES, Upleet Affiliate Network ADS, AD GUIDELINES, ACTIONS AND AD CODES PROVIDED BY Upleet Affiliate Network UNDER THE AGREEMENT AND/OR ANY APPLICABLE IO ARE SUPPLIED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT OF THE LAW, Upleet Affiliate Network MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Upleet Affiliate Network DOES NOT WARRANT OR GUARANTY ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. THE Upleet Affiliate Network, SERVICES, Upleet Affiliate Network ADS, AD GUIDELINES, ACTIONS AND/OR AD CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. Upleet Affiliate Network HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER OR ANY THIRD PARTY, FOR ANY OTHER PARTY'S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND Upleet Affiliate Network DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY'S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. Upleet Affiliate Network HAS NO LIABILITY FOR ADVERTISER'S USE OF, OR INABILITY TO USE, THE AD GUIDELINES OR APPLICABLE ACTIONS AND Upleet Affiliate Network DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, THAT ADVERTISER'S USE OF THE Upleet Affiliate Network, SERVICES, Upleet Affiliate Network ADS, AD GUIDELINES AND/OR ACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE. Upleet Affiliate Network MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES. IN NO EVENT SHALL Upleet Affiliate Network BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF Upleet Affiliate Network HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Upleet Affiliate Network WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY IO AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND Upleet Affiliate Network'S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, Upleet Affiliate Network'S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO Upleet Affiliate Network BY ADVERTISER DURING THE PRIOR SIX (6) MONTH PERIOD PURSUANT TO THE AGREEMENT. Upleet Affiliate Network SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF PUBLISHERS AND/OR AFFILIATES.

  7. Representation and Warranties

  8. Advertiser represents and warrants that:

    1. it has the power and authority to enter into and perform its obligations under the Agreement;

    2. at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, CAN-SPAM, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws (collectively, "Laws");

    3. it owns and/or has any and all rights to permit the use of the Advertiser Ads and, where approved, Upleet Affiliate Network Ads, by Upleet Affiliate Network, its Publishers and Affiliates, as contemplated by the Agreement;

    4. at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;

    5. it will not disable "back" browser functionality to prohibit end-users from returning to the website from which the Ad was selected, if applicable;

    6. Advertiser has a reasonable basis for any and all claims made within the Ads and possesses appropriate documentation to substantiate such claims;

    7. for CPA and Leads Campaigns, the Ads, and/or the landing page from each Ad where an Action is completed (for example, Advertiser's website page where an end-user is directed when such end-user clicks on the Ad, fills in a registration form or takes a similar action in connection with the Ad) contains a prominent link to Advertiser's privacy policy, which policy provides, at a minimum, adequate notice, disclosure and choices to end users regarding Advertiser's use, collection and disclosure of their personal information;

    8. Advertiser shall fulfill all commitments made in the Ads;

    9. no Ad is targeted to end-users under the age of eighteen (18);

    10. prior to loading any computer program onto an individual's computer including, without limitation, programs commonly referred to as adware and/or spyware, but excluding cookies (provided that cookies are disclosed in Advertiser's privacy policy and end-users are instructed on how to disable such cookies), Advertiser shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such computer program;

    11. the Ads, Advertiser Products, any Advertiser website linked to from the Ads do not:

    12. contain any misrepresentations or content that is defamatory;

    13. contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive;

    14. promote or support gambling or sweepstakes or contests; or

    15. contain any "worm," "virus" or other device that could impair or injure any person or entity;

    16. Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control ("OFAC"); and (m) Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, a Specially Designated National ("SDN"), as OFAC may so designate from time to time.

  9. Indemnification

  10. Advertiser shall irrevocably defend, indemnify and hold Upleet Affiliate Network, its Publishers, Affiliates and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys' fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving:

    1. Advertiser's breach of the Agreement, any and all applicable IO(s) or any representation or warranty contained therein;

    2. the Ads, Advertiser Products and/or Advertiser websites; and/or

    3. any claim that Upleet Affiliate Network is obligated to pay any taxes in connection with Advertiser's participation hereunder.

  11. Confidentiality

  12. For purposes of the Agreement, "Confidential Information" shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party ("Disclosing Party") to the other party ("Receiving Party"), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:

    1. a party's business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format;

    2. the material terms of the Agreement and/or any associated IO(s);

    3. with respect to Upleet Affiliate Network, the Unaccepted Action Data and suppression lists; and

    4. any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers:

    5. who need to know such information in order for the Receiving Party to perform its obligations hereunder; and

    6. who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof that:

    7. is generally available to or known to the public through no wrongful act of the receiving party;

    8. was independently developed by the Receiving Party without the use of Confidential Information; or

    9. was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.

  13. Non-Circumvention

  14. Advertiser recognizes that Upleet Affiliate Network has proprietary relationships with its Publishers and Affiliates. Advertiser agrees not to circumvent Upleet Affiliate Network's relationship with such Publishers and Affiliates, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by Upleet Affiliate Network hereunder from any Publisher and/or Affiliate that is known, or should reasonably be known, by Advertiser to have such a relationship with Upleet Affiliate Network, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers and Affiliates already provided such services to Advertiser prior to the date of the first IO executed by the parties, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that Upleet Affiliate Network shall be entitled to:

    1. injunctive relief (including temporary and preliminary relief) without the requirement to post a bond;.

    2. liquidated damages from Advertiser in the amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Publisher and/or Affiliate, as applicable, for the prior twelve (12) month period; and

    3. any and all other remedies available to Upleet Affiliate Network at law or in equity.

  15. Force Majeure

  16. Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party's delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or Affiliate Network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.

 


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