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RATESPECIAL AFFILIATE NETWORK AND PUBLISHER AGREEMENT
This Affiliate Network and Publisher Agreement (“Agreement”) is made and entered into as of ______________________ (“Effective Date”) by and between RATESPECIAL INTERACTIVE, LLC, a California limited liability company (“RateSpecial”), and __________________________________________, a ________________________________________________ (“Affiliate Network and/or Publisher”). RateSpecial and Affiliate Network and/or Publisher are each a “Party” and collectively the “Parties.”
1. Purposes.
The purposes (“Purposes”) of this Agreement are to memorialize the terms and conditions under which Affiliate Network and/or Publisher, directly or through its affiliates, sub-publishers, or other agents, promotes and markets RateSpecial products and services (“RPS”) in accordance with this Agreement, and to protect Confidential Information and key relationships as set forth herein.
2. Definitions.
For purposes of this Agreement, the following definitions apply:
i) “Confidential Information” means any information or material disclosed by a Discloser to a Recipient, directly or indirectly, or acquired in the course of the business relationship, whether in writing, orally, by inspection of tangible objects or electronically, that is (a) non-public business, technical, operational, marketing, pricing, financial, program, partner, campaign, client, or process information of Discloser; (b) designated confidential or proprietary; (c) reasonably understood under the circumstances to be confidential; (d) by its nature reasonably desired by Discloser to be confidential; and/or (e) third-party confidential information disclosed to Discloser.
Notwithstanding anything to the contrary, any information regarding a customer or potential customer for the purchase of RPS provided to RateSpecial by Affiliate Network and/or Publisher (or its agents) is the Confidential Information of RateSpecial.
ii) “Discloser” means the Party disclosing specific Confidential Information.
iii) “Affiliate Network and/or Publisher Portal” means the password-protected website(s) currently located at http://publisher.ratespecial.com (or any successor location designated by RateSpecial in writing) used to manage promotions, offers, assets, restrictions and terms. Portal terms are incorporated by reference.
iv) “Offer Terms” means compensation terms, approved marketing methods, restrictions, and operational rules for specific RPS programs, located under the “Request Offer” section of the Portal (or successor location).
v) “Engagement” occurs when Affiliate Network and/or Publisher reviews Offer Terms, requests engagement, affirmatively accepts the Offer Terms, and RateSpecial approves engagement. Engagement ends upon termination under Section 12. “Engaged” refers only to an active Engagement.
vi) “RPS” means RateSpecial’s products and services and those of RateSpecial’s clients that Affiliate Network and/or Publisher is Engaged to promote.
vii) “Accepted Offer Terms” means the Offer Terms accepted and approved for a specific Engagement.
viii) “Affiliate Network and/or Publisher Terms” means the Portal “Affiliate Terms & Conditions,” as amended, together with Accepted Offer Terms, as amended.
ix) “Protected Relationships” means RateSpecial’s clients, advertisers, suppliers and vendors involved with marketing or provisioning RPS, excluding parties with whom Affiliate Network and/or Publisher had documented pre-existing relationships prior to Engagement and uses independently for non-competing promotion.
x) “Recipient” means the Party receiving Confidential Information.
xi) “Affiliate Network and/or Publisher Marketers” means all affiliates, sub-publishers, marketers, media buyers, partners or downstream traffic sources used by Affiliate Network and/or Publisher.
xii) “RSoftware” means any RateSpecial software, database, system architecture, network architecture, UI, methodologies, integrations, and processes.
xiii) “Term” means the period from the Effective Date until termination.
xiv) “Actionable Event” means an event defined in the applicable Accepted Offer Terms that results in a fee due to RateSpecial from an advertiser. Actionable Events exclude actions procured in violation of this Agreement, any Accepted Offer Terms, or applicable law, including fraud, manipulation, coercion, identity theft, or incentivization.
xv) “Fraud” means any event in which consumer activity conflicts with this Agreement, Portal Terms, Accepted Offer Terms, or applicable law. Fraudulent transactions do not qualify as Actionable Events.
xvi) “Compliant Marketing” means marketing compliant with (a) FTC guidelines including “.com Disclosures,” and (b) all terms of this Agreement.
xvii) “Sub ID” means a unique, persistent identifier passed in RateSpecial tracking URL parameters (or successor tracking methods designated by RateSpecial) identifying the specific traffic source, placement, publisher, sub-publisher, list, ad, or origin of any click and/or Actionable Event, in the format required by RateSpecial and communicated via the Portal or in writing.
xviii) “Tracked Traffic” means traffic and Actionable Events recorded by RateSpecial’s tracking systems and containing a valid Sub ID.
xix) “Untracked Traffic” means traffic and/or Actionable Events lacking a valid Sub ID, missing required tracking parameters, or not accurately captured by RateSpecial systems.
xx) “Invalid Traffic” means any click, lead, Actionable Event or activity that RateSpecial or its advertiser, in its sole but reasonable discretion, determines to be: (a) Fraud, (b) Incentivized Traffic, (c) bot/script/spider/click-farm/device-farm traffic, (d) misleading, coerced, manipulated or non-genuine consumer activity, (e) duplicative/recycled/self-generated activity, (f) activity violating this Agreement or Offer Terms, or (g) otherwise not reflecting genuine consumer intent.
xxi) “Incentivized Traffic” means any traffic or Actionable Event resulting from offering consumers anything of value to click, submit, enroll, purchase, or complete an Actionable Event (cash, points, rebates, credits, gift cards, raffle entries, discounts, free products, donations, etc.) unless expressly pre-approved in writing within Accepted Offer Terms.
xxii) “Chargeback/Reversal Event” means any Actionable Event later reversed, refunded, voided, charged-back, canceled, found invalid, or not paid by an advertiser.
xxiii) “Restricted countries” means we do not accept traffic, transactions or can work with companies that do not reside in: United States, Canada, United Kingdom, or Israel, any other country is not allowed unless previously agreed upon and documented.
3. Services of Affiliate Network and/or Publisher.
During the Term, Affiliate Network and/or Publisher shall use commercially reasonable efforts to promote only the RPS for which it is Engaged. Promotional activity may include email marketing and use of Affiliate Network and/or Publisher Marketers. Only creative materials and methods approved by RateSpecial may be used.
Affiliate Network and/or Publisher shall comply with all rules, requirements, restrictions, and instructions provided by RateSpecial in writing or through the Portal. Affiliate Network and/or Publisher is responsible for ensuring that all Affiliate Network and/or Publisher Marketers comply to the same extent as Affiliate Network and/or Publisher.
RateSpecial may modify Offer Terms and Portal Terms at any time by written notice or Portal posting. Modifications are binding unless Affiliate Network and/or Publisher terminates pursuant to Section 12.
4. Compensation; Tracking; Clawbacks.
4.1 Earning Commissions.
Affiliate Network and/or Publisher earns commissions (“Commissions”) only for Tracked Traffic Actionable Events in accordance with Accepted Offer Terms. Whether an Actionable Event qualifies for Commission is determined in the sole but reasonable discretion of RateSpecial and/or its advertiser based on RateSpecial and advertiser tracking systems and compliance determinations.
4.2 Mandatory Sub ID Requirement.
Affiliate Network and/or Publisher must pass a valid Sub ID for all traffic and Actionable Events. Untracked Traffic is not eligible for Commission and shall not constitute an Actionable Event.
4.3 System of Record.
RateSpecial’s tracking and reporting are the final system of record for Commissions and Actionable Events. Affiliate Network and/or Publisher tracking may be used for diagnostics only.
4.4 Payment Terms; Minimum Threshold; Reserves.
Unless otherwise stated in Accepted Offer Terms, RateSpecial pays net Commissions within thirty (30) days after month-end, subject to a $100 minimum payout threshold. RateSpecial may establish reasonable reserves for Chargeback/Reversal Events, Invalid Traffic, fraud investigations, or advertiser non-payment and may net such reserve from current or future payments.
4.5 Clawbacks; Setoff.
If RateSpecial or its advertiser later determines that Commissions were paid on Invalid Traffic, Incentivized Traffic not pre-approved, Fraud, Untracked Traffic, or any Chargeback/Reversal Event, RateSpecial may claw back and recover all such Commissions. Recovery may be by: (i) debit/clawback notice and repayment due within fifteen (15) days; and/or (ii) offset against current/future Commissions; and/or (iii) withholding payments until fully recovered.
4.6 Cooperation; Documentation.
Affiliate Network and/or Publisher shall provide documentation to validate traffic sources, Sub IDs, placements, consent records, and compliance within five (5) business days of request. Failure to provide is a material breach and may result in non-payment and/or clawbacks.
4.7 Disputes.
Any dispute concerning Commissions from the publisher must be submitted in writing within seven (7) days of payment to your account manager. Failure to timely dispute waives any claim.
5. Restrictions.
For any Engagement, subject to stricter Accepted Offer Terms, Affiliate Network and/or Publisher may promote RPS only via approved Links, contextual links, popups, and Compliant Marketing email. Use of unapproved creative or methods disqualifies resulting activity as Actionable Events.
Affiliate Network and/or Publisher represents, warrants, and shall ensure that it and its Marketers:
i) comply with all applicable laws, including CAN-SPAM, FTC rules, CLRA, and Cal. Bus. & Prof. Code §17529.5;
ii) are not operating from or registered in prohibited countries listed by RateSpecial, as updated;
iii) comply with Accepted Offer Terms;
iv) comply with third-party obligations (ISPs, ESPs, etc.);
v) do not harvest or phish emails;
vi) do not use false or misleading subject lines or headers;
vii) do not relay email from third-party servers without consent;
viii) do not mail to unsubscribed users;
ix) ensure opt-out procedures function and are honored;
x) do not send SMS without valid opt-in and provide opt-in proof on demand;
xi) do not infringe IP or rights of publicity/privacy;
xii) do not libel or slander;
xiii) do not misrepresent or commit unfair practices or fraud;
xiv) do not make false/deceptive competitive depictions;
xv)–xxiii) adult/obscene/virus/adware restrictions remain unchanged;
xxiv) do not promote using Craigslist/job postings, stolen consumer info, incentivized consumer paths, or other fraudulent methods;
xxv) make requested compliance changes within 48 hours;
xxvi) use only Compliant Marketing methods.
NEW RESTRICTIONS
xxvii) No Incentivized Traffic. Affiliate Network and/or Publisher shall not generate Incentivized Traffic unless expressly authorized in Accepted Offer Terms or pre-approved in writing by RateSpecial. Unauthorized Incentivized Traffic is Fraud and Invalid Traffic.
xxviii) No Bots / Auto-Traffic / Manipulation. Affiliate Network and/or Publisher shall not use bots, scripts, click farms, device farms, forced clicks, misleading redirects, pre-checked boxes, or any non-genuine method to generate clicks or Actionable Events.
xxix) Sub-Publisher Liability. Affiliate Network and/or Publisher is fully liable for the conduct and traffic of all Marketers and downstream sources. Violations by sub-sources are violations by Affiliate Network and/or Publisher.
xxx) Consequences of Invalid Traffic. If RateSpecial determines Invalid Traffic occurred, RateSpecial may void affected Actionable Events, deny or claw back Commissions (including up to 100% of the invoice period if material), suspend participation, and/or terminate immediately for cause.
6. Protection of Protected Relationships.
During the Term and for one (1) year thereafter, Affiliate Network and/or Publisher and its Marketers shall not directly or indirectly solicit, engage, or provide services to Protected Relationships except as engaged through RateSpecial. Violations may constitute tortious interference.
Affiliate Network and/or Publisher shall not divert business opportunities from RateSpecial or disparage RateSpecial at any time.
Affiliate Network and/or Publisher shall not reverse engineer, decompile, replicate, alter, or derive source code from RSoftware except as permitted by law, and shall disclose any lawful discovery to RateSpecial immediately.
7. Confidentiality.
Recipient will not disclose, distribute, copy, or use Confidential Information outside the Purposes without prior written consent. Recipient may disclose to Representatives who need to know and are bound by confidentiality obligations at least as protective as this Agreement. Recipient is responsible for breaches by Representatives.
Confidentiality obligations do not apply to information that is public, lawfully received from a non-confidential third party, independently developed without use of Confidential Information, or received outside the Agreement term.
8. Maintenance of Confidentiality.
Recipient shall use reasonable measures to protect Confidential Information and reproduce proprietary notices. Recipient must notify Discloser immediately of any unauthorized disclosure. If legally compelled to disclose, Recipient will notify Discloser and disclose only what is legally required.
9. Return of Materials.
Upon request, Recipient shall promptly return or destroy Confidential Information and certify destruction/return, with no retention of copies.
10. Limits on Liability; Disclaimers.
EXCEPT FOR INDEMNIFIED MATTERS, BREACH OF SECTION 6, OR MALICIOUS ACTS, NEITHER PARTY IS LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES.
RATESPECIAL DISCLAIMS ALL WARRANTIES REGARDING RPS, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. RateSpecial is not liable for interruptions, errors, viruses, or third-party use of information.
11. Indemnification.
(a) Affiliate Network and/or Publisher shall indemnify and defend RateSpecial and its affiliates, customers, employees, agents, shareholders, officers, and directors (“RateSpecial Indemnities”) against third-party claims arising from: IP infringement, libel/slander, legal violations, unfair practices, fraud, misrepresentation, misleading claims, personal injury/property damage, breach of this Agreement, product/service liability, breach of third-party agreements, or violation of Section 5 restrictions.
RateSpecial shall indemnify Affiliate Network and/or Publisher for third-party claims arising from RPS IP infringement, RateSpecial libel/slander, RateSpecial legal violations, fraud, breach of this Agreement, or breach of third-party agreements by RateSpecial.
(b) Indemnifying Party may control defense, but no settlement imposing obligations on indemnified Party without written consent.
12. Termination and Survival.
Either Party may terminate for convenience on five (5) days’ written notice. RateSpecial may terminate any Engagement at any time. Affiliate Network and/or Publisher must terminate a modified Engagement within one (1) business day if it rejects modifications.
RateSpecial may terminate immediately for cause upon reasonable suspicion of Fraud, Invalid Traffic, Incentivized Traffic not pre-approved, or material Sub ID violations.
All sections intended to survive (including Sections 4.5, 4.6, 5, 6–13) survive termination.
13. Remedies.
Each Party acknowledges irreparable harm for violations and agrees injunctive relief is appropriate. Prevailing Party in any dispute is entitled to attorneys’ fees and costs.
14. Miscellaneous.
Modifications must be in writing signed by both Parties. No waiver by delay or partial exercise. If any provision is unenforceable, remaining provisions remain valid. RateSpecial may assign to affiliates or in a sale/merger. California law governs. Exclusive venue is Los Angeles County, California. In conflicts between this Agreement and Portal Terms, the terms most protective of RateSpecial control. Electronic signatures and counterparts are permitted.
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