iLead Interactive LLC
Affiliate Terms and Conditions
Effective January 29, 2010
AGREEMENT This iLead Interactive LLC Affiliate Agreement (the “Agreement”) is entered into by and between iLead Interactive LLC, LLC, a Nevada Limited Liability Company with offices at 437 E 1000 S, Pleasant Grove, Utah, 84062 (“iLead Interactive LLC” or the “Company”) and you (“Affiliate”), the user of the iLead Interactive LLC Website. Please be advised that this Agreement is subject to change at any time, in Company’s sole discretion. Changes may include, without limitation, changes in the payout structure, payment procedures and other Affiliate Program-related policies. The continued participation by Affiliate constitutes agreement by Affiliate to any and all changes to this Agreement in effect at that time. Affiliate’s continued use of the iLead Interactive LLC Website after such modification and notification thereof constitutes Affiliate’s consent to such changes. Affiliate agrees that Affiliate is relying solely on this Agreement in making Affiliate’s decision to enroll and that Affiliate is not relying on any representation, guarantee or statement other than as stated in this Agreement. This Agreement shall be deemed incorporated by reference into any insertion order (the "Insertion Order") submitted by iLead Interactive LLC or its agency set forth in the Insertion Order. All Insertion Orders are subject to acceptance in writing by iLead Interactive LLC.
TERMS OF AGREEMENT/TERMINATION: The term of this Agreement will begin upon Company’s written acceptance of this Affiliate Agreement and will end when terminated by either party as set forth herein. Affiliate may terminate this Agreement at any time upon three (3) days prior written notice to Company. Company may reject any Affiliate Websites and/or terminate Affiliate’s participation in the Affiliate Program and/or this Agreement immediately at any time and for any reason, in Company’s sole discretion including, without limitation: (i) where Company believes that Affiliate is in any way in breach of this Agreement; (ii) where Company believes that any website owned, operated or controlled by Affiliate (“Affiliate Websites”) or any e-mail database owned, operated or controlled by Affiliate (“Affiliate Database”) is unsuitable for the Affiliate Program for any reason including, without limitation, where Company, in its sole discretion, deems that the Affiliate Websites contain material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise controversial or objectionable; (iii) Company, in its sole discretion, deems that Affiliate is engaging in deceptive marketing; (iv) where Company believes that Affiliate is not, in any fashion, conducting permission-based e-mail marketing that fully complies with: (a) all applicable international, federal and state laws, rules and regulations including, but not limited to, the CAN-SPAM Act of 2003, as amended from time to time (“CAN-SPAM”); or (b) the applicable published rules or guidelines of the Internet access service (“IAS”) network, domain or e-mail servers to which it is transmitting commercial e-mail. Upon termination of this Agreement for any reason: (1) Affiliate shall immediately cease to use any materials made available to Affiliate in connection with Affiliate’s participation in the Affiliate Program; (2) any and all licenses and rights granted to Affiliate in connection with this Agreement shall immediately cease and terminate; and (3) any and all Confidential Information, (as defined hereinbelow) Content or proprietary information of iLead Interactive LLC (including, as applicable, any confidential or proprietary information of any Advertiser made available to Affiliate in connection with the Affiliate Program) that is in Affiliate’s possession or control must be immediately returned or destroyed. If requested, Affiliate will certify in a writing signed by Affiliate or an authorized officer of Affiliate that all such confidential and/or proprietary information has been returned or destroyed.
TERMS OF PAYMENT: iLead Interactive LLC shall pay commissions (“Commissions”) according to the payment terms of the applicable Insertion Order for the given Advertising Campaign based on the Compensable Transactions recorded by the Transaction Tracking Codes. If payment terms are not specified in the Insertion Order, Company shall pay Affiliate Commissions approximately fifteen (15) days after the last day of a given calendar month, for Commissions earned in that month. All payments to Publisher by iLead Interactive LLC are contingent upon iLead Interactive LLC receiving payment from the Advertisers. In the event iLead Interactive LLC fails to receive payment from an Advertiser, iLead Interactive LLC shall have no payment obligation to Publisher with respect to that Advertiser and Publisher will have the right to contact the non-paying Advertiser directly. Publisher accepts all risks associated with non-payment by an Advertiser and acknowledges that iLead Interactive LLC is not a guarantor of any Advertiser payment obligation. If an Advertiser does not pay on time, iLead Interactive LLC will notify Publisher and may, in its sole discretion, offer its reasonable assistance in matters related to collections.
CONTENT: Company will make available to Affiliate certain marketing pieces created by Advertiser and/or iLead Interactive LLC. In particular, iLead Interactive LLC will post various creative materials, text links and/or banner advertisements (collectively, the "Content") on the iLead Interactive LLC Website for download, use and publication by Affiliates. Unless otherwise stated in writing by iLead Interactive LLC, each piece of Content made available to Affiliate in connection with any Advertising Campaign must include, in unaltered form, the iLead Interactive LLC special transaction tracking codes as embedded in all such Content (the “Transaction Tracking Codes”). Affiliate will not knowingly, modify, circumvent, impair, disable or otherwise interfere with any Transaction Tracking Codes and/or other technology and/or methodology required or made available by iLead Interactive LLC to be used in connection with any and all Content. iLead Interactive LLC may change or revise the Content that is made available hereunder at any time, in its sole discretion, and Affiliate agrees to use only the most recent version of the Content that is posted on the iLead Interactive LLC Website. Affiliate may not alter, modify or otherwise change the Content in any manner, whatsoever. Company may terminate Affiliate’s right to use the Content for any reason at any time, in its sole discretion. Affiliate may only use Content that is supplied by iLead Interactive LLC and that is posted on the iLead Interactive LLC Website. Use, or the attempted use, of any other marketing materials for the specified Advertising Campaign will result in the immediate termination of this Agreement, without notice. Notwithstanding the foregoing, Affiliate must comply, immediately, with any and all requests by iLead Interactive LLC to modify, alter or otherwise change the positioning, placement, frequency and/or other editorial decisions related to Content. Affiliate must immediately remove Content upon receiving notice from iLead Interactive LLC or upon the termination or expiration of any applicable Advertising Campaign. Affiliate may NOT use brand names and/or trademarks of another party (e.g., Milton Bradley or Apple) in the "subject" or "from" lines or body of any commercial e-mail transmission. Affiliate may not, nor knowingly permit any of its partners to use third-party trademarks in any other way to direct traffic to any Affiliate Websites or Advertiser website including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name, or any derivative of any such trademark, service mark or brand name, of any of the Advertisers, iLead Interactive LLC and/or any of their respective affiliates or clients. Affiliate must place or use the Content only with the intention of delivering valid Compensable Transactions. Affiliate may not, nor knowingly permit any person to, activate the Content or inflate the amount of Compensable Transactions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, Iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing a Compensable Transaction. Affiliate agrees and acknowledges that it shall not, nor shall it permit any Sub-Licensees: (i) to use incentivize offers, create the appearance of incentivezing offers, establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Compensable Transactions, or otherwise attempt to induce Internet users to click on any of the Content through use of any other incentives, without obtaining the prior written approval of iLead Interactive LLC; (ii) place any statement in close proximity to the Content requesting that e-mail recipients or Internet users “click” on the Content (e.g., “Please click here”); (iii) place misleading statements in close proximity to the Content; (iv) take control of a user's computer by delivering advertisements that a user of a computer cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; (v) install or execute on another's computer one or more additional software program(s) without consent of the user (In addition, Affiliate must clearly provide instructions to disable the software, such that the software is easily identifiable and the removal can be performed without undue effort or knowledge by the user of the computer); (vii) distribute spyware or other similar harmful software; and/or (viii) redirect traffic to a website other than the website listed by the particular Advertiser. The Affiliate Websites must be fully functional at all levels; no "under construction" sites or sections shall be permitted. Spawning process pop-ups are prohibited. Affiliate is solely responsible for all consumer complaints relating to e-mail campaigns conducted by Affiliate. Affiliate represents and warrants that it will respond to all consumer complaints within forty-eight (48) hours of notification. In addition to all other available remedies, iLead Interactive LLC may withhold and suspend Commission payment until any and all outstanding consumer complaints are resolved. All costs associated with such required actions shall be deducted from the Affiliate Commission. All payments to Affiliate by iLead Interactive LLC are contingent upon iLead Interactive LLC receiving payment from the Advertisers. In the event iLead Interactive LLC fails to receive payment from an Advertiser, iLead Interactive LLC shall have no payment obligation to Affiliate with respect to that Advertiser and Affiliate will have the right to contact the non-paying Advertiser directly. Affiliate accepts all risks associated with non-payment by an Advertiser and acknowledges that iLead Interactive LLC is not a guarantor of any Advertiser payment obligation. If an Advertiser does not pay on time, iLead Interactive LLC will notify Affiliate and may, in its sole discretion, offer its reasonable assistance in matters related to collections.
AUDIT: Affiliate agrees that at all times during the term of this Agreement it shall maintain accurate books and records relating to its use of the Content and Suppression Lists (as that term is defined below). Affiliate agrees that iLead Interactive LLC, or any designee of iLead Interactive LLC that is legally bound to obligations of confidentiality and non-disclosure, shall have the right during the term of this Agreement to reasonably examine, inspect, audit and review all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to Affiliate at least seven (7) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be at iLead Interactive LLC’s sole cost and expense and shall be strictly limited to those books and records that specifically relate to Affiliate’s use of the Content and Suppression Lists. Notwithstanding the foregoing, if iLead Interactive LLC uncovers any material misconduct associated with Affiliate’s use of the Content and/or Suppression Lists, then the audit shall be at the sole cost and expense of Affiliate.
LIMITATIONS OF LIABILITY: iLead Interactive LLC HAS NO LIABILITY, WHATSOEVER, TO AFFILIATE OR ANY THIRD PARTY, FOR AFFILIATE’S USE OF, OR INABILITY TO USE, THE iLead Interactive LLC WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND/OR CONTENT. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, iLead Interactive LLC IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR THERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN iLead Interactive LLC AND AFFILIATE. iLead Interactive LLC MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE AFFILIATE ACTIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY AFFILIATE FROM iLead Interactive LLC THROUGH THE iLead Interactive LLC WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES OR CONTENT SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. ALL RESPONSIBILITY AND/OR LIABILITY FOR ANY AND ALL DAMAGES CAUSED BY, AND/OR THROUGH, THE iLead Interactive LLC WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CONTENT IS EXPRESSLY DISCLAIMED. AFFILIATE UNDERSTANDS AND AGREES THAT PARTICIPATION AND ACCESS AND/OR USE OF THE iLead Interactive LLC WEBSITE AND CONTENT IS DONE SOLELY AT AFFILIATE’S OWN DISCRETION AND AT AFFILIATE’S OWN RISK. AFFILIATE IS ALSO SOLELY RESPONSIBLE FOR ANY USE, OR ALLEGED USE, OF THE iLead Interactive LLC WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CONTENT THAT MAY INFRINGE UPON A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. UNDER NO CIRCUMSTANCES SHALL iLead Interactive LLC BE LIABLE TO AFFILIATE OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH AFFILIATE’S MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM AFFILIATE’S PARTICIPATION. COMPANY’S AGGREGATE LIABILITY TO AFFILIATE AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE EQUAL TO THE MONEY PAID BY iLead Interactive LLC TO AFFILIATE DURING THE PRECEDING SIX (6) MONTHS.
PUBLICITY/CONFIDENTIALITY: Affiliate agrees that iLead Interactive LLC may use Affiliate’s name, company name and/or likeness, the Affiliate Websites addresses and any associated information in Company’s marketing materials and press releases, without compensating Affiliate. Affiliate shall not create, publish, distribute or permit any written material that makes reference to iLead Interactive LLC without first submitting such material to Company and receiving Company’s prior written consent, which Company may withhold in its sole discretion. For purposes of this Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of this 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: (a) a party’s business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, processes, methodologies, trade secrets, customer and vendor lists, personally identifiable customer 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; (b) the material terms of this Agreement and/or any associated Advertisers and/or Advertising Campaigns; and (c) 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 this Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers: (i) who need to know such information in order for the Receiving Party to perform its obligations hereunder; and (ii) 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: (i) is generally available to or known to the public through no wrongful act of the receiving party; (ii) was independently developed by the Receiving Party without the use of Confidential Information; or (iii) 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 information and services provided to Affiliate for the specified Advertising Campaign are proprietary in nature and by signing this agreement, Affiliate acknowledges that Affiliate is not a competitor of iLead Interactive LLC and agrees not to share this information with any competitors of iLead Interactive LLC. 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. This Section shall survive any termination of this Agreement for a period of five (5) years.
CAN-SPAM COMPLIANCE: Affiliate represents and warrants that, at all times, it will comply with all applicable state and federal laws, rules and Federal Trade Commission implementing regulations (including, but not limited to, CAN-SPAM and any international laws, rules and regulations), as well as any published rules or guidelines of the IAS networks, domains and/or e-mail service providers, with respect to its e-mail marketing. Affiliate acknowledges that any failure to comply with this Section may, in Company’s sole discretion, result in the immediate termination of this Agreement and the forfeiture of any and all rights to any Commissions otherwise owed to Affiliate by iLead Interactive LLC. When performing e-mail marketing of any kind and on behalf of any Advertiser, Affiliate represents and warrants that Affiliate shall transmit commercial e-mail only to those recipients that have given Affiliate Affirmative Consent to receive e-mail advertising from Affiliate and have not revoked such consent as of the date that the commercial e-mail was transmitted to such recipient. Affiliate must: (i) refrain from falsifying e-mail header and transmission information (including, without limitation, source, destination and routing information); (ii) not use any “subject” or “from” line that is materially false or misleading; (iii) refrain from seeking or obtaining unauthorized access to computers for the purpose of sending any and all commercial e-mail; (iv) include within all commercial e-mail sent: (a) a valid street address for both Affiliate and the Advertiser (if any); (b) a clear and conspicuous opt-out notice and functional opt-out mechanism that must remain active for at least thirty (30) days from the date that the subject e-mail was transmitted; (c) clear and conspicuous language in the body of the email identifying the message as an advertisement or solicitation by use of either header or footer information which states that the message is an advertisement or solicitation; and (d) process unsubscribe requests within three (3) days of receipt of same; (v) comply with all legal obligations and best practices with respect to unsubscribing consumers from the Affiliate’s e-mail mailing lists; (vi) at least once a week, scrub the Affiliate Database against all suppression lists; and (vii) immediately notify iLead Interactive LLC in the event that any complaint, investigation and/or litigation ensues concerning Affiliate’s or any Sub-Affiliate’s e-mail practices (whether or not such complaint, investigation and/or litigation relates to Affiliate’s relationship with iLead Interactive LLC). In the event any state or federal law, rule or regulation governing e-mail communications is enacted or amended after the effective date of this Agreement setting forth standards more restrictive than those set forth herein, the more restrictive standards contained in such enacted or amended law, rule or regulation shall apply to all Affiliates with or without notice from iLead Interactive LLC of such change in the law.
PROPRIETARY RIGHTS: The organization, graphics, design, compilation, magnetic translation, digital conversion, software and other matters related to the Affiliate Program, Content, Data, Suppression Lists made available by iLead Interactive LLC or any Advertiser, Transaction Tracking Codes and the iLead Interactive LLC Website are protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights. The usage, copying, redistribution and/or publication by Affiliate of any part of the Affiliate Program, Content, Data, Suppression Lists made available by iLead Interactive LLC or any Advertiser, Transaction Tracking Codes and the iLead Interactive LLC Website, other than as contemplated hereunder, are strictly prohibited.
ELECTRONIC SIGNATURES: If the above terms and conditions are not agreed upon in writing, but rather online upon enrollment, Affiliate acknowledges and agrees that by clicking on the button labeled “Submit Application” or such similar links as may be designated by iLead Interactive LLC to accept this Agreement, Affiliate is submitting a legally binding electronic signature and is entering into a legally binding contract. Affiliate acknowledges that Affiliate’s electronic submissions constitute Affiliate’s agreement and intent to be bound by this Agreement.