1. OFFERS
Affiliate shall only use the creative and substantive materials provided by IB in publishing the Offer (“Creative Materials”). IB shall pay Affiliate only for actions delivered using proper Creative Materials and within the flight dates, delivery requirements, or impression limitations set forth in the Offer. Affiliate shall not (a) modify, edit or otherwise make any changes to the terms of an Offer or to the Creative Materials; or (b) make any use whatsoever of any Offer other than for the purposes described in this Agreement. IB shall provide Affiliate with information and opt-out links required for Affiliate’s compliance with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”).
2. E-MAIL CAMPAIGNS
2.1 General. Affiliate may publish E-mail Campaigns only to recipients who have agreed in advance to opt-in and receive such transmissions from Affiliate at the e-mail address to which the e-mail is sent. Upon IB’s request, Affiliate shall provide to IB the name, date, time, and IP address of a recipient of an Offer in an E-mail Campaign. All data, including, but not limited to, campaign results, user data, statistical information, traffic analysis or other data produced or provided to IB by Affiliate shall be deemed to be the property of IB. Affiliate is solely responsible for all complaints related to E-mail Campaigns published by Affiliate and shall respond to all complaints within forty-eight (48) hours of notification from the recipient.
2.2 Suppression List. Affiliate shall update Affiliate’s suppression list against IB’s most recent suppression list (the “IB List”) at least twice per week during the E-mail Campaign. At IB’s request, Affiliate agrees to utilize IB’s designated third party provider for managing the IB List. Affiliate agrees to: (a) use the IB List solely for the suppression purposes set forth herein; (b) use the IB List to remove any and all e-mail addresses contained therein from receiving future commercial e-mail messages; (c) hold any IB List information in trust and confidence; (d) not use the IB List for any purpose related to or in connection with e-mail marketing or appending, or provide the IB List to any third party for such purpose; (e) not retain a copy of any of the IB List following termination of this Agreement; and (f) not disclose the IB List to any employee, consultant, subcontractor, third party individual, corporation or entity unless such party has given written consent to be bound by the obligations set forth in this Agreement.
2.3 Delivery of E-mail. Affiliate may only use, without alteration, subject lines provided by or otherwise approved by IB. Affiliate shall disclose in all E-mail Campaigns that the subject e-mails are commercial transmissions. Affiliate shall maintain the Affiliate Network in a manner that conforms with best practices of opt-in solicitation and privacy policies. Affiliate shall not do any of the following in connection with the delivery of any E-mail Campaign hereunder: (a) engage in any conduct to circumvent or attempt to circumvent spam filters or blacklists; (b) forge, falsify or use unrelated or deceptive content in any part of the header or body in any manner; (c) make use of false registrations, invalid domains and IP addresses for e-mail accounts; (d) use third party brand names, trademarks, copyrights or other intellectual property in any part of the header or body; or (e) relay or retransmit e-mail for any purpose from a computer or computer network that was accessed without authorization.
2.4 Opt-out. Affiliate agrees that: (a) each e-mail shall contain a link as provided by IB for the recipient to opt-out of receiving future e-mail from sender; (b) the recipient shall not be required to make any payment or submit any personal information in order to opt-out; and (c) in the event that IB receives a complaint from any recipient of any e-mail sent by Affiliate, upon IB’s request, Affiliate shall immediately provide IB with appropriate records to verify such recipient’s consent to receive e-mail from Affiliate.
3. ADVERTISING CAMPAIGNS
Affiliate may display Offers in the form of advertisement banners, badges, buttons and/or text-links on Affiliate Network websites. Affiliate represents and warrants that (a) the operation of the Affiliate Network websites where Offers are displayed shall not violate any federal, state, or local laws or regulations, or the privacy policies applicable to such Affiliate Network websites; (b) Affiliate shall not permit the display or dissemination of Offers on or around any website which contains offensive, illegal or obscene content; (c) the Advertising Campaign shall not be published on any Affiliate Network website that generates incentivized traffic or co-registration leads, uses path traffic, or otherwise runs incentivized or co-registration campaigns; (d) Affiliate shall not participate in “click fraud”, “click spamming”, “click bombing” or other similar activity that fraudulently increases the number of users who access an Offer; (e) Affiliate shall not use adware/spyware or any other targeting technologies in connection with the Advertising Campaign; and (f) all customer information, including the name, address, phone number and credit card information provided by customers from the Affiliate Network is current, accurate, and valid.
4. SEARCH CAMPAIGNS
An Affiliate who operates a Search Campaign shall not: (a) use IB trademarks, brand names, web addresses, or any variation thereof in the display URL (e.g. www.iqderma.com, rawminerals.com); (b) mask IB URL’s with a different URL; (c) bid on any term set forth in the Search Campaign supplemental list provided by IB (“Supplemental List”); (d) use language such as “Official Site” or “Official Store” in keyword descriptions; (e) use the registered trademark symbol unless authorized by IB; (f) engage in search engine spam, masking, doorway pages, cloaking or direct linking; (g) use terms that reflect negatively on IB brands (e.g., “Cheap”, “Bargains”, “Wholesale”, “Discount”, etc.); (h) utilize pop-up or pop-under technology to promote IB products without prior written authorization; (i) make any representations, warranties, claims, or other statements concerning IB or any of IB’s Offers, products, services or policies except as approved or provided by IB; or (j) use any third party brand names, trademarks, copyrights or other intellectual property in the Search Campaign.
5. TERMS OF PAYMENT
5.1 Commissions. IB and/or its affiliate shall pay Affiliate commissions in the amounts, and at the times set forth in the schedule of the applicable Offer (“Commissions”). IB’s count for purposes of calculating Commissions shall be final unless Affiliate objects to such count within five (5) business days of the end of the month in which Commissions were generated.
5.2 Affiliate Obligations. In the event IB reasonably determines that Affiliate has violated any of the terms, conditions or obligations herein, or has employed any device, scheme, method or means in any manner which results in the artificial inflation or fraudulent generation of Commissions, any such Commission attributable to the subject campaign shall become immediately void, regardless of whether such Commission was earned or not earned, and upon demand, Affiliate shall immediately return to IB any and all previously paid Commissions attributable to such campaign. Such evidence shall include, but is not limited to, abnormal or excessive customer chargeback rates.
6. LICENSE
IB hereby grants to Affiliate a limited, non-exclusive, non-transferable, revocable, worldwide license during the term of this Agreement to publish the Creative Materials in compliance with the terms hereof. All right, title and interest in the Creative Materials are exclusively owned by IB at all times.
7. TERM; TERMINATION
This Agreement shall commence on the Effective Date and shall continue until all E-mail Campaigns, Advertising Campaigns, or Search Campaigns have been completed by Affiliate or until this Agreement is otherwise terminated as set forth herein, whichever is earlier. Either party may terminate this Agreement at any time for any or no reason upon forty eight (48) hours’ notice to the other party. Immediately upon termination, Affiliate shall terminate any pending campaigns and cease all use of the Creative Materials. IB shall pay any Commissions generated after termination of this Agreement provided that such campaign was deployed prior to termination and in accordance with the terms of this Agreement.
8. REPRESENTATIONS & WARRANTIES
8.1 In addition to any other representations and warranties set forth herein, each party represents and warrants that it: (a) has the authority and right to enter into this Agreement; and (b) shall not be in violation of any obligation, contract or agreement by entering into this Agreement or by performing the obligations herein.
8.2 IB represents and warrants that: (a) the Creative Materials shall not infringe or violate any third party intellectual property or proprietary rights, and (b) the sale of the products contained in the Offers shall comply with all laws, rules and regulations.
8.3 Affiliate represents and warrants that (a) the publishing of E-Mail Campaigns and/or Advertising Campaigns, the operation of Search Campaigns, and Affiliate’s performance of services hereunder, shall at all times be in compliance with all applicable federal, state and local laws, rules and regulations, including, without limitation, CAN-SPAM, Section 17529.5 of the California Business and Professions Code, and laws governing unfair trade practices and deceptive or misleading advertising; (b) Affiliate shall be solely responsible for the source, content and use of the Affiliate Network at all times; (c) if Affiliate is a resident of New York State, Affiliate shall only place links to and/or display advertising for IB websites on the Affiliate Network and Affiliate shall not engage in any other activity to solicit sales or business, including but not limited to the use of flyers, e-mails or newsletters; and (d) Affiliate is not a resident of Rhode Island, Colorado or North Carolina. Affiliate further represents and warrants that it shall not: (a) violate the terms and conditions or privacy policies of any third party search engines, internet publishers, or this Agreement; (b) engage in any illegal, fraudulent, deceptive and/or misleading activity; or (c) infringe or violate any third party intellectual property or proprietary rights.
8.4 In the event Affiliate uses permitted third party sub-affiliates or publishers to perform services on Affiliate’s behalf in connection with a campaign (“Sub-Affiliate(s)”), Affiliate represents and warrants that (a) it shall contractually obligate each Sub-Affiliate to accept and agree to the terms of this Agreement, and to comply with all applicable federal, state and local laws, rules and regulations; (b) no Sub-Affiliate will re-broker or contract out any campaign, in whole or in part, at any time; and (c) it shall be solely obligated to and responsible for all Sub-Affiliates at all times.
8.5 In the event Affiliate has breached, or IB in good faith believes that Affiliate has breached, any of the obligations, representations or warranties set forth in this Agreement in publishing any E-mail Campaign and/or Advertising Campaign, or in operating any Search Campaign, IB shall not be obligated to pay Affiliate any Commissions applicable to such campaign, and IB may offset any losses, damages, consulting fees, or penalties incurred by IB against any Commissions or other amounts owed to Affiliate. Affiliate acknowledges and understands that IB may incur fees caused by Affiliate’s breach of its obligations, representations or warranties set forth herein, and IB may offset such fees against Commissions or amounts owed to Affiliate.
9. INDEMNIFICATION
Affiliate shall indemnify, defend, and hold harmless IB and its directors, officers, shareholders, agents, affiliates, subsidiaries, and employees from and against any claims, actions, liabilities, losses, judgments, damages, expenses, fines, fees and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them in connection with or arising from Affiliate’s and/or Sub-Affiliate’s (a) performance of services hereunder, including without limitation the publishing, delivery or operation of E-mail Campaigns, Advertising Campaigns or Search Campaigns; (b) breach or alleged breach of any duty, obligation, representation or warranty under this Agreement; (c) misuse of the IB List by Affiliate or its agents, affiliates, representatives or employees; (d) misuse or alteration of any Creative Material provided by IB; or (e) illegal, fraudulent and/or deceptive activity. Notwithstanding the foregoing, Affiliate shall not be responsible under this Section 9 for claims arising solely from (i) IB’s sale of the products contained in the Offers published and/or displayed by Affiliate, or (ii) the use and display of the Creative Materials by Affiliate, provided that such Creative Materials were not modified by Affiliate without IB’s written permission.
10. GENERAL
This Agreement constitutes the entire agreement between the parties and supersedes any and all prior agreements, whether written, oral, express, or implied, or understandings between the parties with respect to the subject matter contained herein, including without limitation any attachments, schedules, exhibits or insertion orders used by Affiliate. This Agreement and/or the Supplement List may be modified, amended, supplemented or replaced entirely from time to time by IB, and such modification shall become effective after notice thereof has been provided by IB to Affiliate. If any section, provision, term or clause shall be held or found to be unenforceable or invalid by a court decision, statute, rule or otherwise, the remaining provisions shall not be affected thereby and shall continue in full force and effect and such provision may be modified or severed from this Agreement to the extent necessary to make such provision enforceable and consistent with the remainder of this Agreement. This Agreement shall be governed by the laws of the State of California, without respect to choice of law rules. The parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in Los Angeles County, California. Affiliate may not assign or transfer its rights under this Agreement, whether by operation of law, change of control, or in any other manner, without the prior written consent of IB. In the event any litigation is brought by either party against the other in connection with this Agreement, the prevailing party shall be entitled to recover from the other party reasonable attorneys’ fees, costs and expenses incurred in such litigation. Any assignment or transfer in violation of this provision shall be null and void. The parties to the Agreement are independent contractors. Neither party is an agent, representative, partner, employee, or joint venturer of the other party. Neither party will have any right, power, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other party. 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. Sections 2.2, 5, 8, 9 and 10 and any provision where survival is expressly indicated shall survive the termination of this Agreement.