The following Terms and Conditions are entered into as of the “Effective Date” set forth below by and between Perform[cb].com, LLC., owner and operator of Perform[cb] network (“Perform[cb]”), Guarantor, identified below, and you (“Advertiser,” “you,” “yours”), and shall govern the placement and delivery of advertising as set forth in the Insertion Order ("IO") to which these Terms and Conditions are attached (the IO, together with these Terms and Conditions, the "Agreement").
1. Introduction. Perform[cb] provides you, as Marketer, with the ability to post Ads (as defined below) for distribution through the Perform[cb] Network, as defined herein, subject to your compliance with the terms and conditions of the Agreement. By enrolling as a marketer, Marketer, its agents, representatives, employees and any other person acting on its behalf with respect to the use of the Perform[cb] Network, shall be bound by, and agrees to be bound by, the Agreement.
2. Perform[cb] Network. The Perform[cb] Network is defined as various third party partners ("Partners") that may be authorized by Perform[cb] to post Ads on or through websites, newsletters and/or applications that they control. Partners are paid a commission based on revenue generated from Marketer‘s campaign(s). The Perform[cb] Network can be accessed at www.Perform[cb].com.
3. Perform[cb] Services/Ads. As of the Effective Date, Marketer agrees to accept and pay for, and Perform[cb] agrees to provide, the services identified and set forth in the Agreement ("Services"). Perform[cb]‘s exclusive obligation is to distribute advertising campaigns (“Campaigns”) consisting of advertisements provided by Marketer within the Perform[cb] Network, in accordance with the Agreement. Marketer will, at its sole cost and expense, create and deliver all advertisements to Perform[cb] prior to publication ("Marketer Provided Ad" and/or "Ad(s)"). The parties understand and agree that Marketer is the sole owner of any and all intellectual property rights associated with any Marketer Provided Ads. Perform[cb] does not guarantee that the Ads will be available or displayed, will not be required to publish any Ad and may refuse or stop publication of any Ad at any time for any reason in its sole discretion. Perform[cb]‘s failure to reject or cancel any Ad shall not be construed as an acceptance of the Ad, nor shall it negate other provisions of the Agreement, specifically with respect to liability. Perform[cb]‘s policies, specifications and/or recommendations with respect to Ads should not be construed as legal advice, or as sufficient guidelines to ensure that such Ads comply with applicable law. Perform[cb] does not represent or warrant that the Ads, or such policies, specifications and/or recommendations associated with the Ads, are legally compliant or appropriate. Perform[cb] assumes no obligation and hereby disclaims any liability for Marketer‘s use of the Ads or Marketer‘s reliance on any such policies, specifications and/or recommendations. Marketer should consult with its legal counsel and/or other professional advisors before utilizing any Ads or acting on any policies, specifications and/or recommendations as provided by Perform[cb]. Marketer is solely responsible for the content of the Ads. Perform[cb] shall not be responsible for Marketer‘s website(s) including, but not limited to, content, maintenance of Marketer‘s website(s), order entry, customer service, payment processing, shipping, cancellations or returns. Marketer warrants and represents that: (a) it has all right, title and interest in and to the Ads; (b) the use of the Ads by Perform[cb] and its Partners as contemplated and authorized hereunder will not infringe on any copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; and (c) all Ads are in compliance with all laws, regulations and ordinances ("Laws") of the United States and any other jurisdiction in which Marketer conducts business.
a. Distribution of Ads. Positioning of the Ads within the Perform[cb] Network is at the sole discretion of Perform[cb] and its Affiliates. Perform[cb] does not guarantee that your Ads will be available through any specific part of the Perform[cb] Network, when your Ads will run and/or the placement and positioning of your Ads.
b. Exclusivity. If the "Exclusive" option has been selected on an IO, then Perform[cb] shall be the exclusive online distribution source for that offer, and Marketer shall not duplicate the same or similar offer for any other affiliate, partner, or network without Perform[cb]‘s prior written consent. In the event of a breach of this provision by Marketer, Perform[cb] shall be entitled to, in addition to all other rights and remedies that Perform[cb] may have at law or in equity, an injunction (without the requirement to post a bond) enjoining and restraining Marketer and/or all other persons involved therewith from continuing such breach for each applicable "Exclusive" offer. Marketer acknowledges that any breach by Marketer of this provision will result in irreparable injury to Perform[cb] for which money damages may not adequately compensate Perform[cb].
c. Cost Per Click Campaigns. Subject to Perform[cb]’s approval, and acceptance by Perform[cb] of Marketer’s participation in on its network, from time to time Marketer may choose to have its Campaigns distributed through Perform[cb]’s cost per click affiliate platform. Ads in these Campaigns will be generally displayed across the Network and will be available to Partners based on bids submitted for each Campaign by the Marketer on a cost per click basis. For example purposes only, and without limitation to other examples that may apply, if Marketer bids on the category "home security," when an end user clicks on a home security link on a participating partner website or clicks on home security creative in an email, the user may be redirected to Marketer's website. Ads will be as specified by Marketer, including the click-through URL provided by Marketer. Marketer may control the length of each Campaign through the ability to stop and re-start Campaigns. All requested URL links, category choices, and bids are subject to Perform[cb]’s approval. Perform[cb] reserves the right to reject, cancel or remove any Ad, URL link, category selection(s), terms, descriptions and bids at any time for any reason whatsoever and Perform[cb], its employees, consultants and other agents shall have no liability for such decisions. Perform[cb] does not guarantee that the Ad will be available or displayed and Marketer understands that Perform[cb] reserves the right to not place Ad.
i. Representations and Warranties of Marketer. Marketer represents and warrants that it shall access the Perform[cb] network solely and exclusively to manage its account with Clickboth and shall not share, transfer or assign its access information to any third party. Marketer shall not use any automated or unauthorized means to access its account and shall not share, disseminate or monitor the Perform[cb] network platform or service for any purpose not explicitly granted in this Agreement.
4. Terms of Payment. Perform[cb] will submit an invoice to Marketer for fees and charges associated with the Marketer‘s applicable offers in accordance with the payment model outlined below, and the applicable compensable events (each, an "Action"). Invoicing and payments are governed by the credit decision issued to Marketer by Perform[cb]. Payments for invoices will be overdue if unpaid after the due date listed on the invoice. Overdue invoices will accrue interest at the statutory interest rates then in effect. Payments are subject to any and all applicable taxes and shall be paid in accordance with the payment method selected on the IO.
5. Payment Model and Reporting. If Marketer has elected to enroll in the Cost-Per-Action ("CPA") or Cost-Per-Lead (‘CPL") program payment model defined as follows: Marketer shall pay Perform[cb] the designated CPA or CPL fee, as stated on the IO, for each lead or sale delivered by Perform[cb] and its Affiliates. The total fees will be based on the number of leads or sales received from all of Marketer‘s Ads, multiplied by the applicable CPA/CPL rate. Marketer shall provide Perform[cb] within five (5) days after the end of the previous traffic period, the total number of leads or sales generated by Perform[cb] and its Partners in the previous traffic period. Notwithstanding the foregoing, upon Perform[cb]‘s reasonable request Marketer shall provide Perform[cb] with the total number of leads or sales for the previous traffic period within forty-eight (48) hours of the request. Marketer understands and agrees that Perform[cb] shall invoice Marketer using the higher of the numbers tracked by Perform[cb] or tracked by Marketer, and Marketer agrees to pay for all amounts as invoiced. Leads or sales are defined as Internet users interested in your Ad or offer, who have clicked-thru to your landing page or website, and have signed up for, or purchased, as applicable, your service or product as determined by the firing of the pixel. If Marketer has elected to enroll in the cb:CPC Cost-Per-Click (“CPC”) program, payment model is defined as follows: Marketer shall pay Perform[cb] an amount solely based on the number of clicks and redirects multiplied by the amount Marketer bid to pay for each click or redirect and not Marketer's ability to convert clicks or redirects to sales, registrations or other user actions. When Marketer is the winning bidder for the display on the Network of Marketer's Ad, the winning CPC bid price may be below Marketer's maximum CPC bid price, and shall not exceed Marketer's maximum CPC bid price, unless otherwise approved by Marketer. Marketer understands and agrees that Marketer shall pay Perform[cb] using the higher of the numbers tracked by Perform[cb] or tracked by Marketer, and Marketer agrees to pay for all amounts as invoiced.
6. Traffic Level Adjustments. If, in Perform[cb]‘s sole determination, the projected fees payable by Marketer for any traffic period during the term of an IO are targeted to exceed the credit decision previously provided to Marketer, then Perform[cb] may, in its sole discretion, take any one or more of the following actions at any time (a) require a deposit or increase in deposit; (b) increase the frequency of invoices to daily, weekly or bi-weekly, as applicable: (c) require that Marketer secure any current and/or future payment obligations through the issuance of promissory notes, establishment of joint accounts and/or collateralization of receivables, real property and/or other assets; (d) suspend the placement of Ads in the Network until the payment terms have been revised to Perform[cb]‘s satisfaction; (e) cap the number of Actions generated by the Ad.
7. Refund Policy. All refunds if any are at the sole and absolute discretion of Perform[cb] and are subject to an administrative handling fee of an amount not to exceed $500. Any funds still left on deposit over one year after Marketer has terminated activity on the Perform[cb] network shall be forfeited to Perform[cb].
8. Claims or Disputes. Marketer shall submit any and all claims and disputes in writing to Perform[cb] within ten (10) days after month‘s end or seven (7) days after the invoice date, whichever is earlier, time being of the essence. Claims and disputes not timely submitted to Perform[cb], in accordance with this provision, are waived and all charges are final.
9. Failure to Make Payment. The failure by Marketer to make timely payment shall constitute material breach. Marketer is responsible for all reasonable expenses (including, but not limited to, attorneys‘ fees and costs) incurred by Perform[cb] in collecting such amounts due plus interest.
10. Tracking System. You agree that you will not alter the pixel or remove or alter the location of the pixel or other tracking method deployed by Perform[cb] ("Pixel") to track leads. If you disrupt, interfere, or disable the tracking system, you will be obligated to pay Perform[cb] for all Actions, based upon the historical earnings per click ("EPC"), to have been generated during the period of disruption. The historical EPC is determined by dividing the total earnings by the number of clicks generated by a campaign during the most recent uninterrupted traffic period. Marketer shall place Perform[cb]‘s Pixel on a unique confirmation page that does not contain the pixel or tracking method of any third party. If you place Perform[cb]‘s Pixel on the same page as a third party‘s pixel or tracking method, you will be obligated to pay Perform[cb] based upon each firing of the Perform[cb] Pixel (based upon Perform[cb]‘s tracking logs) regardless of any payment made to any third party for the subject action in reliance on any other pixel and/or tracking method appearing on the same page.
11. Fraud. Marketer acknowledges and agrees that Perform[cb] shall not be liable for any instances of fraud on the part of end-user consumers and Marketer agrees to pay Perform[cb] in full for all services performed under the Agreement regardless of consumer fraud. Marketer shall not be liable for Actions that are the result of Partner fraud and are timely disputed in accordance with Section 8 of this Agreement; however without definitive proof of fraud as determined by Perform[cb], Marketer agrees to pay Perform[cb] in full for all services performed under the Agreement.
12. Non-Circumvent. Marketer recognizes that Perform[cb] has proprietary relationships with Perform[cb] Network Affiliates. Marketer agrees not to knowingly circumvent Perform[cb]‘s relationship with such Affiliates, or otherwise obtain, directly or indirectly, services similar to those performed by Perform[cb] or such Partners hereunder, from any Partner that is known, or should reasonably be known, by Marketer to have such a relationship with Perform[cb]. Marketer shall not solicit the Partners of Perform[cb], nor shall Marketer use or attempt to use reverse engineering or tracing of Partner traffic as a means to solicit and/or identify Perform[cb]‘s Affiliates. Failure to comply with this Section may, at our discretion and without limiting or excluding other remedies that may be available to Perform[cb] (all such other remedies being expressly reserved), result in immediate termination of the Agreement.
13. Confidentiality. Any confidential information and/or proprietary data provided by one party ("Discloser") to the other party ("Recipient"), including the Ad descriptions and the pricing of the Ad, shall be deemed "Confidential Information" of the Discloser. Confidential Information shall not be released by the Recipient to anyone except an employee or agent that has a need to know same and that is bound by confidentiality obligations at least as strict as those contained herein, but in no event less than a reasonable confidentiality standard. Recipient shall not use any portion of Confidential Information provided by the Discloser for any purpose other than those provided for under the Agreement. Notwithstanding anything contained herein to the contrary, the term "Confidential Information" shall not include information that: (a) was previously known to the Recipient; (b) was or becomes generally available to the public through no fault of the Recipient; (c) was rightfully in Recipient‘s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by Discloser; or (d) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser. Notwithstanding the foregoing, either party may disclose, upon written notice to the other party, Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under the Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.
14. License. For the term of the Agreement, Marketer hereby grants to Perform[cb] and Perform[cb]‘s Partners and partners a non- exclusive, royalty-free, worldwide license to: (a) use, perform and display all Ads delivered hereunder in accordance with the terms of the Agreement; and (b) use all associated Marketer intellectual property in connection therewith. Title to and ownership of all intellectual property rights of all Ads and associated Marketer intellectual property shall remain with Marketer or its third party licensors.
15. Acknowledgement of FTC and Florida Orders; Compliance.
You acknowledge that you have received, read, and agree to
comply with the "Stipulated Final Judgment and Order for Permanent Injunction" entered on November 29, 2012 (the "FTC Order")
and the "Assurance of Voluntary Compliance" entered on November 16, 2012 (the "Florida Order"), warrant that there are no
misrepresentations or material omissions in your advertisements, and understand and agree that engaging in acts or practices
prohibited by the FTC Order and the Florida Order will result in the immediate termination of this Agreement and a forfeiture of all
monies received or owed. You may read the FTC Order and the Florida Order by clicking here:
Furthermore, you acknowledge that you have reviewed and agree to comply with Perform[cb]’s compliance policies applicable to your advertisements and activities on the Perform[cb] network. Perform[cb]’s compliance policies can be found by clicking here: http://support.clickbooth.com/support/solutions/folders/146524.
16. Representations and Warranties. EACH PARTY REPRESENTS AND WARRANTS TO THE OTHER PARTY THAT: (A) IT HAS THE FULL CORPORATE RIGHT, POWER AND AUTHORITY TO ENTER INTO THE AGREEMENT, TO GRANT THE LICENSES GRANTED HEREUNDER AND TO PERFORM THE ACTS REQUIRED OF IT HEREUNDER; (B) THE EXECUTION OF THE AGREEMENT BY IT AND THE PERFORMANCE OF ITS OBLIGATIONS AND DUTIES HEREUNDER, DO NOT AND WILL NOT VIOLATE ANY AGREEMENT TO WHICH IT IS A PARTY OR BY WHICH IT IS OTHERWISE BOUND; AND (C) WHEN EXECUTED AND DELIVERED, THE AGREEMENT WILL CONSTITUTE THE LEGAL, VALID AND BINDING OBLIGATION OF EACH PARTY, ENFORCEABLE AGAINST EACH PARTY IN ACCORDANCE WITH ITS TERMS.
17. Disclaimer of Warranties. THE PERFORM[CB] NETWORK, SERVICES AND THE RESULTS GENERATED THERE FROM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD, PERFORM[CB]‘S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE. EXCEPT AS STATED HEREIN, PERFORM[CB] DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
18. Limitation of Liability. Other than for gross negligence and willful misconduct, in no event will either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever including, without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of the Agreement, even if such party has been advised of the possibility of such damages.
Marketer agrees to defend, indemnify and hold harmless Perform[cb] and its Partners and their respectiv
directors, officers, employees and agents from and against any and all damages, liabilities, costs and expenses (including
reasonable attorneys‘ fees, even if incident to any appeals) (collectively "Losses") incurred as a result of any claim, judgment or
proceeding relating to or arising out of: (a) Marketer‘s breach of the Agreement; (b) the content of the Ads and any and all claims
made therein; or (c) the products, services or content linked to from the Ads. Perform[cb] agrees to defend, indemnify and hold
harmless Marketer from and against any and all Losses incurred as a result of a claim, judgment or proceeding relating to or
arising out of Perform[cb]‘s breach of the Agreement.
If any action is brought against either party (the "Indemnified Party") in respect to any allegation for which indemnity may be sought from the other party ("Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware, except that failure to provide such notice shall not excuse the Indemnifying Party’s indemnification obligations under this Section 19 unless such failure materially prejudices the Indemnifying Party. The Indemnified Party shall permit the Indemnifying Party to assume control over the defense of such claim, with counsel chosen by the Indemnifying Party that is reasonably acceptable to the Indemnified Party, provided however, that the Indemnified Party shall control the defense of any such claim that, in the reasonable opinion of such Indemnified Party, could have a material and adverse effect on the business, operations, assets or prospects of such Indemnified Party, and the reasonable costs and expenses thereof shall be included as part of the indemnification obligations of the Indemnifying Party hereunder. The Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party‘s rights or interests without the prior written consent of the Indemnified Party.
20. Termination. In addition to any other remedies that may be available to it, Perform[cb] may immediately terminate this Agreement or any applicable IO in the event of any breach by Marketer of the Agreement. Either party may cancel this Agreement or an IO, by giving five (5) business days prior written notice to the other party. Sections 1, 3-24, and any accrued but unpaid payment obligations, shall survive termination of the Agreement. In the event of termination, Marketer shall allow five (5) business days for the campaigns to become inactive across the Perform[cb] Network, and Marketer will be responsible for the Actions that result from Ads published during those five (5) days.
21. Scope of Relationship. Each party is an independent contractor and not a partner, joint venturer or employee of the other. Neither party shall have the right to bind the other or to incur any obligation on the other‘s behalf
22. Miscellaneous. The Agreement will be governed and construed in accordance with the laws of the State of Florida without giving effect to conflict of laws principles. Marketer and Perform[cb] each: (a) hereby irrevocably submits to the exclusive jurisdiction in the Twelfth Judicial Circuit in and for Sarasota County, Florida, or in the United States District Court for the Middle District of Florida for the purposes of any suit, action or proceeding arising out of or relating to the Agreement; and (b) hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction or that such proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper. If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Any controversy or claim arising out of or relating to this Agreement shall be settled through binding arbitration in accordance with the Expedited Commercial Arbitration Rules of The American Arbitration Association. Any award rendered by the arbitrator(s) shall be entered as a judgment or order and may be confirmed or enforced by either party in any state or federal court having competent jurisdiction thereof. If Marketer brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and does not prevail, Marketer will pay all of the costs and expenses (including without limitation, court costs, arbitrators‘ fees and expenses and reasonable attorneys‘ fees) incurred by Perform[cb] in defending such action. The failure of Perform[cb] to exercise any rights granted hereunder will not operate as a waiver of those rights. The arbitrators will not be empowered to award punitive damages. The consent of the parties to arbitrate their disputes shall survive termination of this Agreement. If this Agreement is found to not be subject to arbitration, each party herein consents, agrees, and affirmatively waives any right to a jury trial in any proceeding. Marketer may not assign the Agreement without the prior written consent of Perform[cb]. The parties‘ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors, joint administrators and permitted assigns. The Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument. The Agreement may be executed and delivered by electronic signature and/or facsimile and the parties agree that such execution and delivery shall have the same force and effect as delivery of an original document with original signatures.
23. Other Agreements. The Agreement sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Only a writing signed by both parties may change, modify or amend the terms of the Agreement.