CPATREND Publisher Terms and Conditions
Effective Date: April 23, 2012
The following Publisher Terms and Conditions (“Terms and Conditions” or “Agreement”) set forth the terms and conditions that shall govern the relationship between CTD Network LLC dba CPATrend (“CPATREND”), a New York limited liability company with a principal place of business of 118-35 Queens Blvd. Suite 1610. Forest Hills, NY 11375, and you, as a publisher (“You,” “Your,” or “Publisher”) using the advertising service offered through the CPATREND network (“CPATREND Network”) located at www.CPATrend.com (the “Website”). The CPATREND Network is an online performance-based marketing network sponsored by CPATREND. The Agreement is entered into effective upon the date of CPATREND’s acceptance of Your publisher application ("Effective Date"). You and CPATREND may also be individually referred to herein as a “Party” and collectively as “Parties.”
CPATrend operates an advertising program (“Program”) through which it facilitates the marketing of products and services of its third party advertising clients (“Clients”) via the CPATrend affiliate network (“Network”). The Program consists, in part, to provide You access via the Website to an array of advertising inventory made-up of, without limitation, graphical creative and electronic promotions (“Content”) sorted by marketing campaigns which are subject to periodic change (“Campaigns”), and by payment method. The foregoing shall be referred herein as, the “Marketing Service”.
CPATREND reserves the right to amend, supplement, make changes to, or replace entirely the Website, the Marketing Service, the Network, and these Terms and Conditions at any time and without prior notification. The most recent Terms and Conditions will be posted on the Website. Your continued use of the Website, the Marketing Service, and/or the Network after any such modification thereof shall constitute Your consent to such modification. Therefore, You should regularly check the Website for updates and/or changes.
YOU EXPRESSLY AGREE TO USE THE WEBSITE, THE NETWORK, THE MARKETING SERVICE AND ANY ADDITIONAL PRODUCTS AND/OR SERVICES OFFERED BY CPATREND IN ACCORDANCE WITH THIS AGREEMENT. IN ORDER TO REGISTER AS A PUBLISHER, USE THE MARKETING SERVICE, PARTICIPATE IN THE NETWORK, AND/OR USE THE WEBSITE, YOU MUST BE AT LEAST EIGHTEEN (18) YEARS OLD AND, AS APPLICABLE, HAVE THE POWER AND AUTHORITY TO ENTER INTO CONTRACTS THAT CREATE OBLIGATIONS ON THE PART OF PUBLISHER. ANY REGISTRATION BY, USE OF, OR ACCESS TO THE MARKETING SERVICE, THE NETWORK, AND/OR THE WEBSITE BY ANYONE UNDER THE AGE OF EIGHTEEN (18) OR WHO LACKS AUTHORITY TO BIND PUBLISHER IS UNAUTHORIZED AND IN VIOLATION OF THIS AGREEMENT.
CPATREND may, at its sole discretion, refuse to register You as a Publisher and/or terminate Your participation in the Program and Marketing Service at any time for any reason. If You do not agree to the Terms and Conditions in its entirety, You are not authorized to register as a Publisher, use the Marketing Service, participate in the Network, and/or use the Website, in any manner or form whatsoever.
1. Application Information
All required information fields in the CPATREND membership application must be filled-out completely, accurately, and honestly. Any falsification of personal information will result in the immediate termination of membership and forfeiture of all Commissions up through and including the date of termination. If Publisher is a U.S. resident, Publisher's account must have a unique, valid taxpayer identification number or valid Social Security Number associated with it. You must have a valid, completed Form W-8 or Form W-9 on file with us. You must also provide a clear and valid Photo ID in the form of a driver’s license, passport, or other government issued photo ID. CPATREND shall have no obligation to pay Publisher until the appropriate documents are filed with us.
2. Conditions of Membership
As a condition of Your membership, You represent, warrant, and covenant on a continuing and ongoing basis, that You have and will maintain all necessary rights and authority to enter into this Agreement, and that Your website, traffic sources, and methods, do not and will not violate any state or federal laws or regulations governing, without limitation, privacy, false or deceptive advertising, the Children’s Online Privacy Protection Act, the CAN-SPAM Act, the Federal Trade Commission Act, the Digital Millennium Copyright Act, or sweepstakes or gambling. You further represent, warrant, and covenant that Your website, traffic sources, and methods, do not and will not contain any comparative advertising, trade disparagement or libelous, defamatory or infringing content; and does not contain any machine-readable code that could be unintentionally downloaded onto a recipient's computer.
3. Campaign Rules and Restrictions
By accepting membership in the Network and Marketing Service, You agree not to originate, authorize or participate in any non-consensual campaigns or promotions, whether by e-mail, SMS text message, telephone or otherwise, including but not limited to "spamming." Where use of e-mail marketing is authorized by CPATREND, the following terms shall also apply. Any and all e-mails supplied by Publisher (a) shall comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003, as amended (CAN-SPAM) and any and all Federal Trade Commission implementing regulations; (b) must not infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity; (c) must not result in any consumer fraud, product liability or breach of contract to which Publisher is a party or cause injury to any third party; and (d) must include a valid physical postal address for Publisher (and/or the applicable Client) and a functioning and conspicuous unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery), as required by applicable law (CPATREND is in no way responsible for including such address(es) where Publisher fails to do so). CPATREND may make available, at a CPATREND-designated FTP site, a suppression list, updated on a regular basis and generated from e-mail Programs transmitted by and/or through the Network for Publisher’s use in connection with applicable Programs. The suppression list and any information related thereto are deemed to be Confidential Information of CPATREND. Suppression lists may not be used by Publisher for any purpose other than to comply with applicable laws regulating e-mail transmissions. Publisher agrees to process any/all unsubscribe requests made available by CPATREND, commencing upon the first day that the relevant Campaign is promoted, and every five (5) calendar days thereafter. Publisher shall upload its own list of suppressed e-mail addresses to the FTP Site, if one is provided by CPATREND. If the FTP site is provided by CPATREND, and no such e-mail addresses are supplied by Publisher, CPATREND may conclude that no such addresses exist. By accepting membership in the Network and Marketing Service, You further agree that You shall not: (a) display fewer than 3 lines of terms and conditions text above the fold with 1024 screen resolution and Internet Explorer standard settings (i.e. menu bar, address bar), even if such text is i-framed within an offer or other website; (b) pre-populate any cell phone number input fields, even if an end-user filled out a similar form field on a prior page/step; (c) display price and/or subscription terms at less than 12-point font-size or lower than 125 color contrast; (d) use any scroll-boxes around terms and conditions, including, without limitation, in a 1024 screen resolution with standard Internet Explorer/Firefox settings, i.e. displaying terms and conditions text in a distinct scrolling area (i-frame/frame/auto-resize); (e) engage in any “stacked” marketing practices, e.g., without limitation, multiple ads for premium SMS content back to back with no obvious method to skip ads, and multiple premium SMS pop-up ads appearing when an end user clicks on a link or attempts to close a page; (f) purchase keywords from a search engine service provider that include the trademark, service mark and/or brand name of any Company product and/or any affiliate or Client, or any derivative of any such trademark, service mark or brand name; (g) deliberately target customers under 13 years of age (or Florida residents under 18 years of age); and (h) auto spawn of browsers, automatically redirect visitors, use blind text links, misleading links, or forced clicks; (i) make any representations, warranties or other statements concerning CPATREND or any of its products or services on any websites except as expressly authorized herein; (j) create or utilize any websites that copy or resemble the look and feel of any of CPATREND’s websites, or its Clients’ websites, or create the impression that such website is endorsed by CPATREND, its Clients, or a wireless carrier without prior written permission from CPATREND; (k) use, in any way, non-approved websites or web pages, or in such a fashion that may be deceptive to the visitor; (l) drive traffic using any downloadable applications without the prior written approval of CPATREND; (m) pre-populate the “Cell Phone Number” or PIN number field on any sign-up page relating to a CPATREND or CPATREND Client product or service; (n) use the term “free,” or any derivative thereof, to directly or indirectly market a product or service; (o) alter the size of font or font context (i.e. boldface) of any text associated with an offer for a product or service; and (p) imply directly or indirectly that a product or service has been endorsed by a third party entity (i.e. a cell phone carrier or celebrity) or use the trademark or brand name of any such third party entity to promote the product or service; (q) offer incentives to users to click on ads; incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc., unless expressly and previously approved in writing by CPATREND; and/or (r) advertise on services or providers which do not permit such advertisements, or violate the terms of service of such providers or services (by way of example only, any Publisher who may be engaged in posting commercial speech of any kind on any website on any location within the myspace.com or craigslist.com domain must cease and desist immediately).
Editing of a Client’s creative materials is strictly prohibited, without prior written approval from CPATREND. Creative includes, but is not limited to, text ads, graphic ads, from and subject line, any copy associated with the campaign including survey questions and answers. You shall not run unapproved banners and text in Your advertising of Programs and/or create Your own banners or advertising text, unless expressly and previously approved in writing from CPATREND. Any changes to creative or use of link and sign-up processes, without prior written permission will result in the forfeiture of Your Commissions.
By accepting membership in the Network and Marketing Service, You further expressly and unconditionally agree that you will not spam or send unsolicited e-mail messages. You agree that should You violate the foregoing conditions of this Section, CPATREND may, in addition to other legal remedies, assess liquidated damages of up to $1,000.00 per occurrence of each such violation, and that such liquidated damages are reasonable. Any violation of these provisions by You or any third party, including, without limitation, Your Sub-Publishers, shall also be deemed a material breach of the Agreement by You, and You shall be fully liable to CPATREND for, without limitation, all losses and damages, including, without limitation, legal expenses incurred by CPATREND as a result thereof.
Campaigns may be subject to additional rules, as set forth in the Campaign details, and Your promotion of a Campaign constitutes Your acceptance of those additional rules, which are expressly incorporated herein by this reference. Violation of these Terms and Conditions and/or additional Campaign rules shall constitute a material breach of this Agreement.
4. Commissions and Payment
Upon application and approval, the CPATREND Network enables Publishers to earn “Commissions” through participation in the advertising campaigns, or Programs, offered by CPATREND. “Commissions” are generated from specific transactions, as defined by CPATREND and set forth in the applicable Insertion Order, and may include, without limitation, sales, registrations, leads, downloads, impressions, clicks, and/or other forms of acquisition (“Transactions”).
Qualified leads are prospects who meet CPATREND’s screening criteria, as may be described in the applicable Insertion Order, and who provide their complete contact data. For applicable CPA lead generation campaigns, Publisher will be paid on a delivered per lead basis, defined as when a user agrees through a pre-approved opt-in method to be contact. CPATREND will verify each qualified lead delivered by Publisher. Upon receipt, all qualified leads will be checked for data validity (i.e. containing valid data inputs for the fields specified in the Insertion Order) and uniqueness of data (i.e., that the qualified leads are not present in CPATREND’s database for the designated advertisement in the past 60 days). CPATREND reserves the right to send an auto-responder to all respondents re-confirming their request for information. Any objections from respondents (about the email, or the offer) will be raised to the Publisher.
Upon submission of Your application, You will be issued an affiliate identification number. The aforementioned affiliate identification number shall serve as a personal identifier. Your use of the aforementioned affiliate identification number and Your login information shall not, under any circumstances whatsoever, be distributed to and/or used by a third party, including, without limitation, any Sub-Publisher.
Commissions will be paid in US dollars and no payments will be issued for any amounts less than $50.00 USD, except in CPATREND’s sole discretion. Payments may be made in a manner which CPATREND deems, in its sole discretion, to be commercially reasonable, including, without limitation, via wire, PayPal and online bill payment. CPATREND reserves the right to withhold payment to You for any Commissions earned if the information You provide to us proves to be insufficient to forward payment.
CPATREND will not pay any interest or late payment fees on any Commissions or other payments held or withheld by us unless CPATREND otherwise explicitly agree in writing to do so.
You understand and agree Commission for each Transaction verified by CPATREND will be paid approximately thirty (30) days after the last day of a given calendar month, for Commissions realized in that month, and only after CPATREND has received corresponding payment from Client for which Commissions have been earned. Commissions will be payable only for offers published by You in accordance with specific Program terms. Publisher shall be responsible for all applicable taxes. It is Your responsibility to advise us immediately of any change in any of the information furnished by You as part of Your application.
4.1. Suspension of Payment
If CPATREND, in its sole discretion, suspects or determines that You are in breach of any material term of this Agreement, Your account may be deactivated immediately, with no notice to You, and You will forfeit all Commissions, pending further investigation. CPATREND reserves sole judgment in determining the breach of any material term of these Terms and Conditions and You agree to be bound by any and all such determinations. It is the obligation and burden of Publisher to prove to CPATREND that it has not breached any material term of this Agreement. CPATREND will hold Your Commission-related payments until You have satisfactorily provided evidence that conclusively demonstrates to CPATREND that You have not breached any material term of this Agreement. If You are unable to provide CPATREND with satisfactory and conclusive evidence that You have not breached any material term of this Agreement within seven (7) calendar days of Your Commissions being so held by CPATREND, then CPATREND reserves the right to terminate Your Publisher account and cancel payment on the applicable Commissions, at its sole discretion and without notice or any further obligations to You.
4.2. Cancellations and Chargebacks
A CPATREND Client may request that CPATREND, or CPATREND may, on its own initiative, debit from the Commissions otherwise due and owing Publisher an amount equal to a Commission previously credited to Publisher’s account where, for example: (a) a return or cancellation has been made with respect to the applicable product and/or service; (b) there is an instance of a duplicate, fraudulent or incomplete entry or other similar error with respect to a customer order; (c) there are Transactions that do not comply fully with the terms of the Agreement; (d) there is non-receipt of payment from, or refund of payment to, the customer that entered into the subject Transaction; or (e) there is any failure on the part of Publisher to comply with the Agreement and/or the applicable Program terms (collectively referred to as a “Chargeback”). Chargebacks requested by a Client in accordance with this Section may be applied up to eighteen (18) months after the end of the month in which the applicable Commission was earned (“Chargeback Period”). A Client may request that the payment of a Commission be postponed for eighteen (18) months where a Client is verifying a transaction, a Client has a return policy that allows the underlying purchaser to return the product during the Chargeback Period, or the applicable Program terms provide for such a postponement.
CPATREND may actively monitor traffic, Transactions, Commissions, and other Program-related activities for potential fraud. If CPATREND, in its sole discretion, suspects or determines that Your account has been used in a fraudulent, deceptive, or unethical manner, Your account will be deactivated effective immediately, with no notice to You, and You will forfeit all Commissions, pending further investigation. You agree to be bound by any and all such determinations and the burden is on Publisher to prove to CPATREND that it has not engaged in fraud. CPATREND will hold Your Commission-related payments until You have satisfactorily provided conclusive evidence that demonstrates to CPATREND that You have not engaged in fraud. If You are unable to provide CPATREND with satisfactory and conclusive evidence that You have not engaged in fraud within seven (7) calendar days of Your Commissions being so held by CPATREND, and/or in the case of cancellations, chargebacks, uncollected Commissions and invalid transactions, CPATREND reserves the right to terminate Your Publisher account and cancel payment on all Programs, at its sole discretion and without any further notice or obligations to You. In circumstances where Commissions have been previously released, CPATREND reserves the right to invoice Publisher and Publisher agrees to return applicable Commissions within five (5) business days.
In the event that CPATREND determines, in its sole discretion, that a Transaction is invalid, CPATREND may seek a refund and setoff of future Commissions for up to one (1) year following the termination of this Agreement. You expressly consent to such a setoff in advance and agree to provide such a refund within five (5) business days of CPATREND’s written notice to You. This remedy is in addition to all other legal and equitable rights that CPATREND may possess against You as a result of invalid or fraudulent Transactions.
6. Right to Audit
CPATREND reserves the right to audit any website traffic at any time and for any reason, or no reason at all. Should CPATREND determine, in the exercise of its reasonable business judgment, that You have employed any device to artificially inflate leads, Your membership in the Marketing Service and Network may be immediately terminated, any unpaid Commissions will be immediately forfeited, and You may be required, upon demand, to return to CPATREND any Commissions attributable to the Transactions that had been previously paid.
7. Termination and Notice
Either Party may terminate this Agreement without notice. All obligations herein pertaining to uncontested payments, unresolved disputes, limitation of liability, indemnity and confidentiality shall survive such termination. CPATREND reserves the right, in its sole and absolute discretion, to remove any Campaign from the Network at any time for any reason. CPATREND further reserves the right to immediately terminate Publisher's access to the Website and/or block any/all traffic that originates from Publisher’s account, at any time without notice. If You commit any violation of these Terms and Conditions, then all payments owed to You are expressly forfeited, as determined in the sole and absolute discretion of CPATREND.
To the extent notice is required by this Agreement, if at all, notice may be effected by delivery to the receiving Party, delivered via e-mail, fax or other means of public communication, and will be effective immediately upon Your receipt of such notice, or three (3) business days following the sending of notice, whichever is earlier. In addition, CPATREND reserves the right, in its sole and absolute discretion, to terminate a Program at any time for any reason, upon notice to You. CPATREND reserves the right to terminate Your access to the Marketing Service and/or Network at any time with or without notice to You. As set forth herein, any and all information that You may provide to CPATREND during the Publisher application process and/or the course of Your participation in the Marketing Service shall at all times remain the sole and exclusive property of CPATREND.
Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (i) for CPATREND, via registered mail, return receipt requested or via an internationally recognized express mail carrier to CPATREND, Attn: Legal Dept., 118-35 Queens Blvd. Suite 1610. Forest Hills, NY, 11375. (effective upon actual receipt); and, (ii) for You, at the email or physical address listed on Your account (effective upon sending as long as CPATREND does not receive an error message regarding delivery of the email) or five (5) business days after mailing).
Immediately upon termination, You expressly and unconditionally agree to remove any and all information relating to CPATREND Programs, Content, and/or Campaigns, CPATREND code, and/or other intellectual property made available to You in connection with the Marketing Service and Your performance under the Agreement from any website(s) owned or operated by You, and/or suspend any and all Campaigns, including, but not limited to, e-mail campaigns that have not already been sent.
You expressly and unconditionally agree that in the event of a dispute between CPATREND and one of its Clients in connection with a Publisher, CPATREND reserves the right to withhold any/all amounts otherwise due and owing to Publisher under this Agreement until such dispute is resolved. In addition, in the event that a Client overpays CPATREND for any reason and CPATREND has already disbursed the funds to You, or if a Client invalidates any Publisher Transactions, CPATREND reserves the right and discretion to debit future payments to Publisher or invoice Publisher for the appropriate amount.
You expressly and unconditionally agree that in the event that CPATREND does not receive payment in full from a Client, CPATREND shall have no payment obligation to Publisher, whatsoever. Publisher accepts all risks associated with non-payment by a Client and expressly acknowledges that CPATREND is not a guarantor of any payment or other obligations of any Client. If a Client fails to pay CPATREND on time, CPATREND may notify Publisher and offer CPATREND‘s best efforts in matters related to collections, but CPATREND is not contractually bound to do so. Publisher shall have the right to pursue any and all legal remedies directly against any Client that has not made funds available to pay sums due and owing Publisher for Commissions earned. In the event that a Client does not pay CPATREND in a timely manner, CPATREND may, in its sole discretion, decide to pay Publisher for any Commissions owed to You by a Client. In the event that CPATREND decides to make such an accommodation to Publisher, Publisher expressly and unconditionally agrees to assign all rights to future payments from a Client to CPATREND, to the extent that CPATREND has previously paid an equivalent amount in Commissions to You.
CPATREND reserves the right, in its sole discretion, to investigate invalid or questionable traffic and to make revenue adjustments based upon its findings and determinations. In the case of any dispute between the parties as to the number of qualified leads, CPATREND’s numbers will control. CPATREND may, but shall not be obligated to, notify Publisher of any disputes or investigations, or the outcome of the same. In the event that CPATREND suspects that Publisher may have promoted a Campaign in any manner that violates any state or federal law or regulation, or this Agreement, Publisher shall cooperate fully with CPATREND’s investigation, and shall within twenty-four (24) hours of a request, provide to CPATREND any/all information relevant to its investigation.
9. Program Changes
CPATREND may, at its sole discretion, change a Program at any time, without prior notice to You, unless otherwise specified. Similarly, You may cease participation in a previously accepted Program at any time, unless otherwise specified.
Program data compiled by CPATREND including, but not limited to, numbers and calculations regarding Transactions and related Commissions (“Program Data”), will be calculated by CPATREND based upon the applicable Campaign payment type through the use of industry standard tracking technology and shall be considered final and binding upon You. Questions regarding the Program Data must be submitted in writing within three (3) calendar days of initial appearance in the tracking system, otherwise the Program Data will irrevocably be considered acceptable by You.
10. Proprietary Rights
Subject to these Terms and Conditions and relevant Program terms, CPATREND grants to Publisher a limited, non-exclusive, revocable, non-transferable (except as otherwise stated herein), royalty free, worldwide license to display on, distribute through, and/or download one or more offers for posting on Your website and/or other approved marketing channels, and any and all associated trademarks, service marks, trade names and/or copyrighted material that CPATREND provides to Publisher through the Network for the limited purposes of promoting Programs to end users. Publisher may not remove or alter any copyright or trademark notices. Intellectual property matter and other matters related to, without limitation, the Network, Programs, Marketing Service, Website, Content, and Campaigns are protected under applicable copyright, trademark and other proprietary rights. The use, copying, redistribution and/or publication by Publisher of any part of the above, other than as expressly permitted herein, are strictly prohibited. Publisher does not acquire any ownership rights to, without limitation, the Network, Programs, Marketing Service, Campaigns, Website Content, and/or Campaigns and the availability of same does not constitute a waiver of any rights related thereto. No part of the Website may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Website content or any portion thereof. CPATREND reserves any rights not explicitly granted in these Terms and Conditions.
11. Representations and Warranties
Publisher also represents and warrants that, should Publisher use one or more third party Sub-Publishers, it expressly and unconditionally agrees to bear the obligations, risks and liabilities of each such third party for all purposes under this Agreement and CPATREND shall reserve the right to demand Publisher cease such relationship with any or all Sub-Publishers for purposes of performance of this Agreement. To the extent Publisher performs this Agreement through use of or reliance upon any third party Sub-Publisher or partner, Publisher specifically represents and warrants that each such third party Sub-Publisher or partner shall adhere to each of the representations and warranties set forth herein, and that Publisher is only working with third party Sub-Publishers or partners who have entered into a written agreement with Publisher containing representation and warranty provisions substantially similar to those set forth herein.
CPATREND also represents and warrants that it is a duly organized corporation and has full power and authority to enter into this Agreement, and that it will use commercially reasonable best efforts to ensure that no gambling, patently offensive or pornographic promotions or images are stored or maintained in its available inventory for performance of this Agreement.
The Campaign Rules and Restrictions set forth above are expressly incorporated herein by reference.
12. Ineligible Websites
Websites that do not feature customer-friendly site navigation or contain acceptable content that CPATREND, in its sole discretion, determines does not meet a reasonably acceptable commercial standard are not eligible for membership in the Network. If CPATREND, in the exercise of reasonable discretion, determines Your website to be ineligible, all Commissions, whether earned or unearned, shall be forfeited. CPATREND shall not be obligated, however, to review websites for eligibility.
13. Confidentiality and Non-Disclosure
Any and all information submitted by end-user customers in connection with a Program shall be considered proprietary to and owned by CPATREND. Such customer information is confidential information and may not be utilized or otherwise disclosed by You. In addition, You acknowledge that all non-public information, data, and reports made available by CPATREND hereunder or otherwise as part of the Marketing Service are proprietary to and owned by CPATREND. All proprietary and Confidential Information is protected by copyright, trademark and other intellectual property laws. You agree not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary or Confidential Information of CPATREND in any manner. These non-disclosure obligations are intended to and shall survive termination or expiration of the Agreement.
“Confidential Information” means any information disclosed to You by CPATREND, either directly or indirectly, in writing, verbally, or by inspection of tangible objects, other than information that You can establish: (a) was publicly known and made generally available in the public domain prior to the time of disclosure to You by CPATREND; (b) becomes publicly known and made generally available after disclosure to You by CPATREND other than through Your action or inaction; and/or (c) is in Your possession, without confidentiality restrictions, at the time of disclosure by CPATREND as shown by Your files and records prior to the time of disclosure. All information relating to Your participation in the CPATREND Network and Marketing Service, including but not limited to Your unique publisher identification number and Your login information, the identities of any Client, Commission rates, Program rates, and pricing strategies shall be considered “Confidential Information”. You shall not at any time, without the prior written consent of CPATREND; (a) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information; (b) use any Confidential information (other than to confirm the accuracy of Commission calculations); and/or (b) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to You or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain CPATREND’s personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to CPATREND immediately upon CPATREND’s request.
You expressly and unconditionally agree that in the event that any legal action is taken against us by, without limitation, a Client, agency, advertiser, person, or entity, directly or indirectly relating to Your actions and/or Your violation of these Terms and Conditions, CPATREND shall possess the unilateral discretion to divulge Your personal information. You also expressly agree that CPATREND shall not, under any circumstances, be liable for Your actions, and you will bear all costs (legal or otherwise) that CPATREND may incur as a result thereof.
14. Use of Your Information
In the event that CPATREND suspects or determines any unlawful acts and/or that a violation of these Terms and Conditions or any information pertaining thereto has been, will be, or is presently being committed, CPATREND reserves the right to release any current or past information including, but not limited to, this Agreement, You, Your use of, without limitation, the Network and Marketing Service, Commissions, Transactions, or Programs. CPATREND further reserves the right to release any current or past information, as outlined above, if the information is subpoenaed, if CPATREND is sold or acquired, or when CPATREND deems it necessary or appropriate. You hereby consent to disclosure of any record or communication to any third party should CPATREND, in its sole discretion, determine such disclosure to be appropriate and/or necessary. All data, including but not limited to Campaign results, user data, statistical information, traffic analysis or other data produced or provided by You, shall be deemed to be the property of CPATREND.
You expressly agree that you will not, during the term of this Agreement and for one year thereafter, implement any agreements with any CPATREND Client with whom You did not have a previously existing agreement. In the event that You do so directly contract with such a party, and in addition to any and all remedies available at law and in equity, You shall pay CPATREND an additional commission equal to what CPATREND would otherwise have earned had You not violated this Section.
CPATREND shall defend, indemnify and hold You harmless from and against any judgment, loss, damage, claim or expense arising out of any breach of any representation or warranty of CPATREND set forth herein. Publisher shall defend, indemnify and hold CPATREND, its Clients and each of their respective parents, publishers, subsidiaries, officers, partners, members, managers, employee, agents and attorneys harmless from and against any and all judgments, losses, damages, costs and expenses (including reasonable attorneys’ fees), claims, allegations, and/or expenses arising out of, without limitation: (a) You and/or Your Sub-Publisher’s use of the Website, Network, Programs, Campaigns, and/or the Marketing Service, or an act or omission caused by You and/or Your Sub-Publisher; (b) any breach of any representation or warranty set forth herein, including representations of Publisher's compliance with United States state and federal laws and regulations, such as the CAN-SPAM Act of 2003 governing the distribution of commercial electronic communication over the Internet; (c) improper use of the Website and/or Service, or improper use of a third party’s website or service(s) used in connection with a Campaign from the CPATREND Network; (d) improper promotion of any Campaign; (d) any third party allegation or claim against CPATREND and/or Clients related to You and/or Your Sub-Publisher’s website, e-mails and/or marketing practices; and/or (e) willful misconduct or gross negligence not covered by the terms of this Agreement.
17. Limitation of Liability and Disclaimer of Warranties
ANY OBLIGATION OR LIABILITY OF CPATREND UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR COMMISSIONS PAID TO YOU BY CPATREND UNDER THIS AGREEMENT DURING THE SIX MONTHS PRECEDING THE CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST CPATREND MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. YOU AGREE THAT CPATREND SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, A CLAIM BY ANOTHER PUBLISHER OR A CLIENT), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM. PUBLISHER RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE. THE WEBSITE, PROGRAMS, CONTENT, CAMPAIGNS, CLIENTS’ UNDERLYING PRODUCTS AND SERVICES, AND MARKETING SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE WEBSITE, PROGRAMS, AND/OR CLIENTS’ UNDERLYING PRODUCTS AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. CPATREND HAS NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD PARTY, FOR PUBLISHER’S USE OF, OR INABILITY TO USE, THE WEBSITE, PROGRAMS, AND/OR CLIENTS’ UNDERLYING PRODUCTS OR SERVICES AND PATREND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT PUBLISHER’S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OF THE PROGRAMS WILL BE AVAILABLE TO PUBLISHER. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN CPATREND AND PUBLISHER. THE WEBSITE, PROGRAMS AND/OR CLIENTS’ UNDERLYING PRODUCTS AND SERVICES WOULD NOT BE PROVIDED TO PUBLISHER WITHOUT SUCH LIMITATIONS. CPATREND MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE WEBSITE AND/OR PROGRAMS. NO ADVICE OR INFORMATION, WHETHER VERBAL OR WRITTEN, OBTAINED BY PUBLISHER FROM CPATREND AND/OR ANY CLIENT BY AND THROUGH THE WEBSITE AND/OR PROGRAMS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, CPATREND’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
18. Availability of Website and Marketing Service
You understand and agree that the Website and Marketing Service may be inaccessible or unavailable for any reason, including, without limitation, equipment malfunctions, maintenance or repairs, causes beyond the control of CPATREND or which are not reasonably foreseeable by CPATREND. CPATREND has no control over the availability of the Website and Marketing Service on a continuous basis and any purported failure to deliver due to the foregoing shall not represent a failure to perform obligations set forth by this Agreement.
19. No Agency Relationship
CPATREND and Publisher are independent contractors and nothing herein constitutes or creates a joint venture, partnership, employment relationship or other similar arrangement between the Parties.
20. No Waiver
Failure by either Party to enforce at any time or for any period of time any provisions of this Agreement shall not be construed as a waiver of such provisions, and shall in no way affect a Party's right to later enforce such provisions unless in writing and signed by an authorized representative of the waiving Party.
21. Force Majeure
Neither You nor CPATREND shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of such Party.
Neither Party may assign rights or delegate duties under this Agreement, in whole or in part, without the express prior written consent of the other Party, which consent shall not be unreasonably withheld, delayed or conditioned, except that assignment by CPATREND is permitted to assign or transfer without Your consent upon the merger, reorganization, change of control or sale of all or substantially all of the assets of CPATREND. Any assignment, transfer or attempted assignment or transfer in violation of this provision shall be null and void, and of no force and effect. This Agreement shall be binding upon, and inure to, the benefit of the parties hereto and their respective permitted successors and assigns.
23. Reservation of Rights
CPATREND expressly reserves the right to make changes to the Website and these Terms and Conditions at any time and in CPATREND’s sole discretion. Publisher's continued use of the Website after any such modification and notification thereof shall constitute Publisher's consent to such modification. CPATREND may also change a Campaign at any time unless otherwise specified upon notice to Publisher. You may cease to promote previously accepted Campaigns at any time unless otherwise specified. CPATREND further expressly reserves the right to use any means of monitoring Your practices and media used in performance of this Agreement, including, but not limited to, requiring the use of a seed e-mail account to include in any e-mail Campaign, and the use of third party monitoring services and systems. CPATREND further expressly reserves the right to immediately freeze, suspend, and/or terminate Your account, and suspend payment obligations, without any prior notice to You, should CPATREND and/or Clients reasonably believe, in its sole discretion, that You have, without limitation: (a) engaged in any fraudulent, deceptive, unethical, and/or non-compliant marketing practices; (b) click-thru rates that are atypical or higher than industry averages; (c) click programs generating clicks with no indication by site traffic that it can sustain the clicks reported; (d) fraudulent leads; or (e) violated any prohibitions contained in these Terms and Conditions. CPATREND reserves any and all legal and equitable rights, including criminal rights, it may have against You for violation of these Terms and Conditions.
This Agreement and any attachment(s) hereto, are fully incorporated and integrated, and sets forth the entire understanding of the Parties with respect to the subject matter of this Agreement and supersedes any prior or contemporaneous agreements or understandings, whether written, verbal, or electronic. Subject to any past or future publication of any updated Agreement, Your account information, including information provided during the application process, represents the complete and entire expression of the agreement between You and CPATREND, and shall supersede any and all other agreements, whether written or verbal, between the Parties. To the extent that anything in or associated with the Website, Marketing Service, and/or Network offering is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Other than as set forth herein, the Agreement may be amended only by a written agreement executed by an authorized representative of each Party.
This Agreement will not be varied, amended, or supplemented except in a writing which makes reference to this Agreement and is signed by both Parties, or through electronic acknowledgement and/or continued performance of the Agreement by Publisher after notice of changed terms and conditions from CPATREND via e-mail, electronic or digital messaging displayed in the Network, or other means which provide actual notice to Publisher of the change(s).
26. Choice of Law and Venue
This Agreement is to only be construed in accordance with the laws of the State of New York. . The Parties expressly and unconditionally consent to exclusive jurisdiction and venue in the state and federal courts located in New York, New York. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Nothing herein shall be construed to preclude CPATREND from seeking injunctive relief in order to protect its rights pending an outcome in arbitration or to limit any legal remedies available to CPATREND. CPATREND may, in its sole discretion, elect to file an action in any court of competent jurisdiction in New York, New York, in lieu of and despite the alternative dispute resolution provision above. CPATREND shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding in connection to, arising out of, or under the Agreement. To the extent permitted by law, You agree not to bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that You may have against CPATREND and its employees, officers, directors, members, representatives and assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove You as a participant in the suit. You agree to pay the attorneys' fees and court costs that CPATREND incurs in seeking such relief. This provision preventing You from bringing, joining or participating in class action lawsuits does not constitute a waiver of any of Your rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided above. This provision preventing You from bringing, joining or participating in class action lawsuits is an independent agreement.
In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable by a court of law, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced if possible by a mutually acceptable provision, which being valid, legal and enforceable, comes closest to the intention of the Parties underlying the invalid, illegal or unenforceable provision.
Any and all obligations and provisions, which by their nature, are reasonably intended to survive the voluntary/involuntary termination of Your participation in the Network, Marketing Service, and/or this Agreement, shall survive any such termination.
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original instrument, and all such counterparts shall together constitute the same agreement. A facsimile or electronic signature, or reasonable indication of assent through electronic means, shall have the same force and effect as a handwritten signature.