TERMS AND CONDITIONS FOR ADVERTISERS
Revised: June 23, 2008
These terms and conditions govern your participation as an "Advertiser" and member of the LeadCounts Publisher Program, an online performance-based marketing network owned and operated by LeadCounts reserves the right to refuse or deny approval to any applying Advertiser for any reason whatsoever.
By becoming an Advertiser, you hereby acknowledge and agree to the Terms and Conditions in this agreement. Any Advertiser who is in violation of these Terms and Conditions may be subject to account termination and withholding of payment.
The term "you" and "your" as used herein shall refer to the Advertiser distributing their offer on LeadCounts Affiliate Network , and the term "Advertiser" shall refer to the entity owning the referring URL of each Advertiser - either directly or indirectly. "Affiliates" will refer to all publishers distributing offers on any medium.
LeadCounts may change these Terms and Conditions from time to time. Any material changes to these Terms and Conditions will be deemed effective five (5) business days after the change has been posted (the "Effective Date"), and you will be deemed to have consented to and agreed to be bound by these updated Terms and Conditions conclusively unless you post a notice of termination before the Effective Date. This agreement covers any insertion orders or additional contracts.
Once approved as an Advertiser, either the Advertiser or LeadCounts may terminate this contract without cause by giving 7 days written notice.
I. Applying to our Program
To be eligible for Advertiser approval on , you represent and warrant that - on an ongoing basis - your website(s) and newsletter(s) meet the following criteria:
a) Does not violate any law or regulation governing false or deceptive advertising, sweepstakes, spam and gambling.
b) Has a top-level domain name, is completed (not "under construction") and receives 1,000 unique page views per month.
c) Must be compliant with all relevant local, regional and national laws in their country of business, including the CAN-SPAM Act of 2003, regardless if entity is resident in US or not.
d) Must establish and maintain relationships with affiliates through the network.
Your account may be forfeited and denied if, LeadCounts with reasonable discretion, determines your website(s) and newsletter(s) to be displaying unsuitable content. The content of your web properties shall not contain the following:
a) Explicit, vulgar or obscene language; or hate-mongering and other objectionable content.
b) Pornographic images or speech, phone sex and escort services, or nudity.
c) Infringements on any property rights or copyrights.
d) Gratuitous violence or profanity; or contains threats of physical harm to anyone.
e) Software pirating, hacking or phreaking.
f) Promotion of investment or money-making opportunities not permitted under law.
g) Promotion of illegal substances and activities.
h) Promotion with deceptive or misleading practices, such as phishing or spyware.
i) Any promotion that may violate third party terms and conditions, including unauthorized use of a third party website for commercial gain or posting bulletins on non-owned accounts.
j) Libelous, defamatory, false, misleading or infringing statements.
k) Content that may bring and its Affiliates adverse publicity, or which would result in civil or criminal liability of and/or its Affiliates.
Advertisers are responsible for supplying correct contact information. If approved, the Advertiser is also responsible for advising of any changes in the information furnished as part of your application. Upon submission of your application and upon approval of your membership, LeadCounts will provide you with a username and password whose use is limited to you. They may not be distributed to any other person under any circumstances.
LeadCounts will manage tracking data, affiliate subscriptions, approvals and payments, and host and maintain all creatives and links for the Advertiser's campaign. In return, the Advertiser is required to:
a) Host pixel tracking and associated code provided by on the applicable URL and page location, WITHOUT any alterations whatsoever.
b) Provide creatives and copy, and new creatives and copy if desired by the Advertiser.
c) Report invalid leads as detailed in a separate campaign Insertion Order.
d) Confirm or deny any manual credit reports within a similar time period as (c), also as detailed in a separate Campaign Insertion Order.
e) Agree to specific Insertion Orders for each campaign run on . Sample IOs can be seen once registered and accepted as an Advertiser.
It is understood and agreed that LeadCounts is not part to any agreement between you and any other Network, or any Affiliate that may or may not have a relationship with . You are not authorized to make any commitment on behalf of LeadCounts, including any regard to payment or other commitment.
Each Party will make reasonable commercial efforts to keep its Web site operational during normal business hours. However, the Parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other liable for any of the consequences of such interruptions. LeadCounts has permission to pause the Advertiser's campaign during a period of excessive downtime.
The Advertiser is required to pay a 15% transaction fee for every lead. Startup fees for campaigns will be $50, unless running on certain excepted script backbones. In those cases, the startup fee will be waived. In addition, a campaign must start with a minimum balance to cover 150 leads, and any continually active campaigns require that the Advertiser maintain a positive balance with LeadCounts with requisite funds available at all times to cover at least 5 leads. All fees can be paid via check, money order or Paypal, and at any time in order to maintain a positive balance.
Leads that are rejected late, manual credits that are confirmed by the Advertiser, and manual credits that are NOT confirmed or denied by the Advertiser during the pertinent review period will be considered payable, and will be debited from the balance.
Advertisers may not alter any tracking code provided by LeadCounts or otherwise attempt to deflate the number of leads generated. If LeadCounts notices high clickthrough rates without leads, your account will be immediately flagged. It is your obligation to prove to LeadCounts that you are not committing fraud. If you are determined to be in breach of any term of this agreement, LeadCounts will use its best effors to notify you promptly of such breach and suspend the campaign until the breach has been cured.
IV. Confidentiality and Ownership of Data
Certain information related to your participation as an Advertiser, including but not limited to your username and password, commission rates, identities of LeadCounts affiliates and pricing strategies shall be considered proprietary information of LeadCounts . Customer data, including number of sales, leads and other identifying datasets, will be considered joint property of LeadCounts and the Advertiser, and wholly-owned by each party. You agree not to disclose any such confidential information to any third person, or use it for any other use whatsoever aside from all uses protected by this agreement. You also agree not to remove, export or re-export such information except in compliance with all applicable export laws and regulations of Canada and the United States of America. Any employee or third party given access to any such Confidential Information must have a legitimate "need to know" and shall be similarly bound in writing. At no time may this information be used to reverse-engineer or copy the composition of the underlying information, structure or ideas. Any attempt to do so will be considered a breach of contract.
LeadCounts agrees to provide, monitor and maintain the necessary technologies required to link Advertisers to affiliate websites; provide creatives for each offer in appropriate and current format; and notify Advertisers of all data associated with their account that is necessary for all uses approved under these Terms and Conditions.
V. Relationship of Parties
LeadCounts relationship with the Advertiser will be that of an independent contractor. These Terms and Conditions and agreement do not construe the creation or constitution of a franchise, partnership or any other type of relationship between the parties. No party shall have the power to bind the other or incur obligations on the other's behalf without the other party's written consent. Each party retains exclusive rights, titles and interest to any and all elements of their respective websites and the look, feel and design of their services as they appear thereon. Any press release or other public announcement by you regarding your participation in the LeadCounts Publisher Program shall require the prior approval of LeadCounts .
This agreement may be terminated by the Advertiser or LeadCounts , and will be effective within seven (7) days of the sending of the termination notice. Your account may be suspended or terminated if LeadCounts believe, at its sole discretion, that you have violated this agreement in any way. Upon termination, will suspend all campaigns from the Advertiser. If determines that the Advertiser is eligible to be returned unused portions of their account balance, such payment will be returned during the next billing cycle.
VII. Indemnity and Liability
You agree to indemnify and hold harmless LeadCounts, its agents, officers, directors and employees against all liability to third parties resulting from the acts, or failure to act, of such indemnifying party, or any acts of its customers or users. In addition, you agree to indemnify for any and all costs, charges, fines, expenses, losses, suits, damage or liabilities arising from any violation by you of the limitations and obligations of these Terms and Conditions. In no event shall LeadCounts's liability under this agreement, whether in contract, or other legal theory, be greater than the total amount paid by Advertiser to hereunder.
LeadCounts reserves the right to take appropriate legal action to cover its damages and reasonable court costs against any that violates the terms of this Agreement, or commits fraudulent activity against . Except as otherwise specified, the rights and remedies granted to a Party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity.
No warranties are made by either party as to the services or technology described in this agreement, and each party hereto expressly disclaims any implied warranties of merchantablitiy, fitness for a particular purpose, title or noninfringement as it relates to the technology and services provided pursuant to this agreement. This statement expressly includes any reimbursement for losses of income due to disruption of service by LeadCounts or its upstream providers.
In the event of a dispute arising from or concerning the subject matter of these Terms and Conditions or your participation and termination from our publisher program, you agree to first attempt to resolve the dispute through good faith negotations. In the event that this is ineffective, the parties shall refer the dispute(s) to a mutually acceptable mediator for hearing in City of Industry, AL. Any continuing litigation arising under this Agreement will be brought in the federal or state courts located in City of Industry, AL. The prevailing party in any action shall be entitled to recover its reasonable attorneys' fees and costs incurred.
a) If any part of this agreement is deemed invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this agreement shall not be affected.
b) Force Majeure: No party will be deemed in default of these Terms and Conditions to the extent that performance of obligations or attempt to cure any breach are delayed or prevented by reason of events beyond that party's reasonable control. Any party so affected shall be excused so long as such party uses commercially reasonable efforts to avoid or remove such causes of nonperformance and such force majeure event does not extend beyond fourteen (14) days.
This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. The individual submitting this application certifies that she/he is authorized to act on behalf of Advertiser and that she/he, on behalf of Advertiser, has read and accepted the terms, conditions and disclosures associated with these Terms and Conditions. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns. Any obligation of the parties relating to limitations on liability, confidentiality and indemnification shall survive termination or expiration of this Agreement.
Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile or confirmed electronic transmission; (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective party as indicated herein; or (iv) in the event of material changes to this Agreement, notice shall be deemed effective upon posting at www.leadcounts.com/advertisers. Copies of all notices shall be sent to email@example.com