TERMS AND CONDITIONS
The following Terms & Conditions constitutes a binding contract between the parties hereto and shall govern Your (“the Affiliate’s”) use of the network owned and operated by Digital Treetop (“Company”), and all business dealings between the parties. You should carefully read the following Terms and Conditions. By clicking below and by using Company’s network/website You agree to be bound by the following Terms and Conditions and further agree and acknowledge that You are under an affirmative obligation to ensure that your employees, agents or contractors abide the following:
Definitions:
“Digital Treetop”, “Company” or the “Network” means the company, its employees, officers, and agents.
“Affiliate”, “you” or “yours” means the person, persons or entity that assents, agrees to or acknowledges these Terms and Conditions, or otherwise holds an account with the Company to distribute advertisements via any method of the Network Advertisers. The term Affiliate is commonly referred to in the industry as “Publisher.” Terms referencing “Affiliate” or “You” apply equally to Affiliate’s employee, agents and contractors.
“Advertiser” means the person, persons or entity that holds an account with the Company to acquire “Leads/Actions” or “Sales” from the Company’s Affiliates.
“Campaign” means an advertising campaign provided by the Advertiser to the Company for distribution by you, the Campaign may include advertising creative materials.
“Leads/Actions” means the completion of all necessary steps by the consumer, as deemed by the Advertiser, so that the Advertiser may acquire the consumer’s business, as a direct result of the actions of the Affiliate.
“Sales” means the purchase of a product of the Advertiser by a consumer as a direct result of the actions of the Affiliate directing the consumer to do so.
“The Network” means the network equipment, IP Addresses, databases, software programs and domain names (i.e. www.digitaltreetop.com) belonging to Company, inclusive of the Company’s website (“the Site”).
Minimum Age. YOU MUST BE AT LEAST 18 YEARS OF AGE TO USE THIS SITE OR SIGN UP AS AN AFFILIATE. By signing up as an Affiliate you attest that you and your employees, agents and contractors are at least 18 years of age.
Agreement: This Agreement replaces and supersedes any prior terms and conditions between Digital Treetop (Company) and Affiliate. You agree to use the Network/Site, the Service and any additional products and/or services offered by Company only in accordance with the Agreement. Company reserves the right to make changes to the Site, the Service and the Agreement at any time and without prior notification. The latest Agreement will be posted on the Site. Your continued use of the Site and/or the Service after any such modification thereof shall constitute Your consent to such modification. Therefore, You should regularly check the Site for updates and/or changes
Payment. Affiliate will be paid based on the terms of each individual campaign; payment amount and terms will vary by campaign and will be noted on each campaign. Provided you are not in material breach of this agreement, Affiliate will be paid once per month via ACH, check or wire transfer. If Affiliate earns at least $1,000 per week, then Company may, in its discretion, choose to pay Affiliate on a weekly basis. Affiliate will have seven days to dispute the accuracy of any payment; such dispute must be provided to the Company in writing. Final determination of revenue amounts generated by Affiliate will be at the sole discretion of the Company. Affiliate acknowledges that Company is only acting as an agent of the Advertiser and Affiliate agrees that Company is not responsible for payment of any commissions due to Affiliate in the event that the Advertiser withholds or refuses payment. The Company agrees to use reasonable means by which to seek payment from Advertiser and, in the event payment is not received, the Company agrees to provide reasonable assistance to the Affiliate in obtaining the payment from Advertiser. Affiliate agrees that in the event the Advertiser does not pay the Company, the Affiliate’s sole recourse will be against the Advertiser.
Tracking. All reporting of actionable events, including leads, clicks, actions or sales, shall be based on the Company’s tracking and reporting system or the Advertiser’s tracking and reporting system. Affiliates must insert Company’s tracking code or pixel as directed in order to have their Events tracked and paid. Where website integration tags are inserted in an advertisement, Affiliate agrees not to alter or remove such tags.
Collection and Use of Personal Information. In order to access and use the Network, Affiliate must provide accurate personal and/or company information to Company through this online registration process. You may be asked to provide your name, company name, physical address, billing address, telephone number, facsimile number, e-mail address, website address, tax payer ID number or social security number, billing or payment information, and other identifying information. Company may share your personal information which you provide with our affiliates, advertisers, outside accounting firms, legal counsel, state and federal tax services and any government or law enforcement agency that requests such information.
Disclaimer of Warranty. To the extent permitted by applicable law, THE COMPANY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF TITLE, OF NONINFRINGEMENT, OF MERCHANTABILITY, OR OF FITNESS FOR A PARTICULAR PURPOSE, WITH REGARDS TO THE AFFILIATES USE OF THE NETWORK, USE OF OR DISPLAY OF ANY PROVIDED MATERIALS OR ADVERTISEMENTS, OR ANY AGREEMENT ENTERED INTO WITH AFFILIATE. No employee, agent, dealer or contractor of Company is authorized to modify this limited warranty nor to make any additional warranties.
Limitation of Liability. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR (a) LOSS OF ANTICIPATED PROFITS, BUSINESS, REVENUE, GOODWILL OR OTHER LOSSES INCURRED IN CONNECTION WITH AFFILIATES MEMBERSHIP IN OR USE OF THE NETWORK, SUCH CLAIMS BEING EXPRESSLY WAIVED; (b) FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, DIRECTLY OR INDIRECTLY ARISING FROM THE PROVISION OF THE NETWORK; (c) CLAIMS BY THIRD PARTIES THAT AFFILIATE HAS VIOLATED ANY LAWS OR RIGHTS OF THIRD PARTIES, AS AFFILIATE AGREES TO INDEMNIFY THE COMPANY FROM ALL SUCH CLAIMS (d) OR FAILURE IN PERFORMANCE OF THIS AGREEMENT DUE TO CAUSES BEYOND ITS CONTROL INCLUDING, BUT NOT LIMITED TO, WORK STOPPAGES, FIRES, CIVIL DISOBEDIENCE, RIOTS, REBELLIONS, ACTS OF GOD, LAWS, REGULATIONS, ACTS OF THE GOVERNMENT, ACTS OF OTHER THIRD PARTIES, AND SIMILAR OCCURRENCES. In the event the Company is found liable for any act or inaction pursuant to these Terms and Conditions are the dealings between the parties; the Company’s total cumulative liability for such breaches, losses, and injuries shall be the actual value of the damages or losses caused to the Affiliate, but in no event shall this amount exceed the total revenue due to Affiliate at the time of the breach, loss or injury.
Affiliate Warranties and Representations:
Affiliate hereby warrants and represents that:
A. Affiliate will diligently comply with all state and federal laws and regulations, including the CAN SPAM Act of 2003, as amended. Affiliate acknowledges that any threatened or actual violation of this representation and warranty or any allegation of spamming by Affiliate may result in immediate termination from the Network, withholding of future commission, disclosure of Affiliate’s identity to the Advertiser, government agencies, law enforcement or other third parties and/or the pursuing of all appropriate legal remedies by Company itself for, inter alia, breach of this contract and indemnification as a consequence thereof.
B. TCPA/Phone compliance – Affiliate shall diligently comply with all laws and regulations regarding 47 U.S.C. §§ 227 et seq. (Telephone Consumer Protection Act) for consumer traffic sent through calls or SMS marketing. Failure to properly comply with state and federal laws related to sms or phone marketing will result in termination, release of your information to the offended Advertiser, withholding of commissions due, the pursuing of all appropriate legal remedies by third parties and/or the Company itself against Affiliate for, inter alia, breach of this contract and indemnification as a consequence thereof.
C. Affiliate will only transmit electronic mail messages to recipients who have provided their express affirmative consent to receive such commercial email messages. NO EXCEPTIONS. Affiliate must maintain records of the consumer’s opt-in, including collecting website URL, privacy policy for that website, time and date stamp of opt-in, and Internet Protocol (IP) Address used for opt-in, and provide those records to the Company and/or its Advertisers upon request.
D. Affiliate will comply with the following procedures to allow a recipient to request not to receive future commercial electronic mail messages (the “Opt-Out Procedures”): (1) Affiliate will include a clearly and conspicuously displayed, functioning return email address or other Internet-based mechanism that (a) a recipient may use to request not to receive future commercial electronic mail messages from Advertiser at the email address where the message was received and (b) remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message; and (2) if a product, service or Internet site of Affiliate’s is advertised or promoted by the message, then Affiliate will include a clearly and conspicuously displayed, functioning return email address or other Internet-based mechanism that (a) a recipient may use to request not to receive future commercial electronic mail messages from Affiliate at the email address where the message was received and (b) remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message.
E. If a recipient makes a request using a mechanism provided by Affiliate not to receive some or any commercial electronic mail messages from Affiliate, then Affiliate (I) shall not initiate, assist, or cause any person to initiate or assist, the transmission to the recipient more than 10 business days after the receipt of such request of a commercial email message that falls within the scope of the request; and (II) shall not sell, lease, exchange, or otherwise transfer or release the email address of the recipient (including through any transaction or other transfer involving mailing lists bearing the email address of the recipient) for any purpose other than compliance with any Federal, State, or local law, statute, regulation or ordinance.
F. Affiliate agrees to scrub its data against all suppression lists which are provided by the Company prior to each and every transmission of email advertisements for the Company. Failure to properly scrub will result in termination, release of your information to the offended Advertiser and withholding of commissions due. Affiliate agrees to only use provided suppression lists for lawful purposes and to not sell, rent or share any suppression lists other than as provided for by law.
G. Affiliate will not access any computer without authorization and intentionally initiate the transmission of multiple commercial electronic mail messages from or through such computer to accomplish any email broadcast.
H. Affiliate will not use a computer to relay or retransmit multiple commercial electronic mail messages with the intent to deceive or mislead recipients or any Internet access service as to the origin of such messages to accomplish any email broadcast.
I. Affiliate will not take any actions to falsify the header information in any commercial electronic mail messages including, but not limited to, the inclusion of header information that (A) includes an originating email address, domain name, or Internet Protocol address the access to which was obtained by means of false or fraudulent pretenses or representations, (B) fails to identify accurately a computer used to initiate the message because Affiliate knowingly uses another computer to relay or retransmit the message for purposes of disguising its origin, or (C) is altered or concealed in a manner that would impair the ability of any person or Internet access service processing the message on behalf of a recipient, to identify, locate, or respond to Affiliate or Advertiser or to investigate the alleged violation, or the ability of a recipient of the message to respond to Affiliate or Advertiser and intentionally initiate the transmission of such messages to accomplish any email broadcast. Affiliate expressly agrees that it will register its domains with accurate information including a legally registered company name, address, email address and phone number. Affiliate will not use domains that are privately registered or registered through a proxy service.
J. Affiliate will not register any electronic mail or online user accounts using information that materially falsifies the identity of the actual registrant and intentionally initiate the transmission of multiple commercial electronic mail messages from any combination of such accounts or domain names to accomplish any email broadcast.
K. Affiliate will not falsely represent itself to be the registrant or the legitimate successor in interest to the registrant of any Internet Protocol addresses and intentionally initiate the transmission of multiple commercial electronic mail messages from such addresses to accomplish any email broadcast.
L. Affiliate will not falsify or forge any electronic mail transmission information or other routing information in any manner to accomplish any email broadcast.
M. Affiliate will not take any actions including, but not limited to, the inclusion of a subject heading that is misleading about a material fact regarding the contents or subject matter of the message to falsify the subject heading in any messages that are part of any email broadcast.
N. Affiliate will not take any actions to alter any message transmitted for the Network in a manner that would prevent that message from containing (I) a clear and conspicuous identification that the message is an advertisement or solicitation; (II) a clear and conspicuous notice of the opportunity to decline to receive further commercial electronic mail messages from Affiliate or Advertiser; and (iii) a valid street address.
O. Affiliate will not display on their website nor disseminate material including, but not limited to, that which is illegal, obscene, pornographic, shows nudity, indecent, offensive to the average reasonable person, threatening, abusive, libelous, defamatory, discriminatory, promotes racism, bigotry or hatred; infringes on any intellectual property or is in violation of any copyright or trademark law; in violation of any right of privacy; that promotes harmful, unlawful, seditious, terrorism or other criminal activity; that could give rise to civil liability; that contains viruses, worms, a Trojan Horse or other harmful files; that spawns automatic pop-ups; that contains an unauthorized download to the end-user’s computer; that is software pirating; hacking or phreaking; that is in violation of the CAN SPAM ACT; is SPAM; that is in violation of any state or federal laws; or that appears or purports to be from someone other than the Affiliate or that impersonates another person or entity. Affiliate represents and warrants that Affiliate’s website, advertisements and links comply with all applicable laws.
P. Affiliate will not use any fraudulent means to generate traffic or inflate clicks/leads. Affiliate will not participate in any spoofing, redirecting or trafficking from other websites in order to gain traffic. Affiliate will not use automated means to generate traffic. Affiliate acknowledges and agrees that it will not be paid for any traffic generated through fraudulent means and it will only be paid for traffic generated through a real live person taking the required action. Company will not pay for any fraudulent traffic and may take appropriate legal action to recover any losses incurred; whether or not traffic is deemed fraudulent is in the sole and absolute discretion of the Company. The Affiliate must provide adequate proof upon request that traffic was not generated through fraudulent means however final determination will be in the discretion of the Company. Affiliate will forfeit all money due if the Affiliate engages in suspected or actual fraudulent behavior.
Q. Affiliate will comply with all state and federal laws regarding solicitations to minors and will only include age appropriate materials in any emails or websites targeted for minors.
R. Where advertisements are posted on Affiliate’s website or where links to Affiliate’s website are provided, Affiliate will have a fully functional website as “under construction” sites are prohibited; that displays actual content and is not just a list of advertisements or links; that has a detailed privacy policy which clearly informs the consumer what personal information is collected and how that information is used and gives an option to opt-out of the use of personal information; does not make any unsubstantiated claims; and that does not appear or purport to be the website of the advertiser or Company. Affiliate will comply with all laws regarding the use of testimonials and endorsements and will have appropriate disclaimers posted on their websites.
S. Affiliate agrees not to use incentivized traffic or incentivized ad placement, or to provide any incentive to the recipient of an electronic advertisement for any purpose including to induce the recipient to initiate an action, click on an ad or make a purchase. Incentives includes money, prizes, virtual currency, point systems and any other form of remuneration. The only exception to this section is for campaigns that are clearly marked by the Company as allowing incentives.
T. Affiliate will comply with all rules of any social networking site where traffic is generated through ad placement on a social networking site or service.
U. Affiliate will not bid on any search terms that are trademarked, copyrighted or otherwise protected intellectual property of a third party, including the Advertiser.
V. Affiliate will review and comply with the terms that are applicable to each campaign and which will be specified on an Insertion Order and/or in the affiliate portal.
W. Affiliate will not make any changes or modifications to the creative materials which are provided by Company to Affiliate. Affiliate acknowledges and agrees that it will use the provided From and Subject lines and creative materials and that any changes or modifications to those materials without written approval will result in a forfeiture of all revenue generated. Affiliate acknowledges and agrees not to add any text or images, other than Affiliate’s unsubscribe mechanism, to the creatives including, but not limited to, any hidden or invisible text.
Indemnification, defense and notification.
Affiliate agrees that it will defend and hold harmless the Company, its directors, officers, employees, Advertisers, Agencies, affiliates and clients (collectively, the “Covered Entities”) from and against any and all claims, actions or demand brought by or against the Company and/or any of the Covered Entities alleging: with respect to the Affiliate’s business, including the actions of Affiliate’s employees, contractors or other agents: (a) infringement or misappropriation of any intellectual property rights; (b) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; (c) any other offensive, harassing or illegal conduct or violation of any law, rule or regulation, including, the CAN SPAM ACT OF 2003, as amended; (d) any breach of these Terms and Conditions or the foregoing representations and warranties; or (e) any claim that the email transmissions are unsolicited or “spam”..
Affiliate hereby agrees to indemnify the Company and each Covered Entity from and against all damages, costs, and fees awarded in favor of third parties, and Affiliate will indemnify and hold harmless the Company each Covered Entity from and against all claims, demand, liabilities, losses, damages, expenses and costs (including reasonable attorney fees) (collectively, “Losses”) suffered or incurred by the Company and each Covered Entity which Losses result from or arise out of Affiliate’s use of the Network, the operation of Affiliate’s business, the violation by Affiliate of any law, rule or regulation, or a breach of these Terms and Conditions.
Affiliate will provide the Company with prompt written notice of each any claim of which Affiliate becomes aware which may affect a Covered Entities’ interests. Company will promptly notify Affiliate with respect to any claim of which Company becomes aware which may affect the Affiliate’s indemnification obligations hereunder.
In addition to the above indemnification, Affiliate agrees to indemnify and hold harmless any and all Advertisers or Agencies that are clients of the Company from any and all liability, including actual attorney’s fees and expenses incurred by that Advertiser or Agency as a result of Affiliate’s breach of any law, regulation or any of the foregoing representations or warranties. Affiliate acknowledges and agrees that the Advertiser or Agency is an intended third party beneficiary of the rights and responsibilities contained in this Agreement and that the Advertiser or Agency may also enforce the terms of this Agreement against Affiliate directly.
Relationship of Parties. Company and Affiliate are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Company and Affiliate. Neither Company nor Affiliate will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
Copyright. All content on this Website, including, but not limited to, text, design, graphics, logos, button icons, images, audio clips, digital downloads, interfaces, data compilations, software, and code, and the compilation of all content on this site, as well as all software used on this site is the property of Company, its affiliates, or its content suppliers, and is protected by United States and international copyright laws. Nothing contained on the Website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the copyrighted works displayed or contained in the Website without the express, written consent of Company.
Trademarks. The registered and unregistered trademarks, service marks, trade names, graphics, logos, page headers, button icons, scripts, trade dress, or other indicia of trade origin of Company, its affiliates, or Advertisers may not be used in connection with any business, product, or service whose source is not Company, in any manner that is likely to cause confusion among customers, the trade, or the public, or in any manner that disparages or discredits Company or any of its affiliates. All other trademarks, service marks, trade names, and logos not owned by Company, its affiliates or advertisers that appear on the Website are the property of their respective owners, who may or may not be affiliates with, connected to or sponsored by Company or its affiliates. Nothing contained on the Website should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of the trademarks, service marks, trade names, graphics, logos, page headers, button icons, scripts, trade dress or other indicia of trade origin of Company, its affiliates or advertisers displayed or contained in the Website without the express, written consent of Company, its affiliates or advertisers.
License and Site Access. Company grants Affiliate a nonexclusive, nontransferable, limited right and license to access and make use of this website, the Network software and the material provided hereon, provided that Affiliate fully complies with all Terms and Conditions. Affiliate agrees not to download (other than page caching) or modify this website or software or any portion of it. This license does not include any derivative use of the website or its contents or software; any downloading or copying of account information or software for the benefit of anyone other than the Company; or any use of data mining, robots, or similar data gathering and extraction tools. The website or any portion of the website may not be reproduced, duplicated, copied, sold, or resold. Affiliate may not frame or utilize framing techniques to enclose any trademark, logo or other proprietary information (including, without limitation, images, text, page layout, or form) of Company or its affiliates without its or their respective express, written consent. Affiliate may not use any metatags or any other “hidden text” utilizing Company’s, its affiliates’ or advertisers’ name(s) or trade names, trademarks or service marks without the express, written consent of Company. Any unauthorized use terminates the permission or license granted by Company.
Confidentiality. Affiliate agrees not to disclose to any third party any website content contained in any section of this website that requires a username and password with which to access it. Affiliate further agrees not to disclose to any third party the specific campaigns or advertisements which are displayed on the Network, nor the type, nature or profitability of those campaigns. Affiliate is responsible for maintaining the confidentiality of their account and password and Affiliate agrees to accept responsibility for all activities that occur under their account or password. Affiliate agrees to notify Company immediately of any unauthorized use or access of the website of which they are aware. Affiliate acknowledges that, during the course of its relationship with the Company, Affiliate may have access to confidential business information of the Company, its advertisers, clients and other Affiliates. As such, Affiliate agrees to maintain the Confidentiality of any such information in strict confidence and not to disclose any such information without the expressed written consent of Company during the term of this Agreement and for a period of three years following termination of this Agreement.
Non-Circumvention and Non-Solicitation. During the term of this Agreement and for a period of one (1) year following the termination of this Agreement, Affiliate agrees not, directly or indirectly, for themselves or any other individual or entity, to circumvent Company’s relationships with its Advertisers, Agencies and other clients (collectively “Clients”) by working directly with those Clients or otherwise soliciting Company’s Clients. Affiliate agrees not to work directly with any Client of the Company nor to state or imply that any Client should do business with them directly. Affiliate acknowledges and agrees that Company has invested significant time and resources into developing its relationships with its Clients and that any breach of this non-circumvention and non-solicitation provision would cause irreparable harm to the Company. Furthermore, Publisher agrees that it will not solicit to hire or employ any employee, contractor, publisher, affiliate, marketer, mailer, agent, or vender of the Company without the Company’s prior written approval, which may be withheld in Company’s discretion. Publisher acknowledges and agrees that in the event of any breach of this non-circumvention and non-solicitation provision the Company may seek an immediate injunction against any actual or threatened breach of this provision without the necessity of posting a bond.
Termination. If Affiliate breaches this Agreement, circumvents Company or otherwise solicits any of the Company’s Advertisers, fails to properly scrub against provided suppression lists, violates any regulation, law or government mandate or infringes on any right of third parties, the Company may immediately terminate Affiliate’s right to use the Network immediately and without any additional notice. The Company reserves the right to terminate, with or without cause, Affiliate’s right to use the Network immediately and without any additional notice. The Company will promptly pay any monies due to Affiliate minus any monies incurred or revenues lost due to Affiliate’s breach.
Entire Agreement and Amendments. This writing is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms of their agreement concerning the use of the Network. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term used in this Agreement. No amendment or extension of this Agreement shall be binding unless in writing and signed by both parties.
Third-Party Beneficiaries. Publisher understands and agrees that the Company’s Advertisers are express third-party beneficiaries of this Agreement with full rights as such. Advertisers are intended beneficiaries of this Agreement and may enforce the terms of this Agreement as if the Agreement was made directly between Publisher and the applicable Advertiser. This Agreement confers the same rights on the Company’s Advertisers as those rights of Company.
No Assignment. Affiliate may not assign this Agreement or any rights hereunder without the express written consent of the Company. This Agreement is binding on the parties respective successors and permitted assigns.
Severability. If a court or arbitrator of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.
Waiver. Failure to invoke any right, condition or covenant in this Agreement by either party shall not be deemed to imply or constitute a waiver of any rights, condition or covenant and neither party may rely on such failure. No claim or right arising out of the breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of such claim or right unless the waiver or renunciation is in writing signed by the aggrieved party.
Attorney Fees. In any action brought to enforce any provision of this Agreement, the losing party shall pay the prevailing party’s reasonable attorney fees and costs.
Governing law. This Agreement and all rights and obligations hereunder, including matters of construction, validity, and performance, will be governed by and construed according to the laws of the State of Georgia. Venue for any litigation arising out of this Agreement shall be brought in a federal or state courts of competent jurisdiction in Cobb County, Georgia and in no other jurisdiction.
Affiliate acknowledges that they have read these Terms and Conditions, understands them and agrees to be bound by and to honor the above Terms and Conditions. Please sign, send and print a copy of these Terms and Conditions for your records.
