Envy Leads, LLC Publisher Agreement
These terms and conditions (the “Agreement”) shall constitute the entire agreement between Envy Leads, LLC (“Envy Leads” “we” or “us”), and you governing your participation as a Publisher (“Publisher”) in the Envy Leads, LLC Network.
1.1 We grant to Publisher a non-exclusive, non-transferable, revocable and limited license to market the “Offers” products and/or services in accordance with this Agreement (the “Campaign”) Envy Leads will place advertisements received from its Advertisers (“Advertisers”) on the Platform.
2. Term and Termination
2.1 Either party may terminate this Agreement at any time, with or without cause, upon three (3) business days written notice of termination. Publishers are only eligible to earn Commissions generated during the term of this Agreement.
2.2 Obligations that, by their nature, would survive any termination of this Agreement shall survive any termination of this Agreement.
3.1 Commissions shall be paid to the respective Publisher thirty (30) days after the last day of a given calendar month, for Commissions actually paid by Advertiser to Envy Leads in that month. Envy Leads, in its sole discretion, may withhold any and all payments due and owing to Publisher until such time as Advertiser has paid Envy Leads for any Campaign.
3.2 Envy Leads shall compile, calculate and provide the data that Envy Leads has used to determine Publisher’s Commissions (the “Data”). Any questions or disputes regarding the Data must be submitted in writing to Envy Leads within ten (10) business days of receipt; otherwise the information contained therein will be deemed accurate and accepted by the Publisher. You agree that the Commissions due and payable to you shall be based solely on the Data provided by Envy Leads.
3.3 Envy Leads shall not be responsible to pay Publisher any Commissions based upon: i) those leads who have previously registered, opted in and/or are already a member of the Advertiser website and/or campaign; ii) any leads that fail to comply with Advertiser’s requirements; and/or iii) that Envy Leads reasonably suspects to be generated by fraudulent activities.
4. Creative Assets
4.1 We will make available to our Publishers certain creative assets provided by Advertisers and/or Envy Leads for use with the Platform (“Creative Assets”).
4.2 Envy Leads may change or revise the content of the Creative Assets at any time, in our sole discretion, and Publishers agree to use only the most recent version of any Creative Assets that are provided by Envy Leads. Publishers may not alter, modify or otherwise change the Creative Assets in any manner, whatsoever.
4.3 Publisher agrees and acknowledges that Publisher shall not incentivize offers or create the appearance of incentivizing offers or redirect traffic to a website other than the website provided in the Creative Assets.
4.4 Should Publisher conduct e-mail marketing campaigns to its users, Publisher must, upon the request of Envy Leads supply the name, date, time and IP address where the consumer signed-up and/or gave permission to the Publisher to conduct such e-mail campaign. Publisher is solely responsible for all consumer complaints relating to e-mail campaigns conducted by the Publisher and will respond to all consumer complaints within twenty-four (24) hours of notification.
5. Publisher Representations and Warranties: Publisher hereby represents and warrants to us as follows:
5.1 At all times, it will comply with all applicable state and federal laws, rules and Federal Trade Commission enabling regulations.
5.2 Without limiting the generality of the foregoing, when performing e-mail marketing of any kind and on behalf of any Advertiser, Publisher represents and warrants that Publisher shall:
A. refrain from falsifying e-mail header and transmission information (including, without limitation, source, destination and routing information);
B. not use any subject or from line that is materially false or misleading;
C. refrain from seeking or obtaining unauthorized access to computers for the purpose of sending any and all commercial e-mail;
D. prior to the sending of any email for a Advertiser, Publisher will scrub its distribution list against the Advertiser’s suppression list and only use such suppression list, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of this Agreement; and
E. immediately notify Envy Leads in the event that any complaint, investigation and/or litigation ensues concerning Publisher’s e-mail practices.
6. Envy Leads Representations and Warranties: Envy Leads hereby represents and warrants to Publisher as follows:
6.1 Envy Leads will comply with all applicable state and federal laws, rules and Federal Trade Commission enabling regulations in performance of its obligations hereunder.
Except as necessary to perform under this Agreement, neither party may use the other party’s company name, website address and any associated information in any marketing materials and press releases, without prior written consent from the relevant party.
Each party agrees to indemnify, defend and hold the other party, its parents, Publishers and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against third party liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees) arising from a party’s breach of this Agreement and/or any representation or warranty contained herein. If any action will be brought against either party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party’s rights or interests without the prior written consent of the Indemnified Party, which such consent shall not be unreasonably withheld.
Any marked confidential information and proprietary data provided by one party shall be deemed “Confidential Information” of the disclosing party. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary. Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations. Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which: (i) was previously known to the receiving party; (ii) was or becomes generally available to the public through no fault of the receiving party; (iii) was rightfully in receiving party’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to receiving party by the disclosing party; (iv) was developed by employees or agents of receiving party independently of and without reference to any information communicated to receiving party by disclosing party; or (v) was communicated by disclosing party to a third party free of any obligation or confidence. Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law, as required by the rules of any applicable securities exchange or as necessary to establish the rights of either party under this Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.
10. Disclaimers/Limitation of Liability
10.1 THE PLATFORM, PLATFORM WEBSITE, CREATIVES AND MARKETING PIECES 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 PLATFORM, Envy Leads WEBSITE AND MARKETING PIECES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. Envy Leads HAS NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD PARTY, FOR PUBLISHER’S USE OF, OR INABILITY TO USE, THE PLATFORM, PLATFORM WEBSITE AND/OR MARKETING PIECES. FURTHER, NEITHER PARTY HERETO SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Envy Leads MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE PLATFORM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM Envy Leads THROUGH THE NETWORK, PLATFORM, PLATFORM WEBSITE, OR MARKETING PIECES SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
10.2 WITH THE EXCEPTION OF INDEMNIFICATION OBLIGATIONS HEREUNDER, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY TO THE OTHER PARTY AND/OR ANY THIRD PARTY UNDER THIS AGREEMENT SHALL BE EQUAL TO THE COMMISSIONS EARNED BY PUBLISHER FOR THE SIX (6) MONTHS IMMEDIATELY PRECEEDING ANY CLAIM.
11. Force Majeure
11.1 Publisher agrees that Envy Leads will not be liable, or be considered to be in breach of this Agreement, on account of our delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond our reasonable control and that we are unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”).
12.1 This Agreement shall be treated as though it were executed and performed in Pennsylvania and shall be governed by and construed in accordance with the laws of the State of Pennsylvania (without regard to conflict of law principles). Should a dispute arise concerning the terms and conditions of this Agreement, or the breach of same by either party hereto, the parties agree to submit their dispute for resolution to appropriate state or federal court in Pennsylvania.
12.2 Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect.
12.3 Envy Leads and Publisher are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. Publisher has no authority to make or accept any offers or representations on behalf of Envy Leads.
12.4 To the extent that anything in or associated with the Envy Leads Website and Platform Website is in conflict or inconsistent with this Agreement, this Agreement shall take precedence.
12.5 Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.
12.6 This Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and assigns. Publisher is not permitted to transfer any rights and obligations pursuant to this Agreement. Any attempt to do so will result in the immediate termination of this Agreement.
12.7 The General Data Protection Regulation (“GDPR”) is a new, European-wide law which will become fully enforceable on May 25, 2018. This legislation lays out requirements for data collection, storage and usage practice.
A. The data effected would be any information related to a natural person or “Data Subject”, form a name, a phot, an email address, bank details, posts on social networking websites, medical information, or a computer IP address.
B. To comply with the GDPR you must meet a number of requirements. These include by without limitation to: Only collect information that you need from a specific purpose. Seek consent to store the information you hold. Keep secure. All the subject access to the information on request. Comply with a subject’s “right to be forgotten” and erase personal data upon request.
C. You must have clear consent on all data collections and data you manage within the EU.
D. The request for consent must be given in an intelligible and easily accessible form, with the purpose for data processing attached to that consent-meaning it must be unambiguous. Consent must be clear and distinguishable from other matters and provided in an intelligible and easily accessible form, using clear and plain language. It must be easy to withdraw consent as it is to give it.