LAST REVISED: July 26th, 2018
PUBLISHER AGREEMENT AND ACCEPTANCE OF PUBLISHERS
This LEAD EMBLEM Publisher Agreement (the “Agreement”) is entered into by and between LEAD EMBLEM, a Delaware Limited Liability Company (mailing address 3616 Kirkwood Highway
Suite A #1129, Wilmington, DE 19808) (“LEAD EMBLEM”) and you, a participant in the LEAD EMBLEM publisher program (“Publisher”) featured on https://leademblem.com (the “leademblem.com Website”), and sets forth the parties’ rights and obligations regarding said publisher program (the “Publisher Program”).
Notwithstanding the effective date of this Agreement, LEAD EMBLEM shall have sole discretion to determine the date that any Publisher is allowed to function as an Publisher through the Publisher Program.
This Agreement is subject to change in LEAD EMBLEM’s sole discretion and without prior notice. Changes may include, without limitation, the payout structure, payout amounts, payment procedures and other Publisher Program-related policies; provided, however, that: (i) any amendment or modification to the arbitration provisions, prohibition on class action provisions, or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes occurring before the amendment or modification; and (ii) any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to activity occurring before the applicable amendment or modification.
The latest version of this Agreement will be posted on the leademblem.com website, and review this Agreement prior to using the leademblem.com Website and/or Publisher Program. Your continued participation in the Publisher Program and/or use of the leademblem.com Website after such modification constitutes your consent to such modifications. You also understand and agree that LEAD EMBLEM may operate multiple websites that may be similar to or compete with the Publisher Program and that LEAD EMBLEM may solicit customer referrals that may differ from the terms and conditions in this Agreement.
Further, you agree to rely solely on this Agreement in making your decision to enroll in the Publisher Program and that you are not relying on any representation, guarantee or statement other than as stated in this Agreement. For any insertion order (“Insertion Order” or “IO”) to be effective and enforceable, it must be accepted in writing by LEAD EMBLEM in its sole discretion. Any IO submitted by or to LEAD EMBLEM shall be deemed incorporated into this Agreement by reference, but any conflicts between such IO and this Agreement shall be superseded and governed by this Agreement.
TERM AND TERMINATION
The term of this Agreement begins upon LEAD EMBLEM’s written acceptance of the Publisher into the Publisher Program and ends when terminated by either party as set forth herein. Publisher may terminate this Agreement upon three (3) days’ written notice to LEAD EMBLEM. LEAD EMBLEM may terminate this Agreement at any time and for any reason in LEAD EMBLEM’s sole discretion including, without limitation, (i) where LEAD EMBLEM believes Publisher is in breach of this Agreement; (ii) where LEAD EMBLEM believes that any website owned, operated or controlled by Publisher (“Publisher Website”) or any e-mail database owned, operated or controlled by Publisher (“Publisher Database”) is unsuitable for the Publisher Program (including, without limitation, where LEAD EMBLEM deems that the Publisher Website contains material that could be unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise controversial or objectionable); (iii) LEAD EMBLEM believes Publisher is engaging in deceptive marketing; (iv) LEAD EMBLEM believes Publisher is not, in any fashion, conducting permission-based e-mail marketing that fully complies with (a) all international, federal and state laws, rules and regulations including, but not limited to, the CAN-SPAM Act of 2003, as amended from time to time (“CAN-SPAM”) or (b) the applicable published rules or guidelines of the Internet access service (“IAS”) network, domain or e-mail servers to which it is transmitting commercial e-mail (for this Agreement, IAS shall have the same meaning as set forth in CAN-SPAM); or (v) upon the dissolution or insolvency of either party. Publisher is only eligible to earn “Commissions,” as defined below, on transactions occurring during the term of this Agreement. Upon termination of this Agreement (1) Publisher immediately shall cease using, and shall remove from the Publisher Websites, any and all Content (as defined below) and/or other materials provided to Publisher from LEAD EMBLEM; (2) Publisher immediately shall cease transmitting any and all e-mails in connection with any Advertising Campaign (as defined below); (3) any and all licenses and rights granted to Publisher in connection with this Agreement immediately shall cease and terminate; and (4) any and all Confidential Information, (as defined below) Content or proprietary information of LEAD EMBLEM (including any confidential or proprietary information of any Advertiser) in Publisher’s possession or control must immediately be returned or destroyed. If requested, Publisher will certify in a writing signed by Publisher or an authorized officer of Publisher that all such confidential and/or proprietary information has been returned or destroyed.
Registration with LEAD EMBLEM shall confer no right to participate in the Publisher Program. Your Participation in the Publisher Program is subject to review and approval by LEAD EMBLEM in its sole discretion. Upon LEAD EMBLEM’s written acceptance of you as an Publisher, LEAD EMBLEM grants to you a non-exclusive, non-transferable, revocable and limited license to use the Content made available via the Publisher Program for each advertising campaign (“Advertising Campaign”) solely and exclusively for your efforts to market the products and/or services featured in each such Advertising Campaign and under the terms and conditions contained herein. LEAD EMBLEM retains sole and exclusive ownership of all Content and other information developed by LEAD EMBLEM or supplied to you at any time in connection with this Agreement.
LEAD EMBLEM will provide to Publisher certain marketing pieces created by LEAD EMBLEM and/or one of its Advertisers for the Publisher Program. LEAD EMBLEM will post various creative materials, text links and/or banner advertisements (collectively “Content”) on the leademblem.com Website for download, use and publication by Publishers subject to the license set forth above and the other provisions of this Agreement. LEAD EMBLEM may terminate Publisher’s right to use the Content in its sole discretion at any time and without prior notice. Subject to the terms and conditions of the Advertising Campaign offered by the applicable Advertiser, Content shall be used only to generate valid sales, leads, applications, registrations, clicks, impressions or other compensable activities (collectively, “Compensable Transactions”). Unless otherwise stated in writing by LEAD EMBLEM, all Content provided to Publisher with any Advertising Campaign must include, in unaltered form, the LEAD EMBLEM special transaction tracking codes as embedded in all such Content (the “Transaction Tracking Codes”). Publisher shall not modify, circumvent, impair, disable or otherwise interfere with any Transaction Tracking Codes or other technology or methodology required or provided by LEAD EMBLEM in connection to the Content. LEAD EMBLEM may change or revise the Content made available in its sole discretion at any time and without prior notice, and Publisher agrees to use only the most recent version of the Content posted on the leademblem.com Website. Publisher may not alter, modify or otherwise change the Content in any manner whatsoever. Publisher may only use Content supplied by LEAD EMBLEM and that is posted on the leademblem.com Website. Use, or the attempted use, of any marketing materials other than the Content provided by LEAD EMBLEM may result in the immediate termination of this Agreement without notice.
Publisher shall comply with field requirements set forth by LEAD EMBLEM in this Agreement, in any applicable IO or in any written or email notice. LEAD EMBLEM may reject without recourse any leads or transactions that do not meet the required fields.
MARKETING RESTRICTIONS/RESTRICTIONS ON USE OF CONTENT
Publisher agrees that LEAD EMBLEM may direct the placement of the Content. Unless such direction is given (and subject to the terms and conditions of this Agreement, the rules relating to the particular Advertising Campaign and all applicable laws, rules and regulations), Publisher may display the Content in its Publisher Websites and/or in e-mail messages distributed to those e-mail addresses listed in its Publisher Database as it deems reasonable. Notwithstanding the foregoing, Publisher immediately must comply with any and all requests by LEAD EMBLEM to modify, alter or otherwise change the positioning, placement, frequency and/or other editorial decisions related to Content. Publisher immediately must remove Content upon receiving instructions from LEAD EMBLEM, or upon the termination or expiration of any Advertising Campaign.
Publisher shall NOT use brand names, trademarks or other intellectual property of another party (e.g., Milton Bradley or Apple) in the “subject” or “from” lines, or body of any commercial e-mail transmission. Publisher shall not use any brand names, trademarks or other intellectual property to direct traffic to any Publisher Websites or Advertiser websites including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name (or any derivative of any such trademark, service mark or brand name) of any of the Advertisers, LEAD EMBLEM or their respective publishers or clients.
Publisher shall not use any deceptive practices to generate leads (for example and without limitation, “job sites” that mislead consumers with the promise of employment for completing an offer such as an education or business opportunity). Publisher shall not post or transmit any deceptive content on public message boards, chat rooms, or in public areas of social networking and job sites, including without limitation Facebook.com, Craigslist, etc. Publisher shall not allow Content to be placed on any non-Publisher Websites without the prior express written consent of LEAD EMBLEM. Publisher shall not include or promote any Content or Advertiser Campaigns through any blogs, news articles or other social media without the prior written consent of LEAD EMBLEM for each use.
Publisher must place or use the Content only intending to deliver valid Compensable Transactions. Publisher shall not, nor knowingly or negligently permit any person to, activate the Content or inflate the Compensable Transactions through any deceptive or misleading practice, method or technology including, but not limited to, using any spyware, adware, device, program, robot, iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing a Compensable Transaction. Publisher agrees and acknowledges it shall not: (i) use incentivized offers, create the appearance of incentivized offers, establish or cause to be established any promotion that provides any incentives, sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Compensable Transactions, or otherwise attempt to induce Internet users to click on the Content or perform any action through any other incentives, without obtaining the prior written approval of LEAD EMBLEM; (ii) place any statement in close proximity to the Content requesting e-mail recipients or Internet users “click” on the Content (e.g., “Please click here”); (iii) place misleading or deceptive statements in close proximity to the Content; (iv) take control of a user’s computer by delivering advertisements that a user of a computer cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; (v) install or execute on another’s computer one or more additional software program(s) without consent of the user (upon obtaining such consent, Publisher must provide instructions to disable the software, such that the software is easily identifiable and the removal of which can be performed without undue effort or special knowledge by the user of the computer); (vii) distribute spyware or other similar or harmful software; or (viii) redirect traffic to a website other than the website listed by the Advertiser. The Publisher Websites must be fully functional at all levels. “Under construction” pages or sections are not permitted. Spawning process pop-ups are also prohibited.
Compliance with Quality Control Guidelines
Publisher shall comply with the Quality Control Guidelines (“QC Guidelines”), which may be updated at any time without notice, and which are effective upon being updated and published herein or delivered to Publisher via email, whichever first occurs. Failure to comply with QC Guidelines shall result in transactions being deemed non-Compensable Transactions.
Prohibited Use of Company Names and Contact Information
Publisher is prohibited from posting LEAD EMBLEM’s or any of its related companies name and/or contact information on any website, blog or other internet property owned, operated or controlled by Publisher. Publisher shall list its actual business name (or individual name, if doing business as a sole proprietorship), business address, telephone number and email address on any website, blog or other internet property owned, operated or controlled by Publisher.
Publisher agrees that during the term of this Agreement it shall maintain accurate books and records relating to its use of the Content and Suppression Lists (defined below). Publisher agrees that LEAD EMBLEM, or any designee of LEAD EMBLEM legally bound to obligations of confidentiality and non-disclosure, shall have the right during the term of this Agreement, and for a period of six (6) months, to examine, inspect, audit and review all such books, records and any source documents used in the preparation during normal business hours upon written notice to Publisher at least seven (7) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be at LEAD EMBLEM’s sole cost and expense and shall be limited to those books and records that relate to Publisher’s use of the Content and Suppression Lists. Notwithstanding the foregoing, if LEAD EMBLEM uncovers any material misconduct associated with Publisher’s use of the Content or Suppression Lists, then the audit shall be at the sole cost and expense of Publisher, payable upon demand.
LEAD EMBLEM shall pay commissions according to the payment terms of the applicable Advertising Campaign (“Commissions”) as set forth in the Publisher Program or on the leademblem.com Website. LEAD EMBLEM shall pay Commissions based on the Compensable Transactions recorded by the Transaction Tracking Codes approximately thirty (30) days after the last day of a calendar month, for Commissions earned in that month. All determinations made by LEAD EMBLEM in connection with the Transaction Tracking Codes, Compensable Transactions and any associated payments due to Publisher shall be final and binding on Publisher. Payments will be made to Publisher provided that the Publisher account has reached a minimum of one hundred dollars ($100.00) (“Payment Threshold”) in accrued revenues. Where an account has not reached the Payment Threshold, the amount due to Publisher will continue to roll over to the next month until an amount equal to or greater than the Payment Threshold has been reached. Upon termination of this Agreement, Commissions due and payable to Publisher (including amounts below the Payment Threshold) will be paid at the next regularly scheduled billing cycle. LEAD EMBLEM, in its sole discretion, may withhold any and all payments due and owing to Publisher until the Advertiser has paid LEAD EMBLEM for the associated Advertising Campaign. LEAD EMBLEM, in its sole discretion, may reduce any and all payments owed to Publisher where the applicable Advertiser has refused to make the corresponding payments to LEAD EMBLEM. Notwithstanding the foregoing, LEAD EMBLEM’s services do not involve investigating or resolving any claim or dispute involving Publisher and any Advertiser or other third party.
LEAD EMBLEM shall compile, calculate and post on the leademblem.com Website data that it has used to determine Publisher’s Commissions due and owing (the “Data”). Any questions or disputes regarding the Data must be submitted in writing to LEAD EMBLEM within five (5) business days of the date the Data is posted on the leademblem.com Website, otherwise the Data will be deemed accurate and accepted by Publisher. LEAD EMBLEM will investigate any Data-related questions or disputes and shall resolve such questions or disputes in its sole discretion. If, due to any impairment of the Transaction Tracking Codes or for any other reason, LEAD EMBLEM is unable or fails to provide Publisher with accurate or complete Data, LEAD EMBLEM shall calculate Compensable Transactions (“Projected Compensable Transactions”), based on (i) Publisher’s average monthly Compensable Transactions recorded by LEAD EMBLEM for the applicable Advertising Campaign, prorated for any shorter or longer period of time, where data is available to calculate a monthly average, or (ii) such amount that LEAD EMBLEM determines is due and owing in its sole discretion where data needed to calculate Publisher’s average monthly Compensable Transactions is unavailable.
LEAD EMBLEM shall not be responsible to pay Publisher on any eligible Commissions where (a) the Compensable Transaction involves the generation of leads, and the applicable leads delivered by Publisher comprise consumers that have previously registered for, opted-in to and/or are already a member or customer of the Advertiser, (b) are generated using fraud, incentivized marketing or otherwise in violation of the restrictions contained herein, or (c) the e-mail recipient did not opt-in to receiving e-mail marketing from Publisher. LEAD EMBLEM will not pay Commissions on any billings (1) that occur before Publisher is accepted into the Publisher Program and (2) that occur after termination of this Agreement or any termination of any applicable Advertising Campaign. LEAD EMBLEM will pay no Commissions to Publisher unless LEAD EMBLEM has documentation to support such Commissions. LEAD EMBLEM may require Publisher to provide a W-9, or similar tax identification information, as a condition precedent to receiving any Commission payments. LEAD EMBLEM reserves the right to withhold and/or cancel Commission payments due and owing to Publisher in its sole discretion when LEAD EMBLEM believes Publisher is in breach of any term of this Agreement. Customers buying products and/or services through the Publisher Program shall not be deemed the customers of Publisher. All Commission payments due to Publisher will be paid in US dollars. Publisher shall pay any and all taxes due to all taxing authorities arising from, or in connection with, Publisher’s participation in the Publisher Program. Without limiting the foregoing, Publisher agrees and acknowledges it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by LEAD EMBLEM and/or its Advertisers in relation to Publisher’s activities.
Any business partners or associates of Publisher that participate in or perform any activities for Publisher as a part of the Publisher Program shall be deemed “Sub-Publishers.” All Sub-Publishers must be pre-approved in writing by LEAD EMBLEM. It is Publisher’s sole responsibility to request such approval. LEAD EMBLEM reserves the right to withhold or refuse approval of any Sub-Publisher in its sole discretion and may revoke its approval of a Sub-Publisher at any time for any reason and without prior notice. All Sub-Publishers must meet the same criteria as Publisher for approval and must comply with the same terms and conditions as Publisher as set forth in this Agreement. Publisher shall be jointly and severally liable with such Sub-Publishers for the acts or omissions of its Sub-Publishers. LEAD EMBLEM may revoke approval of Publisher’s participation in any Advertising Campaign or terminate this Agreement based on the acts or omissions of Publisher’s Sub-Publishers. LEAD EMBLEM reserves the right to use all legal measures necessary to ensure that Publisher and its Sub-Publishers comply with this Agreement.
Publisher agrees to indemnify, defend and hold harmless LEAD EMBLEM and its directors, officers, shareholders, employees, agents and publishers from and against any and all third party actions, claims, liabilities, damages, losses and expenses, including reasonable attorneys’ fees and costs arising out of or related to the acts, errors or omissions of the Publisher, its Sub-Publishers, or any of the Publisher’s or Sub-Publishers’ officers, directors, employees, agents or publishers, or any third party acting on behalf of any of the foregoing, in connection with the performance of its obligations under this Agreement, any applicable IO, any applicable Advertising Campaign, or any breach of this Agreement.
E-MAIL MARKETING POLICY/CAN-SPAM COMPLIANCE
Prior to sending any commercial e-mail in connection with the Publisher Program, Publisher shall provide LEAD EMBLEM with a list of Internet protocol (“IP”) addresses and domain names that it intend(s) to use in connection with the particular Advertising Campaign. Publisher immediately must, upon the request of LEAD EMBLEM, produce the name, date, time, IP address and referral uniform resource locator (“URL”) where the applicable consumers granted Publisher affirmative consent, as defined by applicable law (“Affirmative Consent”), to send such e-mail marketing messages. Publisher is solely responsible for all consumer complaints relating to e-mail campaigns conducted by Publisher.
Publisher represents and warrants that it shall respond to all consumer complaints within forty-eight (48) hours of receipt. Besides all other available remedies, LEAD EMBLEM may withhold and suspend Commission payment until all outstanding consumer complaints are resolved to LEAD EMBLEM’s satisfaction. All costs associated with such required actions shall be deducted from the Publisher Commission. Publisher represents and warrants that it will comply with all applicable federal, state and local laws, rules and regulations, including without limitation the Federal Trade Commission implementing regulations, CAN-SPAM, and any international laws, rules and regulations), and any published rules or guidelines of the IAS networks, domains and/or e-mail service providers, regarding its e-mail marketing. Publisher acknowledges that any failure to comply with this Section may, in LEAD EMBLEM’s sole discretion, result in the immediate termination of this Agreement and the forfeiture of any and all rights to any Commissions owed to Publisher by LEAD EMBLEM.
When performing e-mail marketing of any kind for any Advertiser, Publisher represents and warrants that Publisher shall transmit commercial e-mail only to those recipients that have given Publisher Affirmative Consent to receive e-mail advertising from Publisher and have not revoked such consent as of the date the commercial e-mail was transmitted to such recipient. Publisher must (i) not falsify e-mail header and transmission information (including, without limitation, source, destination and routing information); (ii) not use any “subject” or “from” line materially false or misleading; (iii) not seek or obtaining unauthorized access to computers to send any and all commercial e-mail; (iv) include within all commercial e-mail sent: (a) a valid street address for both Publisher and the Advertiser (if any); (b) a clear and conspicuous opt-out notice and functional opt-out mechanism that must remain active for at least thirty (30) days from the date the subject e-mail was transmitted; (c) clear and conspicuous language in the body of the email identifying the message as an advertisement or solicitation by either header or footer information which states the message is an advertisement or solicitation; and (d) process unsubscribe requests within three (3) days of receipt of same; (v) comply with all legal obligations and best practices regarding unsubscribing consumers from the Publisher’s e-mail mailing lists; (vi) at least once each week, scrub the Publisher Database against the Advertiser suppression list, LEAD EMBLEM’s suppression list and Publisher suppression list (collectively “Suppression List”), subject to the provisions contained below; and (vii) immediately notify LEAD EMBLEM if any complaint, investigation and/or litigation ensues concerning Publisher’s or any Sub-Publisher’s e-mail practices (whether or not such complaint, investigation and/or litigation relates to Publisher’s relationship with LEAD EMBLEM). If any state or federal law, rule or regulation governing e-mail communications is enacted or amended after the effective date of this Agreement setting forth standards more restrictive than those set forth herein, the more restrictive standards contained in such enacted or amended law, rule or regulation shall apply to all Publishers with or without notice from LEAD EMBLEM of such change.
Regarding any Suppression List generated in connection with, or provided through the Publisher Program, Publisher shall: (i) use such Suppression List, and the individual customer records contained, solely for the suppression purposes set forth herein, even after any termination of this Agreement; (ii) regularly use such Suppression List to remove any and all e-mail addresses or domains contained therein from future commercial e-mail mailings; (iii) not use the Suppression List for e-mail marketing (or provide the Suppression List to any third party for said purposes) and not send, or cause to be sent, any commercial e-mail messages to an e-mail address or domain appearing on any Suppression List; (iv) not use any Suppression List for e-mail appending in any manner; (v) hold any Suppression List provided by LEAD EMBLEM or any Advertiser in trust and confidence and use same solely for the suppression purposes set forth; (vi) not retain a copy of any Suppression List provided by LEAD EMBLEM or any Advertiser following termination of this Agreement; and (vii) not disclose any Suppression List provided by LEAD EMBLEM or any Advertiser to any employee, consultant, subcontractor or third party individual, corporation or entity without first ensuring said party’s written agreement to be bound by this Agreement. Such agreement shall be immediately forwarded to LEAD EMBLEM, upon request. LEAD EMBLEM reserves the right to withhold its consent to such disclosure and may, within its discretion, accordingly bar disclosing any and all Suppression Lists provided by LEAD EMBLEM or any Advertiser.
Publisher shall upload its own list of suppressed e-mail addresses to the area of the leademblem.com Website (“Suppression List Upload Section”), if such a Suppression List Upload Section is provided by LEAD EMBLEM. If the Suppression List Upload Section is provided by LEAD EMBLEM, and no such e-mail addresses are supplied by Publisher, LEAD EMBLEM may conclude that no such addresses exist. Publisher further agrees and acknowledges that: (a) it has downloaded and removed the domains on the Federal Communications Commissions (“FCC’s”) wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all current data used in its mailings; and (b) any and all new data that it acquires, regardless of its source, will be scrubbed against the FCC’s wireless domain names list and that the domain names contained therein will be removed before sending any LEAD EMBLEM mailings. Publisher shall maintain electronic or tangible records evidencing the removal of any email addresses from Publisher’s lists for verification by LEAD EMBLEM as required or requested.
Publisher shall comply fully with the Telephone Consumer Protection Act, as amended and updated (“TCPA”) for all marketing activity that might result in telemarketing calls, text messages, SMS messages or other activities governed by the TCPA, whether from LEAD EMBLEM or any Advertiser. Understanding the TCPA and complying with the TCPA is solely Publisher’s responsibility. In addition to any other requirements of the TCPA or any implementing regulations, Publisher shall obtain prior express written consent from consumers that the consumer will accept telemarketing calls and SMS marketing messages from LEAD EMBLEM LLC and its Advertisers or other entities as specified by LEAD EMBLEM. Consent cannot be a condition of a purchase. Without limiting the foregoing, if Publisher uses its own websites or forms to generate leads or to encourage a purchase or other consumer activity, Publisher immediately must product, on demand: (i) proof that a clear and conspicuous disclosure was provided to the consumer allowing for telemarketing calls and/or SMS messages as required herein; (ii) that the consumer unambiguously consented to receive such to the number the consumer provided; (iii) a copy of the website page or form that contains the consent language, and the fields entered by the consumer (this can be blank); (iv) a screenshot of the consumer’s view that shows the any fields completed (this cannot be blank); (v) the date and time stamp related to the consent given; and (vi) the consumer’s IP address.
COVENANTS, REPRESENTATIONS AND WARRANTIES
The Acceptable Use Policy (“AUP”) of LEAD EMBLEM describes the proper conduct within and prohibited uses of the Publisher Program. By registering for and using the Publisher Program, you agree to be bound and abide by the AUP. The AUP is not exhaustive and LEAD EMBLEM reserves the right to modify the AUP at any time, effective upon posting the modified AUP on leademblem.com Website (see URL above). It is Publishers sole responsibility to periodically review the AUP for updates. LEAD EMBLEM does not provide notices of any changes in any manner other than by posting the changes on the leademblem.com Website. Your continued participation in the Publisher Program and/or use of the leademblem.com Website after such modification constitutes your consent to any and all changes to the AUP in effect at that time.
DISCLAIMERS/LIMITATION OF LIABILITY
THE PUBLISHER PROGRAM, LEAD EMBLEM WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CONTENT PROVIDED BY LEAD EMBLEM 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 PUBLISHER PROGRAM, LEAD EMBLEM WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CONTENT PROVIDED BY LEAD EMBLEM MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. LEAD EMBLEM HAS NO LIABILITY WHATSOEVER TO PUBLISHER OR ANY THIRD PARTY, FOR PUBLISHER’S USE OF, OR INABILITY TO USE, THE PUBLISHER PROGRAM, THE LEAD EMBLEM WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND/OR CONTENT. LEAD EMBLEM IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR COSTS OF LITIGATION), 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. THE NEGATION OF DAMAGES SET FORTH HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN LEAD EMBLEM AND PUBLISHER. THE PUBLISHER PROGRAM, LEAD EMBLEM WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CONTENT PROVIDED BY LEAD EMBLEM WOULD NOT BE PROVIDED TO PUBLISHER WITHOUT SUCH LIMITATIONS.
LEAD EMBLEM MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE PUBLISHER PROGRAM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM LEAD EMBLEM THROUGH THE PUBLISHER PROGRAM, LEAD EMBLEM WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES OR CONTENT SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. ALL RESPONSIBILITY AND LIABILITY FOR ANY AND ALL DAMAGES CAUSED BY OR THROUGH THE PUBLISHER PROGRAM, LEAD EMBLEM WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CONTENT IS EXPRESSLY DISCLAIMED. PUBLISHER UNDERSTANDS AND AGREES THAT PARTICIPATION IN THE PUBLISHER PROGRAM AND ACCESS OR USE OF THE LEAD EMBLEM WEBSITE AND ITS CONTENT IS DONE SOLELY AT PUBLISHER’S OWN DISCRETION AND AT PUBLISHER’S OWN RISK. PUBLISHER IS SOLELY RESPONSIBLE FOR ANY USE, OR ALLEGED USE, OF THE PUBLISHER PROGRAM, LEAD EMBLEM WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CONTENT THAT MAY INFRINGE UPON A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. UNDER NO CIRCUMSTANCES SHALL LEAD EMBLEM BE LIABLE TO PUBLISHER OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH PUBLISHER’S MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM PUBLISHER’S PARTICIPATION IN THE PUBLISHER PROGRAM. WITHOUT LIMITING THE FOREGOING, LEAD EMBLEM’S MAXIMUM AGGREGATE LIABILITY TO PUBLISHER AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE EQUAL TO THE MONEY PAID BY LEAD EMBLEM TO PUBLISHER DURING THE SIX (6) MONTHS IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO SUCH DAMAGES.
The organization, graphics, design, compilation, magnetic translation, digital conversion, software and other matters related to the leademblem.com Website, Publisher Program, Content, Data, Transaction Tracking Codes and Suppression Lists provided by LEAD EMBLEM or any Advertiser are protected under applicable copyright, trademark and other proprietary or intellectual property laws. The usage, copying, redistribution or publication by Publisher of any part of the leademblem.com Website, Publisher Program, Content, Data, Transaction Tracking Codes and Suppression Lists provided by LEAD EMBLEM or any Advertiser, other than as contemplated in this Agreement, are strictly prohibited. Publisher acquires no ownership rights to the leademblem.com Website, Publisher Program, Content, Data, Transaction Tracking Codes and Suppression Lists provided by LEAD EMBLEM or any Advertiser. The availability of the leademblem.com Website, Publisher Program, Content, Data, Transaction Tracking Codes and Suppression Lists provided by LEAD EMBLEM or any Advertiser does not constitute a waiver of any rights related thereto.
Publisher agrees that LEAD EMBLEM may use, in perpetuity and without prior approval, Publisher’s name, company name and/or likeness, the Publisher Website addresses and any associated information, in LEAD EMBLEM’s marketing materials and press releases without compensation to Publisher. Publisher shall not create, publish, distribute or permit any written material that refers to LEAD EMBLEM without first submitting such material to LEAD EMBLEM and receiving LEAD EMBLEM’s prior written consent, which LEAD EMBLEM may withhold in its sole discretion. For this Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of this Agreement by one party (“Disclosing Party”) to the other party (“Receiving Party”), and information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to: (i) a party’s business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, processes, methodologies, trade secrets, customer and vendor lists, personally identifiable customer information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format; (ii) the material terms of this Agreement and any associated Advertisers or Advertising Campaigns; and (iii) any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in this Agreement, or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers: (a) who must know such information for the Receiving Party to perform its obligations hereunder; and (b) who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof: (1) is generally available to or known to the public through no wrongful act of the Receiving Party; (2) was independently developed by the Receiving Party without the use of Confidential Information; or (3) was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The information and services provided through the Publisher Program and the Content are proprietary in nature and, by enrolling, Publisher acknowledges Publisher is not a competitor of LEAD EMBLEM and agrees not to share this information with any competitors of LEAD EMBLEM. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the Disclosing Party shall be further entitled to injunctive relief, without the requirement to post bond. This Section shall survive any termination of this Agreement for a period of five (5) years, or for as long as that Confidential Information remains a trade secret under Wyoming State law, whichever period is longer.
Publisher recognizes that LEAD EMBLEM has proprietary relationships with the publishers, Advertisers and other third-parties that participate in the Publisher Program (collectively, “LEAD EMBLEM Partners”). Publisher agrees not to circumvent LEAD EMBLEM’s relationship with its LEAD EMBLEM Partners, or otherwise offer, provide, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by publishers in the Publisher Program for any LEAD EMBLEM Partner during the term of this Agreement and for the one (1) year period following termination or expiration of this Agreement. Notwithstanding the foregoing, if Publisher can show that any such LEAD EMBLEM Partner already obtained such services from Publisher prior to the effective date of this Agreement, then Publisher shall not be prohibited from continuing such relationship.
Publisher agrees to indemnify, defend and hold harmless LEAD EMBLEM, its parents, publishers and/or subsidiaries, and each of their respective officers, directors, partners, members, managers, employees, agents and attorneys, from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from or related to: (i) Publisher’s, or a Sub-Publisher’s, breach of this Agreement and/or any representation or warranty contained herein; (ii) the Publisher Websites, Publisher Database, and/or Publisher’s or any Sub-Publisher’s marketing practices; (iii) any third party allegation or claim against LEAD EMBLEM relating to a violation of any Laws and Regulations; (iv) any allegation that Publisher or a Sub-Publisher has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; (v) any non-Advertising Campaign related content, goods or services offered, sold or otherwise provided by Publisher on and through the Publisher Websites, Publisher Database or otherwise; (vi) any claim that LEAD EMBLEM must pay any taxes in connection with Publisher’s participation in the Publisher Program; or (viii) Publisher’s or any Sub-Publisher’s participation in the Publisher Program, in any manner whatsoever. You will promptly assume such defense with counsel reasonably acceptable to LEAD EMBLEM upon written notice to you of such indemnifiable claim. LEAD EMBLEM reserves the right to participate in the defense at its sole expense. You agree you will settle no indemnifiable claim without our prior written approval of LEAD EMBLEM.
Publisher shall immediately notify LEAD EMBLEM in writing if Publisher receives notice of any complaints, inquiries or investigations related to the Publisher Websites, Publisher Database, any Sub-Publishers or any other violations for Publisher’s or any Sub-Publisher’s business whether or not Publisher must indemnify LEAD EMBLEM for such claim.
Publisher agrees that LEAD EMBLEM will not be liable or considered in breach of this Agreement for LEAD EMBLEM’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions beyond LEAD EMBLEM’s reasonable control and that LEAD EMBLEM cannot overcome through exercising commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, LEAD EMBLEM will give Publisher notice and will use commercially reasonable efforts to minimize the impact of any such event.
DISPUTE RESOLUTION PROVISIONS
This Agreement shall be treated as though it were executed and performed in Cheyenne, Wyoming and shall be governed by and construed under the laws of Wyoming (without regard to conflict of law principles). Any dispute arising out of or relating to this Agreement shall be resolved in a binding arbitration under the auspices of the American Arbitration Association in Cheyenne, Wyoming under the then current Commercial Arbitration Rules of the American Arbitration Association. Besides all other rights and remedies a party may have, the prevailing party in any arbitration or legal action shall be entitled to an award of its reasonable attorneys’ fees and costs. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. This binding arbitration provision shall not, however, prevent either party from seeking equitable or injunctive relief in a court of competent jurisdiction. Publisher agrees that any unauthorized and/or unlawful use of the Publisher Program would cause irreparable injury to LEAD EMBLEM for which monetary damages would be inadequate. In such event, LEAD EMBLEM shall have the right, besides other remedies available to it under this Agreement, to immediate injunctive relief against Publisher without the need to post a bond. Nothing in this Agreement shall be construed to limit any legal remedies available to LEAD EMBLEM. To the extent permitted by law, you agree you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy you may have against LEAD EMBLEM and its employees, officers, directors, members, representatives and/or 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 attorney’s fees and court costs that LEAD EMBLEM incurs in seeking such relief. This preventing you from bringing, joining or participating in class action lawsuits: (i) does not constitute a waiver of your rights and remedies to pursue a claim individually and (ii) is an independent agreement.
CLASS ACTION WAIVER
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor LEAD EMBLEM will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. Furthermore, you agree that you will not seek to have any dispute against any lender to whom you are referred heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity.
If any Section or provision of this Agreement, or the application of such Section or provision, is held invalid by any court of competent jurisdiction, applicable statute or rule of law, then such Section or provision shall be deemed automatically adjusted to the minimum extent necessary to conform to the requirements for validity as declared at such time and, as so adjusted, shall be deemed a Section or provision of this Agreement as though originally included herein. If the Section or provision invalidated is of such a nature it cannot be so adjusted, the Section or provision shall be deemed deleted from this Agreement as though such Section or provision had never been included herein. In either case, the remaining Sections and provisions of this Agreement shall be interpreted to reasonably affect the original intent of LEAD EMBLEM and Publisher. Section headings are included for convenience only and shall not affect the interpretation of this Agreement.
LEAD EMBLEM 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. LEAD EMBLEM’s 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. Any attempt by any individual, whether or not an Publisher, to damage, destroy, tamper with, vandalize or otherwise interfere with the operation of the Publisher Program, violates both criminal and civil law and LEAD EMBLEM may diligently pursue any and all remedies against any offending individual or entity to the fullest extent permissible by law and in equity. This Agreement will be binding on, inure to the benefit of and be enforceable against the parties and LEAD EMBLEM’s successors and assigns. Publisher may transfer no rights and obligations under this Agreement. Any attempt to do so shall be deemed invalid and shall give LEAD EMBLEM the right immediate to terminate this Agreement.
Publisher agrees that by clicking on the button labeled “I Agree” or “Accept” or “Submit” (or such similar button as may be designated by LEAD EMBLEM to accept this Agreement), Publisher is submitting a legally binding electronic signature and is entering into a legally binding contract. Publisher acknowledges that Publisher’s electronic submissions constitute Publisher’s agreement and intent to be bound by this Agreement. Under any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, PUBLISHER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY LEAD EMBLEM. Further, Publisher waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or granting credits by other than electronic means.
For technical/general questions, please contact: firstname.lastname@example.org
If you have any questions regarding these Terms, you may contact us by email at email@example.com or write to us at the following address:
3616 Kirkwood Highway
Suite A #1129
Wilmington DE 19808