TERMS AND CONDITIONS
LLC TERMS AND CONDITIONS
1. TRACKING. Publisher will be provided reporting within twenty-four (24) hours of lead submission. LBMC agrees to use its best efforts to keep its website running and functional, allowing for actions to be processed. In the event that the tracking methods used malfunction or the LBMC website is inoperable, for the period in question, the parties agree to discuss and work together in good faith to determine proper invoicing. Publisher agrees that LBMC’s determination is final and binding.
2. CREATIVE. Publisher shall only use creative assets provided by LBMC in promotional methods, unless LBMC has given explicit written approval for Publisher to use alternative creative assets. Publisher shall not change, modify, or optimize creative assets at any time without LBMC’s prior written consent. Publisher acknowledges that any failure to comply with this provision may, at LBMC’s sole discretion, result in the immediate termination of this Agreement and its Publisher status, including the forfeiture of any and all rights to any Commissions owed to the Publisher by LBMC.
3. PUBLISHER REPRESENTATIONS AND WARRANTIES. Publisher represents, warrants, and acknowledges that: (i) it will comply with all applicable federal, state, and local laws and regulations, and FTC guidelines, including without limitation those relating to advertising, consumer protection, privacy, email, unfair business practices, and the CAN SPAM Act of 2003, as outlined below in Section 5 below; (ii) it has the full right, power, legal capacity, and authority to enter into, deliver, and fully perform under this Agreement; (iii) it shall not engage in any fraudulent activity or prohibited conduct, as described further below in Section 4; and (iv) it will provide accurate identification information when signing up as a Publisher; Specifically, Publisher shall not provide false identifying information or allow any third-party other than the Publisher who has agreed to these terms, to access the LBMC network. By submitting an Affiliate sign up form, Publisher agrees that they are affirmatively opting-in to receive marketing communications from LBMC, including but not limited to: emails, announcements, and/or newsletters to affiliates regarding any LBMC offers.
4. PROHIBITED CONDUCT. Publisher shall not, and shall not authorize or encourage any third party to: (1) directly or indirectly generate leads through any automated, deceptive, fraudulent or other invalid means, including but not limited to, the use of proxy IPs; (2) redirect a user away from any Advertiser Page or provide a version of the Advertiser Landing Page that is different from the page a user would access by going to the Advertiser Landing Page as provided by LBMC; (3) display any Ad(s) or Link(s), on any error page, on any chat page, in any email, or on any Web page or site that contains any pornographic, sexually explicit, hate-related, violent, illegal, false, misleading, deceptive, discriminatory, or, otherwise, objectionable content; or (4) use false identifying information when signing up as a Publisher with LBMC. Publisher acknowledges that any attempted participation or violation of any of the foregoing is a material breach of this Agreement and LBMC may immediately terminate this Agreement and suspend Publisher’s account and pursue any and all applicable legal (civil or criminal) and equitable remedies against Publisher. Publisher unequivocally acknowledges and agrees that any failure to comply with the terms of this section may result in the immediate termination of its Publisher status and the forfeiture of any and all rights to any Commissions owed to the Publisher by LBMC. LBMC’s decision regarding fraudulent activity and withholding of any payments relating to such fraud shall be final and binding.
5. EMAIL MARKETING POLICY. Email campaigns may only be performed and provided by Publisher. Publisher agrees to only send emails to email addresses managed by Publisher. Without express written consent from LBMC, Publisher shall, under no circumstances, allow any sub-publisher to engage in any email campaigns on LBMC’s behalf. Publisher represents and warrants that, at all times, Publisher will strictly comply with all applicable state and federal laws, rules and Federal Trade Commission enabling regulations (including the CAN-SPAM Act of 2003, as amended from time to time), with respect to e-mail marketing. Publisher further represents and warrants that they do not engage in false, deceptive, or misleading practices when collecting consumer information and that Publisher has policies and procedures in place to timely honor “opt-out/unsubscribe” requests. Without limiting the generality of the foregoing, Publisher specifically agrees to comply with the following:
Publisher acknowledges that any failure to comply with this E-mail Marketing Policy may, at LBMC’s sole discretion, result in the immediate termination of its Publisher status and the forfeiture of any and all rights to any Commissions owed to the Publisher by LBMC.
6. DATA PROTECTION. Publisher shall, at all times, use its reasonable best efforts to comply with all applicable federal, state, and local laws and regulations relating to the protection of Personally Identifiable Information and privacy rights associated with the Personally Identifiable Information. Notwithstanding anything to the contrary contained in this Agreement, Publisher shall: (1) Store Personally Identifiable Information for no other purpose than to facilitate the performance of Services under this Agreement; (2) Not use and/or disclose Personally Identifiable Information to unauthorized third parties and for any purpose other than to facilitate the performance of Services under this Agreement; and (3) Maintain effective and commercially reasonable information security measures to protect the Personally Identifiable Information from unauthorized disclosure or use, including but not limited to: Using and regularly updating anti-virus software; Restricting access to the Personally Identifiable Information to a need-to-know basis; Conducting periodic audits of the security of its systems; and Installing and maintaining firewalls to protect the Personally Identifiable Information from unauthorized access.
7. CONFIDENTIAL INFORMATION. Confidential Information means all information concerning the parties hereto or this Agreement, which is provided by one party hereto ("Disclosing Party") to the other ("Receiving Party") and not generally known by the Public or third parties whom are not the parties to this Agreement. Confidential Information includes, but is not limited to Advertiser(s), characteristics, site requirements, designs, proposals, agreements, marketing plans, tracking data, financial structure of this Agreement, Advertisement descriptions, and the pricing of the Advertisements, set forth in any related insertion order or financial information. Confidential information also includes any information described above which either party hereto obtains from a third party and said third party treats as 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 similar to those set forth herein. Publisher shall not use any portion of Confidential Information provided by LBMC for any purpose other than those provided for under this Agreement. This Section shall survive any termination of this Agreement for a period of one (1) year thereafter.
8. LICENSE AND INTELLECTUAL PROPERTY. LBMC hereby grants to Publisher a nonexclusive, nontransferable, limited, revocable license to use the Network solely for the purpose of performing its obligations under this Agreement. Nothing in this Agreement shall be construed as LBMC granting Publisher any right, title or interest in the Network. Further, each party shall own and retain all right, title and interest in its trade names, logos, trademarks, service marks, Internet domain names, copyrights, trade secrets, and proprietary technology. Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, or otherwise use any of the Intellectual Property of the other party without the express prior written consent of such party.
9. TERMINATION. Either party may terminate this Agreement at any time and for any reason upon providing prior, written one (1) day notice. Notwithstanding, LBMC reserves the right to terminate this Agreement immediately if it reasonably determines that Publisher has materially breached this Agreement or has failed to comply in any respect with any of its obligations hereunder.
10. LIMITATION OF LIABILITY. LBMC IS NOT RESPONSIBLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF LBMC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR WHERE SUCH DAMAGES ARE OTHERWISE FORESEEABLE) OR DAMAGES FOR LOST PROFITS, REVENUE, AND/OR DATA ARISING FROM ANY BREACH OF THIS AGREEMENT.
11. DISCLAIMER OF WARRANTIES. ALL SERVICES PROVIDED BY LBMC ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. LBMC DISCLAIMS ALL OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. LBMC IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.
12. INDEMNIFICATION. PUBLISHER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS LBMC, ITS RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AFFILIATES, ADVERTISERS, AND PARTNERS FROM AND AGAINST ANY AND ALL OUT-OF-POCKET LIABILITIES, DAMAGES, LOSSES AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEE, ARISING OUT OF OR RELATED TO A THIRD-PARTY CLAIM OR PROCEEDING TO THE EXTENT IT IS BASED UPON AN ALLEGATION THAT WOULD CONSTITUTE A BREACH OF THE PUBLISHER’S REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT. PUBLISHER IS SOLELY RESPONSIBLE FOR ANY LEGAL LIABILITY ARISING OUT OF OR RELATING TO ANY CONSUMER AND/OR GOVERNMENTAL AND/OR REGULATORY COMPLAINT ARISING OUT OF ANY CAMPAIGN CONDUCTED BY PUBLISHER, INCLUDING BUT NOT LIMITED TO ANY SPAM OR FRAUD COMPLAINT AND/OR ANY COMPLAINT RELATING TO FAILURE TO HAVE PROPER PERMISSION TO CONDUCT SUCH CAMPAIGN TO THE CONSUMER.
13. RESTRICTIONS. Publisher will use commercially reasonable efforts to ensure that Advertisements are not delivered to or primarily intended for consumers who are under 18 years of age.
14. LAW AND VENUE. This Agreement and all transactions contemplated by this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Nevada, except for any conflict or choice-of-law principle thereof that would lead to the application of another jurisdiction’s laws to the rights and duties of the Parties.
15. AMENDMENTS. Future changes to this Agreement or any IO incorporated into this agreement may be made if set forth in writing, including but not limited to email, and signed by both parties, who provide clear and conspicuous consent to the amendment.
16. ASSIGNMENT. No rights or obligations under this Agreement may be assigned by Publisher without the prior written consent of LBMC. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. LBMC may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties under this Agreement, to any party. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
17. INDEPENDENT CONTRACTOR. Each party to this contract is independent of one another. Any intention to create a joint venture, partnership, agency, or any other relationship between them is expressly disclaimed. Parties will remain independent contractors at all times during this Agreement and neither party is an agent of the other. Except as set forth herein, neither party is authorized, empowered, or permitted to enter into contracts on each other’s behalf or obligate the other to incur any costs on behalf of the other without that party’s prior written consent.
18. ENTIRE AGREEMENT. This Agreement, including the most recent IO executed by the Parties, constitutes the entire and only Agreement between the Parties and supersedes any and all prior agreements, including but not limited to any other sign up Terms and Conditions, whether written, oral, electronic, express, or implied, of the parties with respect to the transactions set forth herein. In the case of conflicting terms between this Agreement and the IO, the IO will prevail.