These Publisher and Advertiser Terms of Use (“Terms of Use”) govern the programs and services (the “Programs”) provided by iGain LLC (“iGain”), whose principal office is located at 264 Riverside Avenue, Westport, CT 06880, on the website owned and operated by iGain at www.iGain.com (the “Website”).
By using the Programs and filing out and submitting the appropriate form on the Website to become a Publisher or Advertiser (Publisher and Advertiser, together, hereafter referred to as “Partner”), Partners agree to be bound by these Terms of Use, the Website Terms and Conditions and the Website Privacy Policy (the Terms of Use, the Website Terms and Conditions and the Website Privacy Policy together are hereafter referred to as the “Agreement”). The Agreement may be amended from time to time in iGain’s sole discretion. Amended versions of the Agreement will be effective upon posting at www.iGain.com.
1. Approval by iGain. All Publisher or Advertiser applicants and their associated websites and newsletters need official approval from iGain before they can be approved as a Partner. Further, only Publisher or Advertiser websites and newsletters that have been reviewed and approved by iGain are permitted to use the Programs. iGain reserves the right to withhold or refuse approval of any Publisher or Advertiser or a related website or newsletter for any reason, whatsoever at its sole discretion. Partners cannot place any iGain affiliated advertisements into their framed environment, unless approved by iGain in writing.
2. Program Eligibility. In order to be eligible for the Programs as a Publisher, all Publisher websites and newsletters must meet the following criteria on an ongoing basis:
(1) Be content-based, not simply a list of links or advertisements, nor can the website be centered around making money off of our Advertisers
(2) Be written in English and contain only English language content
(3) Be fully functional at all levels; no "under construction" sites or sections
(4) Spawning process pop-ups and exit pop-ups are prohibited for click approved affiliates
(5) The content of the website and/or newsletter cannot contain any adult content nor link from, or to, any adult materials including but not limited to:
* Explicit, vulgar or obscene language
* Posting or referencing of sexually explicit images or other offensive content
* Promotion of adult services, such as phone sex or escort services
* Promotion of the use of alcohol, tobacco or illegal substances,
* Use of expletives or inappropriate language;
(6) The content of the website and/or newsletter cannot infringe on any personal property rights or intellectual property rights, including without limitation trademark rights or copyright rights, or contain:
* Racial, ethnic, political, hate-mongering or otherwise objectionable content
* Investment, money-making opportunities or advice not permitted under law
* Gratuitous violence or profanity
* Material that defames, abuses, or threatens physical harm to others, Partners or iGain
* Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.
* Software Pirating (e.g., Warez, Hotline)
* Hacking or Phreaking
* Any illegal activity or material whatsoever
* Any questionable or controversial subject matter
* Any spoofing, reing, or trafficking from adult-related web sites in an effort to gain traffic
* Spawning process pop-ups and exit pop-ups; or
* Any content that may bring iGain and/or its other associated Partners negative publicity.
3. Fraud. iGain ACTIVELY monitors traffic for fraudulent activities. If iGain detects what it reasonably believes to be fraudulent activities by a Partner, at its sole discretion, such Partner’s account will be made inactive pending further investigation. Partners agree that if they fraudulently add leads or clicks or inflate leads or clicks by fraudulent traffic generation as determined solely by iGain (such as pre-population of forms or mechanisms not approved by iGain), such Partner will forfeit its entire commission for all Programs and its account will be terminated. iGain reserves sole judgment in determining fraud, and Partners hereby agree to the terms and conditions contained in this clause. In any event, it is the OBLIGATION of the Partner to prove to iGain that it is NOT committing fraud. iGain at its sole discretion may hold such Partner’s payment in 'Pending Status' until such Partner has provided to iGain satisfactory (in iGain’s sole discretion) evidence that it is not defrauding the iGain system and Programs.
iGain flags accounts that: (1) Have click-through rates that are much higher than industry averages and where solid justification is not evident (2) Have ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks reported (3) Have shown fraudulent leads as determined by iGain clients (4) Use fake redirects, automated software, and/or fraud to generate clicks or leads from iGain Programs.
4. Publisher Commission Payments. The commission payment that is generated to the Publisher varies per registered subscriber to the Programs offered and/or per clicks. This commission payment is made approximately thirty (30) days after the end of the month in which the commission was earned and after receiving payment from the Advertiser. Delinquent Advertiser payments received by iGain will be credited to the Publisher in the month that the payments are received. iGain does not guarantee payment to the Publisher if the Advertiser does not pay iGain. If any Publisher violates or refuses to fulfill its responsibilities, or commits fraudulent activity, iGain reserves the right to withhold payment of commission and take appropriate legal action.
For U.S. located Publishers, commission payment totals must exceed $50.00, otherwise this payment will not be made until the $50.00 minimum is reached. International Publishers (located outside of the United States) agree to a minimum $100.00 to be reached. Calculation of Publisher commission earnings, including impressions and click through numbers, shall be at iGain's sole discretion. In the event Publisher disagrees with any such calculation, Publisher shall immediately send a written request to iGain detailing, with specificity, Publisher's concerns. Thereafter, iGain will provide Publisher with an explanation or, if such calculations are determined by iGain to be incorrect, an adjustment. iGain's calculations shall be final and binding. In the event no adjustment is necessary, Publisher shall reimburse iGain for its expenses in responding to Publisher's requests under this Section.
5. Objectionable Materials. Partners hereby agree not to carry objectionable materials on their website which would cause iGain to revoke their affiliation with iGain, as determined solely by iGain. Partners agree to only run iGain approved banners and text in their advertising of Programs and agree NOT to create their own banners or advertising text, unless expressly approved in writing by iGain. Violation of this provision automatically will forfeit that Partner’s commissions. Partners agree to NOT spam or send unsolicited email mentioning or promoting the Programs and agree to comply with all applicable laws. Partners agree to indemnify, defend and hold harmless iGain for any claims against iGain for a breach of this paragraph by that Partner. Further, any breach of this paragraph will result in the Partner being liable to iGain for damages of $.50 per email sent and any other damages as deemed by a court of law.
6. Editing of Advertiser’s Content by Publisher Prohibited. Editing of an Advertiser's content, images or copy by Publisher is strictly prohibited. Publisher will only use Advertiser approved banners and text to link to an Advertiser's sign-up pages. Publishers will not mislead consumers to make it seem that the consumers are signing up for an offer that is offered by the Advertiser’s website when they are not. Publishers can ONLY use previously approved banners and approved text; any other use of link and sign-up processes will result in the loss of all sign ups/leads/commissions accrued for the Publisher, at iGain’s sole discretion.
7. Partner Representations and Warranties. Partner hereby represents, warrants and guarantees that (1) it will at all times comply with all applicable law and regulation, including without limitation strict compliance with the Controlling the Assault on Non-solicited Pornography and Marketing Act of 2003 (Can-Spam), and any amendments or modifications thereto.; (2) all content, products, and services on its website (“Partner Materials”) are legal to use and distribute as contemplated herein; and (3) Partner owns or otherwise has the legal right to use and distribute Partner Materials, including all intellectual property rights, as contemplated herein.
Partner hereby irrevocably covenants, promises and agrees to indemnify, defend and hold harmless iGain from and against any and all losses, claims, expenses, suits, damages, costs, demands or liabilities, arising from breach of this Agreement, including without limitation for intellectual property infringement, including copyright and trademark infringement, or slander or libel as well as all other claims resulting from the Partner Materials.
If for any reason Partner breaches its obligations hereunder or commits fraudulent activity against iGain, iGain reserves the right to withhold payment of commissions and to take any appropriate legal action it deems necessary, at its sole discretion.
8. Indemnity. Partner is solely responsible for any legal liability arising out of or relating to (i) its breach of this Agreement; (ii) Partner's website(s) or Partner Material, (iii) any material to which consumers can link through Partner's website(s), and/or (iv) any consumer and/or governmental/regulatory complaint, action or lawsuit arising out of any campaign conducted by Partner, including but not limited to any spam or fraud complaint, action or lawsuit and/or any complaint, action or lawsuit relating to failure to have proper permission to conduct such campaign to the consumer. Partner shall indemnify, defend, and hold harmless iGain and its officers, directors, employees, agents, shareholders, partners, affiliates, representatives, agents and advertisers (collectively " iGain ") harmless from and against any and all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys' fees, costs related to in-house counsel time, court costs and witness fees) (collectively "Losses") incurred by, or imposed or asserted against, the iGain Parties which, if true, would constitute or relate to any claims, suits, or proceedings for (a) libel, defamation, violation of rights of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third-party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Partner's website(s) or Partner Material; (b) any breach by Partner of the Agreement; (c) any breach by iGain of any duty, representation, or warranty to provide ad(s) for placement on Publisher's website(s) due to any breach by Publisher of this Agreement; (d) a contaminated file, virus, worm, or Trojan horse originating from the Partner's website(s); (e) acts or omissions of Partner, or (f) negligence or willful misconduct by Partner.
9. Limitations of Warranties and Liability. (a) Disclaimer of Warranties. ALL PROGRAMS PROVIDED BY IGAIN ARE PROVIDED BY IGAIN ON AN "AS IS" "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, IGAIN MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. IGAIN IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.
(b) Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL IGAIN BE LIABLE TO PARTNER FOR INDIRECT, DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF IGAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE RELATIONSHIP CONTEMPLATED HEREIN. IN NO EVENT SHALL IGAIN'S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE COMMISSION EARNED BY PUBLISHER FOR THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR TEN THOUSAND DOLLARS ($10,000.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST IGAIN MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
(c) Consideration. PARTNER ACKNOWLEDGES THAT IGAIN HAS AGREED TO PRICING AND COMMISSION IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. PARTNER AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE TERMINATION OF THIS AGREEMENT AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY.
10. Term and Termination. (a) Termination. This Agreement, as may be amended from time to time, applies to Partner for as long as Partner participates in the Programs. iGain reserves the right to terminate any Partner from the Programs at any time, with or without cause.
(b) Post-termination. Upon termination, Partner agrees to immediately remove from its websites any and all iGain software code and iGain intellectual property and materials supplied to Partner by iGain. Publisher will be paid, in the next scheduled payment cycle following termination, all legitimate, non-fraudulently accrued, commission due up to the time of termination, as solely determined by iGain. If Publisher has not reached the minimum payment threshold described above, Publisher will be charged an administrative fee representing iGain's cost of establishing and maintaining the Publisher's account; such fee to be equal to any balance remaining in the Publisher's account. Upon termination, all ties to referrals will be permanently severed and Publisher will not receive nor be entitled to receive future referral commissions hereunder.
11. Partner Privacy Policy Guidelines. Partners must clearly and prominently display a privacy policy which meets the following minimum requirements:
Information collection practices of Partner, including but not limited to, collection of user direct information; survey information; use of cookies, web beacons; IP address; computer profiles; data analysis and any other technology used to track consumer for behavior marketing.
Use of Information. Use of individual personal information practices by Partner, including but not limited to, public forums disclosure, publisher or advertiser email marketing practices, third party email marketing practices, service providers, aggregate statistics, data summary, order fulfillment, complying with legal process, offers, telemarketing, wireless addresses, short message service, and third party information sharing practices.
Personal Information Collected. Consumers visiting a particular Partner website must be provided meaningful notice of the types of individual personal information collected for interactive advertising purposes, the technologies employed to collect such information, and how such information is used, including that other companies operate on the site and may collect such information.
State Required Disclosure. Any state required disclosure pertinent to the Partner’s offer.
Opt out Notice. Consumers must also be provided notice of their ability to opt-out of data collection and dissemination. The consumer should be provided the ability to opt-out of data dissemination through a link on the Partner’s website privacy policy. In addition, consumers also should receive relevant education regarding cross-industry opportunities to opt out of the collection or use of individual information or other methods to exercise their choice.
Notice of Changes to Privacy Policy. Consumers must be given adequate notice of any change or addition to the Partner’s website privacy policy by the Partner. As such, Partners must have a prominently placed notice on the Partner’s website home page the date the revisions were made. To the extent possible Partners should notify consumers of changes to the Partner’s website privacy policy via email.
Technical Requirements. Partners must have both technical and management controls in place to comply with privacy policy and data retention security. As such, the Partner’s website privacy policy should also notify the consumer of the technical security and managerial control over the collected data as well as the Partner’s data security methods.
12. Confidential Information. Partner agrees to use iGain's Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing iGain's Confidential Information to any third-party, unless (a) such disclosure is necessary and permitted in connection with Partner's performance of its obligations under this Agreement or any other agreement between the parties; (b) such disclosure is required by applicable law; provided, that the Partner uses reasonable efforts to give iGain reasonable advance notice thereof so as to afford iGain an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) such disclosure is made with the consent of iGain. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing and commission) and information regarding existing or contemplated service, products, Advertisers, Programs, Publishers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services. Notwithstanding the foregoing, Publisher agrees that iGain may divulge Publisher’s personal and/or otherwise confidential information to an Advertiser, agency, legal or regulatory authority, person or entity relating to investigations, claims or actions that Publisher has violated this Agreement or any applicable law or regulation.
13. Miscellaneous. iGain reserves the right to change any conditions of this Agreement at any time at its sole discretion. Change notices will be sent to Partners by email, and Partners are responsible for complying with any changes to the Agreement within ten (10) calendar days from the date of change in the notice. Failure of the Partner to terminate this Agreement in writing within the ten (10) calendar days or Partners use of the Programs thereafter will constitute acceptance of the changes to this Agreement. If any provision of this Agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this Agreement shall not be affected thereby.
Partners must be 18 years or older to sign up as an iGain Partner.
14. Relationship. The relationship of Partner and iGain established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other.
15. Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile or confirmed electronic transmission; (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective party as indicated herein; or (iv) in the event of material changes to this Agreement, notice shall be deemed effective upon posting at www.iGain.com. Copies of all notices shall be sent to iGain, LLC, 264 Riverside Avenue, Westport, CT 06880, Attn: Legal Department.
16. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns. 17. Waiver. The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect.
18. Entire Agreement. The Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of the Agreement. If any provision (or part thereof) of the Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of the Agreement shall remain in full force and effect and bind the parties according to its terms.
19. Dispute Resolution. In the event of disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, the parties shall first attempt to resolve the dispute(s) through good faith negotiation. The prevailing party in any action shall be entitled to recover its reasonable attorneys’ fees and costs incurred. The parties agree to settle any dispute under the Agreement under the laws of the State of Connecticut without regard to conflict of law principles. Any litigation arising under the Agreement will be brought in the federal or state courts of Connecticut.
20. Survival. Any obligation of the parties relating to limitations on liability, confidentiality and indemnification shall survive termination or expiration of this Agreement.
21. Interpretation. Partners acknowledge and agree that they have had the opportunity to seek the advice of independent legal counsel and have read and understood all of the terms and conditions of the Agreement. The Agreement shall not be construed against either party by reason of its drafting.
iGain is the next generation, performance-based affiliate marketing network, delivering solutions to both advertisers and publishers. We provide top-performing opportunities for websites to generate revenue and an efficient platform for companies to acquire new customers. iGain has developed a proprietary technology platform delivering superior results.
