Terms and Conditions for Publishers
The following are the terms and conditions governing your
(hereinafter “Publisher”) relationship with eLeadMedia
Affiliate Network (hereinafter
“eLeadMedia”) and the use of the eLeadMedia website (hereinafter
“Site”). Publisher agrees to use the Site and any additional services
offered by eLeadMedia only in accordance with these Terms and
Conditions. eLeadMedia reserves the right to make changes to the Site
and these Terms and Conditions at any time. Publisher’s continued use of
the Site after any such modification and notification thereof (which
maybe provided by e-mail to the email address provided in the course of
Publisher’s registration with eLeadMedia) shall constitute Publisher’s
consent to such modification.
1. Approval of Publisher.
Registration with eLeadMedia shall not confer any right on Publisher to
market or promote any Programs (as defined under section 2) made
available by eLeadMedia on the Site on behalf of its clients (the
“Advertisers”). Participation by Publisher in the eLeadMedia publisher
lead generation program is subject to review and approval by eLeadMedia.
All prospective publishers need official approval from eLeadMedia before
they can become Publishers. Official approval requires meeting the
criteria listed under section 1.1 below, however approval is not
automatically granted upon fulfillment of said criteria. eLeadMedia
reserves the right to withhold or refuse approval for any reason or for
no reason. Once Publisher has been accepted into the Program,
Publisher’s continued right to participate is conditioned upon
Publisher’s ongoing compliance with all of the terms and conditions of
this Agreement. Failure of the Publisher to observe the terms and
conditions of this Agreement will disqualify Publisher from
participating in the Program. Publisher may re-qualify for program upon
proof of compliance with terms and conditions of this Agreement, subject
to approval by eLeadMedia. Publisher shall promptly notify eLeadMedia in
the event of a material change in its business practices or strategy.
Approval of a Publisher can be withdrawn by eLeadMedia, at any time for
any reason.
1.1. Minimum Eligibility Requirements.
In order to be eligible to become a Publisher, all websites, affiliated
websites and e-mail distribution lists (collectively the “Media”) must
meet the following criteria, at a minimum:
All Publishers that wish to send advertisements via email must have the
consent of the consumer to send such email and each Publisher shall
maintain records evidencing such consent including, without limitation:
(i) Member opt-in date
(ii) Registration source
(iii) First name
(iv) Last name
(v) Address
(vi) Email address
(vii) Any other information collected and will supply such records to
eLeadMedia within one business days of request thereof;
Unless otherwise approved in writing by eLeadMedia, Publishers may not
offer incentives to users as means to enhance the performance of any
Program (as defined below); incentives include but are not limited to
awarding them cash, points, prizes, contest entries, etc.;
Publisher websites must be fully functional at all levels; no "under
construction" sites or sections;
Publisher’s policies must be compliant with state and federal laws and
regulations including but not limited to the CAN-SPAM Act of 2003
Spawning process pop-ups are prohibited; and
Such other criteria as eLeadMedia may from time to time determine, in
its sole discretion.
1.2. Publisher Website Content.
The content of Publisher’s Media shall be subject to eLeadMedia’s
subjective approval and must comply with all applicable laws and
regulations (including all laws respecting intellectual property rights)
and, in any event, shall not include the following:
Pornographic material, including any material appealing to the prurient
interests
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, misrepresents, abuses, or threatens physical harm
to others;
Promotion of illegal substances or activities such as illegal online
gambling, how to build a bomb, counterfeiting money, etc.;
Software Pirating;
Obscenity and any spoofing, redirecting, or trafficking from
adult-related websites in an effort to gain traffic;
Infringement or violations of the patents, copyrights, trademarks,
rights of publicity, rights of privacy, moral rights, music performance
or other music-related rights, or any other right of any third party;
Any illegal activity whatsoever; and
Links to any affiliate networks
2. Use of the Site.
2.1. The Site allows eLeadMedia to post offers of advertising programs
sponsored by eLeadMedia or its affiliates on the system ("Program(s)").
The Programs will specify the amount and terms under which Publisher
will receive payment when the applicable Program's requirements are
fulfilled. Compensation is derived from a specified event ("Event")
identified in a Program, such as clicks, click-throughs, sales,
registrations, impressions and leads. If Publisher accepts a Program,
Publisher agrees to place that Program's advertising creative (including
the subject and from lines, the Advertiser CAN-SPAM disclosures and any
other disclosures provided therein) ("Ad") on Publisher’s Media.
Publisher shall display the Ad exactly as it appears on the Site and
will not alter it in any way. Failure to adhere to this requirement may,
in addition to all other remedies available to eLeadMedia, result in
termination of Publisher. eLeadMedia may change a Program at any time,
upon reasonable advance written notice to Publisher. eLeadMedia is
responsible for displaying and administering all active Programs and
tracking the payments owed.
2.2. Special Rules Governing Email Campaigns.
2.2(a). In the event that eLeadMedia or Publisher receives a complaint
from any recipient of a Program transmitted by Publisher, upon our
request Publisher will immediately provide eLeadMedia with appropriate
records verifying that recipient’s consent to receive email
transmissions from Publisher. Such records include, but may not
necessarily be limited to, the Internet address of Publisher’s
opt-in/opt-out website, the date of the recipient’s action, and
Publisher’s privacy policy.
2.2(b). Publisher may not use an advertiser’s name (including any
abbreviation thereof) in the originating email address line or subject
line of any email transmission.
2.2(c). No Misleading Headers or Other Masking of Email Origin. An email
may not include falsification of header information, false registrations
for email accounts or IP addresses used in connection with email ads,
and retransmissions of an email ad for the purpose of concealing its
origin. Publisher and/or their email delivery providers are prohibited
from relaying or retransmitting emails from a computer or computer
network that was accessed without authorization.
2.2(d). Subject lines may not be false or misleading such that it would
likely mislead a reasonable recipient as to the contents or subject
matter of the message. Publisher may only use approved Subject Lines
available provided by eLeadMedia or Subject Lines for which Publisher
has documented approval from eLeadMedia.
2.2(e). Email Ads Must Contain Clear Identification. Messages containing
advertisements or solicitations must identify themselves as such, and do
so by “clear and conspicuous” means, for example, by stating in the
message body “This advertisement is brought to you by (Your Company)”.
Further, the sender must identify itself as the initiator and sender of
the email including company name, email and physical address.
2.2(f). Effective Method of Opting Out of Future Mailings. Senders of
commercial emails must give recipients an effective means of requesting
not to receive future email ads from that sender. At a minimum, the
publisher must give the recipient the ability to send a reply message to
unsubscribe, opt out via postal letter and provide a functioning
unsubscribe link that must remain in operation for 30 days from the date
of the original email transmission.
2.2(g). All unsubscribe requests must be adhered to within 10 business
days from their receipt. You may not sell or transfer an email address
once someone has opted out of receiving future communications, whether
from only the advertiser or globally.
2.2(h). No Random or Invalid Generation of Email Addresses. Publisher is
responsible for knowing the source of its email list. Email addresses
may not be obtained by the use of a program for random generation of
email addresses, and/or “scraping” websites or online services.
Publisher must have full opt-in data for all recipients in its database.
3. Monitoring.
eLeadMedia shall be constantly monitoring, on its own or with the
assistance of third parties, the Publishers for compliance with these
Terms and Conditions, without limiting the generality of the foregoing:
3.1. All Publishers will be monitored by eLeadMedia (or a third party
retained by eLeadMedia for such purposes) for compliance with applicable
legal requirements, with respect to honoring unsubscribe requests. If
the monitoring is done by a third party, such third party will share all
such information with eLeadMedia.
3.2. Each unsubscribe list furnished to a Publisher shall be separately
and technologically identified so that eLeadMedia will be able to ensure
that each Publisher is not disseminating or otherwise using the
unsubscribe list other than in a manner required by applicable law.
Publisher must not send further emails to names already on or newly
added to the unsubscribe list.
4. License.
eLeadMedia grants Publisher a revocable, non-transferable, non-sublicensable,
non-exclusive limited license to use the Site (including any Ads posted
thereon) and any data, reports, information or analyses arising out of
such use (the “Site Data”) solely for the purpose of marketing or
promoting the Programs hereunder and subject to these Terms and
Conditions and the applicable Program Terms. If a Publisher also
maintains its own network of publishers, such Publisher may not provide
the Program to its publishers, without the prior written consent of
eLeadMedia. If a Publisher fails to adhere to the foregoing requirement,
in addition to any other remedies available to eLeadMedia, Publisher
shall forfeit its rights to any amounts owed by eLeadMedia to Publisher.
Publisher acknowledges and agrees that Publisher does not have, nor will
it claim any right, title or interest in the Site software,
applications, data, methods of doing business or any elements thereof,
or any content provided on the Site (including the Ads). Publisher may
only access the Site via web browser, e-mail or in a manner approved by
eLeadMedia. Publisher will not attempt in any way to alter, modify,
eliminate, conceal, or otherwise render inoperable or ineffective the
Site tags, source codes, links, pixels, modules or other data provided
by or obtained from eLeadMedia that allows eLeadMedia to measure ad
performance and provide its service. In addition, Publisher acknowledges
that all non-public information, data and reports received from
eLeadMedia hereunder or as part of the services hereunder is proprietary
to and owned by eLeadMedia. If instructed to do so by eLeadMedia and/or
if Publisher shall be terminated by eLeadMedia, Publisher will
immediately destroy and discontinue the use of any eLeadMedia data,
including Site Data, and any other material owned by eLeadMedia or the
Advertisers.
5. Non-Solicitation.
Publisher agrees that Publisher will not approach or attempt to engage
in a contract with any of eLeadMedia’s clients (each such client,
individually a “Client” and all such clients, collectively “Clients”)
directly or indirectly via a Client’s Ad agency, broker or any other
person or entity. eLeadMedia will promptly reply in writing to any
inquiries received from Publisher regarding the status of any person or
entity as a eLeadMedia Client so as to aid Publisher in its efforts to
comply with the non-solicitation provisions of this Agreement. Because
eLeadMedia will be irreparably harmed by Publisher’s conduct, and
because the true extent of such harm will be impossible to quantify,
monetary damages will not be an adequate remedy for any such conduct.
Publisher agrees that eLeadMedia shall be entitled to injunctive relief
precluding Publisher from taking or continuing any action or conduct in
violation of this provision, to be issued by any court of competent
jurisdiction upon a showing of any such violative conduct by Publisher.
6. Participation in our Program.
eLeadMedia shall provide Publisher with material to create a website for
the purpose of search engine optimization, or Publisher can create its
own website. In either event, no website shall be released online, and
nonsubmission, inclusion or any traffic can be sent to it, prior to
eLeadMedia’s review and approval of it. If Publisher already has its own
website, Publisher’s website will be subject to eLeadMedia’s review and
approval. Approval shall be written or by electronic submission. All
Program related websites will contain links (“Links”) provided by
eLeadMedia directing traffic to product sales web pages served by
eLeadMedia or a eLeadMedia Group Client. Publisher’s selection of
entities to be included on any such website is also subject to
eLeadMedia’s review and approval, of which shall not be unreasonably
withheld. Should any of eLeadMedia’s Client(s) provide content which
includes imbedded bots, Data Miners, links or other creative, graphic,
text or html, all content shall remain at all times the sole property of
eLeadMedia.
6.1. Links.
Publisher agrees to use the Links in the exact form that we deliver them
to Publisher. Publisher agrees not to modify, alter, delete, or adapt
the Links in any manner without eLeadMedia’s written approval. Links
must be served from the eLeadMedia server, unless otherwise permitted in
writing by eLeadMedia. Publisher shall not take any actions to impede
the action of or to disable any such links. Publisher agrees to, if
request by eLeadMedia, modify or alter Links or Tracking devices in the
manner requested by eLeadMedia. Publisher further agrees that it shall
in no event modify or interfere with Tracking devices unless
specifically instructed to do so by eLeadMedia in accordance with the
previous sentence.
6.2. Ownership.
eLeadMedia owns all rights, title, and interest to Links and user data
collected and derived through the activities countenanced pursuant to
this Agreement. eLeadMedia may choose to imbed certain data mining tools
within Links from time to time (“Data Miners”). Any data derived by any
such Data Miner shall be the sole property of eLeadMedia. eLeadMedia
may, from time to time, opt to share data derived from Data Miners with
Publisher to help Publisher optimize the quality of leads generated from
Publisher’s activities or to otherwise improve the quality,
functionality and mutual profitability of the activities of the parties
under this Agreement. If eLeadMedia does share data derived from Data
Miners with Publisher, Publisher agrees that this data will be used
solely by Publisher for the purposes for which it is provided to
Publisher and will not be shared by Publisher with any other third party
or entity without the written approval of eLeadMedia. Should eLeadMedia
choose to provide advertising creative content, web design services or
other web content of any type (“Web Content”) to Publisher, Publisher
shall use such Web Content: (i) in exactly the form that it is delivered
to the Publisher by eLeadMedia without modification unless approved by
us in writing; (ii) only in the manner expressly permitted by eLeadMedia
in writing and only until eLeadMedia shall request that Publisher
discontinue its use of such advertising creative, at which time
Publisher shall discontinue such use within two (2) business days of
being requested by eLeadMedia to do so.
7. Fraud.
eLeadMedia actively monitors traffic for fraud. If fraud is detected,
Publisher’s account will be made inactive pending further investigation.
Publisher accounts are flagged that, among other things
Have click-through or conversion rates that are much higher than
industry averages and where solid justification for such higher
click-through or conversion rates is not evident to the reasonable
satisfaction of eLeadMedia;
Have ONLY click or lead generation programs generating clicks or leads
with no indication by site traffic that it can sustain the clicks or
leads reported;
Have shown fraudulent leads as determined by the Advertisers;
Have used any incentives to procure clicks or leads
Have provided leads obtained other than through intended consumer
action. For instance, use of phone books, or similar such compilations
of personal data, to complete lead generation forms shall be considered
fraudulent behavior.
Use fake redirects, automated software, and/or other fraudulent
mechanisms to generate Events from the Programs.
If Publisher fraudulently adds leads or clicks or inflates leads or
clicks by fraudulent traffic generation (such as pre- population of
forms or mechanisms not approved by eLeadMedia or use of sites in
co-registration campaigns that have not been approved by Advertiser), as
determined solely by eLeadMedia, Publisher will forfeit its entire
commission for all programs and its account will be terminated. If
Publisher is notified that fraudulent activities may be occurring on its
Media, and Publisher fails to take prompt action to stop the fraudulent
activities, then, in addition to any other remedies available to
eLeadMedia, Publisher shall be responsible for all costs and legal fees
arising from these fraudulent activities. In addition, in the event that
Publisher has already received payment for fraudulent activities,
eLeadMedia reserves the right to seek credit or remedy from future
earnings or to demand re-imbursement from Publisher.
8. Payment.
Publisher will be paid per the terms of each Program. eLeadMedia shall
pay any amounts due approximately 15-30 days after the end of each
month, less any taxes required to be withheld under applicable law,
provided that eLeadMedia may, in its discretion, withhold payments until
such time as the Advertiser has paid eLeadMedia for any Program. In
addition to any other remedies that may be available to eLeadMedia, in
the event of any breaches by Publisher of these Terms and Conditions,
Publisher shall forfeit its rights to any amounts owed by eLeadMedia to
Publisher. eLeadMedia reserves the right to reduce any payments owed to
Publisher as a consequence of any offsets taken by Advertisers for
invalid Events, technical errors, tracking discrepancies and the like.
eLeadMedia shall compile, calculate and electronically deliver data
required to determine Publisher’s billing and compensation. Any
questions regarding the data provided by eLeadMedia need to be submitted
in writing within 10 business days of receipt, otherwise the information
will be deemed accurate and accepted as such by Publisher. eLeadMedia
will not pay for any Events that occur before a Program is initiated, or
after a Program terminates. Invoices submitted to eLeadMedia and
payments made to Publisher shall be based on the Events as reported by
eLeadMedia. eLeadMedia will not be responsible to compensate Publisher
for Events that are not recorded due to Publisher’s error. eLeadMedia
will require a Publisher to provide a W-9, and similar such information,
as a condition to payment.
9. Special Terms for Co-Registration Campaigns.
With respect to Publishers who are running co-registration campaigns to
generate leads ("Leads") for Advertisers, the following specific terms
and conditions shall apply:
9.1. Approval of Publisher’s Site(s).
No Program may go live until such time as eLeadMedia, and if necessary
the applicable Advertiser, have approved, in writing, (a) all sites to
be used by the Publisher for each Program and (b) the transfer of leads
in the form of either a successful post for real-time transfer or
approval of the test file for batch or FTP files.
9.2. Publisher’s Privacy Policy.
Publisher represents and warrants that Publisher’s privacy policy
permits the collection, use and transfer of data as contemplated hereby
and the Program Terms.
9.3. Scrubbing Leads.
Each Program shall have its own criteria for determining the validity of
a lead (the “Lead Requirements”). eLeadMedia may detect and track all
Invalid Leads, which are determined on a real-time basis. eLeadMedia
shall only pay for leads deemed valid by this system. At the sole
discretion of eLeadMedia, leads may also subsequently be deemed invalid
for (i) fraudulent activities including but not limited to changing
approved lead generation forms, publishing an offer on an unapproved
site, utilizing automated software or manpower to complete
co-registration forms, incentivization of co-registration forms and/or a
publisher's inability to provide the user IP and time/date stamp for
each lead or (ii) non-compliance with co-registration programs including
but not limited to exceeding lead caps as communicated by a eLeadMedia
Account Executive and/or going live with a co-registration offer prior
to written approval of a creative and data transfer by an eLeadMedia
Account Executive.
9.4. Use of Leads.
Publisher hereby acknowledges that the collection of the Leads is being
done solely for the benefit of eLeadMedia or its Advertiser. Therefore,
other than providing the Leads to eLeadMedia for delivery to the
Advertisers, Publisher may not use, sell, transfer or assign or attempt
to monetize the Leads for its own purposes. All right, title and
interest in the Leads shall vest exclusively in eLeadMedia or its
Advertisers.
9.5. No Alteration of Approved Co-Registration Forms.
Publisher may not, in any way, alter or modify the Co-Registration
Forms, without the prior written consent of eLeadMedia.
10. Term.
The initial terms of this Agreement shall be for one year from the date
of its first execution by the last party to so execute. Upon the one
year anniversary of the execution, this Agreement shall automatically
renew for successive thirty (30) day terms, unless: (a) not less than
thirty (30) days prior to the date of any such automatic renewal, a
party notifies the other in writing that it does not wish to renew this
Agreement; or (b) this Agreement is otherwise earlier terminated
pursuant to the provisions hereof.
11. Termination.
eLeadMedia reserves the right, in its sole and absolute discretion, to
terminate a Program and remove any advertisements at any time for any
reason, upon written notice to Publisher. Upon removal of any
advertisements, Publisher shall terminate the Program and immediately
cease emailing and any traffic involved with removed advertisement(s).
eLeadMedia also reserves the right to terminate Publisher’s access to
the Site at any time without notice.
Termination notice will be provided via e-mail and will be effective
immediately, meaning, among other things, that Publisher must
immediately cease all advertising activities. All moneys then due to
Publisher will be paid during the next billing cycle. The
representations, warranties and obligations contained in paragraphs, 12,
13, 14 and 15 shall remain in full force and effect after termination of
this Agreement. In addition, all payment obligations accruing prior to
the termination date shall survive until fully performed.
12. Representations and Warranties/Covenants.
12.1. Mutual Representations.
Each party represents and warrants that: (a) it has the right to enter
into and fully perform the services contemplated herein, consistent with
these Terms and Conditions; (b) there is no outstanding contract,
commitment or agreement to which it is a party that conflicts with these
Terms and Conditions; and (c) at all times while any Program remains in
effect, it shall comply with all applicable laws and regulations.
Neither party makes any guarantee, representations or warranties,
express or implied, as to the level of consumer response that will
result from the Programs.
12.2. Publisher Representations.
Publisher represents and warrants as follows:
Publisher’s Media is currently in compliance with all applicable laws
(including without limitation the CAN-SPAM Act, effective January 1,
2004 (the "CAN-SPAM Act");
Publisher’s Media does not contain or promote, nor links to another
website that contains or promotes, libelous, defamatory, abusive,
violent, prejudicial, obscene, sexually explicit or illegal content,
product, service or activity;
Publisher’s database consists of only permission based opted-in e-mail
addresses; and
Publisher owns or has the legal right to use and distribute all content,
copyrighted material, products, and services displayed on Publisher’s
Media.
12.3. Publisher Covenants.
Publisher covenants that it shall not:
send unsolicited commercial e-mail (SPAM) (i.e., it will send commercial
e-mails in connection with any Programs to only those e-mail addresses
that have consented to receive such commercial e-mails);
post any specific messages to newsgroups, chat rooms, bulletin boards or
any other places regarding any Programs unless expressly approved in
writing from eLeadMedia;
promote via website or link to websites containing any pornographic,
racial, ethnic, political, software pirating or hacking, hate-mongering,
or otherwise objectionable or illegal content, or any other content
referenced in paragraph 1.2;
use the Site in any manner other than that which is specifically
contemplated herein;
engage in any kind of deceitful, misleading or other unfair trade
practices, or fraudulent or other unlawful practice when marketing any
Programs; and
while an approved Publisher and for 180 days thereafter, participate in
any performance based advertising relationship with any Advertiser
within eLeadMedia’s network, unless a previously existing business
relationship between Advertiser and Publisher can be demonstrated to the
reasonable satisfaction of eLeadMedia. In this connection, both parties
agree and acknowledge that if Publisher violates its obligations
hereunder, eLeadMedia will be entitled to damages in the amount of
forty-five percent (45%) of the gross revenues resulting from sales
conducted by Advertiser through the advertising or marketing efforts of
Publisher.; and
Publisher covenants that it shall:
Conduct the web advertising campaign for Advertiser in accordance with
the highest industry standards;
Provide within one business day after request therefrom, the IP
Information, together with such other related information that
eLeadMedia may request. Failure to provide such information may result
in termination or suspension of the Publisher and/or the deactivation of
all links in any Programs downloaded by Publisher.
Publisher acknowledges that breaches of any of the foregoing
representations and covenants may, in the sole discretion of eLeadMedia,
result in the immediate suspension or termination of eLeadMedia’
relationship with Publisher and Publisher shall forfeit all rights to
any compensation theretofore owed to it by eLeadMedia. The foregoing
rights shall be in addition to any other remedies available to
eLeadMedia. Publisher acknowledges and agrees that eLeadMedia shall not
be responsible for the Advertisers' violation of any applicable laws or
regulations, including, without limitation, the CAN-SPAM Act.
13. Privacy Policy.
Publisher shall maintain and post in a conspicuous manner on all its
websites involved in the Programs, a privacy policy that clearly and
adequately describes how consumer information is collected and used.
14. Customer Information; Non-Disclosure. Confidentiality.
All information submitted to Publisher by an end-user customer pursuant
to a Program is proprietary information of eLeadMedia, its affiliates,
and/or the Advertisers. Such customer information is confidential and
may not be disclosed by Publisher. Publisher agrees not to reproduce,
disseminate, sell, distribute or commercially exploit any such
proprietary information in any manner. Publisher shall maintain such
data in a secure manner, consistent with industry standards.
All information provided to Publisher hereunder shall be kept strictly
confidential.
15. Limitation of Liability; Disclaimer of Warranty.
Unless otherwise provided in this agreement, in no event shall
eLeadMedia or any Publisher be liable to the other for any lost profits
or any special, incidental, consequential, exemplary, punitive or other
indirect damages of any nature, for any reason, whether based on breach
of contract, tort (including negligence), or otherwise and whether or
not either has been advised of the possibility of such damages.
DUE TO THE NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY, eLeadMedia
CANNOT GUARANTEE THAT THERE WILL BE NO DOWNTIME OR OTHER INTERRUPTIONS
IN SERVICE REGARDING THE LINKS OR OUR SERVICES. WITHOUT LIMITING THE
ABOVE, THE LINKS, OUR CLIENT SITES AND ANY OTHER MATERIALS PROVIDED TO
PUBLISHER ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY OF ANY KIND, AND
eLeadMedia MAKE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW
OR OTHERWISE, AND EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE,
NONINFRINGEMENT, and: (A) MERCHANTABILITY, CLIENTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL
COMPONENTS THEREIN, (C) THAT A PARTY’S SECURITY METHODS EMPLOYED WILL BE
SUFFICIENT IN ALL CIRCUMSTANCES OR IN THE FACE OF ALL ATTACKS, (D)
REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY OF ANY INFORMATION SET
FORTH THEREIN OR THEREON, OR (E) AGAINST INTERFERENCE WITH ENJOYMENT OF
A PARTY’S “INFORMATION” (WEB SITE). ALL ‘INFORMATION’ AND ‘COMPUTER
PROGRAMS’ PROVIDED IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL
FAULTS, AND THE ENTIRE RISK, AS TO SATISFACTORY QUALITY, PERFORMANCE,
ACCURACY, AND EFFORT IS WITH THE USER. SOME STATES LIMIT THE ABILITY TO
DISCLAIM ALL WARRANTIES, SO THIS CLAUSE OR SOME PORTIONS OF IT MAY NOT
APPLY TO YOU.
eLeadMedia makes no representations and warranties whatsoever, and
disclaims any responsibility and liability, regarding the content or
nature of any Ad or Program made available on the Site, or any product
or service advertised in connection therewith. eLeadMedia has no
liability to Publisher for unapproved materials, including all copy,
images, URL names, and search terms used by Publisher to promote the
client partner. eLeadMedia makes no representations whatsoever about any
other website which Publisher may access through the service. When
Publisher accesses a website that is not associated with and independent
from eLeadMedia, Publisher acknowledges that eLeadMedia has no control
over the content of that website. Furthermore, a link to a non-eLeadMedia
website does not mean that eLeadMedia endorses or accepts any
responsibility for the content or the use of such website. It is
Publisher’s sole responsibility to take precautions to ensure that
websites, downloads, attachments, and other such files are free of such
items as Trojan horses, worms, viruses, and other items of a destructive
nature.
16. Indemnity.
16.1. Indemnity.
Publisher will defend, indemnify, and hold harmless eLeadMedia, the
Advertisers, and their affiliates, directors, employees, agents,
successors and assigns from all claims, actions, losses, liability,
damages, costs, and expenses (including reasonable attorney’s fees and
expenses) (collectively “Claims”) arising from any breach of any of
these Terms and Conditions or any Program Terms. eLeadMedia reserves the
right, at its own expense, to assume the exclusive defense and control
of any matter otherwise subject to indemnification by the indemnifying
party hereunder. Publisher hereby acknowledges that the Advertisers are
intended third party beneficiaries of the foregoing indemnification
obligation.
16.2. Notification of Legal Action
Publisher will immediately notify eLeadMedia of any current, impending,
or potential legal action against it by a third party for matters
relating to email, email complaints, email deployment, and violations of
CAN-SPAM.
17. Force Majeure.
Neither party shall be deemed in default of these Terms and Conditions
to the extent that performance of its obligations or attempts to cure
any breach are delayed or prevented by reason of any act of God, fire,
natural disaster, accident, riots, acts of government, shortage of
materials or supplies, or any other cause beyond the reasonable control
of such party; provided, that the party whose performance is affected by
any such event gives the other party written notice thereof within three
(3) business days of such event or occurrence.
18. General.
18.1. Entire Agreement.
These Terms and Conditions, together with the terms for each of the
Programs constitutes the entire agreement between the parties and
supersedes all prior agreements or understandings between the parties.
18.2 Controlling Law
These Terms and Conditions, the terms of the Programs and the
relationship contemplated thereby, shall be governed by the laws of the
United States and the State of Nevada, without giving effect to
principles of conflicts of law. Each party, to the extent permitted by
applicable law, hereby irrevocably and unconditionally (i) submits to
the general jurisdiction of the federal and state courts located in
Clark County, Nevada (ii) agrees that any action or proceeding
concerning this agreement will be brought exclusively in such courts;
and (iii) waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding in any such court was brought in an inconvenient
court and agrees not to claim or plead the same.
18.3. Waiver.
No waiver by either party of any breach of any provision hereof shall be
deemed a waiver of any subsequent or prior breach of the same or any
other provision.
18.4. Assignment.
Publisher may not assign any of its rights hereunder without the prior
written consent of eLeadMedia, which may be withheld for any reason.
18.5. Severability.
In the event that any provision of these Terms and Conditions is found
invalid or unenforceable pursuant to any judicial decree or decision,
such provision shall be deemed to apply only to the maximum extent
permitted by law, and the remainder of these Terms and Conditions shall
remain valid and enforceable according to its terms. 18.6. Relationship.
The parties agree that eLeadMedia is acting as an independent contractor
in performing the Services and that the relationship between the
eLeadMedia and Publisher shall not constitute a partnership, joint
venture or agency. Neither eLeadMedia nor any of eLeadMedia’s employees
or agents (collectively referred to herein as the “Employees”) (i) is an
employee, agent or legal representative of Publisher, or (ii) shall have
any authority to represent Publisher or to enter into any contracts or
assume any liabilities on behalf of Publisher. eLeadMedia retains all
the rights and privileges of sole employer of its Employees, including,
without limitation, the right to control, hire, discipline, compensate
and terminate such Employees. Neither eLeadMedia nor any of its
Employees shall have any right to receive any employee benefits as are
in effect generally for Publisher employees.
18.7. No Publicity.
Publisher may not make any mention of eLeadMedia or any eLeadMedia
client in any publicity materials advertising or otherwise presenting
information on your company and your services, including without
limitation listing eLeadMedia or any of its clients in your customer
lists, without the written consent of eLeadMedia, whose consent may be
withheld for any reason or for no reason
18.8. No spamming
Publisher may not spam other websites eLeadMedia Holds the rights to not
pay for any leads that is generated through spamming or unethical
methods.
19 .Contacting eLeadMedia
Publisher may email us on our email pubsupport@eleadmedia.com for any
additional questions.