TERMS OF SERVICE
THIS AFFILIATE AGREEMENT (the “Agreement”), together with any amendments, are entered into by and between Adclick Media, and the applying Party submitting the Application For Affiliate Status (the “Affiliate”), also referred to herein jointly as the Parties (“Parties”, each a “Party”). This Affiliate Agreement supplements all other Campaign Terms subsequently agreed to by the Affiliate.
WHEREAS, SunAdNetwork and Affiliate desire to provide for the terms and conditions of this Affiliate Agreement as more specifically set forth herein;
THEREFORE, the Parties agree to be legally bound as follows:
1.1. “Opt-in” or “Opted-in” means that the consumer has made an active, affirmative choice to receive Ads from the Affiliate.
1.2. “User” means any person using the Internet.
1.3. “Action” means a User’s completion of an action (such as a click, sale, lead, or call) defined by the Advertiser or SunAdNetwork .
1.4. “Network” means the advertising Network operated by SunAdNetwork , which is made up of Affiliates and Advertisers.
1.5. “Advertiser” means the advertiser, Advertiser or advertising agency providing advertisements to SunAdNetwork for use by the Affiliate.
1.6. “Ad” means the advertisement in the form of graphics and/or text supplied to SunAdNetwork for inclusion in the SunAdNetwork Network and to be made available for Affiliate use.
1.7. “Spam” means unsolicited bulk email where recipients have not agreed in advance to receive Ads.
1.8. “Campaign Terms” means the specific guidelines for each Advertiser campaign as listed in the SunAdNetwork Network.
2.1. From time to time, SunAdNetwork may amend, replace or supplement the Agreement, including but not limited to changing Advertiser payouts, by posting an updated Agreement or Campaign Terms on the SunAdNetwork website, and it shall be deemed effective immediately unless otherwise noted, and Affiliate will be deemed to have consented to, and agreed to be bound by, the updated Agreement or Campaign Terms. It is the responsibility of the Affiliate to read and keep up to date with the Agreement and Campaign Terms with or without notice of change from SunAdNetwork .
3. Affiliate Requirements.
3.1. Affiliate is subject to review and may be rejected for any reason, and at any time, by SunAdNetwork .
3.2. Affiliate must submit valid and correct contact information, including but not limited to name, e-mail address, street address, and telephone number. Affiliate must ensure this information remains up-to-date at all times within the SunAdNetwork Network. Affiliate must accurately, clearly and completely describe all promotional methods in their descriptions and provide additional information when necessary.
3.3. Affiliate websites must not be associated with or contain any illegal activity, or pornographic, obscene, racist, or hateful content, or deceptive advertising, piracy, libelous or defamatory statements.
3.4. Affiliate websites must not contain any mechanisms that could be downloaded on to a User’s computer without the User’s explicit knowledge and consent.
3.5. In its sole discretion, if at any time SunAdNetwork deems the Affiliate’s website or advertising activities are contrary to the terms set out in the Agreement, the Affiliate shall be terminated from the Network and shall forfeit any and all commissions and earnings.
4. Affiliate Rules.
4.1. Failure to adhere to the following rules is a violation of the Agreement and will result in immediate termination of the Affiliate from the SunAdNetwork Network with forfeiture of all monies due to Affiliate.
4.2. Affiliate must not load Advertiser’s website within a frameset or iframe unless prior written approval is obtained from SunAdNetwork .
4.3. Affiliate must not modify the Ads supplied by SunAdNetwork in any way unless prior written approval is obtained from SunAdNetwork .
4.4. Affiliate must indicate whether he uses incentive traffic, and only offer incentives to Users to respond to Ads with permission from SunAdNetwork and the Advertiser as indicated on the Network and Campaign Terms, or in writing. SunAdNetwork reserves the right to define the term incentive.
4.5. Affiliate must not make misleading or disparaging statements, oral or written, about any Ad, Advertiser or SunAdNetwork .
4.6. Affiliate must agree to receive periodic communications from SunAdNetwork . This communication could be in the form of e-mail, instant message, postal mail, telephone or fax.
4.7. Affiliate must not display any Ad in third Party newsgroups, social Networks, message boards, blogs, link farms, counters, chat-rooms or guestbooks without the consent of such third-Party entity.
4.8. Affiliate must comply with all Campaign Terms as outlined in Ads.
4.9. Affiliates must not use SMS/text messages to deliver Ads to Users.
4.10. Affiliate must not generate any Actions in bad faith or through fraudulent mechanisms. This includes, but is not limited to, generating own Actions using manual or automated processes, misrepresenting product or service offered by Advertisers, deceiving Users into obtaining product or service offered by Advertisers, and encouraging or educating Surfers to cancel any product purchase or service provided by Advertisers.
4.11. Affiliate must not share, lend, lease, sell or transfer their account to any third Party unless prior written approval is obtained from SunAdNetwork .
4.12. Any Affiliate engaged in the distribution of Ads via email must comply with all of the following rules:
4.12.1. Affiliate must distribute Ads only to those recipients who have Opted-in to receive such email from the Affiliate. SunAdNetwork prohibits the use of Spam. Any use of Spam whatsoever by Affiliate will result in the forfeiture of Affiliate’s entire commission for all campaigns, and the termination of the Affiliate’s account. Affiliate will also be held liable for any and all damages resulting from a violation of this provision including reasonable court costs.
4.12.2. If requested by SunAdNetwork , Affiliate must be able within 24 hours of such request, to supply the name, date, time, IP address and URL where the User gave permission to the Affiliate to receive such Ads through e-mail.
4.12.3. Affiliate must ensure each email recipient is provided with a valid opt-out mechanism within each email delivered in order for the recipients to “opt-out” of future mailings from Affiliate.
4.12.4. Affiliate must not use the Advertiser or SunAdNetwork name (including any abbreviation thereof) in the originating email address line (“From” line) or subject line of any email transmission, unless specific permission is given otherwise.
4.12.5. Affiliate must not use falsified sender information or falsified IP Addresses.
4.12.6. Affiliate must use only pre-approved Advertiser subject lines and from lines as set out in Campaign Terms.
4.12.7. Affiliate must use only legitimate routing information.
4.12.8. Affiliate must use their own tracking links that redirect to the tracking links supplied by SunAdNetwork .
4.12.10. Affiliate must ensure each email contains Advertiser’s unsubscribe mechanism as set out in Campaign Terms.
4.12.11. Affiliate must not send email to any email address or domain contained in an Advertiser’s suppression list as set out in Campaign Terms.
4.12.12. Affiliate must ensure each email clearly contains the Affiliate’s physical address, which cannot be a PO BOX.
4.12.13. Affiliate must comply with all campaign instructions from SunAdNetwork and Advertiser as set out in Campaign Terms.
4.13. If Affiliate has not logged into their account for six (6) consecutive months, it will be moved to an inactive status. If this inactivity continues for nine (8) months, SunAdNetwork reserves the right to terminate the account for inactivity and debit any remaining balance that is held in the Affiliate account.
4.14. European Privacy Laws. “EU Privacy Laws” means the European Union General Data Protection Regulation (“GDPR”), the European Union Directive on Privacy and Electronic Communications (the ePrivacy directive) and any local implementing laws, including any subsequent legislation replacing or amending any such laws from time to time. Note that European Privacy Laws may apply to you if (i) you operate from an EEA member state or Switzerland; or (ii) you market to or target individuals in an EEA member state or Switzerland; or; (iii) you collect or otherwise process any personal data (as such term is defined under GDPR) from users in EEA member states or Switzerland. If any of the foregoing apply or you are otherwise subject to EU Privacy Laws then you hereby represent, warrant, covenant and agree that you will (a) comply with EU Privacy Laws (b) inform end users in a prominent manner of their rights under EU Privacy Laws and that you use tracking devices and cookies for advertising purposes, including Interest-Based Advertising; and (c) obtain end user consent to place tracking devices, such as cookies (including those enabled by SunAdNetwork at your request on your behalf) on such end users’ computers and internet enabled devices and provide information regarding the removal of such tracking devices.
5. If you determine that EU Privacy Laws do not apply to you, then you shall provide SunAdNetwork with your analysis concluding the same or, provide detailed information regarding the specific steps you take to ensure that individuals located in the EU do not visit your Site via our services and technology.
6. Advertising Services and Warranties.
6.1. Provided that Affiliate complies with all provisions of this Agreement and Campaign Terms, SunAdNetwork hereby grants to Affiliate a non-exclusive, limited, revocable license to market, display, perform, copy, transmit, and promote the Ad in connection with its obligations hereunder; and market display, perform, copy, transmit, and promote the Ad to third Parties in connection with its obligations hereunder. Affiliate’s use of Ads or copyrighted materials in violation of this Agreement is strictly forbidden and will result in this limited license being immediately withdrawn and may further result in the termination of the Affiliate’s account and being held liable under applicable law.
6.2. SunAdNetwork’s sole obligation to the Affiliate under this Agreement with respect to Ads shall be to provide such Ads for use in their advertising efforts. The advertising services provided by SunAdNetwork are provided “as is”. SunAdNetwork makes no warranties, guaranties, promises, or estimates, expressed or implied, oral, written or otherwise except as specifically set forth herein, AND does not guarantee, including but not limited to, demographic profiling of Users, click to Action conversion rates, response rates or conversion rates from Action to sale.
6.3. No additional warranties are provided.
7. Commission Earnings and Payments.
7.1. SunAdNetwork shall send Affiliate’s commission payment approximately fifteen (15) days from the last business day of each month in which earnings are accrued if the amount due to Affiliate exceeds either two hundred (200) dollars USD or the minimum payment amount requested by the Affiliate, whichever is higher. Payment thresholds may vary based payment type chosen by Affiliate. Policies regarding payment type thresholds can change without notice to Affiliate. Commissions will only be earned on Actions reported by the Advertiser, and only after SunAdNetwork receives full payment from the Advertiser. SunAdNetwork is under no obligation to pay Affiliates for Actions which are not paid by the Advertiser.
7.2. SunAdNetwork shall increase the payment frequency for Affiliate to weekly, provided Affiliate has received one previous payment from SunAdNetwork and is setup to receive payments electronically. All other conditions and restrictions for payment as outlined in item 6.1 remain in force for weekly payments. SunAdNetwork, in its sole discretion may disqualify any Affiliate from being eligible for weekly payments.
7.3. In the event of non-payment by an Advertiser, and If SunAdNetwork elects in its own discretion not to make payment to Affiliate, an Affiliate’s recourse for any earned commissions not paid shall be to make a claim against the relevant Advertiser(s), and SunAdNetwork disclaims any and all liability for such payment.
7.4. SunAdNetwork or the Advertiser may reverse any Action generated by the Affiliate. Circumstances for Action reversals include but are not limited to duplicate Actions, fraudulently generated Actions, non-payment, Affiliate’s failure to comply with the Agreement, invalid or incomplete data, or product returns. Reversals may be applied at any time, including for Actions during a period where payment has already been issued to the Affiliate.
7.5. In the event reversals are applied to Actions for which an Affiliate has already been paid, Affiliate is required to return payment for these Actions to SunAdNetwork .
8. Referral Program.
8.1. Affiliate shall earn a 10% referral fee on the commission payments made to any other new Affiliates (excluding bonuses, rewards, additional payouts, Affiliate earnings where the Affiliate is an advertising Network, and referral income) who have been referred to SunAdNetwork using the specified link code. Affiliate shall earn this fee on the commission payments of a referred Affiliate for a period of twelve (12) months after the referred Affiliate joins the SunAdNetwork Network. Secondary accounts held by Affiliate are excluded from the referral program. SunAdNetwork reserves the right to terminate an Affiliate referral program, in whole or in part, at any time for any reason, including but not limited to, fraud, questionable activity or breach of the terms set out in the Agreement or Campaign Terms.
9. Representations and Warranties.
9.1. Each Party represents and warrants they have full corporate right, power, and authority to enter into this Agreement, to grant the rights and licenses granted and to perform the acts required of it.
9.2. Each Party acknowledges that the other Party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.
10.1. Affiliate shall not solicit or recruit, directly or indirectly, any Advertiser that is known to Affiliate to be an Advertiser of SunAdNetwork , for purposes of offering products or services that are competitive with SunAdNetwork , nor contact such Advertisers for any purpose, during the term of Affiliate’s membership in the SunAdNetwork and for the twelve (12) month period following termination of Affiliate’s membership in the SunAdNetwork.
11. Limitation of Liability.
11.1. EXCEPT FOR THE INDEMNIFICATION PROVISIONS AT CLAUSE 12, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR COSTS, DIRECT OR INDIRECT, (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM AFFILIATE PARTICIPATION IN SunAdNetwork’s NETWORK. SunAdNetwork SHALL NOT IN ANY EVENT BE LIABLE TO AFFILIATE FOR MORE THAN THE AMOUNT PAID TO AFFILIATE HEREUNDER. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST SunAdNetwork MORE THAN ONE YEAR AFTER THE DATE OF SERVICE.
11.2. Affiliate agrees not to hold SunAdNetwork or Advertisers liable for any of the consequences of interruption or service.
12.1. Affiliate hereto agrees to indemnify and hold harmless SunAdNetwork , Advertiser, and each if its agents, officers, directors and employees against all liability to third Parties resulting from the acts or failure to act of such indemnifying Party, or any act of its customers or users. Affiliate is solely responsible for any legal liability arising out of or relating to the Affiliate’s website(s), any material to which Users can link through the Affiliate’s website(s) and/or any consumer and/or governmental/regulatory complaint arising out of any privacy breach, regulatory compliance issue, e-mail campaign or other advertising campaign conducted by Affiliate, 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.
13.1. Affiliate agrees to refrain from disclosing SunAdNetwork’s confidential information or the Advertiser’s confidential information (including but not limited to commission rates, conversion rates, email addresses, fees, identities of Advertisers) to any third-Party without prior written permission from SunAdNetwork .
14. Force Majeure.
14.1. Neither Party shall be deemed in default of this Agreement 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, terrorism, 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.
15.1. The Parties to the Agreement are independent non-exclusive contractors. Neither Party will have any right, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other Party, nor is either Party an agent, representative, partner, employee, or joint venture of the other Party.
16.1. Sun Adnetwork reserves the right to withhold payment and take appropriate legal action to cover its damages against any Affiliate that violates the terms of this Agreement or breaches the representations and warranties set forth in this Agreement, or commits fraudulent activity against Sun Adnetwork. Except as otherwise specified, the rights and remedies granted to a Party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity.
17. Entire Agreement.
17.1. This Agreement constitutes the entire and only agreement and supersedes any and all prior agreements, whether written, oral, express, or implied, of the Parties with respect to the transactions set forth herein.
18. Governing Law.
18.1. The rights and obligations of the Parties under this Agreement shall be governed by and construed under the digital & cyber laws of the Texas, United States.
18.2. The Parties irrevocably submit and attorney to the exclusive jurisdiction of the courts of the Texas, United States.
19.1. This Agreement may be terminated by either Party. This Agreement may be terminated immediately upon notice for your breach of this Agreement.
19.2. An Advertiser may terminate Affiliate from the Advertiser’s program for any or no reason.
19.3. Upon termination of this Agreement, any permissions granted under this Agreement will terminate, and Affiliate must immediately remove all Ads and link to Advertiser(s).
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and binding upon Affiliate’s submission and Sun Adnetwork’s acceptance of Affiliate’s properly completed Affiliate Network application without need for further action by Sun Adnetwork.
– Subject to any other provisions to the contrary in this IO, all stats and reported numbers for the purposes of billing and general delivery reporting are based on Sun Adnetwork server reports.
– Advertiser has to control spending of advertising budget and undertakes to inform Publisher in writing regarding further actions to optimize such campaign.
– If Advertiser believes that there is a discrepancy in Sun Adnetwork’s server reports, Advertiser must provide Sun Adnetwork with a reasoned report of such discrepancy within three (3) calendar days from receipt of Sun Adnetwork’s server reports. Otherwise, Sun Adnetwork shall not be liable for such discrepancy and services shall be deemed rendered. If the parties are unable to arrive at a joint conclusion, then Sun Adnetwork stats and reports shall govern.
B. Cancellation & Refund Policy
– Either party may cancel the ads campaign and terminate present Agreement with 48 hours’ written notice to the other party.
– Setup and handling fee of 35% from the deposit will be waived when the advertiser deposits funds.
– A partial refund can be issued for the balance amount in the account, minus a 35% handling fee.
C. Intellectual Property
– Advertiser has exclusive right, title and interest to the ads and other marketing materials provided to Publisher, and Publisher has no rights therein save the limited right to use marketing materials pursuant to the terms hereof.
– Prior to providing the advertising services Publisher may verify that Advertiser owns or controls the Advertiser’s domain names or software. If Advertiser does not own or control the domain names or software, or has not enough authority to enter this Agreement, then Publisher will have no obligation to provide Advertiser with the services.
– Each party will make every effort to uphold the highest ethical and commercial standards. If Advertiser requests that advertisements be removed from or not placed in any context that harms the goodwill or reputation of Advertiser, Publisher will promptly comply with such request.
– Publisher has the right to deny any advertising material that includes inappropriate content, and reserve the right to terminate any campaign running content deemed inappropriate by Publisher. Such content includes, but is not limited to, pornographic/adult/offensive/hacking/cracking or illegal advertisement or content. In case where advertisements are placed in such locations, Publisher reserves the right to withhold payment for the entire campaign and/or submit an immediate legal action against the company and/or set a financial penalty, based on the damages caused to Publisher.
– Advertiser provides software for advertising free from any spy or malicious software (if any). In confirmation of this fact the Advertiser can provide duly executed SSL-, or Code sign certificate.
– Advertiser will defend, indemnify and hold harmless Publisher or its affiliates and representatives from damages, liabilities, costs, and expenses (incl. attorneys’ fees) resulting from any claim, judgment or proceeding brought by a third party.
– Advertiser hereby agrees not to attempt to contact advertisement distributors in Publishers ad network directly in order to purchase ad space from them or engage in practice that would be deemed directly competitive to the efforts of Publisher in its attempts to represent distributor’s ad spaces.
– In case of violation of its obligations under present IO by Advertiser, Publisher reserves the right to stop providing services and withhold Advertisers’ remuneration/ account balance.
– The parties accept that the Campaign manager contacts are authorized to represent interests of the respective parties. Any changes to Campaign manager contacts’ details should be notified via email within 48 hours of such change.
E. Payment and Taxes important notice
Unless otherwise expressly specified or agreed upon by both parties in writing Advertiser is responsible for any taxes, levies, duties or expenses associated with provided services, other than taxes based on Publisher’s income. Advertiser shall indemnify Publisher against all losses suffered or incurred by Publisher arising out of or in connection with any payment made to Publisher.
The charges/fees for additional services not specified in this IO or the Agreement are subject to negotiation and agreement between Publisher and the Advertiser.
The Advertiser is warned of the possibility that other costs, including taxes, may arise/ change for the Advertiser. Unless otherwise expressly agreed upon by both parties in writing, the Publisher shall not be responsible or obliged to arrange for payment of such costs and taxes, a may be payable by or imposed upon the Advertiser.
Each party may suspend or terminate this IO upon written notice sent to the other party 48 hours before such termination or suspension takes place. In such case the Advertiser shall remit to the Publisher all the revenue of the Publisher that accrued at the time of such termination or suspension. Revenue of the Publisher shall be paid by the Advertiser within 3 days on receipt of invoice at payment details, specified in such invoice, if otherwise agreed by the parties.
For the avoidance of doubt, this IO and the Agreement constitute a single document. In the event of a conflict between the Agreement and this IO, the IO shall prevail.
3. Authorization: Signing this document contractually binds the Advertiser and the Publisher
By signing hereunder, the Advertiser accepts, represents and agrees with the following:
1. The Advertiser has familiarized itself with this IO and agrees with the terms and provisions of the same in it’s entirely, always subject to any express agreement that may be signed between the Advertiser and Publisher.
2. The Advertiser understands all the terms and provisions of this IO and has obtained all classifications necessary in order to understand the effects thereof and obligations of the Advertiser hereunder. The Advertiser understands that a failure on a part of the Advertiser to comply with all of its obligations under this IO shall constitute a material breach of this IO.
3. The Advertiser undertakes to pay all the fees/charges to the Publisher and to fulfill all the obligations of the Advertiser, including but not limited to, by taking appropriate steps and establishing appropriate arrangements as to ensure the ability of the Publisher on due date.