The following Terms and Conditions (“Terms and Conditions”), together with any Offer Terms, and any applicable Insertion Orders (“IO”), set forth the Agreement (“Agreement”) which shall govern the relationship between Clickbooth.com, LLC dba Perform[cb], LLC, its affiliates and subsidiaries (collectively "Perform[cb]") and you as a Partner ("You" or ”Partner”) using the advertising service (the “Service”) offered through the Perform[cb] network (“Perform[cb] Network”) located at www.performcb.com (the “Site”). You and Perform[cb] may also be individually referred to herein as a "Party" and collectively as "Parties". This Agreement replaces and supersedes any prior terms and conditions between Perform[cb] and Partner. You agree to use the Site, the Service and any additional products and/or services offered by Perform[cb] only in accordance with the Agreement. Perform[cb] reserves the right to make changes to the Site, the Service and the Agreement at any time and without prior notification. The latest Agreement will be posted on the Site. Your continued use of the Site and/or the Service after any such modification thereof shall constitute Your consent to such modification. Therefore, You should regularly check the Site for updates and/or changes. For purposes of the Agreement, “Partner” includes the individual, company or entity and, without limitation, any parent entities, owners, subsidiaries, publishers, predecessor or successor entities, and any agents, officers, directors or employees acting on behalf of same, registering with Perform[cb] to use the Service. If You do not agree to the Terms and Conditions in its entirety, You are not authorized to: (a) register as a Partner; (b) use the Service; and/or (c) use the Site, in any manner or form whatsoever.
As used in this Agreement, the following terms shall have the meanings set out below or as defined elsewhere in this Agreement.
Action(s): means an act, lead, or other event effectuated by a third party (e.g., consumer) for which Marketer compensates Perform[cb] and Perform[cb], in turn, compensates Partner, such as CPA (cost per Action), CPI (cost per install), CPL (cost per lead), CPC (cost per click) or CPM (cost per thousand - e.g., impressions). Specific Action requirements for each Offer will be set forth within the Offer terms or in a separate IO.
Agent: means any sub-publisher, affiliate, distribution partner or any other similar third-party with a business relationship with Partner, including any advertising network of Partner.
Bounties: means monies generated from a specified transaction (“Action”) as defined by Perform[cb].
Consumer: An individual to whom an Offer is directed or who responds to an Offer and who effectuates an Action.
Creative: means graphic file(s), text, links, or other creative works made available to Partner for use in conjunction with a specific Offer.
Invalid Action: shall mean Actions that were generated in violation of the terms and conditions of this Agreement or applicable laws, Actions that do not meet all of the requirements of the Marketer as set forth in the Offer terms or IO, Actions that contain false information, Actions generated through any misleading or fraudulent means, or Actions that are rejected by the Marketer.
Marketer: means a person or entity that submits Offers and Creatives for placement in the Perform[cb] network for the purpose of marketing products and services and generating Marketer’s desired Action.
Offer: An advertisement that contains a promotion or opportunity directed to Consumers that may be made available from time to time by Perform[cb] for use by Partner on the Internet or via any wireless mobile device.
Perform[cb] Network. The Perform[cb] Network enables Partners to apply for and, upon approval by Perform[cb], have an opportunity to earn Bounties through participation in various advertising campaigns (“Offer”) offered by Perform[cb] or its third party Marketers (“Marketers”) in accordance with the Agreement. The terms and conditions of any and all Offers (for each Offer, the “Offer Terms”) shall be posted on the Site. Perform[cb] may, at its sole discretion, refuse to register You as a Partner and/or terminate Your participation in any Offer at any time for any reason. Once approved, Partner’s account is not transferable and may only be used by Partner. Any attempt by Partner to let others access its account or sell, trade or otherwise transfer its account is strictly forbidden and will result in an immediate termination and forfeiture of all monies owed.
The Site and Service. Perform[cb] posts Offers and associated Creatives (“Creatives”) on the Site in connection with the Program. Approved Partners shall be permitted to download the Creatives: (a) for publication on Partner’s website and/or any other website published with, owned, operated and/or controlled by Partner (“Partner Website”); (b) for distribution in email messages sent to those e-mail addresses listed in Partner’s database and/or any other database affiliated with, owned, operated and/or controlled by Partner (“Partner Emails”) and/or (c) other approved marketing channels. Perform[cb] will specify the amount and terms under which You will earn payment (“Bounties”). The applicable Action associated with each Offer shall be set forth in the applicable Offer Terms and, unless otherwise specified, such definition shall only apply with respect to that Offer. If You accept an Offer, You agree to place that Offer's Creatives on the Partner Website and/or in the Partner Emails, in accordance with the Agreement and the accepted Offer Terms. Perform[cb] may, at its sole discretion, change an Offer at any time, upon prior notice to You, unless otherwise specified in the Offer Terms. Similarly, You may cease participation in a previously accepted Offer at any time, unless otherwise specified in the Offer Terms. Perform[cb] is responsible for displaying and administrating all active Offers and tracking associated Bounties and Actions. Offer data compiled by Perform[cb] including, but not limited to, numbers and calculations regarding Actions and associated Bounties (“Offer Data”), will be calculated by Perform[cb] through the use of industry standard tracking technology and shall be final and binding on You. Any questions regarding the Offer Data must be submitted in writing within fourteen (14) days of initial appearance in the tracking system; otherwise the Offer Data will be deemed to be accurate and accepted by You. Partner understands and agrees that on occasion the Service and/or Perform[cb] Network may be inaccessible, unavailable or inoperable for any reason, including, but not limited to, the following: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs; or (iii) causes beyond the control of Perform[cb] or which are not reasonably foreseeable by Perform[cb] including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. Perform[cb] will attempt to provide the Service on a continuous basis. However, Partner acknowledges and agrees that Perform[cb] has no control over the availability of the Service and Perform[cb] Network on a continuous or uninterrupted basis. Terms of the Agreement are subject to Perform[cb] hardware, software, and bandwidth traffic limitations. Perform[cb]’s failure to deliver because of technical difficulties does not represent a failure to meet the obligations of the Agreement.
Creatives. Only Partner Websites, Partner Email distribution lists and other marketing channels that have been reviewed and approved by Perform[cb] may be utilized in connection with the Site and Service. Perform[cb] reserves the right to withhold, refuse or withdraw approval of any websites, email distribution lists and/or marketing channels for any reason, whatsoever, in Perform[cb]’s sole discretion. Notwithstanding the foregoing, Perform[cb]’s policies, specifications and/or recommendations with respect to any websites, email distribution lists and/or marketing channels used by You should not be construed as legal advice, or as sufficient guidelines to ensure that such websites, email distribution lists and/or marketing channels comply with applicable law. Perform[cb] does not represent or warrant that such policies, specifications and/or recommendations are legally compliant or appropriate. Perform[cb] assumes no obligation and hereby disclaims any liability for Your use of and/or reliance upon any such policies, specifications and/or recommendations. You should consult with Your legal counsel and/or other professional advisors before acting on any policies, specifications and/or recommendations as provided by Perform[cb]. Partner shall not alter, modify or otherwise change the Creatives, or any Creatives-related feature, that it obtains access to in connection with any Offer in any manner whatsoever, without Perform[cb]’s prior express written consent. Unless otherwise specified in the applicable Offer Terms or by Perform[cb], and subject to the restrictions herein, the positioning, placement, frequency and other editorial decisions related to Creatives shall be made by Partner. Notwithstanding the foregoing, Partner must comply, immediately, with any and all requests by Perform[cb] to modify, alter, remove or otherwise change the positioning, placement, frequency and other editorial decisions related to the Creatives. Partner also shall not run any deactivated Creatives after the Marketer has posted new Creatives to run in lieu of such deactivated Creatives for the applicable Offer. PARTNER AGREES TO REVIEW THE AVAILABILITY OF CREATIVES THAT IT HAS PLACED WITHIN ITS MEDIA ON A DAILY BASIS. IT IS THE PARTNER’S SOLE RESPONSIBILITY TO CHANGE CREATIVES WITHIN ITS MEDIA WHEN A CREATIVE IS NO LONGER AVAILABLE IN THE PERFORM[CB] NETWORK. PERFORM[CB] ASSUMES NO RESPONSIBILITY TO NOTIFY PARTNER WHEN A SPECIFIC CREATIVE IS NO LONGER AVAILABLE IN THE PERFORM[CB] NETWORK. In addition, Site integration tags and tracking pixels (“Tags”) included in the Creatives or otherwise incorporated may not be altered under any circumstances. Perform[cb] employs a testing system to ensure that You have not removed or altered the Tags. Altering, removing or disabling Tags may jeopardize Your ability to be paid for Actions and would be grounds for immediate termination of Your Partner account, with or without notice.
Working with Third Parties.
Approval Required for Use of Agents: Partner may desire to use its business partners and/or associates to fulfill the obligations or exercise the rights under a particular Offer. Any of Partner’s business partners or associates that participate in or perform any activities on behalf of Partner under the Agreement shall be considered to be an “Agent”. Perform[cb] reserves the right to review and approve or reject any and all Agents and may revoke a prior approval of any Agent at any time and for any reason. Partner, upon request from Perform[cb], must provide identifying information of the Agent, which shall include:
in the case of a natural person, the Agent’s first and last name, physical address, country, telephone number, and email address; and
in the case of corporations, partnerships, proprietorships, limited liability companies, organizations, associations, cooperatives, agencies, or other legal entities, the name and jurisdiction of organization for such entity and the first and last name, physical address, country, telephone number, and email address for the natural person or persons who own, manage, or control the Agent.
Partner will not make any commitments or representations on behalf of Perform[cb] with regard to any relationship it enters into with its Agents in connection with its promotion of any Offers or otherwise. Partner will provide all Agents with a copy of this Agreement and, upon request by Perform[cb], provide Perform[cb] with a signed acknowledgement by the Agent of its willingness to be bound by this Agreement.
Agent Requirements: Agent must meet the same criteria for approval as the Partner as set forth in the Agreement and must comply with all the terms and conditions that are applicable to Partner under the Agreement and the applicable Offer Terms. If Perform[cb] grants approval for Partner to use Agents, Partner agrees to comply with the following requirements governing Partner’s use of Agents (collectively, the "Agent Requirements"):
Perform[cb]’s Offers may only be pulled from Partner’s network by Agents that are direct publishers and do not have a network of their own. Partner shall prohibit the Agent from further brokering such Offers to other publishers through a network or by any other means.
Partner shall not knowingly recruit any Agent that is already promoting a Marketer’s Offer—whether directly, through Perform[cb], or through any third-party network— to promote that same Offer through Perform[cb].
Partner shall provide Perform[cb] with a unique ID number for each Agent on each Action generated for Perform[cb]’s Offers.
Partner is limited to a single tier of Agent relationships. Partner will include in its terms and conditions with its Agents a clause prohibiting them from entering into any additional tier of agent relationship with respect to Perform[cb]’s services.
If any Agent running Perform[cb]’s Offers is generating Invalid Actions, Partner shall provide Perform[cb] with the full name, address and other up-to-date contact information for such Agent immediately upon request by Perform[cb] (and Perform[cb] shall have the right to disclose such information to its Marketers). If necessary to identify the person(s) responsible for Agent’s misconduct, upon Perform[cb]’s request, Partner shall also provide all payment details for Agent, such as tax ID and bank account information. Perform[cb] will only use this information to create and maintain a blacklist for its Marketers.
Partner shall prevent any Agent that is blacklisted by Perform[cb] and/or the Marketer from accessing or promoting any Offers.
Partner shall not make Offers available generally to all of Partner’s Agents; rather, Partner shall screen and select each Agent that is allowed to access and promote Offers to ensure that such Agent meets the requirements set forth herein.
Violation of Agent Requirements: Partner is responsible for and shall fully and unconditionally indemnify Perform[cb] for any and all actions of any of its Agents, including the payment of legal fees and costs, if necessary. Further, Perform[cb] may, at its sole discretion, terminate a Partner at any time based on the actions of that Partner’s Agent(s). Once express approval of an Agent has been granted by Perform[cb], notices to the Partner shall be deemed notice to that Partner’s approved Agents(s). Partner agrees that Perform[cb] is under no obligation to pay an Agent. Perform[cb] further reserves the right to withhold or refuse payment to any Partner in the event that any of its Agents breach the Agreement.
Email Programs; Suppression Lists.
Legal Compliance. Where use of email marketing is authorized by Perform[cb] and/or the applicable Offer Terms, the following terms shall apply. Any and all emails, email based Creatives transmitted, as well as any and all email addresses supplied by Partner: (a) shall comply with all applicable foreign, federal and state laws including, but not limited to, the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”), California Business & Professions Code § 17529, the Canadian Anti-Spam Law (“CASL”), Germany’s anti-spam legislation (including the Federal Data Protection Act, the Act against Unfair Competition, and the Telemedia Act), and any and all Federal Trade Commission implementing regulations; (b) must not infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity; (c) must not result in any consumer fraud, product liability or breach of contract to which Partner is a party or cause injury to any third party; (d) must have accurate email header information (including source, destination, date and time, and routing information) and accurate, non-misleading subject lines and from lines; (e) must use only creatives, from lines and subject lines provided by Marketer, and Partner and its Agents are prohibited from removing or altering “subject” and “from” lines provided by Marketer; and (f) where required by law, must only be sent to email addresses where the person associated with such email address provided affirmative consent to receive marketing messages, including by opt-in or double opt-in, if required. Without limiting the foregoing, emails must not use a generic from line and a domain name that is privacy protected, unregistered, falsely registered, or which does not enable a recipient to contact the sender by performing a WHOIS look-up. Perform[cb] shall cause a valid physical postal address for Partner and/or the applicable Marketer, as required by applicable law, to appear in each email creative, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after email delivery). Moreover, Partner must have active filters in place to prevent communications from being sent to any entity or person in Canada which include, at a minimum: (a) email filters (i.e. rejection of email addresses with “.ca” or other Canadian extensions); (b) zip code filters (rejection of Canadian zip codes); (c) area code filters (rejection of Canadian area codes); and (d) IP filters (rejection of Canadian IP addresses). Perform[cb] reserves the right to add such address(es) should Partner fail to include the same, but Perform[cb] is in no way responsible for including such address(es) where Partner fails to do so.
Suppression Lists. In addition, Perform[cb] may make available, at a Perform[cb]-designated FTP site (“FTP Site”), a suppression list (and associated login information), updated on a regular basis, generated from email Programs transmitted by and/or through the Perform[cb] Network for Partner’s use in connection with applicable Offers. Partner shall upload its own list of suppressed email addresses to the FTP Site, if one is provided by Perform[cb]. If the FTP Site is provided by Perform[cb], and no such email addresses are supplied by Partner, Perform[cb] may conclude that no such addresses exist. The suppression list and login provided by Perform[cb] are deemed to be Confidential Information of Perform[cb], as defined herein. Suppression lists may not be used by Partner for any purpose other than to comply with applicable laws regulating the email transmissions. Partner agrees to process any unsubscribe requests within five (5) days prior to making a drop to any Offer.
Partner Email Lists. All Partner Emails sent under the Agreement shall be delivered to addresses on email lists owned or managed solely by Partner (“Partner Email Lists”). Brokering third-party deals to deliver Creatives without disclosing such to Perform[cb] is strictly prohibited and grounds for immediate termination, as well as other legal remedies. Partner is required and agrees to maintain at all times during the term of the Agreement, and for a period of three years thereafter, complete and accurate subscriber sign-up/registration/consent/opt-in data for every subscriber to Partner’s Email List(s). Partner agrees that, within twenty-four (24) hours of Perform[cb]’s request, it shall provide, at a minimum, the following subscriber sign-up/registration data for any email address that Partner sends a Partner Email to: (a) subscriber email address used to sign-up/register for Partner’s Email List; (b) subscriber’s IP address; (c) date and time of subscriber’s sign-up/registration for Partner’s Email List; and (d) location of subscriber’s sign-up/registration.
Payment. You agree to be paid the applicable Bounty rate for each Action verified by Perform[cb] as specified by Perform[cb] approximately thirty (30) days after the last day of a given calendar month, for Bounties realized in that month. You agree that payment for Bounties will be owed to You from the applicable Marketer, and that corresponding payments shall be made by Perform[cb] to You out of the funds actually collected by Perform[cb] from the applicable Marketer. Perform[cb] shall have no payment obligation to Partner where Marketer has not remitted sufficient payments to cover the Bounties otherwise due and owing Partner. Instead, Partner shall have the right to pursue any and all legal remedies directly against any Marketer that has not made funds available to pay sums due and owing to Partner for Bounties earned in connection with a particular Offer. All Partner accounts will be paid in US dollars ($US) and are exclusive of any applicable taxes. Partner shall be responsible for all applicable taxes. Notwithstanding anything contained herein to the contrary, no Bounty payments will be issued for any amounts otherwise due Partner that total less than Fifty Dollars ($50.00) (“Payment Threshold”). Upon termination of the Agreement, all legitimate monies due to Partner that are actually collected from the applicable Marketer, even amounts below the Payment Threshold, will be paid during the next billing cycle. Every Partner account must have a unique, valid taxpayer identification number (TIN), valid Social Security Number or other applicable unique government identification.
A Marketer may request that Perform[cb], or Perform[cb] may on its own initiative, debit from the Bounties otherwise due and owing Partner an amount equal to a Bounty previously credited to Partner’s account where: (a) a return or cancellation has been made with respect to the applicable product and/or service; (b) there is an instance of a duplicate, fraudulent or incomplete entry or other similar error with respect to a customer order; (c) there are Actions that do not comply fully with the terms of the Agreement, including where the applicable non-complying Action is not the result of Partner‘s action, omission and/or failure to comply with the terms and conditions of the Agreement; (d) there is non-receipt of payment from, or refund of payment to, the customer that entered into the subject Action; or (e) there is any failure on the part of Partner to comply with the Agreement and/or the applicable Offer Terms (collectively referred to as a “Chargeback”). Chargebacks requested by a Marketer in accordance with this Section 7 may be applied up to sixty (60) days after the end of the month in which the applicable Bounty was earned (“Chargeback Period”). A Marketer may request that the payment of a Bounty be postponed for one (1) payment cycle where: (i) Marketer is verifying a lead (for Offers in which lead generation is a component of the Action); (ii) Marketer has a product return policy that allows the underlying purchaser to return the product during the Chargeback Period; or (iii) the applicable Offer Terms provide for such a postponement. The number or amount of Actions, credits for payments and debits for Chargebacks, as calculated by Perform[cb], shall be final and binding on Partner.
If Partner’s account is inactive for a period of sixty (60) consecutive days (meaning Partner has not generated any Actions during such period), Partner shall lose its right to continue to receive fees from its referrals, if applicable, of other Partners to Perform[cb]. If Partner’s account is inactive for a period of six consecutive months, Partner’s account shall be closed and Partner shall forfeit any remaining balance in its account to compensate Perform[cb] for the administrative costs of maintaining and closing an inactive account.
Invalid Actions. Perform[cb] actively monitors traffic, Actions, Bounties and other Offer-related activities for potential Invalid Actions. If Perform[cb] suspects that Your account has been used in a fraudulent manner, Your account will be deactivated effective immediately and with no notice to You pending further investigation. If You add Actions, or inflate Actions, through the use of fraudulent means of traffic generation, as determined solely by Perform[cb], You will forfeit all of the Bounties related to that Program, and Your Partner account will be terminated effective immediately. Perform[cb] reserves sole judgment in determining Invalid Actions and You agree to be bound by any and all such determinations. It is the OBLIGATION of Partner to prove to Perform[cb] that it has NOT engaged in fraud or the generation of Invalid Actions. Perform[cb] will hold Your Bounty-related payments in 'Pending Status' until You have satisfactorily provided evidence that demonstrates to Perform[cb] that You have not engaged in the generation of Invalid Actions. If You are unable to provide Perform[cb] with satisfactory evidence that You have not engaged in the generation of Invalid Actions within seven (7) days of Your Bounties being placed in “Pending Status,” then Perform[cb] reserves the right to terminate Your Partner account and cancel payment on the applicable Bounties, at its sole discretion and without any further obligations to You.
Term and Termination. The Agreement shall commence upon Perform[cb]’s acceptance of Your Partner application and remain in effect until terminated as set forth herein. The Agreement may be terminated by either Party upon two (2) business days’ prior written notice. In addition, Perform[cb] reserves the right, in its sole and absolute discretion, to terminate an Offer and/or remove any Creatives at any time for any reason, upon notice to You. Perform[cb] also reserves the right to terminate Your access to the Site at any time with or without notice to You. Termination notice may be provided via email and will be effective immediately. Upon termination, Partner agrees to immediately remove from its Partner Website(s) any and all Creatives, Perform[cb] Code or other intellectual property made available to Partner in connection with its performance under the Agreement. The representations, warranties and obligations contained within the Agreement shall remain in full force and effect after termination of the Agreement. All payment obligations accruing prior to the date of termination shall survive until fully fulfilled. If Partner violates applicable law or any term of this Agreement, then in addition to immediate termination, Partner will be subject to forfeiture of any fees earned but not yet paid, as well as possible legal action to recover fees previously paid to Partner. Where appropriate, Perform[cb] may report Partner’s misconduct to the proper authorities.
Compliance. Perform[cb] makes available to its Partners various policies and guidelines designed to reduce fraud and combat consumer deception. The policies and guidelines cover many topics including, but not limited to general advertising compliance, email marketing, search engine marketing, lead generation, blog-based marketing and product review websites. Partner hereby represents and warrants that it: (a) has read Perform[cb]’s policies and guidelines, as same are made available here: www.support.performcb.com/support/solutions/folders/146527 ("Policy Web Pages”); (b) will regularly check the Policy Web Pages for updates; and (c) shall comply with any and all such policies and guidelines, as well as updates to same.
No Inappropriate Content. Partner shall not promote an Offer on a website, in a mobile application (an “App”) or in any other context with inappropriate content, which includes, but is not limited to, content that (i) contains or promotes the use of alcohol, tobacco or illegal substances, pornography, phone sex or escort services, expletives or other inappropriate language; (ii) promotes gratuitous violence, abuses or threatens physical harm; (iii) promotes illegal or unethical activity, racism, hate, "spam," mail fraud, gambling, sweepstakes, pyramid schemes, investment and money-making opportunities or illegal advice; (iv) promotes the use of illegal activities, such as how to build a bomb, counterfeiting money and software pirating; (v) is libelous, or defamatory, or false; (vi) is otherwise expressly prohibited by federal or state law; (vii) willfully infringes on the trademark, copyright, or intellectual property rights of a third party; (viii) introduces viruses, worms, harmful code and/or Trojan horses on the Internet; or (ix) is otherwise objectionable to Marketer, in its sole discretion.
No Deceptive Advertising; FTC Advertising Compliance. Partner shall not engage in any deceptive or misleading form of advertising or marketing, which includes, but is not limited to, phishing (the practice of sending an email to an individual, falsely claiming to be an established legitimate enterprise in an attempt to scam or defraud the user into surrendering private and personal information that can be used for identity theft, or for any other purpose), cybersquatting, typosquatting or combosquatting. Partner shall operate in compliance with all applicable laws, regulations, decisions and industry best practices, including but not limited to Section 5 of the Federal Trade Commission Act and any current or future rules, regulations, orders, guides or other interpretation issued by the Federal Trade Commission (“FTC”) relevant to the Offer or Offer at hand, and (ii) the Direct Marketing Association’s Best Practices for Online Advertising and Publisher Marketing. If Partner is distributing an Offer outside the United States, Partner represents and warrants that (1) it is familiar with the particular laws, regulations and industry customs in those countries in which is distributing the Offer, (2) it has previous experience distributing offers in such countries, and (3) it will comply with all such laws, regulations and industry customs. To be clear, Partner is responsible for understanding and complying with all advertising laws, regulations and customs in both the jurisdiction where the advertising takes place and the jurisdiction where Partner is located.
Influencer Compliance. Partner agrees to comply with the FTC’s Endorsement Guides currently located at www.ftc.gov/tips-advice/business-center/guidance/ftcsendorsement-guides-what-people-are-asking, with respect to any endorsements made as part of its services hereunder, including, without limitation, properly disclosing that Partner receives consideration for reviewing, promoting and/or recommending a product or service or engaging in any type of influence marketing.
Additional Provisions by Traffic Type. On behalf of itself and all Agents, Partner represents, warrants and agrees that it will abide by all of the terms governing specific traffic types available at www.support.performcb.com/support/solutions/articles/4000153314 (the “Traffic Type Provisions”), as applicable to Partners’ and Agents’ advertising methods. The Traffic Type Provisions are part of and incorporated by reference into this Agreement.
Compliance Monitoring. Partner agrees that Perform[cb] and its service providers may monitor or audit Partner’s sites and activities under this Agreement, as well as those of Partner’s Agents. Partner will not block or otherwise interfere with such monitoring, and we may use technical means to overcome any methods that Partner may use to block or interfere with such monitoring. Audits may include requests for documents and information and visits to Partner’s facilities and those of its Agents. Partner’s failure to promptly and reasonably comply with Perform[cb]’s efforts to audit its or its Agent’s compliance with this Agreement shall constitute a material breach of this Agreement
Additional Requirements. Partner further represents and warrants that it has provided full and accurate information in the sign up process and thereafter with respect to providing to Perform[cb] all websites, email practices and other methods of generating traffic to advertiser offers sourced from the Perform[cb] Network. Specifically, prior to the public use or dissemination to consumers of any marketing material promoting a Marketer offer sourced from Perform[cb], Partner will provide Perform[cb] Compliance with all marketing materials to be used here: https://support.performcb.com/support/solutions/articles/4000153930. Partner will also maintain and provide to Perform[cb], upon request, records of the dates when the marketing materials are publically used. Failure to comply with the representations and warranties set forth in this Section 10 will result in disciplinary action including campaign denial, account termination and the forfeiture of all monies owed.
Acknowledgement of FTC and Florida Orders. You acknowledge that you have received, read, and agree to comply with the “Stipulated Final Judgment and Order for Permanent Injunction” entered on November 29, 2012 (the “FTC Order”) and the "Assurance of Voluntary Compliance" entered on November 16, 2012 (the "Florida Order"), warrant that there are no misrepresentations or material omissions in your advertisements, and understand and agree that engaging in acts or practices prohibited by the FTC Order and the Florida Order will result in the immediate termination of this Agreement and a forfeiture of all monies received or owed. The Orders can be viewed here: https://performcb.com/assets/FTC_Order_&_AVC_Combined.pdf.
Representations and Warranties. The Parties hereby acknowledge and agree that Partner is solely responsible for the method by which the Creatives are disseminated. You represent and warrant that:
Your Partner Website contains distinct and legitimate content, substance and material, not simply a list of links or advertisements and that Your Partner Website serves a purpose substantially or completely separate and distinct from merely being designed to earn money solely from Perform[cb]’s Marketers or other third party Marketers;
Your Partner Website and/or Partner Emails are represented by a legitimate second-level domain name (e.g. yoursite.com is acceptable; however, a shared server, e.g., sharedsite.com/yoursite, is not acceptable);
Your Partner Website is not offered as a part of a community-based website personal entry or personal page;
Your Partner Website and Partner Emails do not incentivize users to click on Creatives (“Incentives”). Incentives include, but are not limited to, awarding users cash, points, prizes, and/or contest or sweepstake entries;
Your Partner Website is not hosted by a free service and is fully functional at all times and at all levels (no "under construction" Partner Websites or any sections thereof are permissible);
You will not use spawning process pop-ups and exit pop-ups in connection with Your Partner Website and/or Partner Emails;
no images, graphics, links, co-registration paths, pop-ups, pop-unders, copy or process for generating Actions other than the Creatives will be used by You in connection with the Offers without first obtaining the prior written consent of Perform[cb];
You will place or use the Creatives only with the intention of delivering valid Actions as determined by, and for the benefit of, the applicable Marketer;
You will not, nor knowingly permit any person to, activate Creatives or inflate the amount of Actions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, device, program, robot, Iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing an Action;
You will not use, nor knowingly permit any person or entity to use, any third-party trademarks in any way to direct traffic to any Partner Website or Marketer website including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name, or any derivative of any such trademark, service mark or brand name;
You will not allow the Creatives to be placed on any non-Partner Website without the prior express written consent of Perform[cb];
You will not use any Creatives or any other Offer terms and/or content in connection with aggregating, soliciting or recruiting other Partners, Marketers, other websites or other persons to form or join an affiliate marketing, advertising or similar network for the purpose of engaging in business of the type conducted by Perform[cb]; and
You will not redirect traffic to a website other than the website specifically listed by the applicable Marketer. You further represent and warrant that the content of Your Partner Website and Partner Emails does not promote, advocate, facilitate or otherwise include any of the following: (i) hate speech or material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation; (ii) Investment, money-making opportunities or advice not permitted under law; (iii) violence or profanity; (iv) pornographic, obscene, sexually explicit or related content; (v) material that defames, abuses, is libelous, is tortuous or threatens physical harm to others; (vi) material that displays any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third person; (vii) material that impersonates any person or entity; (viii) any indication that any statements You make are endorsed by Perform[cb] and/or an Marketer, without Perform[cb]’s and/or Marketer’s specific prior written consent; (ix) promotion of illegal substances or activities (e.g., illegal narcotics, how to build a bomb, counterfeiting money, etc.); (x); content which is inappropriate or harmful to children; (xi) promotion of terrorism or terrorist-related activities, sedition or similar activities; (xii) software pirating (e.g., warez, hotline); (xiii) hacking or phreaking; (xiv) any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (xv) any software, product or service that is illegal or that violates the rights of a third party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet; (xvi) any software, product or service that harvests or collects the personal information of Internet users, whether or not for commercial purposes, without the express consent of such users; (xvii) any spoofing, redirecting or trafficking from other websites in an effort to gain traffic; (xviii) any content that infringes upon the intellectual property rights of any third party or any other right including, without limitation, false advertising, unfair competition, invasion of rights of publicity or privacy; (xix) gambling, contests, lotteries, raffles, or sweepstakes; (xx) any material that violates CAN-SPAM; or (xxi) any illegal activity whatsoever (including any violations of applicable U.S. state or federal law or regulation, Canadian provincial or federal law or the laws of any other jurisdiction in which You operate).
Data Protection Addendum; International Compliance. Partner has read and agrees to comply with the Data Protection Agreement, available at https://support.performcb.com/support/solutions/articles/4000153889, which is incorporated herein by reference. Before approving any Agent to run an Offer through Perform[cb], Partner shall present and secure the written agreement to the Data Protection Addendum from said Agent. Partner agrees that, where applicable, its marketing and data collection practices shall comply at all times with the California Consumer Privacy Act (CCPA), the United Kingdom Data Protection Act of 1998 (as amended), the General Data Protection Regulation (GDPR) (EU) 2016/679, as amended and adopted by the member states of the EU, and all related directives, acts, or regulations. Partner represents and warrants that its consumer data collection practices are performed in a manner that obtains the necessary knowing and frequent consent from consumers and that all consumer data is stored using industry-standard or better security protocols. If Partner is either located outside the United States or offering or distributing (or potentially distributing) an Offer outside the United States, Partner represents and warrants that (1) Partner is familiar with the particular laws, regulations and industry customs in those countries in which Partner is located and/or distributing the Offer, (2) Partner has previous experience distributing Offers in such countries, and (3) Partner will comply with all laws, regulations and industry customs applicable to the operation of its business, its marketing practices, and the collection and/or transfer of consumer data by Partner in such countries. To be clear, Partner is responsible for understanding and complying with all advertising laws, regulations and customs in both the jurisdiction where the advertising takes place and the jurisdiction where Partner is located. Partner’s obligations and liabilities under this Paragraph and the Data Protection Addendum shall extend to the conduct of all Agent.
Metric Information; Non-Disclosure. Any and all information, demographics, analytics, metrics, and other data collected by or through Perform[cb] (“MetricInformation”) in connection with an Offer shall be considered proprietary to and owned by Perform[cb]. Such Metric Information is Confidential Information (as that term is defined below) of Perform[cb] and may not be utilized or otherwise disclosed by You. In addition, You acknowledge that all non-public information, data and reports made available by Perform[cb] hereunder or otherwise as part of the Services is proprietary to and owned by Perform[cb]. All proprietary and Confidential Information is protected by copyright, trademark and other intellectual property laws. You agree not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary or Confidential Information of Perform[cb] in any manner. These non-disclosure obligations shall survive termination or expiration of the Agreement.
Proprietary Rights. Subject to the Agreement and any underlying Offer Terms, Perform[cb] grants to Partner a revocable, non-transferable, royalty free, international license to display on, and distribute through, the Partner Website, Partner Emails and/or other approved marketing channels, the Creatives, and any and all associated trademarks, service marks, trade names and/or copyrighted material (“Intellectual Property Content”) that Perform[cb] provides to Partner through the Perform[cb] Network for the limited purposes of promoting Offers to end users. Partner may not remove or alter any copyright or trademark notices. The Intellectual Property Content and other matters related to the Perform[cb] Network, Programs, Creatives and Site are protected under applicable copyright, trademark and other proprietary rights. The use, copying, redistribution and/or publication by Partner of any part of the Perform[cb] Network, Programs, Creatives and/or Site, other than as expressly permitted hereunder, are strictly prohibited. Partner does not acquire any ownership rights to the Perform[cb] Network, Programs, Creatives and/or Site. The availability of the Perform[cb] Network, Offers, Creatives and Site does not constitute a waiver of any rights related thereto. No part of the Site may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Site, Site content or any portion thereof.
Limitation of Liability; Disclaimer of Warranty. IN NO EVENT SHALL PERFORM[CB] BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH YOUR MARKETING EFFORTS) FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE SITE, AN OFFER, MARKETERS’ UNDERLYING PRODUCTS AND/OR SERVICES OR YOUR DISPLAY OF ANY CREATIVES ON OR THROUGH YOUR PARTNER WEBSITE AND/OR PARTNER EMAILS INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF PERFORM[CB] HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PERFORM[CB]’S MAXIMUM AGGREGATE LIABILITY TO PARTNER AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE THREE HUNDRED DOLLARS ($300). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST PERFORM[CB] MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE. PARTNER RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE. THE SITE, CREATIVES, PROGRAMS, MARKETERS’ UNDERLYING PRODUCTS AND SERVICES, CONTENT AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE SITE, CREATIVES, PROGRAMS AND/OR MARKETERS’ UNDERLYING PRODUCTS AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. PERFORM[CB] HAS NO LIABILITY, WHATSOEVER, TO PARTNER OR ANY THIRD PARTY, FOR PARTNER’S USE OF, OR INABILITY TO USE, THE SITE, CREATIVES, OFFERS AND/OR MARKETERS’ UNDERLYING PRODUCTS OR SERVICES AND PERFORM[CB] DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT PARTNER’S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OF THE PROGRAMS WILL BE AVAILABLE TO PARTNER. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN PERFORM[CB] AND PARTNER. THE SITE, CREATIVES, OFFERS AND/OR MARKETERS’ UNDERLYING PRODUCTS AND SERVICES WOULD NOT BE PROVIDED TO PARTNER WITHOUT SUCH LIMITATIONS. PERFORM[CB] MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE SITE, CREATIVES AND/OR PROGRAMS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PARTNER FROM PERFORM[CB] AND/OR ANY MARKETER BY AND THROUGH THE SITE, CREATIVES AND/OR PROGRAMS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.
Indemnity. You shall indemnify, defend and hold Perform[cb], its Marketers and each of their respective parents, affiliates, subsidiaries, officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of or related to: (a) Your improper use of the Site, Offer, Services and/or any Creatives; (b) any third party claim related to Your Partner Website, Partner Emails and/or Your marketing practices; (c) any third party allegation or claim against Perform[cb] and/or its Marketer(s) relating to a violation by You of any and all laws, rules, or regulations; (d) any content, goods or services offered, sold or otherwise made available by You on or through the Partner Website, Partner Emails, other marketing channels or otherwise; (e) any claim that Perform[cb] is obligated to pay any taxes in connection with payment made to You in connection with the Agreement and/or any Offer; (f) breach and/or violation of the Agreement and/or any representation or warranty contained herein; (g) Your use of the Site, Offer, Services and/or any Creatives, in any manner whatsoever; and (h) any action or failure to act by Your Agent. Perform[cb] shall indemnify, defend and hold You harmless from and against any and all claims allegations, liabilities, costs and expenses (including reasonable attorneys' fees) by third parties arising out of any actual infringement of intellectual property rights resulting from Your display of the actual Creatives, in unaltered form, as provided in connection with any Offer. If any action is brought against either party (the "Indemnified Party") in respect to any allegation for which indemnity may be sought from the other party ("Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware, except that failure to provide such notice shall not excuse the Indemnifying Party’s indemnification obligations under this Section 17 unless such failure materially prejudices the Indemnifying Party. The Indemnified Party shall permit the Indemnifying Party to assume control over the defense of such claim, with counsel chosen by the Indemnifying Party that is reasonably acceptable to the Indemnified Party, provided however, that the Indemnified Party shall control the defense of any such claim that, in the reasonable opinion of such Indemnified Party, could have a material and adverse effect on the business, operations, assets or prospects of such Indemnified Party, and the reasonable costs and expenses thereof shall be included as part of the indemnification obligations of the Indemnifying Party hereunder. The Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party‘s rights or interests without the prior written consent of the Indemnified Party.
Assignment. Perform[cb] may assign the Agreement, or any portion thereof, at its sole discretion. You may not assign, transfer or delegate any of Your rights under the Agreement without the prior written consent of Perform[cb], which may be withheld for any reason, and any attempts to do so shall be null and void. Further, any such attempts may result in Perform[cb], at its sole discretion, immediately terminating the Agreement and/or Your participation in any Offer, without any liability to Perform[cb]. The Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties’ successors and assigns.
Jurisdiction and Venue. The Agreement shall be construed and governed by the laws of the State of Florida, without giving effect to principles of conflicts of law. Any and all disputes or controversies whether of law or fact of any nature whatsoever arising from or respecting the Agreement shall be decided by arbitration by the American Arbitration Association ("Arbitrator"), in accordance with the rules and regulations of that Association. Arbitration shall take place in Sarasota, FL. At the request of Perform[cb], arbitration proceedings will be conducted in secrecy. In such case all documents, testimony and records shall be received, heard and maintained by Arbitrator in secrecy under seal, available for the inspection only by Perform[cb] or Partner and by their respective attorneys and their respective experts who shall have agreed, in advance and in writing, to receive all such information confidentially and to maintain such information in secrecy. Arbitrator shall be able to decree any and all relief of an equitable nature including, but not limited to, such relief as a temporary restraining order, a temporary and/or a permanent injunction, and shall also be able to award damages, with or without an accounting and costs. This agreement to arbitrate will not preclude You or Perform[cb] from seeking provisional remedies in aid of arbitration, including without limitation, orders to stay a court action, compel arbitration, or confirm an arbitral award, preliminary injunction, or temporary restraining order, from a court of competent jurisdiction; provided, however, that the exclusive venue for any such action brought in a court of law shall be the state and federal courts located in and nearest to Sarasota, Florida. Perform[cb] shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees and arbitration fees, in any action or proceeding in connection to, arising out of, or under the Agreement. Nothing contained in the Agreement shall be construed to limit any legal remedies available to Perform[cb]. To the extent permitted by law, You agree not to bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that You may have against Perform[cb] and its employees, officers, directors, members, representatives and assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove You as a participant in the suit. You agree to pay the attorneys' fees and court costs that Perform[cb] incurs in seeking such relief. This provision preventing You from bringing, joining or participating in class action lawsuits does not constitute a waiver of any of Your rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided above. This provision preventing You from bringing, joining or participating in class action lawsuits is an independent agreement.
Severability; Non-Waiver. If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of the Agreement, and the Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
Modification. The Agreement represents the complete and entire expression of the agreement between the Parties, and shall supersede any and all other agreements, whether written or oral, between the Parties. Other than as set forth herein, the Agreement may be amended only by a written agreement executed by an authorized representative of each Party. To the extent that anything in or associated with the Perform[cb] Network or any Offer Terms are in conflict or inconsistent with the Agreement, the Agreement shall take precedence.
Confidentiality. "Confidential Information" means any information disclosed to You by Perform[cb], either directly or indirectly, in writing, orally or by inspection of tangible objects, other than information that You can establish: (a) was publicly known and made generally available in the public domain prior to the time of disclosure to You by Perform[cb]; (b) becomes publicly known and made generally available after disclosure to You by Perform[cb] other than through Your action or inaction; and/or (c) is in Your possession, without confidentiality restrictions, at the time of disclosure by Perform[cb] as shown by Your files and records prior to the time of disclosure. Perform[cb]’s Offer rates are considered “Confidential Information”. You shall not at any time: (i) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information; (ii) use any Confidential information; and/or (iii) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to You or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain Perform[cb]'s personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to Perform[cb] immediately upon Perform[cb]'s request.
Force Majeure. Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of such Party.
Miscellaneous. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site. You may not take any action that imposes an unreasonable or disproportionately large load on the Perform[cb] infrastructure. You agree that any unauthorized and/or unlawful use of the Site, Service, Creatives, and/or Offers would result in irreparable injury to Perform[cb] for which monetary damages would be inadequate. In such event, Perform[cb] shall have the right, in addition to other remedies available to it pursuant to the Agreement, to immediate injunctive relief against You without the need to post a bond.
Ability to Perform. You agree that Perform[cb] may require a financial accounting and inspection of Your books and records including, but not limited to, access to Your computer databases, in order to verify and corroborate financial information regarding the relationship established hereunder. You hereby authorize Perform[cb] to obtain credit reports regarding Your business and to require You to provide it with reasonable information regarding Your financial position.
Relationship. Each Party is an independent contractor and not a partner, joint venturer or employee of the other. Neither Party shall have the right to bind the other or to incur any obligation on the other’s behalf.
Notices. 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 facsimile or email; or (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. In the event of material changes to this Agreement, notice shall be deemed effective upon posting at www.performcb.com. Notices to Perform[cb] shall be sent to either 401 N. Cattlemen Rd. Suite 200 Sarasota, FL 34232 or 3900 E. Mexico Ave. Suite 400 Denver, CO 80210. Notices to Partner shall be sent to Partner at its most recent email address set forth in its account information on www.performcb.com. Partner agrees to receive electronic communications from Perform[cb], at the email address provided by Partner. Partner further agrees that any notice or other communication that Partner sends it electronically will satisfy any legal communication requirements, including that such communications be in writing.
If you still have questions about this policy, you can contact our support team here.