The following Terms and Conditions govern your (hereinafter “Publisher”) relationship with NetFusion Media, Inc. and the use of the NetFusion Media website (hereinafter “Site”). Publisher agrees to use the Site and any additional services offered by NetFusion Media only in accordance with these Terms and Conditions. NetFusion Media 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 may be provided by e-mail to the email address provided in the course of Publisher’s registration with NetFusion Media or by an updated Effective Date on these Terms and Conditions appearing on the Site) shall constitute Publisher’s consent to such modification.
1. Approval of Publisher.
Registration with NetFusion Media shall not confer any right on Publisher to market or promote any Programs (as defined under section 2) made available by NetFusion Media on the Site on behalf of its clients (the “Advertisers”). Participation by Publisher in the NetFusion Media publisher lead generation program is subject to review and approval by NetFusion Media. All prospective publishers need official approval from NetFusion Media 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. NetFusion Media 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 NetFusion Media. Publisher shall promptly notify NetFusion Media in the event of a material change in its business practices or strategy. Approval of a Publisher can be withdrawn by NetFusion Media, at any time for any reason.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 e-mail must have the consent of the consumer to send such e-mail and each Publisher shall maintain records evidencing such consent including, without limitation:
Member opt-in date;
Registration source;
First name;
Last name;
Address;
Email address;
Any other information collected, and will supply such records to NetFusion Media within one business days of request thereof.
Unless otherwise approved in writing by NetFusion Media or in the campaign description, 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 shall be permitted;
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 NetFusion Media 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 NetFusion Media’ 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 NetFusion Media to post offers of advertising programs sponsored by NetFusion Media 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 NetFusion Media, result in termination of Publisher. NetFusion Media may change a Program at any time, upon reasonable advance written notice to Publisher. NetFusion Media 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 NetFusion Media or Publisher receives a complaint from any recipient of a Program transmitted by Publisher, upon our request Publisher will immediately provide NetFusion Media 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 NetFusion Media or Subject Lines for which Publisher has documented approval from NetFusion Media.
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.
NetFusion Media 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 NetFusion Media (or a third party retained by NetFusion Media 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 NetFusion Media.
3.2.
Each unsubscribe list furnished to a Publisher shall be separately and technologically identified so that NetFusion Media 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.
NetFusion Media grants Publisher a revocable, non-transferable, non-sub licensable, 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 NetFusion Media. If a Publisher fails to adhere to the foregoing requirement, in addition to any other remedies available to NetFusion Media, Publisher shall forfeit its rights to any amounts owed by NetFusion Media 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 NetFusion Media. 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 NetFusion Media that allows NetFusion Media to measure ad performance and provide its service. In addition, Publisher acknowledges that all non-public information, data and reports received from NetFusion Media hereunder or as part of the services hereunder is proprietary to and owned by NetFusion Media. If instructed to do so by NetFusion Media and/or if Publisher shall be terminated by NetFusion Media, Publisher will immediately destroy and discontinue the use of any NetFusion Media data, including Site Data, and any other material owned by NetFusion Media or the Advertisers.
5. Non-Solicitation.
Publisher agrees that Publisher will not approach or attempt to engage in a contract with any of NetFusion Media’ 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. NetFusion Media will promptly reply in writing to any inquiries received from Publisher regarding the status of any person or entity as a NetFusion Media Client so as to aid Publisher in its efforts to comply with the non-solicitation provisions of this Agreement. Because NetFusion Media 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 NetFusion Media 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 violation conduct by Publisher.
6. Participation in our Program.
NetFusion Media 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 non-submission, inclusion or any traffic can be sent to it, prior to NetFusion Media’ review and approval of it. If Publisher already has its own website, Publisher’s website will be subject to NetFusion Media’ review and approval. Approval shall be written or by electronic submission. All Program related websites will contain links (“Links”) provided by NetFusion Media directing traffic to product sales web pages served by NetFusion Media or a NetFusion Media Group Client. Publisher’s selection of entities to be included on any such website is also subject to NetFusion Media’ review and approval, of which shall not be unreasonably withheld. Should any of NetFusion Media’ 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 NetFusion Media.
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 NetFusion Media’ written approval. Links must be served from the NetFusion Media server, unless otherwise permitted in writing by NetFusion Media. Publisher shall not take any actions to impede the action of or to disable any such links. Publisher agrees to, if request by NetFusion Media, modify or alter Links or Tracking devices in the manner requested by NetFusion Media. Publisher further agrees that it shall in no event modify or interfere with Tracking devices unless specifically instructed to do so by NetFusion Media in accordance with the previous sentence.
6.2. Ownership.
NetFusion Media owns all rights, title, and interest to Links and user data collected and derived through the activities countenanced pursuant to this Agreement. NetFusion Media 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 NetFusion Media. NetFusion Media 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 NetFusion Media 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 NetFusion Media. Should NetFusion Media 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:
in exactly the form that it is delivered to the Publisher by NetFusion Media without modification unless approved by us in writing;
only in the manner expressly permitted by NetFusion Media in writing and only until NetFusion Media 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 NetFusion Media to do so.
7. Fraud.
NetFusion Media 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 NetFusion Media;
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 NetFusion Media or use of sites in co-registration campaigns that have not been approved by Advertiser), as determined solely by NetFusion Media, 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 NetFusion Media, 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, NetFusion Media 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. NetFusion Media shall pay any amounts due approximately 30 days after the end of each month, less any taxes required to be withheld under applicable law, provided that NetFusion Media may, in its discretion, withhold payments until such time as the Advertiser has paid NetFusion Media for any Program. In addition to any other remedies that may be available to NetFusion Media, in the event of any breaches by Publisher of these Terms and Conditions, Publisher shall forfeit its rights to any amounts owed by NetFusion Media to Publisher. NetFusion Media 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. NetFusion Media shall compile, calculate and electronically deliver data required to determine Publisher’s billing and compensation. Any questions regarding the data provided by NetFusion Media 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. NetFusion Media will not pay for any Events that occur before a Program is initiated, or after a Program terminates. Invoices submitted to NetFusion Media and payments made to Publisher shall be based on the Events as reported by NetFusion Media. NetFusion Media will not be responsible to compensate Publisher for Events that are not recorded due to Publisher’s error. NetFusion Media will require a Publisher to provide a W-9, and similar such information, as a condition to payment. All accounts will be paid in US dollars ($US). Every Affiliate/Publisher must have a unique, valid taxpayer identification number (TIN) or valid Social Security number and be over the age of eighteen (18) years old.
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 NetFusion Media, and if necessary the applicable Advertiser, have approved, in writing,
all sites to be used by the Publisher for each Program and
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”). NetFusion Media may detect and track all Invalid Leads, which are determined on a real-time basis. NetFusion Media shall only pay for leads deemed valid by this system. At the sole discretion of NetFusion Media, leads may also subsequently be deemed invalid for
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
non-compliance with co-registration programs including but not limited to exceeding lead caps as communicated by a NetFusion Media Account Executive and/or going live with a co-registration offer prior to written approval of a creative and data transfer by an NetFusion Media Account Executive.
9.4. Use of Leads.
Publisher hereby acknowledges that the collection of the Leads is being done solely for the benefit of NetFusion Media or its Advertiser. Therefore, other than providing the Leads to NetFusion Media 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 NetFusion Media 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 NetFusion Media.
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:
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
this Agreement is otherwise earlier terminated pursuant to the provisions hereof.
11. Termination.
NetFusion Media 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). NetFusion Media 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:
it has the right to enter into and fully perform the services contemplated herein, consistent with these Terms and Conditions;
there is no outstanding contract, commitment or agreement to which it is a party that conflicts with these Terms and Conditions; and
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 NetFusion Media;
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 NetFusion Media’ network, unless a previously existing business relationship between Advertiser and Publisher can be demonstrated to the reasonable satisfaction of NetFusion Media.
In this connection, both parties agree and acknowledge that if Publisher violates its obligations hereunder, NetFusion Media 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.
Publisher further 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 NetFusion Media 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 NetFusion Media, result in the immediate suspension or termination of NetFusion Media’ relationship with Publisher and Publisher shall forfeit all rights to any compensation theretofore owed to it by NetFusion Media. The foregoing rights shall be in addition to any other remedies available to NetFusion Media. Publisher acknowledges and agrees that NetFusion Media 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 NetFusion Media, 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 NetFusion Media 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, NetFusion Media 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 NetFusion Media 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:
merchantability, clientability or fitness for a particular purpose,
that there are no viruses or other harmful components therein,
that a party’s security methods employed will be sufficient in all circumstances or in the face of all attacks,
regarding correctness, accuracy, or reliability of any information set forth therein or thereon, or
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.
16. Disclaimer of Warranties.
NetFusion Media 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. NetFusion Media 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. NetFusion Media 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 NetFusion Media, Publisher acknowledges that NetFusion Media has no control over the content of that website. Furthermore, a link to a non-NetFusion Media website does not mean that NetFusion Media 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.
17. Indemnity.
17.1. Indemnity.
Publisher will defend, indemnify, and hold harmless NetFusion Media, 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. NetFusion Media 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.
17.2. Notification of Legal Action
Publisher will immediately notify NetFusion Media 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.
18. 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.
19. General.
19.1. Entire Agreement.
These Terms and Conditions, together with the terms for each of the Programs constitute the entire agreement between the parties and supersedes all prior agreements or understandings between the parties.
19.2 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 California, without giving effect to principles of conflicts of law. Each party, to the extent permitted by applicable law, hereby irrevocably and unconditionally
submits to the general jurisdiction of the federal and state courts located in Orange County, California
agrees that any action or proceeding concerning this agreement will be brought exclusively in such courts; and
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.
19.3. 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.
19.4. Assignment.
Publisher may not assign any of its rights hereunder without the prior written consent of NetFusion Media, which may be withheld for any reason.
19.5. 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.
19.6. Relationship.
The parties agree that the relationship between the NetFusion Media and Publisher shall not constitute a partnership, joint venture, agency or employment relationship. Neither NetFusion Media nor any of NetFusion Media’ employees or agents (collectively referred to herein as the “Employees”)
is an employee, agent or legal representative of Publisher, or
shall have any authority to represent Publisher or to enter into any contracts or assume any liabilities on behalf of Publisher.
NetFusion Media 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 NetFusion Media nor any of its Employees shall have any right to receive any employee benefits as are in effect generally for Publisher employees.
19.7. No Publicity.
Publisher may not make any mention of NetFusion Media or any NetFusion Media client in any publicity materials advertising or otherwise presenting information on your company and your services, including without limitation listing NetFusion Media or any of its clients in your customer lists, without the written consent of NetFusion Media, whose consent may be withheld for any reason or for no reason.
19.8. Notice.
Any notice, communication or statement relating to these Terms and Conditions shall be in writing and deemed effective:
upon delivery when delivered in person;
upon transmission when delivered by verified facsimile transmission or verified e-mail; or
when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to Publisher at the address provided in the registration, and
NetFusion Media, Inc. 360 E. 1st Street, #4226, Tustin, CA 92780.
PUBLISHER DATA PROTECTION (GDPR & CCPA) ADDENDUM
Effective date: January 1, 2020
This Data Protection Addendum (“Addendum”) forms part of the DynamiAds.com Affiliate Program Operating Agreement (“Agreement”) and is entered into as of Jan 1, 2020 (“Addendum Effective Date”) by and between: (i) affiliate (“Publisher”) acting on its own behalf and as agent for each Publisher Affiliate; and (ii) NetFusion Media, Inc., a California Corporation (“Company”) acting on its own behalf and as agent for each Company Affiliate, to reflect the parties’ agreement with regard to the processing of personal data.
The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect.
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement. Except where the context requires otherwise, references in this Addendum to the Agreement are to the Agreement as amended by, and including, this Addendum.
Under General Data Protection Regulation (GDPR), as well as under California Consumer Privacy Act of (CCPA) and other California privacy laws. Publishers assume the role of the Controller of the data they send through Company’s system. Company assumes the role of a Processor of that online traffic data.
Definitions
Applicable Laws – means (a) European Union or Member State laws with respect to any Company Personal Data in respect of which any Company Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Company Personal Data in respect of which any Company Group Member is subject to any other Data Protection Laws; (b) California State laws and California Consumer Privacy Act of and other California privacy laws with respect to any Company Personal Data in respect of which any Company Group Member is subject to California Data Protection Laws; and (c) any other applicable law with respect to any Company Personal Data in respect of which any Company Group Member is subject to any other Data Protection Laws;
Controller – means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data;
Processor – means a natural or legal person, public authority, agency or other body, which processes personal data on behalf of the controller;
Data Protection Laws – means California Data Protection Laws, EU Data Protection Laws, and to the extent applicable, the data protection or privacy laws of any other country or state;
Personal Data Breach – is a breach in security which may result in a potential or unlawful loss, modification, eradication or unauthorized disclosure of, or access to, relayed, stored or processed Personal Data;
Process(ing) – refers to the operations performed on the Personal Data, albeit executed in an automated fashion or otherwise, including and not limited to the collection, structuring, storing, altering, retrieving, accessing, using, releasing by transmittal, propagation, constraining, erasing or destroying of data;
Supervisory Authorities – refers to independent public authorities, which were created by a member state of the European Union pursuant to GDPR Article 51, and by the State of California pursuant to CCPA.
Terms the Publisher Agrees to Comply with are as follows:
Ensuring Compliance
Publisher shall remain compliant with any obligations specific to all Applicable Laws including the Processing of Personal Data in connection with the Addendum.
Safeguarding
Publisher is able to confirm and prove that it has necessary security measures in place to protect Personal Data. This includes and is not limited to the enforcement of technical measures against any unauthorized use, potential loss, damage or destruction of the Data Subject’s Personal Data.
Data Handling and Processing
Publisher has collected valid authorizations, as necessary, to Process Personal Data of the data subjects coming on your site. In the instance where you become cognizant of any errors or lack of compliance being enforced in handling the Personal Data, you shall inform Company.
Personnel Administration of Personal Data
Publisher shall enforce measures to ensure that all employees, affiliates, subcontractors, or agents (also known as “Personnel”), whom are involved in the Processing of the Personal Data in connection with the Addendum, are reliable and aware of their duties and all laws regarding the GDPR and CCPA regulations.
Transfer of Personal Data
In the case Publisher transfers any Personal Data from within the EEA [or Switzerland] to Company, within the United States of America, you will take all required actions to properly ensure the transfer following the GDPR and CCPA regulations.
Third-Party Inquiries
Publisher agrees to having a Data Protection Officer, or an employee whom shall remain responsible for ensuring the lawful and appropriate administration of Personal Data along with assisting Company, in a timely manner, with any inquiries surrounding Data Subjects or any competent data protection or privacy authority as they relate to the Processing of Personal Data which you have provided to Company.
In an effort to assist Company with remaining compliant with GDPR and CCPA regulations and in relation to any Personal Data that you provide to Company, you agree with providing Company with assistance and information on an as needed basis in a timely manner.
Exchange of Personal Data
Per the addendum, in the instance where you receive Personal Data from and provide Personal Data to Company, you and Company consent to doing so in the capacity of Controller, for the process of supplying Personal Data to the other party. In the case you receive Personal Data from Company, you will act in the capacity of a Controller, and:
A. Uphold the ability to Process such Personal Data for your own business and commercial needs, subject to the Terms of this Addendum (including, without limitation, the scope of the license granted) and per the obligations of Controller laid out in Article 28 of the GDPR and CCPA; and
B.Retain the ability to Process Personal Data per the instructions of Company and not for the intent of your own business or commercial purposes; complying with the Applicable Laws and obligations of a Processor as laid out in Article 28 of the GDPR and CCPA.
Consent for Personal Data
Publisher validates that as an operator of a digital property, from which you collect Personal Data, you have implemented methods for obtaining appropriate consent for such collection of Personal Data for all intents and purposes specific to those which Company has laid out in the Addendum and have provided a clear link to an easy-to-use mechanism which would allow the Data Subject the ability to opt out. Publisher can validate that it has the necessary proof of consent of any Data Subject whose Personal Data it exposes to Company and in all those cases the Data Subjects are provided with a clear mechanisms to opt-out.
Publisher verifies that the provision of Company Personal Data via digital properties and operated by third parties, have implemented legally enforceable obligations in place with the third parties – specifically requesting that they obtain explicit consent which you will be able to provide in evidence to Company to satisfy the requirements of Company’s use of such Personal Data, per the Addendum. Similarly, Publisher will be responsible for furnishing third parties with any relevant information laid out in the Addendum and/or made available by Company in writing.
If Publisher is unsure of the technology Company uses in relation to Personal Data and how Company will use Personal Data provided by Publisher, please see our privacy statement at https://dynamiads.com/privacy-policy/, our terms of service https://dynamiads.com/publisher-terms/terms or submit a request to Company for information at info@netfusionmedia.com.
Generally, Company uses Personal Data for purposes related to its measurement of consumer behavior, audiences, and advertising. At minimum, this spans (i) market research, (ii) advertising and modeling, (ii) user experience, analytics and reporting. In such instances, Company utilizes Personal Data on its own behalf and on behalf of its customers; making the Personal Data subject to the terms of the applicable Addendum.
Disclosures & Privacy Policy
If you are an operator of a digital property from which Personal Data is collected and provided to Company, Publisher will comply by having a privacy notice that is in order with the Applicable Laws.
In the case you uphold a provision to Company of Personal Data from digital properties that are operated by third parties you will contractually request that your relevant contracting parties have a privacy notice that complies with Applicable Laws for each digital property.
Personal Data Breach
In the instance of a Personal Data Breach, where there may be impact to Personal Data Processed per the Addendum, Publisher will: (i) take all necessary and appropriate corrective measures to resolve any related, underlying causes of the Personal Data Breach; (ii) promptly notify Company within twenty-four (24) hours and furnish any reasonable detail regarding the nature of the Personal Data Breach along with any related, potential impact to the Personal Data disclosed to Company; and (iii) assist Company as necessary to ensure compliance with Applicable Laws.
Rights of Data Subjects
Publisher has the means and will take all necessary measures to remain in compliance with reasonable requests from Data Subjects (in relation their rights under Articles 12-22 of GDPR & CCPA) as it pertains to Personal Data Processed, per the Addendum.
Disclosure of Sensitive Personal Data
If you are an operator of a digital property from which Personal Data is collected and provided to Company, you will comply by having a privacy notice that is in order with the Applicable Laws.
Audit and Compliance
Per the Addendum, you will comply with any reasonable requests for information from Company and/or Company clients as they pertain to your Processing of Personal Data. Per Applicable Laws, you ensure that all affiliated parties are in compliance with their specified obligations and are willing and able to allow Company and/or Company clients to perform an audit of your compliance as per this DPA and Applicable Laws.
Complying with Data Protection Impact Assessments
As able, you will aid Company with any data protection related impact assessments along with former consultations with Supervisory Authorities or other competent data privacy governing bodies, which Company considers to be necessary by Article 35 and/or 36 of the GDPR and entire CCPA or per similar conduct spelled out in Applicable Laws and as they pertain to the Processing of Personal Data associated with the Addendum.
Precedence of Agreements
Publisher confirms and concurs that the terms and conditions of this DPA shall serve as an add on to the existing Agreement. In the case there is any misalignment between the DPA and an Agreement, the order of precedence remains: (1) DPA; and (2) an Agreement.
Modifications to Applicable Laws
Company may: (i) by a minimum of at least 30 (thirty) calendar days’ of written notice to you, make any modifications as a result of any updates in, or per determination of a competent authority under the Applicable Law as it relates occurrence of to Controller to Controller disclosures of Personal Data without breach of the associated, Applicable Law; and (ii) suggest any other variations to this DPA which Company deems to be necessary for addressing the requirements of any Applicable Laws.
Indemnification
The Publisher agrees to indemnify the Company and defend the Company at its own expense against all costs, claims, fines, group actions, damages and expenses incurred by the Company or for which the Company may become liable due to any failure by the Publisher or its employees, agents subcontractors or processors to comply with any of its obligations under this Addendum or any failure to comply with Data Protection Legislation. Nothing in this Agreement shall limit the Publisher’s liability under this DPO Addendum.
