The following Terms and Conditions (“Terms and Conditions”), together with any and all guidelines, previously posted amendments, schedules, attachments and exhibits (collectively, the "Agreement"), set forth the terms and conditions that shall govern the relationship between CPAlead, LLC (“CPAlead™”) DBA (doing business as) “GravyCash.com” and you as a member (“You,” “Your,” “User”, “User”or “Advertiser”) using the advertising service (the "Service") offered through the CPAlead™ network (“CPAlead™ Network”) located at www.CPAlead™.com (the “Site”). The CPAlead™ Network is a non-exclusive, online, performance-based marketing network sponsored by CPAlead™. You and CPAlead™ may also be individually referred to herein as a “Party” and collectively as “Parties.” You agree to use the Site, the Service and any additional products and/or services offered by CPAlead™ only in accordance with the Agreement. CPAlead™ reserves the right to amend, supplement, make changes to, or replace entirely 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 “User” includes the individual, company or entity and, without limitation, any parent entities, owners, subsidiaries, users, predecessor or successor entities, and any agents, officers, directors or employees acting on behalf of same, registering with CPAlead™ to use the Service.
If You do not agree to the Terms and Conditions in its entirety, You are not authorized to register as a User, use the Service, participate in the CPAlead Network™, and/or use the Site, in any manner or form whatsoever.
1. CPAlead™ Network. CPAlead™ solicits customers on behalf of its advertising clients (a "CPAlead Client" or the "CPAlead Clients") through the placement of advertising offers ("Offers") published by members of the Service or their "Sub-Users," as defined below. Offers may be, gateways, banners, text links, graphical image files, transactional ads or other electronic promotions of a CPAlead Client's products and/or services that are published by members of the Service. The CPAlead™ Network enables Users to apply for and, upon approval by CPAlead™, have an opportunity to earn “Commissions” through participation in various advertising campaigns (“Programs”) offered by CPAlead™ or CPAlead Clients in accordance with the Agreement. “Commissions” are generated from a specified transaction (“Lead”) as defined by CPAlead™. Leads include, without limitation, sales, registrations, downloads, and survey and offer completions. CPAlead™ may, at its sole discretion, change a Program at any time, without prior notice to You, unless otherwise specified. Similarly, You may cease participation in a previously accepted Program at any time, unless otherwise specified. Program data compiled by CPAlead™ including, but not limited to, numbers and calculations regarding Leads and associated Commissions (“Program Data”), will be directly and/or indirectly calculated by CPAlead™ through the use of industry standard tracking technology and shall be final and binding on You. Any questions regarding the Program Data must be submitted in writing within fourteen (14) days of initial appearance in the tracking system, otherwise the Program Data will be deemed to be accurate and accepted by You. User understands and agrees that on occasion the Service and/or CPAlead™ Network may be inaccessible, unavailable or inoperable for any reason, including, but not limited to, the following: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs; or (c) causes beyond the control of CPAlead™ or which are not reasonably foreseeable by CPAlead™ 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. CPAlead™ will attempt to provide the Service on a continuous basis. However, User acknowledges and agrees that CPAlead™ has no control over the availability of the Service and CPAlead™ Network on a continuous or uninterrupted basis. CPAlead™’s failure to deliver because of technical difficulties does not represent a failure to meet the obligations of the Agreement.
CPAlead™ may, at its sole discretion, refuse to register You as a User, terminate Your participation in the Service, and/or terminate Your participation in any Program at any time for any reason.
2. Application. You may apply to join the Service by completing the form insertions appearing on the Get Started page of the Site and then clicking the "Next Step" button. By clicking on the "Submit" button below You expressly acknowledge that You have read, accepted and agreed to be bound by these Terms and Conditions, as they may be amended or modified, from time to time.
3. Application Information. All required information fields in the CPAlead™ membership application must be filled-out completely, accurately, and honestly. Any falsification of personal information will result in the immediate termination of membership and forfeiture of all Commissions up through and including the date of termination.
4. Membership Conditions. As a condition of Your membership, You represent, warrant, and covenant on a continuing and ongoing basis, that Your website: (a) does not violate any state or federal laws or regulations, without limitation, governing: (i) false or deceptive advertising; or (ii) sweepstakes or gambling; (b) does not contain any comparative advertising, trade disparagement or libelous, defamatory or infringing content; and (c) does not contain any machine-readable code that could be unintentionally downloaded onto a recipient's computer (such as a worm, virus, Trojan Horse or other self-executing computer program).
6. Participation and Membership. Your participation and membership in the Service will commence on the date Your application to join the Service is accepted by CPAlead™ and will continue until terminated by one of the Parties. CPAlead™ reserves the right to terminate an existing membership at will, in its sole discretion, for any reason/cause, or for no reason/cause at all.
7. Affiliate Identification Number. Upon submission of your application, You will be issued an affiliate identification number. The aforementioned affiliate identification number shall serve as a personal identifier. Your use of the aforementioned affiliate identification number and Your login information shall not, under any circumstances whatsoever, be distributed to and/or used by a third-party, including, without limitation, any Sub-User.
8. No Third-Party Beneficiary Status. Nothing in CPAlead™'s permission to engage Sub-Users may be construed as extending to any Sub-User the status of third-party beneficiary of any agreement between CPAlead™ and You, including without limitation these Terms and Conditions.
9. Special Rules and Restrictions Governing Campaigns. By accepting membership in the Service, You agree to refrain from originating, authorizing or participating in any non-consensual campaigns or promotions, whether by e-mail, telephone or otherwise, including but not limited to "spamming." E-mail distribution may only be made to those recipients who have agreed in advance to receive such transmissions from You (i.e., "opted-in"). Where use of e-mail marketing is authorized by CPAlead™, the following terms shall also apply. Any and all e-mails supplied by User: (a) shall comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003, as amended (CAN-SPAM) 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 User is a party or cause injury to any third party. User shall cause a valid physical postal address for User (and/or the applicable advertiser) and a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery) to be present and appear, as required by applicable law. CPAlead™ reserves that right to add such address(es) should User fail to include same, but CPAlead™ is in no way responsible for including such address(es) where User fails to do so. In addition, CPAlead™ may make available, at a CPAlead™-designated FTP site (“FTP Site”), a suppression list (and associated login information), updated on a regular basis, generated from e-mail Programs transmitted by and/or through the CPAlead™ Network for User’s use in connection with applicable Programs. User shall upload its own list of suppressed e-mail addresses to the FTP Site, if one is provided by CPAlead™. If the FTP Site is provided by CPAlead™, and no such e-mail addresses are supplied by User, CPAlead™ may conclude that no such addresses exist. The suppression list and login provided by CPAlead™ are deemed to be Confidential Information of CPAlead™, as defined herein. Suppression lists may not be used by User for any purpose other than to comply with applicable laws regulating the e-mail transmissions. User agrees to process any unsubscribe requests within five (5) days of being posted at the FTP Site.
By accepting membership in the Service, You agree that You shall not: (a) display fewer than 3 lines of terms and conditions text above the fold with 1024 screen resolution and Internet Explorer standard settings (i.e. menu bar, address bar), even if such text is i-framed within an offer or other website; (b) pre-populate any cell phone number input fields, even if an end-user filled out a similar form field on a prior page/step; (c) display price and/or subscription terms at less than 12-point font-size or lower than 125 color contrast; (d) use any scroll-boxes around terms and conditions, including, without limitation, in a 1024 screen resolution with standard Internet Explorer/Firefox settings, i.e. displaying terms and conditions text in a distinct scrolling area (i-frame/frame/auto-resize); (e) engage in any “stacked” marketing practices, e.g., without limitation, multiple ads for premium SMS content back to back with no obvious method to skip ads, and multiple premium SMS pop-up ads appearing when an end user clicks on a link or attempts to close a page; (f) purchase keywords from a search engine service provider that include the trademark, service mark and/or brand name of any Company product and/or any affiliate or CPAlead Client, or any derivative of any such trademark, service mark or brand name; (g) deliberately target customers under 13 years of age (or Florida residents under 18 years of age); and (h) auto spawn of browsers, automatically redirect visitors, use blind text links, misleading links, or forced clicks; (i) make any representations, warranties or other statements concerning CPAlead™ or any of its products or services on any websites except as expressly authorized herein; (j) create or utilize any websites that copy or resemble the look and feel of any of CPAlead™’s websites or create the impression that such website is endorsed by CPAlead™ or a wireless carrier without prior written permission from CPAlead™; (k) use, in any way, non-approved websites or web pages, or in such a fashion that may be deceptive to the visitor; (l) drive traffic using any downloadable applications without the prior written approval of CPAlead™; (m) pre-populate the “Cell Phone Number” or PIN number field on any sign-up page relating to a CPAlead™ product or service;
(n) use the term “free,” or any derivative thereof, to directly or indirectly market a CPAlead™ product or service; (o) alter the size of font or font context (i.e. boldface) of any text associated with an offer for a CPAlead™ product or service; and (p) imply directly or indirectly that a CPAlead™ product or service has been endorsed by a third party entity (i.e. a cell phone carrier or celebrity) or use the trademark or brand name of any such third party entity to promote the CPAlead™ product or service. Any violation of this Section 11 by You or any third-party shall be deemed a material breach of the Agreement by You, and You shall be fully liable to CPAlead™ for all losses and damages, including, without limitation, legal expenses incurred by CPAlead™ as a result thereof.
10. E-Mail Transmission. You may not use a CPAlead Client's name (including any abbreviation thereof) in the originating e-mail address line or subject line of any e-mail transmission. Your use of Offers in e-mails and/or websites is further restricted and governed by the obligations and restrictions set forth in the Agreement.
11. No Misleading Headers. E-mails may not include falsification of header information, false registrations for e-mail accounts or IP addresses used in connection with e-mail advertisements, and/or retransmissions of an e-mail advertisement for the purpose of concealing its origin. User and/or their e-mail delivery providers are prohibited from relaying or retransmitting e-mails from a computer or computer network that was accessed without authorization.
12. Website Content. Website content, website text, as well as e-mail subject lines may not be false or misleading such that it would likely mislead a reasonable recipient as to the contents or subject matter thereof. You may only use approved website content and website text for which you have documented written approval from CPAlead™.
13. Website and E-Mail Advertisements Must Contain Clear Identification. Advertisements and/or solicitations must identify themselves as such, and do so reasonably, prominently, clearly, and conspicuously. 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 e-mail including company name, e-mail address, and physical address.
14. Effective Method of Opting Out. Senders of commercial e-mails covered by CAN-SPAM must give recipients an effective means of requesting not to receive future e-mail advertisements from You. You must include Your valid physical postal address. This can be Your current street address, a post office box You have registered with the U.S. Postal Service, or a private mailbox You have registered with a commercial mail receiving agency established under Postal Service regulations. Your message must include a clear and conspicuous explanation of how the recipient can opt-out of getting email from You in the future and provide the recipient the ability to send a reply message to You via a functional unsubscribe link that must remain operational for thirty (30) days from the date of the original e-mail transmission. You must craft the notice in a way that is easy for an ordinary person to recognize, read, and understand. You must honor opt-out requests promptly. You cannot charge a fee, require the recipient to give You any personally identifying information beyond an e-mail address, or make the recipient take any step other than sending a reply e-mail or visiting a single page on an Internet website as a condition for honoring an opt-out request.
15. Honoring Opt-Out Requests. You must honor a recipient’s opt-out request within ten (10) business days from receipt. Once You have been informed that a recipient no longer desires to receive more messages from You, You cannot sell or transfer their e-mail addresses, even in the form of a mailing list. The only exception is that You may transfer the addresses to a company You have hired to help You comply with CAN-SPAM.
16. No Random or Invalid Generation of E-Mail Addresses. You are responsible for knowing the source of Your traffic. Leads may not be obtained by the use of a program for lead generation and/or “automating” offer satisfaction or lead generation. You must have full opt-in data for all recipients in Your database.
17. Offers. You may use your login information to access CPAlead™ Offers. CPAlead™ Offers, along with associated Commission schedules and restrictions or conditions specific to each Offer may only be used for the purposes described herein. Placement of any Offer shall be at Your sole discretion, provided that, absent our specific written consent, which may be withheld for any reason or no reason at all, no Offer may be published in violation of these Terms and Conditions, as they may be amended or modified, from time to time.
18. Alteration of Offers. You may not add, subtract or in any way alter, edit, or modify any Offer, nor may You make any use whatsoever of any Offer other than for the purposes of, and as contemplated by, this Agreement.
19. Proprietary Rights. Subject to the Agreement and applicable Program terms, CPAlead™ grants to User a limited, non-exclusive, revocable, non-transferable (except in accordance with Section 9), royalty free, worldwide license to display on, distribute through, and/or download one or more Offers for posting on Your website and/or other approved marketing channels, and any and all associated trademarks, service marks, tradenames and/or copyrighted material (“Intellectual Property Matter”) that CPAlead™ provides to User through the CPAlead Network for the limited purposes of promoting Programs to end users. User may not remove or alter any copyright or trademark notices. The Intellectual Property Matter and other matters related to, without limitation, the CPAlead™ Network, Programs, Service, Offers and Site are protected under applicable copyright, trademark and other proprietary rights. The use, copying, redistribution and/or publication by User of any part of, without limitation, the CPAlead™ Network, Programs, Service, Offers and/or Site, other than as expressly permitted hereunder, are strictly prohibited. User does not acquire any ownership rights to, without limitation, the CPAlead™ Network, Programs, Service, Offers, and/or Site. The availability of the CPAlead™ Network, Programs, Service, Offers, 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. CPAlead™ reserves any rights not explicitly granted in the Agreement.
20. Compensation and Payment Terms. You understand and agree to be paid the applicable Commission for each Lead (completed offer) verified by CPAlead™ approximately thirty (30) days after the last day of a given calendar month, for Commissions realized in that month. Commissions will be payable only for Offers published by You in accordance with specific Program terms, and only after the Commissions have been earned. Commissions will not be "earned" until CPAlead™ receives payment from the CPAlead™ Client. It is Your responsibility to advise us immediately of any change in any of the information furnished by You as part of Your application. You agree that payment for Commissions will be owed to You from the applicable CPAlead™ Client, and that corresponding payments shall be made by CPAlead™ to You out of the funds actually collected by CPAlead™ from the applicable CPAlead™ Client. CPAlead™ shall have no payment obligation to User where the CPAlead™ Client has not remitted sufficient payments to cover the Commissions otherwise due and owing User. Instead, User shall have the right to pursue any and all legal remedies directly against any CPAlead™ Client that has not made funds available to pay sums due and owing to User for Commissions earned in connection with a particular Program. All User accounts will be paid in U.S. dollars. Every User account must have a unique, valid taxpayer identification number, valid Social Security Number or other applicable unique government identification. With the exception of payments in excess of $10,000, all payments due hereunder are exclusive of any applicable taxes, electronic wire transfer fees/costs, electronic funds transfer fees/costs (e.g., PayPal), pre-paid debit card fees/costs (e.g., Payoneer). With the exception of payments in excess of $10,000, User shall be responsible for all of the foregoing applicable taxes, fees, and costs. User will be charged a check cancellation fee of $25, debited to Your account, in the event that cancellation is performed at Your request. A CPAlead™ Client may request that CPAlead™, or CPAlead™ may, on its own initiative, debit from the Commissions otherwise due and owing User an amount equal to a Commission previously credited to User'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 Leads that do not comply fully with the terms of the Agreement, including where the applicable non-complying Lead is not the result of User'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 Lead; or (e) there is any failure on the part of User to comply with the Agreement and/or the applicable Program terms (collectively referred to as a "Chargeback"). Chargebacks requested by a CPAlead™ Client in accordance with this Section may be applied up to sixty (60) days after the end of the month in which the applicable Commission was earned ("Chargeback Period"). A CPAlead™ Client may request that the payment of a Commission be postponed for one (1) payment cycle where: (a) CPAlead™ Client is verifying a Lead; (b) CPAlead™ Client has a product return policy that allows the underlying purchaser to return the product during the Chargeback Period; or (c) the applicable Program terms provide for such a postponement. The number or amount of Leads, credits for payments and debits for Chargebacks, as calculated by CPAlead™, shall be final and binding on User. Notwithstanding the foregoing, CPAlead™ may elect to advance to You Commissions prior to those Commissions having been earned. You acknowledge and agree that Your receipt of Commission payments prior to those payments having been earned is conditional and subject to CPAlead™'s right to demand return of unearned Commissions for any reason or for no reason at all.
21. CPAlead™ Records. CPAlead™ maintains records of all traffic passing over the Service. CPAlead™'s records shall govern all interpretations made under this Agreement, including but not limited to the calculation of Commissions.
22. Minimum Commission Requirement for Regular Payment. CPAlead™ shall not be obligated to make any payment of Commissions to You unless the aggregate amount of earned Commissions equal or exceed the payment threshold of fifty dollars ($5.00 USD). Any earned but unpaid Commissions shall carry over to the next regularly scheduled payment period.
23. Suspension of Payment. If CPAlead™, in its sole discretion, suspects or determines that You are in breach of any material term of this Agreement, Your account will be deactivated immediately, with no notice to You, and You will forfeit all Commissions, pending further investigation. CPAlead™ reserves sole judgment in determining the breach of any material term of this Agreement and You agree to be bound by any and all such determinations. It is the obligation and burden of User to prove to CPAlead™ that it has not breached any material term of this Agreement. CPAlead™ will hold Your Commission-related payments until You have satisfactorily provided evidence that conclusively demonstrates to CPAlead™ that You have not breached any material term of this Agreement. If You are unable to provide CPAlead™ with satisfactory and conclusive evidence that You have not breached any material term of this Agreement within seven (7) days of Your Commissions being so held by CPAlead™, then CPAlead™ reserves the right to terminate Your User account and cancel payment on the applicable Commissions, at its sole discretion and without notice or any further obligations to You.
24. CPAlead™ User Commissions and Referrals of Other User. Users are encouraged to refer their associates to the CPAlead™ Network. CPAlead™ offers Users a 5% Commission on all sales generated through their referred associates through the CPAlead™ Network. If User refers another person or entity that becomes a new a user for CPAlead Clients, CPAlead Clients shall pay User a 5% (or the percent specified in the IO) of revenue generated by qualifying traffic for a period of one (1) year under the first contract such new user signs with CPAlead Clients. CPAlead Clients shall determine what revenue qualifies for the share in its sole and reasonable discretion and may adjust the revenue for any reason, including, without limitation, amounts not collected, amounts setoff, charged back, or canceled by its customers, adjustments for discrepancies between tracking systems, and reserves for anticipated adjustments. User will only earn a revenue for new users that CPAlead Clients accept into its network (and CPAlead Clients may accept or deny in their sole and absolute discretion) and that sign an agreement reasonably similar this Agreement. CPAlead Clients reserve the right to discontinue its relationship with any user at any time in its sole and absolute discretion and User’s revenue share of a newly referred users stops upon termination of that new user’s relationship with CPAlead Clients. CPAlead Clients may terminate this referral program at any time, without notice to User, and without any liability, whatsoever, including liability to pay revenue shares that have not completed the 1 year term. Termination of this referral program does not affect other obligations in this Agreement.
25. Fraud. CPAlead™ actively monitors traffic, Leads, Commissions, and other Program-related activities for potential fraud. If CPAlead™, in its sole discretion, suspects or determines that Your account has been used in a fraudulent manner, Your account will be deactivated effective immediately, with no notice to You, and You will forfeit all Commissions, pending further investigation. CPAlead™ reserves sole judgment in determining fraud and You agree to be bound by any and all such determinations. It is the obligation and burden of User to prove to CPAlead™ that it has not engaged in fraud. CPAlead™ will hold Your Commission-related payments until You have satisfactorily provided conclusive evidence that demonstrates to CPAlead™ that You have not engaged in fraud. If You are unable to provide CPAlead™ with satisfactory and conclusive evidence that You have not engaged in fraud within seven (7) days of Your Commissions being so held by CPAlead™, then CPAlead™ reserves the right to terminate Your User account and cancel payment on the applicable Commissions, at its sole discretion and without any further notice or obligations to You.
26. Non-Disclosure. Any and all information submitted by end-user customers (“Customer Information”) in connection with a Program shall be considered proprietary to and owned by CPAlead™. Such Customer Information is Confidential Information (defined below) of CPAlead™ 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 CPAlead™ hereunder or otherwise as part of the Services are proprietary to and owned by CPAlead™. 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 CPAlead™ in any manner. These non-disclosure obligations shall survive termination or expiration of the Agreement.
27. Confidentiality. “Confidential Information” means any information disclosed to You by CPAlead™, either directly or indirectly, in writing, verbally, 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 CPAlead™; (b) becomes publicly known and made generally available after disclosure to You by CPAlead™ other than through Your action or inaction; and/or (c) is in Your possession, without confidentiality restrictions, at the time of disclosure by CPAlead™ as shown by Your files and records prior to the time of disclosure. All information relating to Your participation in the CPAlead™ Network and Service, including but not limited to Your unique user identification number and Your login information, the identities of any CPAlead™ Client, CPAlead™'s Commission rates, Program rates, and pricing strategies shall be considered “Confidential Information”. You shall not at any time, without the prior written consent of CPAlead™: (a) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information; (b) use any Confidential information (other than to confirm the accuracy of Commission calculations); and/or (b) 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 CPAlead’s™' personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to CPAlead™ immediately upon CPAlead’s™ request.
28. Release of Information. In the event that CPAlead™ suspects or determines any unlawful acts and/or that a violation of this Agreement or any information pertaining thereto has been, will be, or is presently being committed, CPAlead™ reserves the right to release any current or past information including, but not limited to, this Agreement, You, Your use of, without limitation, the CPAlead™ Network and Service, Commissions, Offers, Programs, or Your Sub-Users. CPAlead™ further reserves the right to release any current or past information, as outlined above, if the information is subpoenaed, if CPAlead™ is sold or acquired, or when CPAlead™ deems it necessary or appropriate. You hereby consent to disclosure of any record or communication to any third-party should CPAlead™, in its sole discretion, determine such disclosure to be appropriate and/or necessary.
29. Ownership and Proprietary Nature of Data and Reports. All data, including but not limited to campaign results, user data, statistical information, traffic analysis or other data produced or provided by You, shall be deemed to be the property of CPAlead™.
31. Covenants of CPAlead™. CPAlead™ covenants and agrees to use its commercially reasonable best efforts: (a) to provide, monitor and maintain the necessary technology applications required to link You to CPAlead Client websites; (b) to provide You with Offers in appropriate format; and (c) to provide changes to Offers or cancellations as quickly as is commercially feasible in advance of requested change date or time.
32. Your Covenants. You covenant and agree to use Your commercially reasonable best efforts: (a) to continue to operate and maintain Your distribution channels in a manner consistent with the intent and purpose of this Agreement; (b) to place Offers in Your distribution channels in accordance with this Agreement; (c) to respond to any change notice and/or communication within one (1) business day from CPAlead™'s transmission of such change notice and/or communication to You; and (d) to maintain Your traffic in a manner that conforms with best practices of opt-in solicitation and privacy policies. You further agree to advise us immediately of any changes to any of the information You provided to CPAlead™.
33. Limited Promotional License. You hereby grant CPAlead™ a limited, non-exclusive, revocable, worldwide license for the term of this Agreement to use, reproduce and distribute Your company name and logo for use in our promotional materials.
34. Non-Circumvent. You shall not, during the term of this Agreement and for six (6) months thereafter, implement any cost-per-action ("CPA") agreements with any CPAlead Client with whom You did not have a previously existing CPA agreement. In the event that You do so directly contract with such a party, You shall pay CPAlead™ an additional commission equal to what CPAlead™ would otherwise have earned had You not violated this Section.
35. Term and Termination. This Agreement shall commence upon CPAlead™’s acceptance of Your User application and remain in effect until terminated as set forth herein. This Agreement may be terminated by either CPAlead™ or You at any time, for any reason, or for no reason at all. To the extent applicable, termination may be effected by delivery to the non-terminating Party of appropriate notice, delivered via e-mail, fax or other means of public communication, and will be effective immediately upon Your receipt of such notice , or three (3) business days following the sending of notice, whichever is earlier. In addition, CPAlead™ reserves the right, in its sole and absolute discretion, to terminate a Program at any time for any reason, upon notice to You. CPAlead™ also reserves the right to terminate Your access to the Site, Service, and/or CPAlead Network™ at any time with or without notice to You. As set forth in this Section, as well as in Section 33, any and all information that You may provide to CPAlead™ during the User application process and/or the course of your participation in the CPAlead™ Service shall at all times remain the sole and exclusive property of CPAlead™. The representations, warranties and obligations contained within this Section, Section 33, and the Agreement itself shall remain in full force and effect after termination of the Agreement.
37. Responsibilities Following Termination. Immediately upon termination, You will (a) remove any and all Offers, Program information, CPAlead™ code, and/or or other intellectual property made available to User in connection with its performance under the Agreement from any website(s) owned or operated by You, and/or (b) suspend any and all campaigns, including, but not limited to, e-mail campaigns that have not already been sent.
39. Limitation of Liability and Disclaimer of Warranty. ANY OBLIGATION OR LIABILITY OF CPAlead™ UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR COMMISSIONS PAID TO YOU BY CPAlead™ (OR REVENUE GENERATED THROUGH YOUR COMPANY IF YOU ARE AN ADVERTISER) UNDER THIS AGREEMENT DURING THE YEAR PRECEDING THE CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST CPAlead™ MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. YOU AGREE THAT CPAlead™ SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, A CLAIM BY ANOTHER USER OR A CPAlead CLIENT), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM. USER RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE. THE SITE, PROGRAMS, CPAlead CLIENTS’ 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, PROGRAMS AND/OR CPAlead CLIENTS’ UNDERLYING PRODUCTS AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. CPAlead™ HAS NO LIABILITY, WHATSOEVER, TO USER OR ANY THIRD PARTY, FOR USER’S USE OF, OR INABILITY TO USE, THE SITE, PROGRAMS AND/OR CPAlead CLIENTS’ UNDERLYING PRODUCTS OR SERVICES AND CPAlead™ DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT USER’S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OF THE PROGRAMS WILL BE AVAILABLE TO USER. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN CPAlead™ AND USER. THE SITE, PROGRAMS AND/OR CPAlead CLIENTS’ UNDERLYING PRODUCTS AND SERVICES WOULD NOT BE PROVIDED TO USER WITHOUT SUCH LIMITATIONS. CPAlead™ MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE SITE AND/OR PROGRAMS. NO ADVICE OR INFORMATION, WHETHER VERBAL OR WRITTEN, OBTAINED BY USER FROM CPAlead™ AND/OR ANY CPAlead CLIENT BY AND THROUGH THE SITE AND/OR PROGRAMS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, CPAlead™’s LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
40. Indemnity. You shall indemnify, defend and hold CPAlead™, CPAlead Clients and each of their respective parents, users, 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, without limitation: (a) You and/or Your Sub-User’s improper use of the Site, CPAlead™ Network, Programs, and/or the Service; (b) any third party claim related to You and/or Your Sub-User’s website, e-mails and/or marketing practices; (c) any third party allegation or claim against CPAlead™ and/or CPAlead Clients relating to a violation of any and all state and federal laws or the laws of You and/or Your Sub-User’s jurisdiction; (d) any content, goods or services offered, sold or otherwise made available by You and/or Your Sub-User on or through the User and/or Sub-User’s website, e-mails, other marketing channels or otherwise; (e) breach and/or violation of the Agreement and/or any representation or warranty contained herein; and/or (f) You and/or Your Sub-User’s use of the Site, CPAlead™ Network, Programs, and/or the Service, in any manner whatsoever.
41. Forfeiture. By completing this application and agreeing to the terms of service herein. You or any legal entity you hold interests in, immediately forfeit the right to any and all legal claims against CPAlead for infringing upon, replicating or using any of your intellectual property including all patented items.
42. Jurisdiction and Venue. The Agreement shall be treated as though it were executed and performed in Las Vegas, Nevada and shall be governed by and construed in accordance with the laws of the State of Nevada without giving effect to any choice of law or conflict of laws rules or provisions. Any legal claims arising out of or relating to the Agreement must be brought in the federal or state courts located in Clark County, Las Vegas, Nevada. Should a dispute arise concerning the terms and conditions of the Agreement or the breach of same by any Party hereto, the Parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association in Las Vegas, Nevada, in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. Any award rendered shall be final and conclusive to the Parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing herein shall be construed to preclude CPAlead™ from seeking injunctive relief in order to protect its rights pending an outcome in arbitration. Nothing contained in the Agreement shall be construed to limit any legal remedies available to CPAlead™. CPAlead™ may, in its sole discretion, elect to file an action in any court of competent jurisdiction in Clark County, Nevada, in lieu of and despite the alternative dispute resolution provision above. CPAlead™ shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding in connection to, arising out of, or under the Agreement.
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 CPAlead™ 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 CPAlead™ 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.
43. Severability and 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.
44. Integration. The Agreement is personal between You and CPAlead™ and governs Your use of the Site, Service, and/or the CPAlead Network™, superseding any and all prior and/or contemporaneous agreements between You and CPAlead™. Subject to any past or future publication of any updated Agreement, including any updated terms and conditions, Your account information, including information provided during the application process, represents the complete and entire expression of the agreement between You and CPAlead™, and shall supersede any and all other agreements, whether written or verbal, between the Parties. To the extent that anything in or associated with the Site, Service, and/or the CPAlead Network™ offering is in conflict or inconsistent with the Agreement, the Agreement shall take precedence. 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 CPAlead™ Site, Service, and/or the CPAlead™ Network is in conflict or inconsistent with the Agreement, the Agreement shall take precedence.
45. Assignment. CPAlead™ may assign or transfer its rights to the Agreement, or any portion thereof, at its sole discretion and without restriction. You may not assign, transfer or delegate any of Your rights under the Agreement except with prior written consent of CPAlead™, 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 CPAlead™, at its sole discretion, immediately terminating the Agreement and/or Your participation in any Program, without any liability to CPAlead™. The Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties’ successors and assigns.
46. Self Serve: You agree that through registration for and use of CPAlead’s self help advertising panel, which allows advertising partners to manage the use of their offers through the black, you assume responsibility for any discrepancies or related conflicts. Namely, the self help platform allows you to manage any illegal, non-compliant or otherwise harmful affiliates by blacklisting them from your advertisements. CPAlead will not be held responsible for any damages or costs associated with the activities of a non-compliant sub Affiliate. You forfeit any right to withhold any funds owed to CPAlead or apply penalties for any reason. In the event of an invoicing discrepancy for activity conducted by CPAlead on your platform / through your company, CPAlead’s records will prevail.
47. Force Majeure. Neither You or CPAlead™ 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.
48. Relationship. The Parties are non-exclusive independent contractors and not partners, joint venturers, or employees of the other. Neither Party shall have the right to bind the other or to incur any obligation on the other Party’s behalf.
49. Notices. Unless otherwise specified herein, any notice, communication or statement relating to this Agreement, including the Terms and Conditions, shall be in writing and deemed effective immediately: (a) upon delivery when delivered in person; (b) upon Your receipt of such notice when delivered via e-mail, facsimile transmission or other means of public communication; (c) upon Your receipt of such notice 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; (d) or three (3) business days following the sending of notice, whichever is earlier. All written notices shall be sent to the address submitted by You when You signed up for the Service and, if to CPAlead™, to the address listed in the Contact Us section of the Site.
50. Survival. The obligations in Sections 25, 31, 32, 40, 42, 43, and 44, as well as any other provisions hereof, which by their nature, are intended to survive the termination of your participation in the Affiliate Program and/or this Agreement, shall survive any such termination.
51. Corporate Authority; Non-Breach. Each Party represents and warrants to the other that: (a) such Party has all necessary right, power and authority to agree to this Agreement and to perform its obligations hereunder; (b) nothing contained in this Agreement or required by such Party's performance hereunder will place such Party in breach of any other contract or agreement to which it is bound or violate any applicable law, including obscenity, privacy and defamation laws; and (c) the performance of either Party's obligations under this Agreement shall not infringe or violate upon the intellectual property or privacy rights of any third party.
52. Integration. Prior Agreement. This Agreement supersedes and replaces any and all previous agreements between the parties (whether written or oral) with respect to the subject matter hereof.
53. 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 CPAlead™ infrastructure. You agree that any unauthorized and/or unlawful use of the Site, Service, Offers, and/or Programs would result in irreparable injury to CPAlead™ for which monetary damages would be inadequate. In such event, CPAlead™ 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.