Affiliate Signup

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Promotional Methods

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Affiliate
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Terms and Conditions

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Third Element Terms *
PLEASE READ THIS AGREEMENT CAREFULLY. SECTION 13.5 OF THIS AGREEMENT PERMITS THIRD ELEMENT MARKETING LLC TO WITHHOLD AFFILIATE COMMISSIONS FOR AFFILIATE’S BREACHES OF THIS AGREEMENT.

This  Agreement  (hereinafter  “Agreement”)  is  made  effective  as of the sign up date (the “Effective  Date”)  by and  between  Third Element Marketing,  LLC  a Florida  limited liability company   (hereinafter   “Network”),   and “Affiliate”). Network and Affiliate shall be individually referred to herein as a “Party” and together as the “Parties.”

1.	Offers, Creatives and Media

1.1	Affiliate may promote a product or service (“Offer”) offered by Network, as specified on the applicable Offer enrollment page. Offers may have additional terms and conditions as specified on the applicable Offer enrollment page (“Offer Terms”), and such terms and conditions are incorporated as part of this Agreement. By submitting an application to become a Network Affiliate, participating in an Offer, or distributing Creatives as that term is defined below, Affiliate expressly consents to all the terms and conditions of this Agreement and the applicable Offer Terms.

1.2	Network shall make available to Affiliate, via the applicable Offer platform, graphic and textual links and other creative materials such as text ads, graphic ads, video ads, from and subject lines, and copy associated with the Offer (collectively, the “Creative”) that Affiliate may display on websites owned or controlled by Affiliate, in emails sent by Affiliate, and in Affiliate’s online advertisements (collectively, “Media”). Network may, in its sole and absolute discretion, limit the use of the Creative to certain media or formats, terminate or change any Offer, and change or remove any Creative for any or no reason. Affiliate shall discontinue use and dissemination of the Creative immediately upon Network’s request.

1.3	Affiliate shall only use traffic methods and Media permitted by the applicable Offer Terms, or as permitted by Network in writing prior to Affiliate generating such traffic or using such Media.

2.	Term and Termination.

2.1	This Agreement shall commence on the Effective Date, and shall continue until terminated as provided herein.

2.2	Affiliate may terminate this Agreement by providing Network thirty days’ written notice.
 
2.3	Network may terminate Affiliate’s participation in one or more Offers or this Agreement at any time and for any or no reason, with or without notice.

2.4	Upon termination of this Agreement, Affiliate shall immediately cease disseminating the Creatives, and return all Proprietary Information and Confidential Information to Network, as those terms are defined herein. Upon termination, no further compensation shall be owed to Affiliate.

2.5	Notwithstanding anything herein to the contrary, Network may immediately terminate this Agreement without further compensation to Affiliate if at any time Affiliate or any Third Party Affiliates (if applicable) breaches this Agreement, engages in fraud, or violates any applicable state, federal, or local law, rule, or regulation. If the Agreement is terminated for the reasons stated in this section, Affiliate shall forfeit any unpaid Commissions.

3.	Payment

3.1	Subject to the provisions set forth in this Agreement, Network shall pay Affiliate an amount (“Commission”) for each “Qualified Action,” as defined in the applicable Offer Terms.

3.2	Network shall not be liable to pay or reimburse Affiliate in any way for a payable action, including any Commission or Qualified Action that Network determines in its sole discretion is  incomplete, duplicate, unqualified, results in a chargeback by the end consumer, or was generated by fraud, a violation of applicable law, or a breach of this Agreement or the Offer Terms. Network’s determination of whether a Qualified Action has occurred is final and conclusive, and at Network’s sole discretion. Network reserves the right to charge back any previously paid Commissions and withhold future Commissions for Qualified Actions that it later determines did not meet the requirements to be a Qualified Action. If Network pre-pays for Qualified Actions before Affiliate generates such actions, Affiliate shall immediately return to Network all payment amounts upon written notification from Network that such actions were incomplete, duplicate, unqualified, resulted in a chargeback by the end consumer, or generated by fraud, a violation of applicable law, or a breach of this Agreement.

3.3	All tracking and determinations of Qualified Actions shall be made by Network in its sole discretion. If Affiliate disputes Network’s determination then Affiliate must submit the dispute to Network in writing, including evidence supporting the invalidity of the Network’s determination, within thirty (30) days of the date that Affiliate received notice of the corresponding determination. Network shall make a determination based upon the data available to Network and the data provided by Affiliate, and Network’s determination shall be final and binding. If Affiliate does not dispute the determination as set forth herein, then Affiliate agrees that it irrevocably waives any claims based upon that determination. Failure to comply with this Agreement may result in Commission withholdings, possible legal action and any other rights or remedies available to Network pursuant to this Agreement or otherwise.

4.	Representations, Warranties and Related Obligations

4.1	Network represents and warrants that it has full right and authority to enter into this Agreement.

4.2	Affiliate represents and warrants that it has full right and authority to enter into this Agreement.

4.3	Affiliate shall fulfill the obligations under this Agreement in compliance with all laws and regulations, including without limitation the CAN-SPAM Act of 2003 and all state anti-spam laws including California Business & Professions Code Section 17529.5, California Civil Code Section 1798.83, the Federal Trade Commission Act, the California Online Privacy Protection Act, the Children’s Online Privacy Protection Act, the Federal Trade Commission’s Telemarketing Sales Rule, Federal Trade Commission Endorsements Guides, the Restore Online Shoppers’ Confidence Act and all state laws relating to automatic renewal programs, and any other applicable federal, state, and local consumer protection laws, regulations, and standards.

4.4	Affiliate represents and warrants that it has disclosed to Network, prior to executing this Agreement, the existence of any past federal or state decrees, orders, or consent agreements, and any pending formal or informal government investigations or prosecutions by the Federal Trade Commission, any other federal or state governmental or regulatory body or agency, or any industry regulatory authority against Affiliate or any Third Party Affiliate that Affiliate engages to provide services under this Agreement.

4.5	Affiliate shall not use deceit or fraud when providing services under this Agreement, and shall not engage in or promote any illegal activities of any kind in association with this Agreement. Without limiting the foregoing, Affiliate shall not engage in any fraud as described in Section 9 herein.

4.6	Affiliate shall display each Creative exactly as it is provided by Network. Affiliate shall not take any action that would hinder Network’s ability to track Affiliate’s actions or Qualified Actions.

4.7	Affiliate represents and warrants that all materials posted on the Media or otherwise used in connection with this Agreement: (i) shall not infringe upon the intellectual property or personal rights of any third party, and
(ii) shall not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity, or otherwise contains material that Network considers objectionable. Affiliate owns or has the legal right to use and distribute all content, copyrighted material, intellectual property, products, and services displayed on all materials that Affiliate uses, including the Media, that Network does not provide to Affiliate.

4.8	Affiliate shall not make any representations, warranties or other statements concerning Network or any of Network’s products or services, except as expressly authorized herein.

4.9	If Affiliate creates or designs any Media, Affiliate shall first receive Network’s prior written approval before disseminating such Media.

4.10	Affiliate shall comply with the terms, conditions, guidelines, and policies of any third party services used by Affiliate in connection with this Agreement, including but not limited to, email providers, social networking services and ad networks, including without limitation, any terms of service, privacy policy, promotions guidelines, advertising guidelines, copyright policy, branding and promotion policy, guidelines or principles and policies, provided that these comply with applicable laws, rules and regulations.

4.11	Affiliate shall prominently post and make available to end-users, a privacy policy in compliance with all applicable laws that clearly, conspicuously, and accurately discloses all information collection, use and sharing practices, including providing for the collection of such personally identifiable information in connection with this Agreement and the provision of such personally identifiable information to Network for use as intended by Network. Affiliate shall prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by Network, or as required by applicable laws regarding such Offers.

4.12	In fulfilling its obligations hereunder, Affiliate shall not promote the Offers, place any of the Creatives, in, or otherwise conduct any advertising to, wireless devices or portable electronic devices by telephone or text messaging in any form (including, without limitation, SMS, Smart Messaging, and MMS) unless otherwise agreed by Network in writing.

4.13	No Creatives shall appear to be associated with or be positioned in SMS messages or on chat rooms or bulletin boards, or on any Google properties, unless otherwise agreed by Network in writing.
 
4.14	Any websites, emails, advertisements, links, or other media properties created or used by Affiliate to promote, display, or transmit any Offers shall: not include content that is deceptive or misleading or otherwise fails to comply with applicable federal and state laws, rules or regulations; not infringe upon the personal rights, patents, trademark, trade name, logo, publicity right, copyright, intellectual property, privacy rights, moral rights, music performance, or any other right of any third party; not contain content that is an invasion of privacy, degrading, libelous, unlawful, deceptive, profane, obscene, pornographic, tends to ridicule or embarrass, is gratuitous violence, or is in bad taste, at the sole discretion of Network; not offer incentives, including but not limited to points, rewards, cash, contest entries, and prizes, to consumers in return for their response to the advertisement; shall not appropriate a third party’s name, image, photograph or likeness in a manner that directly or indirectly implies that such third party endorses the products or services in the Offers; shall not use fictional testimonials; not spawn malicious, false, or deceptive pop-ups or exit pop-ups; not cloak Affiliate’s IP address; not use surveys of any kind; not generate proxy server traffic; not contain material that defames, misrepresents, abuses, or threatens physical harm to others; not use offer walls of any kind unless authorized by Network; not use malware; not serve advertisements, or drive traffic to advertisements, using any adware, spyware, plug-ins, pop-up, pop-under technologies, or similar downloadable application; not use any methods to generate leads or sales that are not initiated by the affirmative action of a consumer; not constitute any advertising via facsimile or telephone; not constitute any advertising to wireless devices or portable electronic devices by telephone or text messaging in any form (including, without limitation, SMS, Smart Messaging, and MMS); not promote any illegal activity including without limitation the promotion of gambling, illegal substances, weapons, counterfeit money, software piracy, phreaking, or hacking; not spoof, or redirect, traffic to or from any adult-oriented web sites, material appealing to the prurient interests, or any other web sites not specifically designated by Network; not include racial, ethnic, political, hate-mongering, or otherwise objectionable content; not infringe or violate the patents, copyrights, trademark, or any other intellectual property of any third party; not consist of simply a list of links or advertisements; be written in English and contain only English-language content; and be fully functional at all levels and have no “under construction” websites or sections.

4.15	Affiliate shall notify Network of any complaint received by Affiliate regarding any Creative, Offer, the Media, or advertisement used in connection with this Agreement that reflects a violation or potential violation of Affiliate’s obligations in sections 4 and 5 of this Agreement, or any complaint from a consumer, ISP, or Spamhaus, within twenty-four (24) hours or receiving such complaint. Affiliate shall maintain records of all complaints generated by the Offers, and upon Network’s request, Affiliate shall provide all complaints associated with each Offer.
 
5.	Email Marketing; Anti-Spam Policy. If email marketing is permitted by the applicable Offer Terms, Affiliate and Third Party Affiliates shall comply with the federal CAN-SPAM Act of 2003, 15 U.S.C. 7704, and all state laws and regulations concerning email marketing, including but not limited to Cal. Bus. and Prof. Code 17529.5 et seq. Without limiting the foregoing, Affiliate shall comply with the following provisions set forth below when sending or initiating emails promoting Network or running Offers pursuant to this Agreement.

5.1	For all emails permitted under this Agreement, Affiliate must download the Offer “Suppression List” from Network. Affiliate shall remove all entries appearing on the Suppression List and shall only send emails to the remaining addresses on its email list. No emails shall be sent to any email address associated with any person on the Suppression List. Affiliate shall be responsible for any sending of email messages as well as proper usage of the Suppression List. The Suppression List shall constitute Network’s Proprietary Information and Confidential Information, as defined herein, and Affiliate shall not sell, lease, exchange, transfer, release, or use the Suppression List either directly or indirectly for business purposes whatsoever for any purpose other than to fulfill its obligations under this Agreement. Affiliate shall download the Suppression List at least every seven (7) days until this Agreement is terminated, and suppress all email addresses in the Suppression List before sending emails pursuant to this Agreement. For any Offer that includes a domain suppression list, Affiliate shall download the most recent domain suppression list prior to mailing the campaign and shall suppress and refrain from sending emails to all domains found on such list. Further, Affiliate shall download and remove domains located on the Federal Communication Commission’s wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from all new and current used in all mailings, prior to mailing. Affiliate shall not transmit, initiate, or send any emails to any recipient who previously requested not to receive commercial email messages from or on behalf of Network or any sender of the email. Affiliate further agrees that it will not mail or market to any suppression files provided by Network.

5.2	Emails shall include a clear and conspicuous identification that the message is an advertisement or solicitation. Such an identification shall state “This is an advertisement” or words of identical meaning.

5.3	Unless otherwise specified in the applicable Offer Terms, emails shall include a clear and conspicuous notice of the recipient’s right to opt-out of receiving future emails from Offer, and a functioning return email address or other Internet-based mechanism that a recipient may use to make such an “opt-out request” from Offer. The opt-out mechanism must remain active for at least thirty (30) days from the date the email is sent or the life of the Offer, whichever is longer. Affiliate shall honor email unsubscribe request within ten (10) days from receipt of request. Affiliate shall be responsible for ensuring that all Internet-based unsubscribe mechanisms required by this section function properly. Affiliate shall maintain electronic or tangible records confirming the removal of each such email address from any applicable email lists for verification by Network.

5.4	All emails shall identify both Offer and the Affiliate who initiates the email, and shall include in immediate proximity to such identification a physical address of Offer and the Affiliate that transmits the email. The identification shall appear in a form substantively identical to the following:

This ad is sent on behalf of [Offer name]. If you would like to unsubscribe from receiving offers from [Offer name] please click here [link to unsubscribe link] or write to [Offer name], [Offer address]
This offer is brought to you by [Affiliate name]. [Insert physical address of affiliate]. If you would like to unsubscribe from receiving offers brought to you by [Affiliate name] click here.

5.5	Emails must have truthful, accurate, and non-misleading email header information (including source, destination, date and time, and routing information), subject lines and from lines. Emails shall not mask the email origin.

5.6	The actual or intended recipient address shall be posted in the “to” line unless otherwise agreed to in writing by the Parties.

5.7	Emails shall use only Creatives, domain names, email addresses and other header information, including an email’s “From,” “To,” and “Reply-To” provided with the applicable Offer or pre-approved by Network in writing. Affiliate shall not remove or alter Creatives, subject lines or from lines provided by Network or pre-approved by Network in writing. Network may require, prior to Affiliate sending emails under this Agreement, that Affiliate submit the final version of such email to Network for Network’s prior written approval in which case any such emails shall not be sent without Network’s approval.

5.8	All emails sent by Affiliate shall be delivered only to addresses on email lists owned or managed solely by Affiliate.

5.9	Affiliate represents and warrants that the recipients of all email addresses used by Affiliate in connection with this Agreement have manifested affirmative, direct consent to receive commercial emails from Affiliate and Network. Affiliate shall maintain at all times during the term of the Agreement, and for a period of four years thereafter, complete and accurate subscriber sign-up/registration data for every email address on each Affiliate Email List. In the event that Network suspects or determines that Affiliate has breached this Agreement or violated applicable laws, rules or regulations, or if Affiliate’s indemnification obligations hereunder are triggered, Affiliate agrees that, ,within twenty-four hours of immediately after Network’s request, Affiliate shall provide, at a minimum, the following subscriber sign-up and registration data for any email address to which any email is sent under this Agreement: (a) subscriber’s IP address;
(b) date and time of subscriber’s sign-up/registration; (c) location and URL of website of subscriber’s sign-up and registration; and the email address and other information submitted by subscriber at the time of sign up.

5.10	Affiliate shall not send email messages to email addresses that have been improperly obtained, including addressees harvested from the Internet without consent, through scripts or other automated means of registering for multiple email accounts, “scraping” of websites, or by harvesting addresses from the Internet. Affiliate is responsible for knowing the source of its email list. Affiliate shall not send email messages from accounts obtained using scripts or other automated means of registering for multiple email accounts.

5.11	Affiliate shall not use email accounts or domain names that were created using information that falsifies the identity of the registrant. Emails shall not include an originating email address, domain name, or IP address the access to which for purposes of initiating the message was obtained by means of false or fraudulent pretenses.

5.12	Affiliate shall not send emails from within Canada or the European Union or to Canadian or European Union email addresses or email addresses corresponding to Canadian or European Union users. Further, Affiliate discharges Network from any claims or liability of any kind which may result from a violation of laws of Canada or the European Union resulting from the use of the Offers in the European Union or Canada.

5.13	It is solely Affiliate’s obligation to ensure that all emails comply with all applicable laws, rules, and regulations, and this Agreement. Affiliate agrees not to rely upon Network’s approval of any email or portion thereof for compliance with applicable laws, rules, or regulations or assert any claim that Affiliate is in compliance with applicable laws, rules, and regulations based upon Network’s approval or non-objection. Without limiting anything else in this Agreement, any violation of this section by Affiliate may result in immediate termination and Affiliate forfeiting all Commissions (whether accrued or paid).

6.	Confidentiality

6.1	Except as otherwise provided in this Agreement or with the consent of Network, Affiliate agrees that all information, including, without limitation, the existence and terms of this Agreement, Network’s business and financial information, data, reports, research, product plans, products, services, business and financial information, mailing lists, marketing plans, opportunities, trade secrets, markets, software, developments, inventions, processes, designs, drawings, engineering, technical data, know-how, hardware configuration information, marketing or financial data customer and vendor lists, and pricing and sales information, concerning Network or any of its related companies or brands provided by or on behalf of any of them shall constitute Network’s “Confidential Information” and shall remain strictly confidential and secret and shall not be used, directly or indirectly, by Affiliate for any purpose other than fulfilling its obligations under this Agreement. Affiliate shall not disclose to any third party, or permit any other person or entity access to, the Confidential Information except as required by an employee, agent, officer, director, partner, or representative of Affiliate to perform its obligations under this Agreement. Affiliate shall use at least the same degree of care, but not less than reasonable care, to prevent disclosure of Confidential Information to third parties.

6.2	Affiliate shall immediately notify Network in writing of all circumstances surrounding any unauthorized possession, use, access, knowledge, or disclosure of Confidential Information. If Confidential Information is required to be disclosed by operation of law via a third party or court request, such as a subpoena requesting Affiliate to disclose such information, Affiliate shall immediately inform Network in writing sufficiently in advance of disclosure to allow Network to challenge disclosure, prior to the time commanded to produce or disclose such Confidential Information. Affiliate agrees to cooperate in whatever way Network requests to attempt to protect Confidential Information from disclosure by operation of law.

6.3	Affiliate agrees that its obligations in this section are necessary and reasonable in order to protect Network and its business, and Affiliate agrees that the remedy of damages would be inadequate to compensate Network for any breach by Affiliate of its obligations set out under this section. Accordingly, in addition to any other remedies that might be available, Network shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by Affiliate, without limiting any other rights and remedies to which Network may be entitled.

7.	Affiliate Networks. Affiliate represents and warrants that it shall not use sub- affiliates, third party affiliates, or its own network, each a “Third Party Affiliate” for purposes of this Agreement, without Network’s prior written consent. Affiliate shall not broker Network Offers to any Third Party Affiliate, or to any directly enrolled affiliates, without Network’s prior written permission of Network. If Affiliate maintains its own affiliate networks and places the Creative in its affiliate network (the “Affiliate Program”) for access and use by affiliates in Affiliate’s Program, or if Affiliate uses any Third Party Affiliate, then the provisions set forth below apply.

7.1	Affiliate shall contractually bind, to all terms of this Agreement, all of its Third Party Affiliates who perform services under this Agreement. Thus, Affiliate shall require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Creative or Media. If a Third Party Affiliate fails to adhere to the requirements set forth herein, in addition to other remedies available to Network, Affiliate may be terminated at Network’s sole discretion, and Affiliate shall indemnify Network for any resulting third party claims against it.

7.2	Affiliate shall not permit any party to be a Third Party Affiliate whose advertising or business model concerns content or marketing channels prohibited by this Agreement.

7.3	Affiliate agrees that for the purposes of this Agreement, the acts and omissions of its Third Party Affiliates shall be deemed Affiliate’s acts and omissions regardless of whether such Third Party Affiliates bound themselves to this Agreement or any other agreement. Affiliate is  responsible for any Third Party Affiliate’s breach of this Agreement regardless of whether Third Party Affiliates execute this Agreement or any other agreement. Thus, Affiliate shall defend and indemnity Network for any act or omission by any Third Party Affiliate.

7.4	Affiliate shall periodically audit Third Party Affiliates in its Network, and permit Network to audit Third Party Affiliates in Affiliate’s Network including upon written request, to ensure Third Party Affiliates are in compliance with the law and this Agreement. Affiliate shall promptly terminate any Third Party Affiliate who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. Without limiting foregoing, at Network’s request, Affiliate shall provide reasonable assistance to enable Network to monitor email messages to ensure compliance with all applicable laws and provisions under this Agreement.

7.5	Upon written notice from Network, Affiliate shall immediately remove any Third Party Affiliate from disseminating the Creatives or providing services in connection with this Agreement, and terminate their access to the Offers and Creatives.

7.6	Affiliate agrees that Network is under no obligation to pay a Third Party Affiliate. Network further reserves the right to withhold or refuse Commissions to Affiliate in the event that any of its Third Party Affiliates breach this Agreement or the law.
 
7.7	Affiliate shall provide Network with all truthful and complete contact information for Third Party Affiliates, and all Third Party Affiliates must affirmatively accept this Agreement and provide a record of such to Network.

7.8	If Affiliate or Third Party Affiliate becomes involved or named in any action, investigation, complaint or other proceeding by or before any governmental or regulatory authority, or any private party, Affiliate shall immediately provide notice to Network of such action, investigation, complaint or other proceeding, in which event Network may terminate this Agreement immediately and without notice to Affiliate.

8.	Intellectual Property. Network grants Affiliate a nonexclusive, royalty-free, nontransferable, revocable, limited license to use, reproduce, distribute, and publicly display the Creatives solely in accordance with the terms of this Agreement. Affiliate agrees that Network owns all rights, title, and interest to the Offers, Creatives, and user and consumer data collected and derived through the activities of Affiliate pursuant to this Agreement, as well as the software, applications, data, methods of doing business or any elements thereof, any content provided or submitted to Affiliate by Network, Network’s name, logos, trademarks, service marks, trade dress, logos, graphics, artwork, text, patents, proprietary technology, and any data, reports, information or analyses arising out of such use (collectively, “Proprietary Information”). Proprietary Information shall constitute Network’s Confidential Information, as defined herein, and is protected by copyright, trademark, trade secret, and other intellectual property law. Affiliate shall have no interest in or right to the Proprietary Information except as set forth herein, and Network owns and shall retain all rights to, titles and interest in its Proprietary Information. Affiliate may not use, copy, reproduce, or create derivative works of the Proprietary Information for any purpose other than fulfilling its obligations under this Agreement. If instructed to do so by Network or if Affiliate is terminated by Network, Affiliate shall immediately destroy and discontinue the use of Proprietary Information. All rights not expressly granted in this Agreement are reserved by Network.

9.	Fraud. Affiliate shall not commit fraud, violate any applicable law, rule or regulation, interfere with other affiliates or falsify information in connection with the Offer or the generation of Commissions. Fraud includes, but is not limited to, using automated means to increase the number of Qualified Actions, using spyware, using stealware, click-through or conversion rates that are much higher than industry averages or Network’s averages; generation of multiple leads from the same IP address; placement of the Creatives on incentivized websites or using surveys without Network’s prior written consent; attempts to create sales, leads, or “click-throughs” using robots, frames, iframes, scripts, or manually “refreshing” of pages, for the sole purpose of generating Qualified Actions; sending emails that violate Section 5 herein; click programs generating clicks with no indication by site traffic that it can sustain the clicks reported; fraudulent leads as determined by Network; generation of multiple leads using proxy servers; causing any referring URL to be suppressed or blank; paying persons to complete leads; generation of traffic in a manner other than as set forth in the applicable Offer; use of any spawning process pop-ups or exit pop-ups; manually creating fraudulent leads; use of fake redirects, automated software, or fraud to generate clicks or leads; spoofing, redirecting, or using third parties to relay traffic from other websites to generate leads; or acting in any way to generate fake leads; cookie-stuffing and other deceptive acts or click-fraud. Network reserves the right, but does not undertake the obligation, to monitor Affiliate or Third-Party Affiliate activity using a combination of proprietary software and third party monitoring services. Network reserves the right to withhold Commission, suspend or terminate Affiliate, and investigate Affiliate for fraud and prohibited activities at its sole discretion, until Affiliate has provided evidence to Network’s satisfaction that Affiliate has not engaged in fraud. Network shall make all determinations about fraudulent activity in its sole discretion.

10.	Indemnification.

10.1	Affiliate shall indemnify, defend and hold harmless Network and its subsidiaries, advertisers, affiliates, partners and licensors, directors, officers, employees, shareholders, managers, successors, owners, related companies, agents, and assigns against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) (collectively “Claims”) based on, related to, or resulting from any act or omission by Affiliate or Third Party Affiliate including but not limited to (i) any breach or violations of this Agreement by Affiliate or Third Party Affiliate, including any representation, warranty, covenant, restriction or obligation made by Affiliate herein, or any Offer-specific terms; (ii) any misuse by Affiliate, Third Party Affiliate, or a party under the reasonable control of Affiliate or obtaining access through Affiliate, of the Creatives, Offers or Network Proprietary Information or Confidential Information; (iii) the Media, including but not limited to, the content contained on such Media;
(iv)	improper operation of an Offer by Affiliate or Third Party Affiliate;
(v)	the negligence or willful misconduct of Affiliate or Third Party Affiliate; (vi) a violation of any laws, rules or regulations in the performance of Affiliate or Third Party Affiliate’s obligations under this Agreement; (vii) the violation or infringement of the intellectual property rights of any third party; or (viii) fraud. This indemnity is specifically intended to operate and apply even if it is alleged or proven that all or some of the damages sought were caused as a whole or in part by any act, omission, negligence, gross negligence, breach of contract, intentional conduct, violation of statute or common law, breach of warranty, product defect, strict liability or any other conduct whatsoever of Network.

10.2	If any Claim is or shall be brought against Network, in respect to any allegation for which indemnity may be sought from Affiliate, Network shall notify Affiliate of any such Claim of which it becomes aware and shall:
 
(a) provide reasonable cooperation Affiliate at Affiliate’s expense in connection with the defense or settlement of any such claim; and (b) be entitled to participate, including in the selection of legal counsel, in the defense of any such Claim. Notwithstanding anything in this Agreement to the contrary, Network may select legal counsel to represent it in any matter for which Affiliate is obligated to indemnify Network, and Affiliate shall pay all such counsel’s billed fees and costs. Affiliate shall not agree to any judgment or enter into any settlement that adversely affects Network’s rights or interests without the prior written consent of Network.

11.	Disclaimers. THE OFFERS, THE CREATIVES, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH HEREIN, NETWORK EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. NETWORK DOES NOT WARRANT THAT THE OFFERS OR CREATIVES WILL MEET AFFILIATE’S SPECIFIC REQUIREMENTS, ARE ACCURATE, COMPLETE, OR CURRENT, OR THAT THEIR OPERATION WILL BE ERROR- FREE OR UNINTERRUPTED. WITHOUT LIMITING THE FOREGOING, NETWORK DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS, AND NETWORK EXPRESSLY DISCLAIMS BENEFIT THE PARTIES MIGHT OBTAIN FROM THE CREATIVES, OFFERS, OR THIS AGREEMENT.

12.	Limitation of Liability. IN NO EVENT SHALL NETWORK BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE CREATIVES, OFFERS, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF THIRD ELEMENT MARKETING LLC. IN NO EVENT SHALL NETWORK BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY/WRONGFUL DEATH, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT NETWORK HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. NETWORK’S CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, SHALL BE LIMITED TO AND SHALL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY NETWORK IN COMMISSIONS DURING THE THREE (3) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.

13.	Governing Law & Miscellaneous
 
13.1	This Agreement shall be governed by the law of the State of Florida, without regard to its conflict of law provisions. If any dispute arises under this Agreement, the parties agree to submit the dispute to binding arbitration in the State of Florida, conducted under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. Notwithstanding the foregoing, Network may initiate a dispute either by submitting it to binding arbitration or by filing in a state or federal court located in the State of Florida or any other state where personal jurisdiction exists over Affiliate, at Network’s sole discretion. Affiliate shall be responsible for the payment of all attorney’s fees and expenses incurred by Network to enforce this Agreement.

13.2	Affiliate may not assign all or any part of this Agreement without Network’s prior written consent. Network may assign this Agreement at any time with notice to Affiliate.

13.3	This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto.

13.4	If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties.

13.5	In addition to any other rights and remedies available to Network under this Agreement, or law or equity, Network reserves the right to withhold any unpaid Commissions, charge back paid Commissions to Affiliate’s account, and deduct Commissions paid to Affiliate against future payments if (i) Network determines in its sole discretion that Affiliate has breached this Agreement, (ii) Network receives any complaints about Affiliate which Network reasonably believes to indicate Affiliate’s breach of this Agreement or (iii) Network determines in its sole discretion that Commissions were associated with a breach of this Agreement or the Offer Terms. The foregoing shall be used to offset any losses and liabilities to Network associated with Affiliate’s breach, including Network’s attorneys’ fees and costs. Thus, such Commissions may be withheld, deducted, or charged back without regard to whether such Commissions were earned as a result of such breach. If any breach of this Agreement occurs and Network determines that the breach has been cured, Network may return some or all of such amounts as it deems appropriate in its sole discretion.

13.6	Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties.
 
13.7	No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.

13.8	Both Parties participated in the drafting of this Agreement and were presented with the opportunity to confer with counsel of their own choosing. As a result, this Agreement shall not be construed more strictly against one Party or in favor of any other Party.

13.9	This Agreement embodies the entire agreement between the Parties hereto with respect to the subject matter herein. This Agreement may not be amended or modified except by a writing duly executed by the Parties hereto.

13.10	All notices pursuant to this Agreement to Affiliate shall be sent to the address or email address submitted by Affiliate to Network through the affiliate platform, or if to Network, to: both the individual identified on the Offer enrollment page and to Third Element Marketing LLC, 11523 Palmbrush Trail #335, Lakewood Ranch, FL 34202, legal@thirdelementmarketing.com. Notices to Affiliate shall be deemed notice to that Affiliate’s Third Party Affiliates.
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