Terms and Conditions for Publishers
The following terms and conditions, together with any and all Codes of Conduct referenced herein, constitute the binding legal agreement (this "Agreement" or "T's and C's") between RevSurge, its parent, subsidiaries and affiliates ("Company") and you ("You" or "Publisher"), the user of the Company's website, www.RevSurge.com (the "Site") and the RevSurge advertising network service (the "Service"). This Agreement governs Publisher's relationship with Company and the use of the Site. Publisher agrees to use the Site and any additional services offered by Company only in accordance with these Terms and Conditions. The Company reserves the right to make changes to the Site and these T's and C's 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 Company) shall constitute Publisher's consent to such modification. If You do not agree to the terms and conditions contained within this Agreement in their entirety, You are not authorized to register as a Publisher or use the Site and/or Service in any manner or form whatsoever.
1. Approval of Publisher
Registration with the Company shall not confer any right on Publisher to market or promote any Programs (as defined below) made available by Company on the Site on behalf of its clients (the "Advertisers"). All prospective publishers need official approval from Company before they can become Publishers. In addition, all email Publishers will be required to complete a questionnaire. Failure to either complete the questionnaire or to fully and honestly answer the questions in the questionnaire will render the Publisher ineligible to join or remain in the network. The Company reserves the right to withhold or refuse approval for any reason, whatsoever. Publisher shall promptly notify Company in the event of a material change in its business practices or strategy. The Company can withdraw approval of a Publisher at any time for any reason.
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: (a) Be content-based, not simply a list of links or advertisements, nor can the site be centered around making money off of our Advertisers; (b) Be written in English and contain only English language content; (c) Have a top-level domain name; (d) All Publishers that wish to send advertisements via email must have the consent of the consumer to send such email and each Publisher shall maintain records evidencing such consent including, without limitation, applicable IP addresses, source URL's and time/date stamps (the "Opt-in Information") and will supply such records to Company within one business day of request therefore; (e) Unless otherwise approved in writing by Company, 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.; (f) Publisher websites must be fully functional at all levels; no "under construction" sites or sections; (g) Spawning process pop-ups are prohibited; and (h) such other criteria as Company may from time to time determine, in its sole discretion.
Publisher Website Content: The content of Publisher's Media must comply with all applicable laws and regulations (including all laws respecting personal, intellectual property or copyrights) and, in any event, shall not include the following: (a) Racial, ethnic, political, hate-mongering or otherwise objectionable content; (b) Investment, money-making opportunities or advice not permitted under law; (c) Gratuitous violence or profanity; (d) Material that defames, abuses, or threatens physical harm to others; (e) Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.; (f) Software Pirating; (g) Hacking or Phreaking; (h) Obscenity and any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic; (i) Any reference to liquor, alcohol, tobacco, pornography, lotteries, firearms or ammunition; (j) Links to any affiliate networks whatsoever; and (k) Any illegal activity whatsoever.
2. Use of the Site.
The Site allows Company to post offers of advertising programs sponsored by the Company 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 actions, leads, sales, clicks, click-throughs, registrations and impressions. The definition of the Event associated with a Program is set forth in the Program's specifications, and such definition shall govern. If Publisher accepts a Program, Publisher agrees to place that Program's advertising creative (including the email subject and from lines, lead generation opt-in copy, the Advertiser Can-Spam disclosures and any other disclosures provided therein) ("Ad") on Publisher's Media, in accordance with the terms of the relevant Program (the "Program Terms") and these T's and C's. Publisher shall display the Ad exactly as it appears on the Site and will not alter it in any way, including without limitation, creatives, text, copy, email subjects and email froms. Failure to adhere to this requirement may, in addition to all other remedies available to Company, result in termination of Publisher. The Company may change a Program at any time unless otherwise specified in the Program Terms, upon reasonable advance written notice to Publisher. The Company is responsible for displaying and administering all active Programs and tracking the payments owed.
The Company 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: (a) All Publishers will be monitored by Company (or a third party retained by Company for such purposes) for compliance with applicable legal requirements, including with respect to honoring unsubscribe requests. If a third party performs the monitoring, such third party will share all such information with Company. (b) Each unsubscribe list furnished to a Publisher shall be separately, technologically identified so that Company 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.
The Company grants Publisher a revocable, non-transferable, non-sublicensable, 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 T's and C's 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 the Company. If a Publisher fails to adhere to the foregoing requirement, in addition to any other remedies available to Company, Publisher shall forfeit its rights to any and all amounts owed by Company 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 Company. 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 Company that allows Company to measure ad performance and provide its service. In addition, Publisher acknowledges that all non-public information, data and reports received from Company hereunder or as part of the services hereunder is proprietary to and owned by Company. If instructed to do so by Company and/or if Publisher shall be terminated by Company, Publisher will immediately destroy and discontinue the use of any Company data, including Site Data, and any other material owned by Company or the Advertisers.
The Company 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: (a) 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 Company; (b) 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; (c) Have shown fraudulent leads as determined by the Advertisers; (d) Have used any incentives to procure clicks or leads; (e) Have provided leads obtained other than through intended consumer action (e.g.; use of phone books, or similar such compilations of personal data, to complete lead generation forms shall be considered fraudulent behavior); and (f) Use fake redirects, automated software, and/or other fraudulent mechanisms to generate Events for the Program. 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 Company or use of sites in co-registration campaigns that have not been approved by Company), as determined solely by Company, 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 Company, 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, Company reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Publisher.
Publisher will be paid per the terms of each Program. Company shall pay any amounts due approximately 30 days after the end of each month, provided that Company may, in its discretion, withhold payments until such time as the Advertiser has paid Company for any Program. In addition to any other remedies that may be available to Company, in the event of any breaches by Publisher of these T's and C's, Publisher shall forfeit its rights to any amounts owed by Company to Publisher. The Company 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. The Company shall compile, calculate and electronically deliver data required to determine Publisher's billing and compensation. Any questions regarding the data provided by Company 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. All amounts will be paid in US dollars. No checks will be issued for any amounts less than $300 US Dollars (the "Payment Threshold"). All such amounts below the Payment Threshold shall be aggregated and paid when the Payment Threshold has been met. The Company will not pay for any Events that occur before a Program is initiated, or after a Program terminates. Invoices submitted to Company and payments made to Publisher shall be based on the Events as reported by Company. The Company will not be responsible to compensate Publisher for Events that are not recorded due to Publisher's error. The Company may require a Publisher to provide a W-9, and similar such information, as a condition to payment.
7. 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.
Approval of Publisher's Site(s): No Program may go live until such time as Company, and if necessary the applicable Advertiser, have approved, in writing, (a) all sites to be used by the Publisher for each Program and (b) the creative form used by Publisher to gather lead data (c) 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.
The Company 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. The Company 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, subject to the terms provide herein, will be paid during the next billing cycle. The representations, warranties and obligations contained in paragraphs, 11, 12, 13 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.
9. Representations and Warranties/Covenants
Mutual Representations: Each party represents and warrants that: (a) it has the right to enter into and fully perform the services contemplated herein, consistent with these T's and C's; (b) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with these T's and C's; and (c) at all times while any Program remains in effect, it shall comply with all applicable laws and regulations. Neither party makes any guarantee, representations nor warranties, express or implied, as to the level of consumer response that will result from the Programs.
Publisher Representations: Publisher represents and warrants the following (a) 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"); (b) 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; (c) Publisher's database consists of only permission based opted-in e-mail addresses; and (d) Publisher owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on Publisher's Media.
Publisher Covenants: Publisher covenants that it shall not: (a) 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 e-mails); (b) post any specific messages to newsgroups, chat rooms, bulletin boards or any other places regarding any Programs unless expressly approved in writing from the Company; (c) 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 above; (d) 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 (e) while an approved Publisher and for 180 days thereafter, participate in any performance based advertising relationship with any Advertiser within the Company's network, unless a previously existing business relationship between Advertiser and Publisher can be demonstrated to the reasonable satisfaction of the Company. In this connection, both parties agree and acknowledge that if Publisher violates its obligations hereunder, the Company will be entitled to damages in the amount of fifty percent (50%) of the gross revenues resulting from sales conducted by Advertiser through the advertising or marketing efforts of Publisher. Publisher covenants that it shall: (a) Conduct the web advertising campaign for Advertiser in accordance with the highest industry standards; (b) Comply with (and is currently in compliance with) the RevSurge Code of Conduct for eMail Publishers and the RevSurge Code of Conduct for Adware Publishers, which append this Agreement and are incorporated herein by reference; and (c) Provide within one business day after request therefor, the IP Information, together with such other related information that Company 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 the Company, result in the immediate suspension or termination of Company's relationship with Publisher and Publisher shall forfeit all rights to any compensation theretofore owed to it by Company. The foregoing rights shall be in addition to any other remedies available to Company. Publisher acknowledges and agrees that Company shall not be responsible for the Advertisers' violation of any applicable laws or regulations, including, without limitation, the CAN-SPAM Act.
11. Customer Information; Non-Disclosure
All information submitted to Publisher by an end-user customer pursuant to a Program is proprietary information of the Company, 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.
12. Limitation of Liability; Disclaimer of Warranty
Except as provided in paragraph 13 of these T's and C's, in no event shall Company 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. The information, content and services on the site are provided on an "as is" basis. Publisher uses the site and runs the programs at its own risk. Other than as expressly set forth in these T's and C's, the Company disclaims all representations and warranties of any kind, express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose and warranty of non-infringement. The Company 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.
Indemnity: Publisher will defend, indemnify, and hold harmless the Company, 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. The Company 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.
14. Force Majeure
Neither party shall be deemed in default of these T's and C's 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. 15. General Entire Agreement: These T's and C's, together with the terms for each of the Programs constitutes the entire agreement between the parties and supersedes all prior agreements or understandings between the parties.
Controlling Law: These T's and C's, the terms of the Programs and the relationship contemplated thereby, shall be governed by the laws of 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 (i) submits to the general jurisdiction of the federal and state courts located in Los Angeles County, California; (ii) agrees that any action or proceeding concerning this agreement will be brought exclusively in such courts; and (iii) 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.
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.
Assignment: Publisher may not assign any of its rights hereunder without the prior written consent of the Company, which may be withheld, for any reason.
Severability: In the event that any provision of these T's and C's 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 T's and C's shall remain valid and enforceable according to its terms.
Relationship: The parties agree that the Company is acting as an independent contractor in performing the Services and that the relationship between the Company and Publisher shall not constitute a partnership, joint venture or agency. Neither Company nor any of Company's employees or agents (collectively referred to herein as the "Employees") (i) is an employee, agent or legal representative of Publisher, or (ii) shall have any authority to represent Publisher or to enter into any contracts or assume any liabilities on behalf of Publisher. The Company 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 the Company nor any of its Employees shall have any right to receive any employee benefits as are in effect generally for Publisher employees.
Notice: Any notice, communication or statement relating to these T's and C's shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission or verified e-mail; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to (a) Advertiser at the address provided in the registration, and (b) RevSurge at 1158 26 St Avenue, Suite 707, Los Angeles, CA 90403, fax no.: (310) 943-0353 info@RevSurge.com.
RevSurge Email Publisher Code of Conduct
Use of Commercial e-Mail: Any Publisher of the Company shall be required to adhere to the following requirements if the Publisher intends to distribute promotional materials via commercial email (an "Email Campaign"):
Publisher's Database(s): Publisher's database shall consist of only permission based opted-in e-mail addresses, meaning that each consumer within the database has consented to receive commercial e-mails. In order to evidence such consent, Publisher shall maintain source URL, IP addresses and time/date stamps for all email addresses to whom Publisher is disseminating commercial email.
Compliance with Laws: Publisher shall (and shall cause its affiliates to) comply with all applicable laws, including the CAN-SPAM Act of 2004. Without limiting the generality of the foregoing, Publisher shall (and shall cause its affiliates to):
Refrain from falsifying e-mail header information (including, without limitation, source, destination and routing information); Refrain from seeking or obtaining unauthorized access to computers for the purposes of sending commercial e-mail; include within any e-mail sent: a valid street address, a clear and conspicuous identification that any e-mail message is an advertisement or solicitation, and a clear and conspicuous and functioning opt-out notice;
Comply with all legal obligations with respect to opting out or unsubscribing consumers from Publisher's e-mail mailing lists, as well as Advertiser's e-mail list, if applicable;
Not use any subject or from line that has not been provided by or approved in writing, by the Company;
To the extent that Company provides an opt-out or unsubscribe list (the "Suppression List") to Publisher in connection with any Program, Publisher shall regularly scrub its database against and the Suppression List and shall not at any time send any commercial e-mails to any individuals on the Suppression List;
Not use the Suppression List in any manner other than for the purpose contemplated by clause (e) above and Publisher shall not obtain any ownership interest or rights in and to any Suppression List;
Publisher shall be obligated to maintain the confidentiality of any provided Suppression List and may not disseminate such list to any third parties. Upon the conclusion of any Email Campaign, Publisher shall destroy such Suppression List (and any copies thereof). If requested, Publisher shall provide a notarized affidavit confirming that the Suppression Lists have been destroyed and have not been shared with any third parties.
Litigation/Investigation: Publisher shall alert Company in the event that any litigation or investigation ensues concerning Publisher's or its affiliates' e-mail practices (irrespective of whether such litigation relates to Publisher's relationship with Company).
RevSurge Adware Publisher Code of Conduct
"Adware" - any software application downloaded to a consumer's computer that includes and ad-serving mechanism.
"Bundle" - combining a software application with another software application for the purpose of distribution.
"EULA" - End user license agreement.
"Host Application" - A primary software application desired by a consumer that bundles a third-party software application.
"Malware" - any software application downloaded to a consumer's computer that is harmful to a consumer.
"Personally Identifiable Information" or "PII" - any information that can be used to identify an individual, including name, physical address, email address, telephone, number, social security number, tax identification number, passport number, driver's license number, birth certificate number, other government-issued identification number, credit card number, account number, access code or password.
"Spyware" - any software application downloaded to a user's computer that (a) collects information from a consumer without prior disclosure and consent from the consumer; and (b) exploits that information for profit.
Distribution of Software:
If the Publisher distributes the software in a bundle with other applications, the Publisher must adhere to the following rules: The software may not be bundled with Spyware or Malware applications.
The consumer must consent to the download/installation of he software, and agree to the EULA, before installation. All third-party bundling distributors should be contractually obligated to provide the appropriate disclosures and obtain the appropriate consents prior to distribution of the software.
3. The software may not be distributed using an Active X (or similar) install.
Information Collection and Use:
2. The software should not match a consumer's online activity (including web pages viewed or accessed, consumer-selected content or keywords or search terms entered) with any PII about the consumer unless the consumer has affirmatively and knowingly opted-in to such activities.
The EULA must fully advise the consumer of how the advertising is going to be served (the physical manifestation) and the methodology by which advertising to be displayed is going to be selected (i.e behavioral targeting, geographic targeting, etc.). Consumers should be given a clear disclosure that the software includes an ad generating functionality in advance of downloading the software.
To the extent the software offers consumers the ability to opt-out of any advertising, those opt-out requests should be honored. All advertisements must be clearly branded by the company or software that serves the advertisements.
The software should be fully removable using the Add/Remove Programs feature in Windows.
The software should have its own uninstaller.
The uninstaller should remove all software files and setting, thereby entirely disabling the uninstalled software.
The software may not force the consumer to visit a website or provide feedback before uninstalling the software.
The software should not require Internet access to uninstall the software.
The software should not request PII from a consumer as a prerequisite to uninstalling the software.
The software should not reinstall itself, or any portion thereof, after is has been uninstalled (unless the reinstallation is intended to protect the consumer and the consumer is provided with notice of the reinstallation and information about how to properly uninstall the software).
If an automatic update feature is used, the software should verify the integrity and publisher of any automatic updates using Verisign's secure certificate service (or similar service) and Microsoft's authenticode technology (or similar technology). If an automatic update feature is used, updates should not change the core functionality of the software without providing additional disclosure to consumers and obtaining their consent to such new functionality.
Other Prohibited Activities:
If the software will change a consumer's browser start page or other search results page, that function should be disclosed in the EULA. The software should not make use of a consumer's computer as a relay for activity such as spamming, messenger spam distribution, DDoS attacks, and accessing, using or controlling the computer unless the consumer has affirmatively and knowingly opted-in to such activities.
The software should not disconnect or alter a consumer's Internet connection.
The software should not, without the consent of the consumer, modify the consumer's list of bookmarks used to access web pages.
The software should not monitor keystrokes, emails, instant messages, open programs or documents unless the consumer has affirmatively and knowingly opted-in to such activities.
The software may not cause damage to, or remove, any component of the consumer's operating system or winsock files.
The software should not use intentionally deceptive means to remove or disable any security, anti-spyware or anti-virus software.