Terms and Conditions for Lead Generation and Lead Purchasing
PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS WELL AS LIMITATIONS AND EXCLUSIONS THAT APPLY TO YOU.
1. General. These Terms and Conditions for Lead Generation and Lead Purchasing ("Agreement") contain the complete terms and conditions that apply to your participation in any lead sale or purchase program, as further defined herein ("Program") offered by efolks, LLC, its parent, subsidiary and affiliate entities, or its clients for whom or which EFOLKS generates leads (collectively, "EFOLKS") You ("You" as defined more fully herein) and EFOLKS may be collectively referred to within this Agreement as the "parties"). This Agreement is effective as of the date of your receipt of an official email from EFOLKS that confers upon you the right to participate in a Program, which right shall, at EFOLKS sole discretion, be provided to you only after you carefully review the terms and conditions of this Agreement, click 'Accept' and complete the Publisher Signup Form. If an insertion order ("Insertion Order") is submitted by EFOLKS to you, such Insertion Order shall be deemed incorporated by reference into this Agreement and in the event of any conflict between the Insertion Order and this Agreement, the terms of the Insertion Order shall apply. The Standard Terms, Insertion Order, Publisher Signup Form, and Content (as further defined herein) shall be hereinafter collectively known as the "Agreement." This Agreement and all Insertion Orders are subject to acceptance by EFOLKS, and EFOLKS specifically reserves the right to revise the terms of this Agreement or the Insertion Order at any time or to terminate this Agreement.
2. Definitions.
(a) Program. The Term 'Program' is meant to and does encompass offers provided by EFOLKS to you that include one or more unique landing pages with tracking links ("EFOLKS Offers") that you may use to collect leads, and offers created by you ("Unique Offers") that are preapproved by EFOLKS and comply at all times with the terms posted by EFOLKS at http://www.efolks.com/publishers/posting.html. These terms will change from time to time, and it is your obligation to review this above-listed Internet website often and to ensure that all of your Unique Offers are at all times compliant. EFOLKS specifically reserves the right to modify this website and the terms of this Agreement at any time without notice, except that EFOLKS will not modify payment terms without notifying you in advance.
(b) Lead or Leads. A Lead is the use of true and accurate information to complete all fields applicable to your Program. A Lead is generated pursuant to the terms of this Agreement and is not an invalid lead (invalid, disconnected phone number, invalid email, no such person, never requested or uninterested in product or service offered under Program, immediate hang-up, not a US citizen, interested in prize, under 18, etc.) or duplicate lead (similar to a prior Lead sent within a 90-day period).
(c) You. The terms 'You', 'Your', 'you', 'your', 'yours', and 'yours' are the terms used in this Agreement to describe you, the party signing this Agreement in the blank signature line under the word "Publisher."
3. Completion of Publisher Sign Up Form. You are required to fully and honestly answer the questions in the Publisher Sign Up form. Failure to fully and honestly answer all required fields in the Publisher Sign Up form will be deemed a breach of this Agreement.
4. Approval. Your completion of the Publisher Signup Form and your acceptance of the terms and conditions within this Agreement shall not create a contract between you and EFOLKS. Official approval communicated to you via email is required. You agree that EFOLKS will not be liable to you for loss or damage that may result from EFOLKS's (a) refusal to approve you for participation in a Program, (b) refusal to approve this Agreement, or (c) termination of this Agreement.
5. Site Use Restrictions. The Internet sites owned or operated by EFOLKS and the EFOLKS Offers (the "Sites") contain copyrighted material and any information that you retrieve is copyrighted by EFOLKS. You may not remove, alter or copy any copyright or other proprietary notices placed on the Sites or on products, services, or related materials acquired through use of the Sites. EFOLKS retains ownership of all intellectual property rights in the Sites, including without limitation any information, materials, text, graphics, images, logos, site design, and the selection, assembly, and arrangement of the Sites ("Content"). The Content may not be copied, distributed, displayed, modified, reproduced, performed, published, or reverse engineered in whole or in part without EFOLKS's written permission.
6. Age Restriction. You must be over 18 years old to participate in a Program.
7. Term of Agreement. The term of this Agreement commences on the Effective Date and terminates on the End Date set forth in the Insertion Order or as otherwise set forth within this Agreement.
8. Payments. You agree to invoice EFOLKS for all payments to which you are entitled under this Agreement. All payments made under this Agreement shall be deemed commission payments and shall be due thirty (30) days from the end of each calendar month in which you have invoiced EFOLKS for the sale of Leads. All commission payments are exclusive of taxes. You agree that you are an independent contractor and you agree to be paid accordingly. EFOLKS may require you to submit a W-9, or information similar to that required by such form, as a condition of payment. All amounts will be paid in U.S. dollars. No checks will be issued for any amounts less than twenty-five US Dollars ($25 USD) (the "Payment Threshold"). All such amounts below the Payment Threshold shall be aggregated and paid when the Payment Threshold has been met. Any claim of underpayment must be raised within thirty (30) days of the date on the check or is waived. EFOLKS reserves the right to reduce any payments owed to you as a consequence of any invalid or duplicate Leads, technical errors, or tracking discrepancies. EFOLKS will not pay for any Leads submitted before the Effective Date or after this Agreement terminates. EFOLKS will not be responsible to compensate you for Leads that are not recorded due to your error. If you are paid via credit card, you agree to immediately provide valid credit or debit card billing information if the credit or debit card that we have on file for you expires or otherwise becomes invalid.
9. No Guarantee of Service. Because of the nature of Internet and online communications, the Sites may not perform as intended despite EFOLKS's efforts and those of its Internet service provider. EFOLKS does not guarantee uninterrupted or error free operation of the Sites. It is possible that a third party could gain unauthorized access to the information that is transmitted including your personal information. EFOLKS will use reasonable efforts to maintain operation of the Sites, to ensure that unauthorized access does not occur, and to correct errors in the Sites or the operation thereof. You will not be entitled to any commissions for any system error in the Sites of any type that affects payments otherwise owed to you.
10. Disclaimer of Warranty. EFOLKS makes no warranty, express or implied, with respect to any matter, including but without limitation any services or products it provides, or the Sites and expressly disclaims the warranties or conditions of noninfringement, merchantability, and fitness for any particular purpose. Except as expressly set forth in this Agreement, EFOLKS disclaims any representation or warrants regarding performance, availability, functionality, or any other aspect of such products or services or the Sites.
11. Limitations of Liability. EFOLKS's AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT RECEIVED BY YOU IN THE SIX MONTHS PRIOR TO DATE UPON WHICH THE CLAIM AROSE. Without limiting the foregoing, EFOLKS shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown or any other condition affecting production or delivery in any manner beyond the control of EFOLKS. You acknowledge that EFOLKS has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.
12. Notice. You agree to electronic delivery of notice. You are solely responsible for ensuring that your email address and other contact information that you have provided as part of the Publisher Signup Form is accurate and updated. You agree that by clicking "Accept" below, you agree to each and every provision within this Agreement without reservation.
13. Representations and Warranties; Indemnification. You represent and warrant to EFOLKS that you hold all necessary rights to participate in your applicable Program and to permit the use of the Leads provided to EFOLKS for the purpose of this Agreement; and that the use, reproduction, distribution, transmission or display of any advertisement used in connection with the Program, including but not limited to any websites, newsletters, or other advertising or promotional content ("Advertisement"), any data regarding users of such Advertisement, and any material to which users can link, or any products or services made available to users, through or as a result of the Advertisement shall not (a) materially violate any laws or any rights of any third parties, (b) contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law, or (c) use any trademark, trade name, or corporate name of EFOLKS. You hereby warrant that you have not been investigated by the Federal Trade Commission at any time within the five (5) year period prior to the Effective Date of this Agreement. You agree to indemnify, defend and hold EFOLKS and Third Parties (if any) harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to (a) breach of any of the foregoing representations and warranties, or (b) any third party claim arising from use of or access to the Advertisement or any material to which users can link, any products or services made available to users through any Advertisement, (c) or any third party or regulatory claim arising from EFOLKS or any third party's commercial use of any Lead.
14. Ownership of Leads. You agree that the collection of the Leads and your Participation in the Program is for the sole benefit of EFOLKS. Therefore, other than providing the Leads to EFOLKS, for a period of sixty (60) days following the date upon which you submit a Lead, you may not use, sell, transfer or assign or attempt to monetize that Lead for your own purposes. All right, title and interest in and to the Leads shall vest exclusively in EFOLKS for the time period allotted herein.
15. Fraud; Advertisement Guidelines. In the event of fraudulent or unapproved marketing, such as fraudulently inflating leads or clicks, pre-population of forms, or using other mechanisms not preapproved by EFOLKS (as determined solely by EFOLKS), EFOLKS may withhold payment of your commissions, and in the event that you already received payment for events occurring through fraudulent or unapproved marketing, EFOLKS reserves the right to seek a credit or remedy from future earnings or to demand reimbursement from you. You agree that EFOLKS reserves sole judgment in determining fraud. It is your OBLIGATION to prove to EFOLKS that you have not committed fraud. EFOLKS will withhold any payment otherwise due to you until you have satisfactorily provided evidence that you have not defrauded EFOLKS. You represent and warrant that any Advertisements used by you to generate the Leads shall meet the following criteria:
(a) be content based, not simply a list of links or advertisements;
(b) be written in English and contain only English content;
(c) not infringe on any personal, intellectual property, or copyrights;
(d) not contain any adult content nor link from, or to, any adult materials including but not limited to: i) explicit, vulgar or obscene language; ii) postings of or references to sexually explicit images or other offensive content; iii) promotion of illegal activities, such as adult services, illegal substances, or activities such as online gambling; iv) racial, ethnic, political, hate-mongering, violence, profanity, or otherwise objectionable content; v) investment, money-making opportunities, or advice not permitted by law; or vi) software piracy or hacking;
(e) your site cannot offer incentives to users to click on ads; incentives include but are not limited to awarding site users cash, points, prizes, contest entries, etc.; and
(f) you will not spam or send unsolicited emails (you will send commercial emails only to those email addresses for which you have consent to send such emails).
16. Privacy Policy. You shall maintain and post in a conspicuous manner on all of your websites involved in the Program, a privacy policy that clearly and adequately describes how consumer information is collected, used, maintained and protected.
17. Can Spam Compliance. You hereby represent and warrant that you shall at all times fully comply with all applicable statutes, rules and regulations with respect to the Program including, without limitation, the CAN-SPAM Act of 2003, 15 U.S.C. § 7704 et seq. and all amendments thereto, laws governing deceptive trade practices and/or online marketing and/or advertising, the Telemarketing Sales Rule, and the Telephone Consumer Protection Act. You agree to maintain a regularly updated suppression list containing current unsubscribe requests in conformance with the CAN-SPAM Act of 2003. Further, you specifically agree to provide EFOLKS with updated suppression files at a minimum of once per week.
18. Confidentiality. During the term of this Agreement, and until such time as the "Confidential Information" (as defined below) is no longer protected as a trade secret under Utah law, you will not use or disclose any Confidential Information of EFOLKS except as specifically contemplated herein. "Confidential Information" means information that: (a) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Subject to the foregoing, Confidential Information shall include, without limitation, technical or non-technical data, formulae, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, or lists of actual or potential customers or suppliers, advertisements before publication, and the terms of the Insertion Order. Confidential Information does not include information that: (i) has been independently developed by you without access to the EFOLKS Confidential Information; (ii) has become publicly known through no breach of this Section by you; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by EFOLKS; or (v) is required to be disclosed by a competent legal or governmental authority. At the request of the disclosing party, you shall return all of EFOLKS Confidential Information to EFOLKS.
19. Termination; Effect of Termination. EFOLKS may terminate this Agreement immediately without prior notice or cure period and without further liability, except insofar as EFOLKS may have payment obligations to you at the time of termination. In the event of termination for any reason, anything herein to the contrary notwithstanding, the provisions of the Agreement relating to confidentiality and any other provisions which by their nature should survive termination shall survive the expiration or termination of the Agreement for any reason.
20. Construction. No term or condition other than those set forth in these Standard Terms or in the Insertion Order relating to scheduling and pricing shall be binding on EFOLKS unless this Agreement is clearly accepted by both parties as provided within this Agreement. This Agreement, including the Insertion Order, the Publisher Signup Form, and acceptance of this Agreement as evidenced by an authorized acceptance email from EFOLKS constitutes the entire agreement and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof. The authorized email shall be evidence only of EFOLKS consent to enter into this Agreement, and shall not be used for any other evidentiary purpose.
21. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, without giving effect to principles of conflicts of law.
(b) The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
(c) If any provision contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
(d) This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument. For purposes hereof, a facsimile copy of this Agreement shall be deemed an original.
(e) Any disputes or questions arising under or relating to this Agreement that the parties cannot resolve shall be settled by mediation, in accordance with the rules of the American Arbitration Association. Any dispute not resolved by mediation within sixty (60) days after submission by either party shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association then in force. The arbitration hearing shall take place in Salt Lake City, Utah, which the parties agree is reasonable. The decision of the arbitrator shall be final and binding on the parties. The prevailing party, if any, shall be entitled to payment by the other party of its reasonable costs and attorneys fees.
(f) This Agreement may be assigned by Efolks only.
(g) Time is of the essence of this Agreement.