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.
These Standard Terms and Conditions for Lead Generation and Lead Purchasing ("Standard Terms") contain the complete terms and conditions that apply to your ("Your" as defined more fully below) 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, LLC generates leads (collectively, "EFOLKS"). These Standard Terms are agreed to and 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 ("Effective Date"), which right shall, at EFOLKS sole discretion, be provided to you only after you complete the Publisher Signup Form, carefully review the terms and conditions of these Standard Terms, and click "Accept." If an insertion order ("Insertion Order") is submitted by EFOLKS to you, these Standard Terms shall be deemed incorporated by reference into such Insertion Order and shall govern the Insertion Order, except in cases where the Insertion Order conflicts with these Standard Terms, in which case the terms of the Insertion Order shall apply. All Insertion Orders are subject to final approval by EFOLKS. The Standard Terms, Insertion Order, and Publisher Signup Form shall be collectively known as the "Agreement." An Agreement is subject to acceptance by EFOLKS, and EFOLKS specifically reserves the right to revise the terms of the Agreement at any time or to terminate the Agreement. You and EFOLKS may be herein referred to individually as a "party" and collectively as the "parties."
Program. The Term "Program" is meant to and does encompass (a) 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 (b) offers created by you that are preapproved in writing by EFOLKS ("Unique Offers") 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. You must be over 18 years old to participate in a Program.
Lead or Leads. A Lead is the use of true and accurate information to complete all fields applicable to a Program. A Lead is generated pursuant to the terms of this Agreement and does not include any invalid lead (including, but not limited to, an 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 U.S. citizen; interested in prize; under 18; etc.) or duplicate lead (including, but not limited to, a Lead similar to a prior Lead received within a ninety (90) day period). No deceptive advertising will be used to obtain Leads sent to EFOLKS.
You. The terms "You", "Your", "you", and "your" are the terms used in this Agreement to describe you, the party set forth in the Insertion Order and signing this Agreement.
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.
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 from EFOLKS 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.
The term of this Agreement commences on the Acceptance Date set forth in the Insertion Order and terminates on the End Date set forth in the Insertion Order or such later date as the parties may agree to in writing. In the event of termination for any reason, anything herein to the contrary notwithstanding, Sections 7-23, and any other provisions which by its nature should survive termination, shall survive the expiration or termination of the Agreement for any reason.
EFOLKS shall provide real-time reporting for all Leads delivered by you under this Agreement, and all numbers used for the purpose of tracking and/or billing will be based on such real-time reporting system.
You agree and acknowledge that the collection of the Leads and your participation in the Program is for the sole benefit of EFOLKS. EFOLKS will retain the sole and exclusive right, title and interest in and to the Leads and all data delivered to EFOLKS from the Program. You will not sell, transfer or assign any Lead to EFOLKS that has previously been sent or transferred to a competitor of EFOLKS or any person or entity in the credit repair services industry. You will not sell, transfer or assign any Lead to a competitor of EFOLKS or any person or entity in the credit repair services industry other than EFOLKS. Further, you may not use, sell, transfer or assign or attempt to monetize any Lead for your own purposes, other than providing the Leads to EFOLKS, for a period of sixty (60) days following the date upon which you submit a Lead to EFOLKS. All right, title and interest in and to the Leads shall vest exclusively in EFOLKS for the time period allotted herein.
You will 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. 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 will not pay for any invalid or duplicate Leads. 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.
The Internet sites owned or operated by EFOLKS and the EFOLKS Offers (collectively the "Sites") contain material copyrighted by EFOLKS. Any information that you retrieve is material 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 prior written permission.
You hereby represent and warrant that you are, and will remain, in full compliance with all applicable statutes, rules and regulations including, without limitation, the CAN-SPAM Act, 15 U.S.C. § 7701 et seq. and all amendments thereto, all laws governing deceptive trade practices and/or online marketing and/or advertising, the Telemarketing Sales Rule, the Telephone Consumer Protection Act, and all other applicable federal, state, county, and local laws, ordinances, regulations and codes throughout the performance of this Agreement. You agree to maintain a regularly updated suppression list containing current unsubscribe requests in conformance with the CAN-SPAM Act, and to promptly notify EFOLKS of any and all unsubscribe requests no more than forty-eight (48) hours after each unsubscribe request. Further, you specifically agree to provide EFOLKS with updated suppression files at a minimum of once per week. All your email messages will comply with the CAN-SPAM Act and other applicable laws, rules, and regulations. All your email messages will (a) contain an unsubscribe link in all commercial email; (b) contain a physical address in the creative; (c) clearly show in the creative that an individual is receiving an advertisement and/or marketing message; and (d) have "Subject" and "From" lines that are not misleading. You will comply with opt-out and/or unsubscribe requests in a timely fashion. You will obtain pre-approval in writing from EFOLKS prior to making any changes to any material or requirements provided by EFOLKS to you. EFOLKS must approve in writing, in advance of its commercial use, all advertising and/or messaging that you use to deliver any Lead to EFOLKS and/or to obtain, collect, and compile data that you provides to EFOLKS. You will be solely liable for any and all damages, losses, expenses, costs (including reasonable attorneys' fees) and other liabilities arising out of or related to advertising, creative, and/or messaging not pre-approved in writing by EFOLKS.
EFOLKS may terminate this Agreement immediately without prior notice or cure period and without further liability. You shall be entitled to payment, pursuant to the terms of this Agreement, through the date of termination.
You represent, warrant, covenant and acknowledge to EFOLKS that (a) you hold all necessary right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement and to permit the use of the Leads provided to EFOLKS for the purpose of this Agreement; (b) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which you are bound; (c) you will provide and maintain the resources, personnel and facilities suitable to perform your obligations under this Agreement; and (d) the use, reproduction, distribution, transmission or display of any advertisement used in connection with the Program, including but not limited to any web sites, 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 (i) materially violate any federal, state and/or local laws, rules and/or regulations or any rights of any third party including, without limitation, laws relating to advertising, the Internet, privacy, e-mail, data protection, and unfair business practices; (ii) 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 (iii) use any trademark, trade name, or corporate name of EFOLKS other than for purposes of the Program. 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 warrant, represent, covenant and acknowledge to EFOLKS that any Advertisement will comply with and follow the Federal Trade Commission Guides Concerning the Use of Endorsements and Testimonials in Advertising located at 16 C.F.R. Part 255.
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.
You warrant, represent, covenant, and acknowledge that (a) you have lawfully obtained and will lawfully obtain any and all data regarding users or other consumer information that you provide to EFOLKS; and (b) you hold all necessary rights and permissions to use and permit the lawful use of the data and Leads you provide to EFOLKS and to allow EFOLKS to use such data and Leads for the purposes of this Agreement (for example, all Leads you provide to EFOLKS for the purposes of this Agreement have made an inquiry sufficient to permit, under all applicable state and federal law, contact from EFOLKS). You warrant, represent, covenant, and acknowledge that you will obtain and record the prior express written consent (as defined in the Federal Trade Commission's Telemarketing Sales Rule and the Federal Communications Commission's regulations implementing the Telephone Consumer Protection Act, as well as applicable state law) of each consumer related to any Lead and/or data provided to EFOLKS, and will provide a copy to EFOLKS. You will obtain electronic signatures of each consumer's prior express written consent by saving electronic records of a consumer's electronic opt-in, and will provide the following to EFOLKS: (i) the consumer's name, telephone number and IP address as well as the time and date stamp of the opt-in and the URL from which the consumer opted in, and (ii) a screenshot of the language used to obtain prior express written consent.
You agree to indemnify, defend and hold EFOLKS and any third parties harmless from and against any and all liability, loss, damages, expenses, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to (a) your or any of your agents, affiliates, subsidiaries, directors, officers, employees, licensors, licensees, consultants, contractors, and partners' breach of any of the representations, warranties, covenants, agreements or obligations under this Agreement; (b) any offer, advertisement, or other materials used by you which are not preapproved in writing by EFOLKS; (c) any third party claim arising from use of or access to advertisement or any material to which users can link, or any third party products or services made available to users through any Advertisement; (d) any violation of law and/or violation of any third party's rights by you, your agents, affiliates, subsidiaries, directors, officers, employees, licensors, licensees, consultants, contractors and/or partners which results in liability to EFOLKS; and (e) any third party or regulatory claim arising from EFOLKS or any third party's use of any Lead and/or data provided by you to EFOLKS.
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 and/or offers 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 EFOLKS, you shall return all of EFOLKS's Confidential Information to EFOLKS.
EFOLKS MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING 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 THE AGREEMENT, EFOLKS EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, AVAILABILITY, FUNCTIONALITY OR ANY OTHER ASPECT OF EFOLKS'S SERVICES OR PRODUCTS OR THE SITES, OR ANY OF EFOLKS'S CLIENTS' SERVICES OR PRODUCTS.
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. No action, regardless of form, arising in connection with this Agreement, will be brought against either party more than one (1) year after the date such cause of action first arises.
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 and providing your electronic signature, you agree to each and every provision within this Agreement without reservation. Your electronic signature signifies your agreement to transact business electronically, which includes receiving all documents in HTML or PDF format and communicating over the Internet. You also certify that you are 18 years of age and have access to the Internet to receive EFOLKS's services and to view, print and retain all documentation. You may receive paper copies by contacting your EFOLKS representative. Though you may withdraw your consent to electronically transact business with EFOLKS by contacting your representative, by doing so EFOLKS may no longer be able to provide you services.
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:
During the term of this Agreement and for a period of one (1) year thereafter, you agree and acknowledge that you will not, by yourself or in collaboration with any other person or entity, either directly or indirectly, solicit, induce, recruit or encourage, for your own benefit or the benefit of any other person or entity, any of EFOLKS's employees or officers to leave their employment with EFOLKS, whether as employees or independent contractors, other than through general advertisements for employment.