Prosprio LLC has established a Code of Conduct and guidelines for practices and ethical standards for using the Prosprio LLC System, advertising for our clients and receiving payment for said services.
All affiliates/publishers (“Affiliates”) who have registered their publisher website, Can Spam compliant E-Mail list or search service (“Site”) as an affiliate with Prosprio LLC are required to read and adhere to this code of conduct. If at any time the affiliate intentionally or unintentionally, knowingly or unknowingly, violates this code of conduct they will be removed from the system and permanently banned from participating in future programs as an affiliate. All revenue due that affiliate will not be paid and past earnings may be required to be returned in the event that fraudulent actions have been recorded to that affiliate in a previous month as a result of click or action fraud from human interaction or false actions/click fraud delivered by a bot/script/active X or other technology/code driven method.
Actions/clicks/leads must be from a live unique user (“Users“) willingly accepting the offer from the Advertiser. All offers, unless otherwise noted are “Non Incentivized” and are required to be independent of points, gifts, or other incentivized situations to the users. All leads, actions, clicks, etc. shown to be forced or incentivized will be removed from affiliate’s payout for that particular month. Duplicate leads will also be removed before final payment is made to affiliate. Duplicates will be considered any duplicate e-mail address, IP address, user name, or lead data for a particular offer that is passed through by the same affiliate within a 12 month period. Excessive charge backs by an advertiser from a particular Affiliate may be grounds for terminating that account, as well.
The online affiliate industry is a dynamic environment and it is necessary and important to update the Code of Conduct and Terms and Conditions from time to time to reflect the most current industry practices and to clarify terms as they become known to our legal department. Prosprio LLC reserves the right to amend the code of conduct at anytime. It is the duty of the affiliate to check the code of conduct frequently for changes to this document as well as the terms and conditions.
Company – and Prosprio LLC provider of marketing and advertising services and technology to both Advertisers and Publishers.
Advertiser – the company, individual or advertising agency representing the company who requests placement for their offer(s) with Company for the purpose of displaying advertisements with Publishers to advertise their products and/or services.
Ad/Creative– the graphic or text file(s) provided to Publisher/Affiliates to display on behalf of Advertisers and/or Prosprio LLC.
Publisher/Affiliate – the individual or company who upon approval by Prosprio LLC agrees to display Advertiser’s advertisements or offers to End-Users.
End-User – a unique live individual (consumer) who responds to advertisement offers from Advertisers that are displayed by Publishers, and who willingly and knowingly accepts the offer from the Advertiser.
System– Technology application where advertiser’s creative and programs are shown to affiliates. System also tracks all transactions including revenue, impressions, clicks, etc.
Technology Provider – the company that provides Software used to display Advertiser’s advertisements to End-Users for Prosprio LLC.
Publisher Link – a link the publisher uploads for an Advertiser where an active affiliate relationship exists.
Publisher Web Page – a live web page accessible by an End-User that contains a Publisher Link and is part of a Web site where an Advertiser and the Publisher have an active relationship.
Approved Website(s)– Publisher’s domain(s) and/or specific root URL(s) directly approved by Prosprio LLC.
Flight/Run Dates– the period of time, and associated start and end dates, over which an Ad campaign is scheduled to run.
Impression –the action of an Ad being served to, and received by, a unique visitor on Publisher’s Website or other media as measured by Prosprio LLC and our Technology Partner.
Incentivization/Incentivized Traffic/Incentivized placements –website where Ads are placed where a User will be given an incentive or direct compensation, prize, points, etc. for initiating an action, to click through on Ads or encouraged to make a transaction based on an incentive.
Intellectual Property– documents, forms, Ads, user interface, Prosprio LLC Code or other intellectual property made available to Publishers or Advertisers in connection with this Agreement.
Opt-in– an individual user who has made an active, affirmative choice to select the Ad in question in order to be counted as an action. Pre-checked, forced, negative choice, passive, opt-out or other types of non-active, non-affirmative choice actions are not “opt-in.”
Opt-out– the user is not required to make an active and/or affirmative choice/action to select the Ad in order to be counted as an action. Publisher is given consent to use a User’s collected information unless the User specifically directs the Website not to do so.
Unique Sign-Up– a User who Opts-In or Double Opts-In to a Website who is not already a member of or registered with the Advertiser or Advertiser’s campaign.
Click/ Click-Thru or Click-Through – the action or initiation of an End-User referral action from a Publisher to an Advertiser’s site, via a hyperlink tracked through the Technology Provider’s services. User shall only be counted as a Unique Click once every 24-hour period.
Action– a User’s completion of the act requested by the Advertiser supplying Ads through the Prosprio LLC Network. If a User is directly compensated for completing such required action, such action is considered incentivized and not considered an Action.
Valid Sign-Up– a unique user that provides current, accurate, complete, valid information as required by an Advertiser in a form field. A sign-up who is directly compensated for providing the required information is considered incentivized and not a Valid Sign-Up.
Prosprio LLC Code– pixels, ad tags, redirect tags, intellectual property or other computer code provided by Prosprio LLC for use by Publisher or Advertiser.
Prosprio LLC Network– Prosprio LLC’s affiliated group of third-party websites, publishers and affiliates by which Prosprio LLC may insert Ads.
Website– an HTML document containing a page or pages of information accessible via the Internet.
CAN-SPAM– CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) establishes requirements for those who send commercial email.
Prosprio LLC Publisher Service Agreement
This Publisher Service Agreement (“Agreement”) is made by and agreed to between Prosprio LLC, a Florida LLC located at 5077 Fruitville Road STE 109, Suite #404, Sarasota, Florida 34232, United States of America (“Prosprio LLC”), and you (“You”). As an application company, Prosprio LLC facilitates “Performance Marketing Programs” by providing services (“Network Service”) via the Internet. A “Performance Marketing Program” (“Program”) is where a person, entity, affiliate or its agent, operating “Web site(s)” (internet domain, or a portion of a domain) and/or other promotional methods to drive traffic to another’s Web site or Web site content (“Publisher”) may earn financial compensation (“Payouts”) for “Transactions” (actions by Visitors as defined by the Advertiser) referred by such Publisher via an action made by a “Visitor” (any person or entity that is not the Publisher or the Publisher’s agent) through an Internet connection (“Link”) to a Web site or Web site content operated by another person or entity (“Advertiser”) from an Advertiser authorized promotional method used by such Publisher. The Advertiser compensates the Publisher, in accordance with this Agreement and the Program Payout specifications.
Prosprio LLC Media, a Prosprio LLC, Inc. company (“Prosprio LLC”), and Publisher, enter into this Publisher Network Agreement (“Agreement”) to establish the terms and conditions by which Publisher may enter the Prosprio LLC Publisher Network and market advertisements on behalf of Prosprio LLC customers. Prosprio LLC and Publisher agree to be legally bound as follows:
- Prosprio LLC Network
During this Agreement you are applying as a publisher/affiliate to participate in advertising programs through the Prosprio LLC system for the opportunity to earn payouts by promoting Advertisers in accordance with the program terms and complying with this Agreement. Upon approval by Prosprio LLC for acceptance into its Program, You may display (and remove) Links to Advertiser’s Web site or Web site content in accordance with the Advertiser’s Program terms and this Agreement.
(a) Affiliate Membership. All affiliate applications for the Prosprio LLC Network are reviewed and subject to prior approval by Prosprio LLC. Prosprio LLC reserves the right to refuse service or access to the network at any time to any new or existing Publisher for any reason, in its sole discretion. Approval of membership in the Prosprio LLC Network is limited to the domain(s) and/or specific root URL(s) for which Publisher has applied for approval by Prosprio LLC. If multiple domains are managed by the same affiliates all domains that will run advertising material for Prosprio LLC advertisers must be approved individually. Prosprio LLC reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Publisher or Website for any reason at any time with or without notice to Publisher and regardless of whether such Publisher or Website was previously accepted. Without limiting the foregoing, Prosprio LLC reserves the right to require a potential or existing Publisher to submit detailed descriptions of each site, how traffic is driven to that site, and, if necessary, show proof of ownership of that site. Refusal to participate or answers deemed unsatisfactory constitutes grounds for non-acceptance or termination from the Prosprio LLC Network. This Agreement is voidable by Prosprio LLC immediately if Publisher fails to disclose, conceals or misrepresents itself in any way. Unless advanced permission is granted by Prosprio LLC, any person, Publisher, or affiliated group may have only one account and only access the system through the account provided to them by Prosprio LLC; however, each account may include multiple Websites/domains. In the event Publisher receives approval from Prosprio LLC for multiple Websites/domains, each and every Website/domain is obligated and bound by these same terms and conditions. In any event, Prosprio LLC reserves the right to reject or approve additional Websites, and is under no obligation to accept any Website(s), even if the additional Website(s) is the property of an already approved Publisher.
(b) System. Publisher agrees that use of the Prosprio LLC system will be granted to all approved affiliates, and is done so at the risk of the affiliate. By accepting the terms and conditions all affiliates and advertisers acknowledge and recognize that the software system, tracking and revenue reporting may be unavailable from time to time. Every effort will be made to make sure that affiliates have access during peak usage hours, but affiliates agree to hold harmless Prosprio LLC, all officers, partners, associates, employees and investors of any losses sustained, actions not properly recorded as a result of limitations with the system at any time for any reason whether known previously to Prosprio LLC or not. While Prosprio LLC will attempt to provide the services on a continuous basis, Publisher acknowledges and agrees that Prosprio LLC has no control over the availability of the services on a continuous or uninterrupted basis. Publisher also understands and agrees that Prosprio LLC is not responsible for the functionality of any third-party Website or interface. Prosprio LLC’s failure to deliver because of technical difficulties does not represent a failure to meet the obligations of this Agreement.Due to the potential liability from fraud, access to the system can be suspended from any affiliate at any time at the sole discretion of Prosprio LLC. Affiliate will be notified at the e-mail address on file if an account has been removed from the system. No actions will be paid by Prosprio LLC for affiliates that have a frozen or closed account.
- Website approval and code of conduct
(a) Prohibited Websites and conduct. Affiliates agree that nothing from the Prosprio LLC system (advertisers links, code, pixels, etc) shall be used on Websites that contain forums, discussion boards, chat rooms, or any content area that is open to public updates without regulation.To insure the highest possible quality network for both publishers and advertisers, Prosprio LLC monitors all network activity, pre-screens all advertisers and publishers and does not accept any publisher whose Web site(s) or online activity does not comply with our Publisher Service Agreement. By filling out and submitting this form, you agree to all terms of the Publisher Service agreement including but not limited to:
- Fraudulently generate clicks, actions, sign ups or other misleading activities. Operate or utilize a Web site or email link to Web sites that contain or promote any of these types of content: libelous, defamatory, obscene, pornographic, abusive, violent, bigoted, hate-oriented, illegal, cracking, hacking or warez, or that offer any illegal good or service, or link to a Web site(s) that do so and/or:
- Engage in spamming, indiscriminate advertising or unsolicited commercial email ad defined by CAN-SPAM 2003Engage in cybersquatting or typosquatting.
- Violate any state, local, federal or international laws while participating in the Prosprio LLC program.
- Serve ads, or drive traffic to advertisers landing pages, using any downloadable applications without the prior written approval of Prosprio LLC, which, if provided, is subject to approval individually for each campaign. Ads delivered in approved downloadable applications may only be shown once per User session. When the application is active, enabled it must be clearly recognizable by the end User as being active and enabled. Serving Creatives at anytime when the downloaded application is not active is strictly prohibited and grounds for immediate termination without pay.
- Place advertisements on personal web pages, non-English language pages, or free hosted pages (i.e.,Myspace, Geocities, Xoom, Tripod, Talk City)
- Engage in search engine spam, doorway pages, cloaking, etc.
- Bid on any trademarked names or terms in any PPC/“keyword”/“adword”/campaign unless given express written permission by Prosprio LLC.
- Use invisible or technology driven methods to generate Impressions, Clicks, or transactions that are not initiated by the affirmative action of the User
- Engage in any offline advertising including via facsimile or telemarketing
- Attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Website tags, source codes, links, pixels, modules or other data provided by or obtained from Prosprio LLC that allows Prosprio LLC to measure Ad performance and provide its services.
- All email campaigns are subject to the additional terms set forth in Exhibit A.
- Any violation of these direct terms in the code of conduct will result in immediate removal from the system. All outstanding balances due affiliate will be forfeited as a result of the violation. Any previous payments for activity that is suspected to have been generated in violation of this code of conduct may be required to be repaid. Publisher agrees that should they violate the foregoing conditions of this Section 3, Prosprio LLC may, in addition to other legal remedies, assess liquidated damages of up to $1,000.00 per occurrence of each such violation, and that such liquidated damages are reasonable.
No Modifications to Creative, Code or Network IP.
Except as permitted under this Agreement, Publisher shall not alter, copy, modify, take, sell, re-use, or divulge in any manner any Creative, Network IP or computer code provided by Prosprio LLC without Prosprio LLC’s prior written consent. Publisher may not copy Prosprio LLC’s Ads and display them from Publisher’s Website directly, redirect traffic to a Website other than that listed by Prosprio LLC or the Advertiser, or ask Users to take advantage of other Ads or offers other than those listed by Prosprio LLC or Advertiser. Any Prosprio LLC content which is copied, changed or altered without prior written consent will result in non-payment for the campaign and may result in termination. Any approved modifications to Prosprio LLC Code or Network IP shall be owned solely by Prosprio LLC and will require prior written approval.
If Links to Advertiser are not dynamically updated through the Network Service, upon notification Publisher is obligated to update an Advertiser’s Links in order to earn Payouts.
Flight Dates and volume limitations.
Advertisers may request that campaigns maintain a specific Flight Date or cap a limited amount of Actions per campaign. Flight dates and action caps may change in the system and it is the Publisher’s responsibility to monitor the system for changes to campaigns. Publisher shall not place Ads after either limitation is met. Publisher also shall not run an Ad after Advertiser has posted new Creative to run in lieu of such Ad. Prosprio LLC reserves the right to pay Publisher only for Actions delivered using the proper Creative and/or within the Flight Dates or Action limitations. PUBLISHER AGREES TO REVIEW THE CREATIVES THAT IT HAS PLACED WITHIN ITS MEDIA ON A REGULAR AND TIMELY BASIS. IT IS THE PUBLISHER’S SOLE RESPONSIBILITY TO MAKE CHANGES WHEN A CREATIVE IS NO LONGER AVAILABLE IN THE Prosprio LLC NETWORK OR HAS NO ACTIONS REMAINING FOR DELIVERY. Prosprio LLC ASSUMES NO RESPONSIBILITY TO NOTIFY PUBLISHER WHEN AN AD IS NO LONGER AVAILABLE IN THE Prosprio LLC NETWORK OR HAS NO ACTIONS REMAINING FOR DELIVERY. Incentivization. Publishers shall NOT induce persons to click on Creatives or create actions based on incentives without the prior written approval of Prosprio LLC. All campaigns are non Incentivized unless otherwise denoted by Prosprio LLC. Actions/clicks/leads must be from a live unique user (“Users”) willingly accepting the offer from the Advertiser. All offers marked “Non Incentivized” are also required to be independent of points, gifts, or other incentivized situations to the users. All leads, actions, clicks, etc. shown to be forced, or incentivized will be removed from affiliates payout for that particular month.
(a) Publishers acknowledge that Prosprio LLC will only pay for Unique and Valid Sign-Ups, as defined above. Any data submitted that is not a Unique or Valid Sign-Up will not be paid. Upon payment, Prosprio LLC shall have no further obligation to Publisher. Affiliates that consistently deliver duplicate or invalid data may be removed from the system. Prosprio LLC and/or its Advertisers, in their sole discretion, shall have the right to market and re-market the person(s) and or data represented in the Action, without further obligation to Publisher.
(b) Prosprio LLC will not pay or compensate Publisher in any way for leads or acquisitions that have been received and rejected by an Advertiser for any reason, including but not limited to leads or actions developed after an action cap has been met, flight dates have expired, duplicates, invalid data, incomplete data, or fraudulent data, or for leads or acquisitions that have been determined by Prosprio LLC, in its sole discretion, to be duplicates, invalid, incomplete or fraudulent. In the event that Publisher has already received payment for such leads or acquisitions, Prosprio LLC reserves the right to seek credit, repayment or remedy from future earnings or to demand reimbursement from Publisher. Publisher and Prosprio LLC acknowledge that any leads rejected as not Valid Sign-Ups may be retained and marketed by the Advertiser and/or Prosprio LLC, to the extent possible. The Action price designated to publishers for Valid Sign-Ups already includes compensation for such invalid data.
(c) Publisher shall not generate Clicks, sign-ups or leads by (i) auto spawning browsers, automatically redirecting Users, or any other technique of generating “automated” Click-Throughs; (ii) falsely generating User data; (iii) posting User data that is older than 48 hours; (iv) requiring Users to click on an Ad before entering any area of a Website; or (v) Prohibited Conduct.
(d) All actions must originate from a unique, live user; go through Publisher’s unique gateway; and be recorded by Prosprio LLC’s server to qualify for compensation. All actions not recorded by the system will not be compensated.
(e) Publishers shall not cause any actions to be made that are not in good faith, including, but not limited to, using any device, program, robot, Iframes, or hidden frames. You may or may not be compensated for Transactions where You or Your agent are the Visitor. Compensation is at the sole discretion of Prosprio LLC. Multiple Leads from the same individual, entity or IP address may be considered duplicate transactions.
(f) No Web Publisher or software download Technology Provider may interfere with or seek to influence improperly the referral of a potential customer or visitor (“End-User”) to the Web site of an online Advertiser. No Publisher or Technology Provider will automatically replace or alter any component of a Company’s technology that results in a reduction of any compensation earned by another Publisher. This includes pixel manipulations, URL rewriting tools, cookie deletion or hijacking, or other methods of interference. For example, a Publisher or Technology Provider may not use methods or technology to automatically replace a Company’s tracking identifier of another Publisher with its own Company’s tracking identifier or otherwise intercept or redirect an End-User from being referred through another Publisher’s Link.
Programs and Offers may be discontinued at any time at the sole discretion of Prosprio LLC.
(a) Notices. Programs may be changed in the system from time to time at the sole discretion of Prosprio LLC. Prosprio LLC is under no obligation to notify Publishers of adjustments to action limitations, flight dates, changes to create or cancellation of programs. Publisher is required to monitor the system for changes to all campaigns that the publisher is participating with. All actions that occur after changes have occurred will not be paid to affiliate.
(b) Post-termination. Upon termination, Publisher agrees to immediately remove from its Website(s) any and all Prosprio LLC Code and Network IP supplied to Publisher by Prosprio LLC. Upon termination of this Agreement or cancellation of membership by Prosprio LLC, any outstanding payments shall be paid by Prosprio LLC to publisher within 90 days of the termination date. Termination for breach of contract may result in adjusted payments following an audit of all transactions recorded by the system for affiliate. Actions that are not approved will be removed before final payment is made. All payments are subject to recovery for Charge-backs, bad leads, false clicks, or other fraudulent actions. If Publisher has not reached the Minimum Payment Threshold, Publisher will be charged an administrative fee representing Prosprio LLC’s cost of establishing and maintaining Publisher’s account; such fee to be any balance remaining in Publisher’s account. Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement shall survive the termination of this Agreement to the extent that and as long as is necessary to preserve a party’s rights under this Agreement that accrued prior to termination.
(c) Term. This Agreement shall commence upon acceptance of these terms and condition. Agreement is provided by detailing the required information regarding identification, location, style of marketing, etc and ‘clicking through’ the acceptance button on the Prosprio LLC Web site and shall continue until terminated in accordance with the terms of this Agreement. This Agreement may be terminated by publisher upon 21 day written notice to Prosprio LLC. This Agreement may be terminated immediately upon notice for breach of this Agreement. An Account may be deactivated during investigation of breach of this Agreement. If this Agreement is terminated based upon breach, publisher shall not be eligible to enter into a new click-through Publisher Service Agreement with Prosprio LLC, and any attempt to do so shall be null and void.
(d) Termination or Deactivation by Prosprio LLC. Prosprio LLC may terminate a publisher account, remove authorization for an individual web site listed by a publisher, or use of a promotional method, from an Advertiser’s Program, at any time in Prosprio LLC’s sole discretion. Breach of any Section of this Agreement is cause for immediate termination from an Advertiser’s Program and/or termination of this Agreement. Prosprio LLC may temporarily deactivate or terminate Your Account if:(i) You or Your agent are responsible for the improper functioning of Ad Content, or if You otherwise interfere with and/or fail to maintain the Tracking Code; (ii) Your Account has not been logged into and/or there have been no Transactions credited to Your Account for any 30 day period; (iii) You maintain a negative balance in Your Account; (iv) Prosprio LLC determines You are diluting, tarnishing or blurring Prosprio LLC’s proprietary rights; (v) You begin proceedings to challenge Prosprio LLC’s proprietary rights; or (vi) a third party (including a Prosprio LLC Advertiser) disputes Your right to use any Link, domain name,
(a) Payment schedule. Payment to Publishers will be based on monthly revenue shown in the system following any reasonable and necessary audit, factoring, adjustments for false or fraudulent actions, or other adjustments. Prosprio LLC reserves the right to set campaign rates, which may vary with market conditions. Publishers typically will be paid within 30 days from the last business day of each month in which earnings are accrued. Publisher shall not invoice Prosprio LLC; all Publisher invoices are discarded. Publishers will be paid at the account level. All accounts will be settled in US Dollars ($US). No check will be issued for any amount less than $100US (“Minimum Payment Threshold”). All unpaid earnings will rollover to the next pay period. Any Publisher account that goes unpaid for six months becomes subject to immediate cancellation by Prosprio LLC. If Publisher has not reached the Minimum Payment Threshold, Publisher will be charged an administrative fee representing Prosprio LLC’s cost of establishing and maintaining Publisher’s account; such fee to be any balance remaining in Publisher’s account if they have not met the minimum threshold amount. By participating in the service, Publishers assume complete and sole responsibility for any taxes owed as a consequence of participation in the service. Publisher must have on file with Prosprio LLC a completed and accurate W-9 (for US-based Publishers) or a completed and accurate W-8 (for non-US-based Publishers). Publisher payments will be withheld until the appropriate taxation documents are received by Prosprio LLC. If the required tax documents are not on file with Prosprio LLC within three months of the date of a scheduled payment, Prosprio LLC may charge a monthly administrative fee, representing Prosprio LLC’s cost of establishing and maintaining Publisher’s account, equal to 25% of the original balance. All payments are based on actuals as defined, accounted and audited by Prosprio LLC. Prosprio LLC reserves the absolute right to withhold payment from accounts or Publishers that violate any of the terms and conditions set forth herein. Revenue payment amounts displayed in the system may not include a small reserve of compensation being withheld to cover future or potential chargebacks, or other discrepancies that may or may not have been discovered in the previous months. Prosprio LLC will determine, in its sole discretion, whether acts or omissions are deceptive, fraudulent or violate this Agreement. Examples of such acts may include, without limitation, Clicks without referring URLs, high numbers of repeat Clicks, Clicks from non-approved root URLs, and fraudulent leads.
(b) Breach or Fraud. If Publisher violates this Agreement or refuses to fulfill its responsibilities, or commits fraudulent activity, Prosprio LLC reserves the right to withhold payment and take appropriate legal action.
(c) Calculation. Calculation of Publisher earnings shall be in Prosprio LLC’s sole discretion. In the event Publisher disagrees with any such calculation, Publisher shall send a written request with in 24 hours of the contested action occurring or in the case of omission, the omission event to Prosprio LLC detailing, with specificity, Publisher’s concerns. Thereafter, Prosprio LLC will provide Publisher with an explanation or, if such calculation is determined by Prosprio LLC to be incorrect, an adjustment. No amendments will be allowed following the designated dispute resolution timeframe. Prosprio LLC’s calculations shall be final and binding.
(a) Use of Your Marks. You authorize Prosprio LLC to utilize Your trademarks, service marks, tradenames, and/or copyrighted material that You provide to Prosprio LLC through Your Account to promote Your participation in the Network Services. Notice of participation in the program may be made available at Prosprio LLC’s sole discretion, but under no obligation to do so through electronic means, broadcast or press releases. Publisher is prohibited from making publicly available an announcement of their participation, or other specifics about the Prosprio LLC system without prior written consent from Prosprio LLC. Publisher acknowledges that they have no proprietary rights in Prosprio LLC’s trademarks, service marks, tradenames, URLs, copyrighted material, patents, and patent applications, and agrees not to challenge Prosprio LLC’s proprietary rights.
(b) Provision of Information. Publisher agrees that Prosprio LLC may, but is not obligated to, provide Your email address(es) and basic Publisher Account detail (including but not limited to Your address, phone and fax number, Web site name, the date the website or subscription email first entered into operation, and visitor demographics) to Advertisers. Prosprio LLC may provide any and all Visitor, Transaction and/or Tracking Code data to the Advertiser to which You referred such Visitor, and to any third party in Prosprio LLC’s sole discretion, including but not limited to all regulatory, legislative and judicial bodies, and pursuant to allegations and claims of proprietary rights infringement. Prosprio LLC reserves the right to be able to utilize Tracking Code data provided to it, which may include: information about Your performance statistics, to analyze advertising trends, performance of campaigns, maintain the integrity of the tracking code, promote system capabilities and efficiencies, and promote the publisher’s web performance to Advertisers.
(c) Licenses. At the agreed upon pay-out price and provided that Publisher complies with all provisions of this Agreement, Prosprio LLC hereby grants to Publisher a nonexclusive, nontransferable, limited, revocable license to use, execute and display the Prosprio LLC code solely for the purpose of performing its obligations as described in these terms and conditions. Except for the limited license expressly granted in this Section, nothing in this Agreement shall be construed as Prosprio LLC granting Publisher any right, title or interest in Network IP. Publisher acknowledges and agrees that Prosprio LLC and/or Advertiser owns all right, title and interest in and to the Network IP and all related intellectual and proprietary rights of any kind anywhere in the world. Publisher’s use of the system, proprietary information, documents or other IP or the results created thereby, or dissemination or distribution of this information except as expressly permitted by this Agreement is strictly forbidden and will result in the termination of this limited license and may result in Publisher being held liable under applicable law.
(d) Data Ownership.
Publisher understands that all data, including but not limited to information provided by publisher regarding end users, company or personally identifiable information provided by Users in response to an Ad and any and all reports, results, and/or information created, compiled, analyzed and/or derived by Prosprio LLC from such data is the sole and exclusive property of Advertiser and/or Prosprio LLC and is considered Confidential Information pursuant to this Agreement. Prosprio LLC and/or its Advertisers, in their sole discretion, shall have the right to market and re-market the Users and/or data without further obligation to Publisher. Publisher shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such information, or any portion thereof, to any third-party. Unless otherwise agreed to in writing by the parties, any other use of such information is strictly prohibited.
(a) Publisher Responsibility. Publisher acknowledges that placement of advertising is the sole responsible of the publisher. Methods of dissemination of the Ads, links, e-mails, etc are to be managed exclusively by the publisher. Publisher accepts responsibility for all actions that occur as a direct result of their account on the system including all complaints, fraud notifications, account suspension, and chargebacks. Prosprio LLC will not have any control over the method of dissemination and is relying entirely on these warranties made by Publisher to monitor all activities involving Prosprio LLC advertisers.
(c) Mutual Warranties. Each party represents and warrants to the other that (i) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; (ii) 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 such party is bound; and (iii) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.
Publisher is solely responsible for any legal liability arising out of or relating to (i) Publisher’s Website(s); (ii) any material to which Users can link through Publisher’s Website(s); and (iii) any consumer and/or governmental/regulatory complaint arising out of any campaign conducted by Publisher, including but not limited to any spam or fraud complaint and/or any complaint relating to failure to have proper permission to conduct such campaign to the consumer. Publisher shall indemnify, defend, and hold harmless Prosprio LLC and its officers, directors, employees, agents, shareholders, partners, affiliates, representatives, agents and Advertisers (collectively “Prosprio LLC Parties”) harmless from and against any and all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, costs related to in-house counsel time, court costs and witness fees) (collectively “Losses”) incurred by, or imposed or asserted against, the Prosprio LLC Parties which, if true, would constitute or relate to any claims, suits, or proceedings for (a) libel, defamation, violation of rights of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third-party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Publisher’s Website(s); (b) any breach by Publisher of any duty, representation or warranty under this Agreement; (c) any breach by Prosprio LLC of any duty, representation, or warranty to provide Ads for placement on Publisher’s Website(s) due to any breach by Publisher of this Agreement; (d) a contaminated file, virus, worm, or Trojan horse originating from Publisher’s Website(s); or (e) gross negligence or willful misconduct by Publisher.
(a) Disclaimer of Warranties. ALL SERVICES PROVIDED BY Prosprio LLC ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, Prosprio LLC MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. Prosprio LLC IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.
(b) Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL Prosprio LLC BE LIABLE TO PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF Prosprio LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL Prosprio LLC’S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR TEN THOUSDAND DOLLARS ($10,000.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST Prosprio LLC MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
(c) Consideration. PUBLISHER ACKNOWLEDGES THAT Prosprio LLC HAS AGREED TO PRICING IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. PUBLISHER AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO PUBLISHER.
(a) Business Operations. Each party will make reasonable commercial efforts to keep its Web site operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other or Your Advertisers liable for any of the consequences of such interruptions. Prosprio LLC may modify the Network Service, or discontinue providing the Network Service, or any portion thereof, at any time.
(b) Authority. Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party’s behalf. IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
(c) Non-infringement Warranties. You represent and warrant that: (i) You have all appropriate authority to operate, and to any and all content on, Your Web site(s); (ii) You have all appropriate authority in any promotional method you may choose to use; (iii) Your Web site(s) and Your promotional methods do not and will not infringe a third party’s, a Prosprio LLC Advertiser’s, or Prosprio LLC’s, proprietary rights; and (iv) You shall remain solely responsible for any and all Web sites owned and/or operated by You and all of Your promotional methods. Prosprio LLC may or may not review all content on Your Web site or used by You in Your promotional methods.
(d) Compliance with Laws. You are responsible for compliance with the requirements of all relevant legislation (including subordinate legislation and the rules of statutorily recognized regulatory authorities) in force or applicable in the United States or in any other applicable territory, and warrant that no promotion method used by You or the content of Your Web site(s) will render Prosprio LLC liable to any proceedings whatsoever.
(e) Limitation of Liabilities. ANY OBLIGATION OR LIABILITY OF Prosprio LLC UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR PAYOUTS PAID TO YOU BY Prosprio LLC UNDER THIS AGREEMENT DURING THE YEAR PRECEDING THE CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE OTHER PARTY TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. YOU AGREE THAT Prosprio LLC SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY ANOTHER PUBLISHER OR AN ADVERTISER OF THE NETWORK SERVICE), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
(f) Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, Prosprio LLC DISCLAIMS ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT Prosprio LLC’S SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF THE PUBLISHER’S INFORMATION OR WEB SITE. ALL ‘INFORMATION’ AND ‘COMPUTER PROGRAMS’ PROVIDED TO YOU IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. Prosprio LLC IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY ADVERTISER OR PUBLISHER, OR SUCH ADVERTISER OR PUBLISHER’S WEB SITE(S), AND/OR THE CONTENT OF AN ADVERTISER’S WEB SITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH THE NETWORK SERVICE.
(g) Remedies. No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
(a) Obligations. Prosprio LLC, advertisers and publishers may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential (“Confidential Information”). The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not be commingled with information or materials of others and any copies shall be strictly controlled. Confidential Information shall not include (even if designated by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, You must destroy or return to Prosprio LLC any Confidential Information provided by Prosprio LLC to You under this Agreement.
(b) Provision of Info to Advertisers/Third Parties. You agree that Prosprio LLC may, but is not obligated to, provide Your email address(es) and basic Publisher Account detail (including but not limited to Your address, phone and fax number, Web site name, the date the website or subscription email first entered into operation, and visitor demographics) to Advertisers. Prosprio LLC may provide any and all Visitor, Transaction and/or Tracking Code data to the Advertiser to which You referred such Visitor, and to any third party in Prosprio LLC’s sole discretion, including but not limited to all regulatory, legislative and judicial bodies, and pursuant to allegations and claims of proprietary rights infringement. Prosprio LLC reserves the right to be able to utilize Tracking Code data provided to it, which may include: information about Your performance statistics, to analyze Network Service trends, monitor Network Service efficiencies, maintain the integrity of the tracking code, promote Network Service capabilities and efficiencies, and promote You and Your Web performance to Advertisers.
This Agreement is governed by the laws of the State of Florida (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in Sarasota, Florida. The parties consent to such venue and jurisdiction and agree to waive the personal service of any process upon them by agreeing that service may be effectuated by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the last address provided by Publisher. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys’ fees and costs.
This Agreement contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a “click through” acknowledgement of assent. No interlineations to this Agreement shall be binding unless initialed by both parties. Notwithstanding the foregoing, Prosprio LLC shall have the right to change, modify or amend (“Change”) this Agreement, in whole or in part, by posting a revised Agreement at least five days prior to the effective date of such Change. Publisher’s continued use of the Prosprio LLC Network after the effective date of such Change shall be deemed Publisher’s acceptance of the revised Agreement. No change, amendment, or modification of any provision of the Agreement by Publisher will be valid unless set forth in a written instrument signed by an executive of both parties with the corporate authority to do so.
Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (i) for Prosprio LLC, via registered mail, return receipt requested or via an internationally recognized express mail carrier to: CEO and General Counsel, 5077 Fruitville Road STE 109, Suite #404, Sarasota, Florida 34232, United States of America (effective upon actual receipt); and (ii) for Publisher, at the email or physical address listed on Publisher’s account (effective upon sending as long as Prosprio LLC does not receive an error message regarding delivery of the email) or five days after mailing).
No rights or obligations under this Agreement may be assigned by Publisher without the prior written consent of Prosprio LLC. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. Prosprio LLC and any of its subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties, under this Agreement to any party. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party’s prior written consent.
Publisher shall not release any information regarding campaigns, Creatives, or Publisher’s relationship with Prosprio LLC or its Customers, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of Prosprio LLC. Prosprio LLC shall have the right to refer to its work for, and relationship with, Publisher for marketing and promotional purposes, which includes use of Publisher’s trademarks and logos on Prosprio LLC’s collateral, sales material and Websites. No press releases or general public announcements shall be made without the mutual consent of Prosprio LLC and Publisher.
Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening. Each party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. All provisions are inserted conditionally on their being valid in law. In the event that any provision of this Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the Agreement, then (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
Except as otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity. Failure of either party to require strict performance by the other party of any provision shall not affect the first party’s right to require strict performance thereafter. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.
Publisher Network Agreement – Exhibit A
The following additional terms apply to all email campaigns conducted under this Agreement.
Publisher represents and warrants that they will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation), and/or any other laws and/ or regulations that govern email marketing and/or communications.
Email. Publisher shall not: (1) use any name other than Publisher’s in the “from” box when sending an email to a consumer; using any other name, including but not limited to Prosprio LLC’s name or the Advertiser’s name, is prohibited and will result in non-payment and immediate termination; (2) use deceptive subject lines, including but not limited to claims that “You Have Won,” “Your Order is Waiting” or “Order/Offer Confirmation” unless the recipient indeed has won some prize, has an order waiting and need not take any further steps to claim this prize or order, or the email truly is confirming a prior exchange or transaction with the consumer; (3) send any commercial email to any person who has requested not to receive email from Publisher and/or Advertiser; or (4) use any name contained in Prosprio LLC’s suppression list for any purpose other than as expressly provided herein. Publisher understands that upon doing so it automatically forfeits the right and claim to any revenue generated for its account, and Publisher’s account will be immediately terminated. All email campaigns must be conducted in accordance with the terms of Exhibit A to this Agreement.
- Spam Policy
Prosprio LLC has a strict policy against sending unsolicited commercial email (“UCE”), commonly referred to as “Spam.” Publisher warrants and represents that all email Ads delivered under this Agreement will be to permission-based subscribers who either have (i) given Publisher (or a third-party) express consent to allow Publisher to send them such email messages in response to a clear and conspicuous request for such consent or at the recipient’s own initiative; or (ii) with whom Publisher has a prior business relationship; and the collection of such email addresses was in full compliance with all applicable laws. Prosprio LLC prohibits marketing to any email addresses that were acquired through an “opt-out” process without sending a confirming email to such addresses. Any claims against Prosprio LLC from recipients of the email Ads that such email Ads constitute UCE will be directed to Publisher and Publisher will make reasonable efforts to satisfactorily resolve the issue with the recipient.
- Email Lists
(a) All emails sent by Publisher under this Agreement shall be delivered to Email Lists owned or managed solely by Publisher. Brokering third-party deals to deliver Ads without prior written consent is strictly prohibited and grounds for immediate termination, as well as other legal remedies. To the extent Prosprio LLC provides such consent, Publisher will only provide Ads to entities who comply with the requirements of this Agreement.(b) Publisher is required and agrees to maintain at all times during the term of this Agreement, and for a period of three years thereafter, complete and accurate subscriber sign-up/registration data for every subscriber to Publisher’s Email List(s). Publisher agrees that, within 24 hours of Prosprio LLC’s request, it shall provide, at a minimum, the following subscriber sign-up/registration data for any email address that Publisher sends an email Ad to: (i) subscriber email address used to sign-up/register for Publisher’s Email List; (ii) subscriber’s IP address; (3) date and time of subscriber’s sign-up/registration for Publisher’s Email List; and (iv) location of subscriber’s sign-up/registration.
- Campaign Preparation
(a) Before sending email Ads to its customers, Publisher will send test Ads of each email creative to its Prosprio LLC account manager for approval.(b) Prior to Publisher sending email Ads to its customers under this Agreement and regularly thereafter for active campaigns, Prosprio LLC will provide Publisher with its suppression file. Publisher will “scrub” its Email List before mailing the email Ads to ensure that none of the email addresses from either Prosprio LLC’s or Publisher’s suppression files or from any email addresses or domains posted by federal or state authorities for which email may not be sent are sent in Publisher’s mailings to its customers. Publisher may not use Prosprio LLC’s suppression file for any other purpose, will return such file after each “scrub” and certify that it has not retained any copies of any portion of such suppression file.
- Additional Publisher Warranties
(a) Publisher recognizes that a breach of Sections 1, 3(b), or 4 could result in immediate, extraordinary and irreparable damage to Prosprio LLC and/or its Advertisers and that such damages may be difficult to measure. Accordingly, Publisher agrees that should it violate these provisions, Prosprio LLC may in addition to other legal remedies, terminate this Agreement immediately without pay and assess liquidated damages of up to $1,000.00 per occurrence of each such violation. Publisher further agrees that such liquidated damages are reasonable and do not constitute a penalty.(b) Publisher shall indemnify and hold Prosprio LLC harmless for any Losses arising out of any breach of this Exhibit A pursuant to Section 11 of the Agreement.