TERMS AND CONDITIONS
Please read very carefully these terms and conditions. Participation in the Prosperent affiliate online program indicates that you accept these terms and conditions. If you do not accept these terms and conditions, please do not participate in the Prosperent Affiliate online program.
Introduction. This agreement ("Agreement") between You and Prosperent Inc. ("Prosperent") consists of these Prosperent Affiliate Online Program (the "Program") Standard Terms and Conditions ("Terms and Conditions"). "You" or "Publisher" means any entity identified in an enrollment form submitted by the same or affiliated persons, and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this Agreement.
- All content and Property-based Ads (and Ads served in response to end user clicks on and queries entered into Links, if any) shall be grouped by Prosperent and displayed with Links (where applicable) to end users of the Property(ies) as ad units (such groups of Ads and/or Links collectively referred to as "Ad Units") in standard formats as offered generally by Prosperent from time to time, as may be described in the FAQ. You may select a format approved by Prosperent for the display of Ad Units in connection with the Property(ies), but You acknowledge and agree that Ads and/or Links: (i) shall only be displayed in connection with the Property(ies), each of which is subject to review and approval by Prosperent in its discretion at any time; and (ii) shall be subject to the placement guidelines set forth herein.
- Referrals. If You have elected to use the Prosperent Affiliate Referrals feature, You will implement any Referral Buttons on Your Property(ies) in accordance with the specifications provided by Prosperent. End users who click on a Referral Button will be directed to a Web page that may be hosted by Prosperent ("Referral Page"), and the format, look and feel of those Web pages hosted by Prosperent may be modified by Prosperent from time to time. A "Referral Event" will be initiated when an end user clicks on a Referral Button from the Property and will be completed when the referral requirements for the relevant product are satisfied in accordance with this Agreement. Such referral requirements, along with the payment amount applicable to the Referral Event, are located at http://prosperent.com/tools/referralprogram, or such other URL as Prosperent may provide from time to time. You agree to comply with the specifications provided by Prosperent from time to time to enable proper tracking and reporting of Referral Events in connection with Your Property. You shall not promote or facilitate a Referral Event by any means other than displaying a Referral Button on the Property, unless expressly authorized in writing by Prosperent (including by electronic mail).
- Beta Features. Some Program features are identified as "Beta" or otherwise unsupported ("Beta Features"). To the fullest extent permitted by law, Beta Features are provided "as is" and at Your option and risk. You shall not disclose to any third party any information from Beta Features, existence of non-public Beta Features or access to Beta Features.
- Communications Solely With Prosperent. You agree to direct to Prosperent, and not to any advertiser or affiliate network, any communication regarding any Ad(s) or Link(s) displayed in connection with Your Property(ies).
- Parties' Responsibilities. You are solely responsible for the Property(ies), including all content and materials, maintenance and operation thereof, the proper implementation of Prosperent's specifications, and adherence to the terms of this Agreement, including compliance with the Program Policies. Prosperent reserves the right to investigate, at its own discretion, any activity that may violate this Agreement, including but not limited to any use of a software application to access Ads, Links, or Referral Buttons or to complete any Referral Event, or any engagement in any activity prohibited by this Agreement. Prosperent is not responsible for anything related to Your Property(ies), including without limitation the receipt of queries from end users of Your Property(ies) or the transmission of data between Your Property(ies) and Prosperent. In addition, Prosperent shall not be obligated to provide notice to You in the event that any Ad, Link, or Referral Button is not being displayed properly to, or Referral Event is not being completed properly by, end users of the Property(ies).
- Prohibited Uses. You shall not authorize or encourage any third party to:
- directly or indirectly generate queries, Referral Events, or impressions of or clicks on any Ad, Link, or Referral Button through any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated manual clicks, the use of robots or other automated query tools and/or computer generated search requests, and/or the unauthorized use of other search engine optimization services and/or software;
- edit, modify, filter, truncate or change the order of the information contained in any Ad, Link, Ad Unit, or Referral Button, or remove, obscure or minimize any Ad, Link, Ad Unit, or Referral Button in any way without authorization from Prosperent;
- frame, minimize, remove or otherwise inhibit the full and complete display of any Web page accessed by an end user after clicking on any part of an Ad ("Advertiser Page"), or any Referral Page;
- redirect an end user away from any Advertiser Page, or Referral Page; provide a version of the Advertiser Page, or Referral Page that is different from the page an end user would access by going directly to the Advertiser Page, or Referral Page; intersperse any content between the Ad and the Advertiser Page, between the page, or between the Referral Button and the Referral Page; or otherwise provide anything other than a direct link from an Ad to an Advertiser Page, or from the Referral Button to the Referral Page;
- display any Ad(s), Link(s), or Referral Button(s) on any Web page or any Web site that contains any pornographic, hate-related, violent, or illegal content;
- directly or indirectly access, launch, and/or activate Ads, Links, or Referral Buttons through or from, or otherwise incorporate the Ads, Links, or Referral Buttons in, any software application, Web site, or other means other than Your Property(ies), and then only to the extent expressly permitted by this Agreement;
- "crawl", "spider", index or in any non-transitory manner store or cache information obtained from any Ads, Links, or Referral Events, or any part, copy, or derivative thereto;
- use any advertiser trademarks, service marks, branded terms, URL, etc, in any promotional method, unless the rights-holder has given specific permission for publishers to do so;
- offer any form of reward or incentive for an end-user to do business through that publisher without fully declaring the nature of their promotional methods;
- interfere with or seek to improperly influence the referral of an end-user to the Web site of an online advertiser unless the end-user knowingly and explicitly consents to that behavior by taking an affirmative action;
- imploy methods to generate non end-user initiated impressions, clicks, or transactions. All click events must be initiated by an affirmative end-user action. Consent of software installation and acceptance of an end-user License Agreement that includes a disclosure that the software will perform click events on the end-user's behalf for the benefit of both the end-user and the publisher who owns the software, is considered an affirmative end-user action;
- utilize a service provider's technology in any manner that alters, changes, substitutes or modifies the content of another publisher's Web site;
- utilize a service provider's technology with other software, whereby the installation and de-installation is not obvious, simple or complete. Licensing and terms of all software downloads and applications of any type must be fully disclosed, clearly presented, and accepted by the end-user. Software that utilizes a service provider's technology must be clearly marked in such a manner that the end-user can identify the publisher's software with an associated behavior that occurs on the end-user's computer, and receive visible notification of such behavior;
- act in any way that violates any Program Policies posted on the Prosperent Web Site, as may be revised from time to time, or any other agreement between You and Prosperent;
- disseminate malware;
- create a new account to use the Program after Prosperent has terminated this Agreement with You as a result of your breach of this Agreement;
- engage in any action or practice that reflects poorly on Prosperent or otherwise disparages or devalues Prosperent's reputation or goodwill. You acknowledge that any attempted participation or violation of any of the foregoing is a material breach of this Agreement and that we may pursue any and all applicable legal and equitable remedies against You, including an immediate suspension of Your account or termination of this Agreement, and the pursuit of all available civil or criminal remedies.
- Confidentiality. You agree not to disclose Prosperent Confidential Information without Prosperent's prior written consent. "Prosperent Confidential Information" includes without limitation: (a) all Prosperent software, technology, programming, specifications, materials, guidelines and documentation relating to the Program; (b) click-through rates or other statistics relating to Property performance in the Program provided to You by Prosperent; and (c) any other information designated in writing by Prosperent as "Confidential" or an equivalent designation. However, You may accurately disclose the amount of Prosperent's gross payments to You pursuant to the Program. Prosperent Confidential Information does not include information that has become publicly known through no breach by You or Prosperent, or information that has been (i) independently developed without access to Prosperent Confidential Information, as evidenced in writing; (ii) rightfully received by You from a third party; or (iii) required to be disclosed by law or by a governmental authority.
- No Guarantee. Prosperent makes no guarantee regarding the level of impressions of Ads or clicks on any Ad or Referral Button, the timing of delivery of such impressions and/or clicks, the completion of Referral Events, or the amount of any payment to be made to You under this Agreement. In addition, for the avoidance of doubt, Prosperent does not guarantee the Program will be operable at all times or during any down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of Your equipment, systems or local access services, (iii) for previously scheduled maintenance or (iv) relating to events beyond Prosperent's (or its wholly owned subsidiaries') control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Prosperent (or its wholly owned subsidiaries) or Your servers are located or co-located.
- No Warranty. Prosperent makes no warranty, express or implied, including without limitation with respect to advertising, links, referrals, and other services, and expressly disclaims the warranties or conditions of noninfringement, merchantability, and fitness for any particular purpose. To the extent ads and links are based on or displayed in connection with non-Prosperent content, Prosperent shall not have any liability in connection with the display of such ads, links, and search results.
- Limitations of Liability; Force Majeure. Except for any indemnification and confidentiality obligations hereunder or your breach of any intellectual property rights and/or proprietary interests relating to the program, (i) in no event shall either party be liable under this agreement for any consequential, special, indirect, exemplary, or punitive damages whether in contract, tort or any other legal theory, even if such party has been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy and (ii) Prosperent's aggregate liability to publisher under this agreement for any claim is limited to the net amount paid by Prosperent to publisher during the three month period immediately preceding the date of the claim. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
- Publicity. You agree that Prosperent may use Your name and logo in presentations, marketing materials, customer lists, financial reports, Web site listings of customers, Search Results Pages, and Referral Pages. If You wish to use Prosperent's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features ("Brand Features"), You may do so, so long as such use is in compliance with this Agreement.
- Representations and Warranties. You represent and warrant that (a) all of the information provided by You to Prosperent to enroll in the Program is correct and current; (b) You are the owner of each Property or You are legally authorized to act on behalf of the owner of such Property(ies) for the purposes of this Agreement and the Program; (c) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (d) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Your performance of any acts hereunder. In addition, to the extent that Your Site is a media player (1) You represent and warrant that You have a valid license to use and distribute such media player (including all content therein, including without limitation any Ads or Ad Units) for the purposes of this Agreement and the Program; and (2) You shall ensure that any media player(s) that constitute the Site shall comply with the terms and conditions set forth herein. You further represent and warrant that each Property and any material displayed therein: (i) comply with all applicable laws, statutes, ordinances, and regulations; (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) are not pornographic, hate-related or otherwise violent in content.
- Your Obligation to Indemnify. You agree to indemnify, defend and hold Prosperent, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, affiliate networks, syndication partners, licensors, licensees, consultants and contractors) (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from Your use of the Program, the Property(ies), and/or Your breach of any term of this Agreement.
- Prosperent Rights. You acknowledge that Prosperent owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Program (including Prosperent's ad serving technology, referral technology, and Brand Features, including implied licenses, and excluding items licensed by Prosperent from third parties and excluding any third party media player that may comprise the Property), and that You will not acquire any right, title, or interest in or to the Program except as expressly set forth in this Agreement. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Prosperent services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Program or proprietary information related thereto. You will not remove, obscure, or alter Prosperent's copyright notice, Brand Features, or other proprietary rights notices affixed to or contained within any Prosperent services, software, or documentation (including without limitation the display of Prosperent's Brand Features with Ads, Links, and/or Referral Buttons, as applicable). "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
- Miscellaneous. This Agreement shall be governed by the laws of Colorado, except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in El Paso County, Colorado. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement must be made in a writing executed by both parties, by Your online acceptance of updated terms, or after Your continued participation in the Program after such terms have been updated by Prosperent. The failure to require performance of any provision shall not affect a party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties' intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of Your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Prosperent. Notwithstanding the foregoing, Prosperent may assign this Agreement to any affiliate at any time without notice. The relationship between Prosperent and You is not one of a legal partnership relationship, but is one of independent contractors.
Last Updated: August 05, 2010