All capitalized terms used but not defined below shall have the meanings set forth in the Refersion Standard Terms for Publishers. Advertiser may take legal action and reserves the absolute right to withhold payment to Publisher where Publisher violates any of the Program Terms set forth below, as determined by Advertiser in its sole and reasonable discretion. In addition, where Advertiser refunds any consumer for Actions generated by Publisher, Publisher shall refund any associated amounts previously paid by Advertiser to Publisher for such Actions, or Advertiser may offset same from amounts otherwise then due and owing to Publisher.
1. Services. In connection with the Action-generation services to be provided to Advertiser via the Refersion Network (“Services”), Publisher may: (a) send Advertiser Materials via e-mail (“Publisher E-mail”) to individuals in the proprietary database(s) of Publisher (collectively, “Publisher Database”); and/or (b) feature certain Advertiser Materials on websites owned and/or operated by Publisher (collectively, “Publisher Websites,” and together with the Publisher E-mail and Publisher Database, the “Publisher Media”). Publisher agrees not to broker or resell any Advertiser campaigns or Advertiser Materials to any Subpublisher, Subnetwork or any other third party.
2. Marketing Restrictions.
(a) No telemarketing scripts, copy, images, graphics, banner ads, links or processes other than the Advertiser Materials may be used by Publisher in connection with the Services. Publisher will not edit, modify, deviate from or otherwise make any changes to any Advertiser Materials in any manner, whatsoever. Without limiting the foregoing, Publisher may not include any claims related to the Advertiser products promoted by the Advertiser Materials on or in any Publisher Media including, without limitation, any claims as to the health or wellness benefits associated with the Advertiser products.
(b) Publisher may not engage in any Services via telemarketing, SMS, Smart Messaging, EMS, MMS or any other type of text messaging service or protocol.
(c) Publisher may not: (i) include or promote any Advertiser Materials by or through any blogs, news articles, third party newsgroups, message boards or other social media outlets; or (ii) use any endorsements or testimonials in connection with marketing the Advertiser Materials.
(d) Publisher shall not use ANY “incentivized marketing” or establish, or cause to be established, any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Actions, nor create the appearance of incentivized marketing or otherwise attempt to induce consumers to complete a prospective Action through use of any other incentives.
(e) Publisher may not, nor knowingly permit any person to, inflate the amount of Actions through any deceptive or misleading practice or method including, but not limited to, the use of any spyware, adware, device, program, robot, iFrames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person completing an Action registration form. In connection with the Services, Publisher may not: (i) place misleading statements in close proximity to the Advertiser Materials; (ii) take control of an end-user’s computer by delivering advertisements that the end-user cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; or (iii) install or execute on another's computer one (1) or more additional software program(s) without consent of the end-user, including spyware or other similar harmful software.
(f) Publisher may not use any Advertiser trademarks, or any “Forest Remedies” branded terms including but not limited to: “Forest Remedies,” “Forest Remedies Hemp,” “Forest Remedies Hemp CBD,” “Forest Remedies CBD,” “Forest Remedies Hemp Balm,” “Forest Remedies Soothing Balm,” “Forest Remedies Hemp CBD Balm,” Forest Remedies CBD Balm,” “Forest Remedies Hemp Soothing Balm,” “Forest Remedies Hemp CBD Soothing Balm,” “Forest Remedies CBD Soothing Balm,” “Forest Remedies CBD Oil,” “Forest Remedies Hemp Oil,” Forest Remedies Hemp CBD Oil,” “Forest Remedies Full Spectrum Hemp,” “Forest Remedies Full Spectrum Hemp CBD,” “Forest Remedies Full Spectrum CBD,” “Forest Remedies Hand Sanitizers,” “Forest Remedies Multi Omegas with Ahiflower,” “Forest Remedies Elderberry Immune with Ahiflower,” and “Forest Remedies supplements” in any manner to direct traffic to any Publisher Websites. This prohibition includes, but is not limited to, purchasing keywords from search engine service providers (“Paid Search Networks”), or purchasing inclusion in search engine networks (“Paid Inclusion Networks”), where the associated keywords include the trademark, service mark and/or brand name of Advertiser or any of the blocked terms set forth above. Without limiting the foregoing, Publisher must not violate the rules, requirements or regulations of any Paid Search Network or Paid Inclusion Network, and Publisher shall fully indemnify and hold harmless Advertiser from and against any and all liability arising in connection with such violation(s).
(g) Publisher may not use inappropriate content on, or in connection with, the Advertiser Materials, Publisher Media and/or Publisher E-mail sent/displayed to the prospective Actions including, without limitation, content that promotes or contains language referring to: (i) the use of alcohol, tobacco or illegal substances, nudity, sexually explicit material, pornography, profanity, adult-oriented content, expletives or inappropriate language; (ii) illegal or unethical activity, deceptive acts, racism, hate, material that promotes violence, "spam," mail fraud, gambling, pyramid schemes, investment opportunities or illegal advice; (iii) libelous, defamatory, infringing, false or misleading content, or other content that is contrary to public policy; (iv) content that may expose Advertiser to negative publicity; (v) piracy (of software, videos, audio/music, books, video games, etc.), hacking/cracking/phreaking, emulators/ROMs, or distribution of copyrighted materials; (vi) content that violates the rights of others, such as intellectual property or privacy rights; (vii) activities generally understood as Internet abuse including, but not limited to, the sending of unsolicited bulk electronic mail; or (viii) content that is otherwise offensive or inappropriate in Advertiser’s sole discretion.
3. E-mail Marketing Requirements. The e-mail marketing requirements set forth in this Section 3 (the “Requirements”) state the minimum standards that Publisher must adhere to in light of current laws, rules and regulations governing the transmission of e-mail and best practices in the industry. In the event that any state or federal law, rule or regulation governing e-mail communications is enacted or amended after the date that Publisher commences the Services, the more restrictive standards contained in such subsequently enacted or amended law, rule or regulation shall apply to Publisher, notwithstanding anything to the contrary contained in these Requirements. Publisher shall be responsible for ensuring that each Publisher E-mail sent hereunder is sent in accordance with all Applicable Law (as defined below) including, but not limited to, the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”) and Canada’s Anti-Spam Legislation (“CASL”). Any and all costs and/or fees charged to Publisher by its Internet Service Provider(s) related to responding to and/or managing allegations of “spam” or any other unauthorized usage complaints received from Publisher E-mail recipients, regulatory agencies or otherwise shall be borne exclusively by Publisher. Publisher shall: (a) make adequate disclosures as required by law to those in the Publisher Database regarding its e-mail and privacy and security policies; (b) respond to all complaints within three (3) business days after Publisher becomes aware of the subject complaint(s); and (c) provide Advertiser with a copy of every complaint, immediately, upon Publisher’s receipt thereof. Publisher is solely responsible for all consumer complaints in connection with the campaigns. Publisher represents and warrants that it shall: (i) not falsify e-mail header, domain or transmission information (including, without limitation, source, destination and routing information); (ii) not, unless expressly authorized by Advertiser in writing, in advance, in each instance, use brand names and/or trademarks of another party as a domain, or in the subject or from lines or body, of any Publisher E-mail; (iii) not seek or obtain unauthorized access to computers for the purpose of sending any Publisher E-mail; (iv) include within all Publisher E-mail, Publisher’s correct point-of-origin e-mail address, transmission information and routing information; (v) include within all Publisher E-mail, a toll-free telephone number or valid e-mail address at which recipient may contact Publisher to file complaints and/or opt-out; (vi) include within all Publisher E-mail a valid physical postal address; (vii) not send any Publisher E-mail to any recipients featured on industry Blocklists. For purposes hereof, “Blocklist” means any IP or URL-based listing of e-mail addresses to which marketers should never disseminate or attempt to disseminate commercial e-mail including, without limitation, Barracuda, Brightmail, CBL, NJABL, Spamcop and Spamhaus; and (viii) include within all Publisher E-mail, a functioning unsubscribe link which, when activated by user, actually and permanently removes the user’s e-mail address from the Publisher Database. If, at any time, Advertiser is identified on an industry Blacklist (as defined below) as a result of actions attributable to Publisher, then Publisher shall have no more than twenty-four (24) hours from the receipt of Blacklist notification to remedy the situation. For purposes hereof, “Blacklist” means any and all industry lists of individuals or entities identified as disseminators of spam. Publisher agrees that it is responsible for ensuring that the Publisher E-mail messages do not generate spam complaints in excess of industry norms. Advertiser shall determine, in its sole discretion, whether Publisher’s number of spam complaints is within industry norms. Publisher agrees that Advertiser’s determination shall be final, binding and conclusive for all purposes in accordance with these Program Terms. If Advertiser determines that Publisher’s number of spam complaints is in excess of industry norms, Advertiser reserves the right to immediately terminate its relationship with Publisher upon written notice (with e-mail sufficing as written notice), and Publisher shall forfeit all amounts that may otherwise be due Publisher in connection with the Services.
5. Indemnification. Publisher agrees to indemnify, defend and hold harmless Advertiser, its subsidiaries, shareholders, agents, contractors, officers, directors and employees from and against any loss, cost, claim, injury or damage (including reasonable attorney’s fees) arising out of or relating to any: (a) breach of these Program Terms by Publisher; (b) claim related to the Services, generation of Actions and/or Publisher’s marketing practices associated therewith; and/or (c) claim related to the Publisher Media.
6. Limitation of Liability. IN NO EVENT SHALL ADVERTISER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY. ADVERTISER WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THESE PROGRAM TERMS, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND ADVERTISER’S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, ADVERTISER’S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO PUBLISHER BY ADVERTISER PURSUANT TO THESE PROGRAM TERMS.
7. Audit. Publisher agrees that, at all times during the time that it is providing Services to Advertiser (“Service Term”), it shall maintain accurate books and records relating to its generation of Actions hereunder. Publisher agrees that Advertiser, or any designee of Advertiser that is legally bound to obligations of confidentiality and non-disclosure, shall have the right during the Service Term, and for three (3) months thereafter, to reasonably examine, inspect, audit and review all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to Publisher at least seven (7) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be at Advertiser’s sole cost and expense and shall be strictly limited to those books and records that specifically relate to Publisher’s generation of Actions, as well as Publisher’s compliance with Applicable Law and these Program Terms in connection therewith. Notwithstanding the foregoing, if Advertiser uncovers any material misconduct associated with Publisher’s generation of Actions hereunder, then the audit shall be at the sole cost and expense of Publisher.
8. Miscellaneous. No delay or failure by Advertiser to exercise any right under these Program Terms, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided for herein. A waiver of default shall not be a waiver of any other or subsequent default. These Program Terms shall be construed in accordance with and governed by the laws of the State of New York. In the event that any suit, action or other legal proceeding shall be instituted against either party in connection with these Program Terms, each hereby submits to the jurisdiction of either the United States District Court for the Southern District of New York or any New York State Court of competent jurisdiction, located in New York County, and further agrees to comply with all requirements necessary to give such court jurisdiction. The prevailing party in any litigation arising hereunder shall be entitled to recover from the other party all of its costs and expenses (including reasonable attorneys’ fees and court costs) incurred in connection with such litigation. No modification of these Program Terms shall be effective unless in writing and executed by an executive officer of Advertiser and Publisher. If any provision contained in these Program Terms is determined to be invalid, illegal or unenforceable in any respect under any Applicable Law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of these Program Terms will remain in full force and effect. The relationship of Advertiser and Publisher established by these Program Terms is solely that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. Neither party shall make any representation, warranty or covenant, or assume or create any obligation, on the other party’s behalf. Each party shall be solely responsible for the actions of its respective employees, agents and representatives. Publisher may not assign its rights or delegate any of its duties in connection with the Services. All section headings and captions have been inserted for convenience only and shall not affect the interpretation of these Program Terms.