TERMS AND CONDITIONS
THIS AFFILIATE AGREEMENT (the “Agreement”) is entered into as of the date last written below (the “Effective Date”) by and between Equi Digital Media, LLC (“Equi Digital Media”), an Arizona limited liability company, with offices located at 6424 E Greenway Pkwy, Scottsdale, AZ 85254, and you or your company (in either case, hereinafter “Affiliate” “you” or “your”), and governs your participation in the Equi Digital Media affiliate program. This Agreement is effective as of the date you are accepted to the program (the “Effective Date”). The parties agree as follows:
(a) “Action” means the specific event identified in the applicable Campaign, e.g. clicks, sales, leads or other actions, that generates a Commission.
(b) “Ad” means the banner, text, graphic, logo, or any other advertising format that Equi Digital Media provides to you as part of a Campaign.
(c) “Campaign” means the combination of the Ad and Ad-related information set forth in the Insertion Order.
(d) “Commission” means the amount that Equi Digital Media will pay to Affiliate for each Action.
(e) “Confidential Information” means any confidential or proprietary information, technical data, trade secrets or know-how disclosed orally or in writing by one party to the other, whether or not designated as confidential. Confidential Information does not include information which: (i) is known to the receiving party at the time of disclosure as evidenced by written records of the receiving party; (ii) has become publicly known and made generally available through no wrongful act of the receiving party; or (iii) has been rightfully received by the receiving party from a third party who is authorized to make such disclosure.
(f) “Fraud” means the direct or indirect generation of leads, queries, page impressions or clicks through automated, deceptive, fraudulent or other invalid means, including by not limited to, through manual applications or clicks, the use of robots or other automated query tools or computer generated search requests, and leads, queries, page impressions or clicks that originate from Affiliate’s or Third-Party Affiliates’ IP addresses or computers under Affiliate’s or Third-Party Affiliates’ control.
(g) “Insertion Order” means the attached Insertion Order, which sets forth the details regarding the Ads and Campaigns. If there is a conflict between the terms and conditions of this Agreement and the terms and conditions of the Insertion Order, the terms and conditions of the Insertion Order shall prevail over this Agreement.
(h) “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.
(i) “Links” means any text, icons, graphics, or symbols that upon selection or activation, link or associate to, execute, access or retrieve a Equi Digital Media website (“Equi Digital Media Websites”).
(j) “Suppression List” means the list maintained by Equi Digital Media of email recipients who have unsubscribed or opted-out from receiving commercial email communications from BMG and its affiliates.
(k) “Tracking Code” means the unique tracking URL or other mechanism Equi Digital Media provides Affiliate to track Affiliate’s Actions and to calculate Affiliate’s Commissions.
2. LICENSE & RESTRICTIONS; PROPRIETARY RIGHTS
(a) License. Equi Digital Media grants to you and to your third-party affiliates (“Third-Party Affiliates”) a revocable, non-exclusive, non-sublicensable, non-transferable, limited license to access and use the Ads, Links, Suppression List, Tracking Code and Equi Digital Media’s current and future trademarks, service marks and trade names (collectively, the “Equi Digital Media Intellectual Property”) solely in connection with your and Third-Party Affiliates’ promotion of the Campaign.
(b) Restrictions on Use. Affiliate shall not, nor shall Affiliate allow, assist, authorize or encourage Third-Party Affiliates or any other third-party to: (i) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Equi Digital Media Intellectual Property; (ii) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of the Equi Digital Media Intellectual Property; (iii) use the Equi Digital Media Intellectual Property for any purpose for which it is not designed or intended; (iv) use the Equi Digital Media Intellectual Property to create a product or service that is, directly or indirectly, competitive with or in any way a substitute for any services or product manufactured, marketed or sold by Equi Digital Media.
(c) Proprietary Rights. Equi Digital Media owns all right, title and interest, including without limitation all Intellectual Property Rights in and to the Equi Digital Media Intellectual Property. Affiliate and Third-Party Affiliates will not acquire any right, title, or interest in or to the Equi Digital Media Intellectual Property except as expressly set forth in this Agreement. Affiliate shall not, nor shall Affiliate allow, assist, authorize or encourage Third-Party Affiliates or any other third-party to, challenge Equi Digital Media’s right, title, or interest, including without limitation all Intellectual Property Rights, in and to the Equi Digital Media Intellectual Property.
Affiliate and/or Third-Party Affiliates will market the Campaign(s) in accordance with the terms and conditions of this Agreement, the Insertion Order, Campaign specifications and the Affiliate Acceptable Use Policy (“AUP”).
4. AFFILIATE’S OBLIGATIONS
(a) Ad Implementation. Affiliate shall comply, and shall cause Third-Party Affiliates to comply, with the specifications provided by Equi Digital Media to enable the delivery, display, tracking, and reporting of Ads.
(b) Legal Compliance. Affiliate shall market, and shall cause Third-Party Affiliates to market, the Campaign in compliance with the Consumer Financial Protection Act of 2010, the Federal Trade Commission Act, the Truth in Lending Act and its implementing regulation, Regulation Z, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, the Telemarketing Sales Rule, and all other applicable federal, state and local laws, rules, regulations and guidelines (“Applicable Law”).
(c) Suppression List. Affiliate shall scrub, and shall cause Third-Party Affiliates to scrub, the respective party’s email lists against the Suppression list no less than every seven (7) days. Affiliate shall not, nor shall Affiliate allow, assist, authorize or encourage Third-Party Affiliates or any other third-party, to: (i) send any commercial emails to any email addresses listed on the Suppression List; (ii) sell, lease, exchange or otherwise transfer or release the Suppression List; (iii) or use the Suppression List in any manner other than for the purposes set forth in this Agreement.
(d) Prohibited Activity. Affiliate shall not, nor shall Affiliate allow, assist, authorize or encourage Third-Party Affiliates or any other third-party to: (i) directly or indirectly engage in Fraud; (ii) direct any traffic from states where prohibited; (iii) alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Tracking Code or any other tags, source codes, links, pixels, modules or other data provided by or obtained from Equi Digital Media that allows Equi Digital Media to measure ad performance; (iv) edit or modify the information contained in any Ad or remove, obscure or minimize any Ad in any way; (v) frame, minimize, remove or otherwise inhibit the full and complete display of any Equi Digital Media Website accessed by an end user after clicking on any part of an Ad and/or a Link; (vi) redirect an end user away from any Equi Digital Media Website or provide a version of a Equi Digital Media Website that is different from the page an end user would access by going directly to the Equi Digital Media Website; (vii) intersperse any content between the Ad and the Equi Digital Media Website or otherwise provide anything other than a direct link from an Ad to a Equi Digital Media Website; (iix) "crawl", "spider", index or in any non-transitory manner store or cache information obtained from any Ads or any part, copy, or derivative thereto; (ix) engage in any action or practice that reflects poorly on Equi Digital Media or otherwise disparages or devalues Equi Digital Media’s reputation or goodwill; or (x) make any public announcement concerning this Agreement or Affiliate’s Commissions hereunder, without the express written consent of Equi Digital Media.
5. PAYMENT; TRACKING; AUDITS
(a) Payment; Schedule. Equi Digital Media will pay Affiliate a Commission for each Action (“Payment”). Unless otherwise agreed to by the parties in writing, within thirty (30) days following the end of each calendar month, Equi Digital Media shall pay to Affiliate the total Payment due and payable in respect of that month. All Payments will be paid in US dollars ($US). If the Payment owed to Affiliate for any one month period is less than $100.00, Equi Digital Media will hold Payment until the total amount due is at least $100.00. To ensure proper payment, you are responsible for providing and maintaining accurate address and other contact information as well as payment information associated with your account.
(b) Payment Restrictions; Payment Withholding. Equi Digital Media will not be liable for any Payment that results from Fraud. If Equi Digital Media determines that Fraud has occurred, Equi Digital Media may withhold Payment attributable to Fraud, or, if Payment attributable to Fraud has already been made to Affiliate, chargeback the amount attributable to Fraud from Affiliate’s account.
(c) Taxes. Affiliate will pay all applicable taxes or charges imposed by any government entity in connection with Affiliate’s promotion of the Campaign.
(d) Tracking; Disputes. Equi Digital Media will provide Affiliate with tracking and reporting tools and support services. Real-time tracking and reporting may not be available for all Campaigns. Tracking and reporting may be delayed or prevented by reasons or causes beyond the control of Equi Digital Media. Payment will be calculated only by the tracking and reporting records generated and maintained by Equi Digital Media. Equi Digital Media will not accept any other measurements or statistics, nor will any other measurements or statistics have any effect under this Agreement. If Affiliate disputes any Payment made under this Agreement, Affiliate must notify Equi Digital Media in writing within seven (7) days of any such Payment; failure to so notify Equi Digital Media will result in the waiver by Affiliate of any claim relating to any such disputed Payment. Upon receipt by Equi Digital Media of a dispute notice, the parties shall work together to resolve such dispute.
(e) Negative Accounts Balances. From time to time, Affiliate may have a negative account balance because Affiliate’s account has been charged back (as set forth herein) and Affiliate’s account balance is not sufficient to cover the charge back amounts. If Affiliate has a negative account balance, Affiliate shall immediately remit payment to Equi Digital Media in an amount sufficient to bring Affiliate’s account balance to zero. Negative account balances are subject to 1.5% interest per month, or the highest amount allowed by law, whichever is higher, compounded monthly.
(f) Audit Rights. Upon twenty (20) days' written notice and not more than one (1) time per calendar year, Affiliate may examine Equi Digital Media’s books and records related to the calculation or payment of Commissions owed by Equi Digital Media to Affiliate under this Agreement, at Affiliate’s own expense, using Affiliate's internal auditor, internal staff, or its certified public accounting firm. If any such examination uncovers an underpayment by Equi Digital Media in excess of 5%, then Equi Digital Media will be liable for the full costs of such audit. Equi Digital Media shall reasonably cooperate with Affiliate during the performance of any such examination.
6. DATA OWNERSHIP
All information provided by an end user or an end user’s computer or other device via a Tracking Code or in response to an Ad or request for information by Equi Digital Media (“End User Data”), and any reports, results, information, ideas, concepts, know-how or techniques created, compiled, analyzed or derived by Equi Digital Media from End User Data, are the sole and exclusive property of Equi Digital Media. End User Data shall be treated as Confidential Information. Equi Digital Media may use, market, and re-market any End User Data without further obligation to Affiliate. Affiliate shall not, nor shall Affiliate allow, assist, authorize or encourage Third-Party Affiliates or any other third-party to, use, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, End User Data, or any portion thereof, to any third-party.
(a) Non-disclosure & Non-use of Confidential Information.
Each party (the “Receiving Party”) shall not disclose, publish, or disseminate the Confidential Information of the other party (the “Disclosing Party”) to anyone other than the Receiving Party’s employees and independent contractors who need to know the Confidential Information. Except as necessary to fulfill the Receiving Party’s obligations under this Agreement, the Receiving Party shall not use the Disclosing Party’s Confidential Information in any way, including, without limitation, for the Receiving Party’s own or any third party’s benefit. The Receiving Party shall take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of the Disclosing Party’s Confidential Information.
(b) Rights and Remedies upon Breach
The Receiving Party acknowledges that unauthorized disclosure or use of the Disclosing Party’s Confidential Information will cause irreparable harm to the Disclosing Party for which recovery of money damages would be inadequate, and that the Disclosing Party will therefore be entitled to seek timely injunctive relief, without the posting of bond or other security, to protect its rights under this Agreement, in addition to any and all remedies available at law.
8. CAMPAIGN SUSPENSION; TERM & TERMINATION
(a) Campaign Suspension or Termination. Equi Digital Media may immediately suspend or terminate a Campaign, or Affiliate’s or Third-Party Affiliates’ promotion of a Campaign, for any reason by providing Affiliate notice of its intention to do so in accordance with this Agreement.
(b) Term; Termination. This Agreement will begin on the Effective Date and continue in unless terminated as set forth in this Agreement. Either party may terminate this Agreement and its rights hereunder for any reason by providing to the other party 15 days’ written notice of its intention to do so in accordance with this Agreement.
(c) Effect of Termination. Upon termination of this Agreement: (i) Equi Digital Media shall pay Affiliate’s outstanding earned balance, if any, within ninety (90) days of termination; (ii) Affiliate shall pay Affiliate’s outstanding debt balance, if any, within thirty (30) days of termination; (iii) all rights, licenses and obligations (excluding outstanding payment obligations) will automatically terminate; and (iv) Affiliate shall immediately cease, and shall cause Third-Party Affiliates to immediately cease, all use of the Equi Digital Media Intellectual Property, Suppression List, and Equi Digital Media Confidential Information.
9. DISCLAIMER OF WARRANTIES
NEITHER PARTY MAKES ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
10. LIMITATION OF LIABILITY
EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 AND BREACHES OF CONFIDENTIALITY UNDER SECTION 7, EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) WILL BE LIMITED TO THE TOTAL AMOUNTS PAID OR PAYABLE TO Equi Digital Media UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR INCIDENTS GIVING RISE TO SUCH LIABILITY.
(a) Third-Party Claims. Each party (the “Indemnitor”) shall indemnify and hold harmless the other party, as well as the other party’s officers, directors, members, employees and agents (collectively, the “Indemnified Parties”), from and against any and all losses, liabilities, obligations, damages, actions, suits, proceedings, claims, demands, assessments, judgments, costs, penalties and expenses, including reasonable attorneys’ fees and disbursements, incurred by, borne by or asserted by a third-party against any of the Indemnified Parties in any way relating to, arising out of or resulting from the Indemnitor’s actual or alleged: (1) gross negligence; (2) fraud; (3) willful misconduct; or (4) violation of Applicable Law.
(b) Notice and Defense. The Indemnified Parties shall promptly notify the Indemnitor in writing of any claim, demand or suit for which the Indemnified Parties may claim indemnity within ten (10) business days that the pleading, demand letter, or other notice is served upon Indemnified Parties, and shall cooperate in a reasonable manner with Indemnitor, at the Indemnitor’s expense, with respect to the defense and disposition of such claim, demand or suit. Indemnitor will have control of the defense or settlement, on the conditions that: (1) the Indemnitor shall not enter into any settlement that obligates the Indemnified Parties to take any action or incur any expense without such Indemnified Parties’ prior written consent; and (2) the Indemnified Parties will have the right to be represented by independent counsel of their own choosing, at their own expense, in connection with such claim, demand or suit. If the Indemnitor fails to defend such claim, demand or suit, then the Indemnified Parties, through counsel of their own choice, may, at the expense of the Indemnitor, conduct the defense of such claim, demand or suit, on the condition that the Indemnified Parties will not enter into any settlement that obligates the Indemnitor take any action or incur any expense without the Indemnitor’s prior consent, which cannot be unreasonably withheld.
(c) Survival. Each party’s indemnification obligations under this Section (“Indemnification”) will survive for the applicable statutes of limitation, as they may be tolled or extended by agreement or by operation of law.
13. DISCLOSURE OF AFFILIATE INFORMATION
Equi Digital Media’s may disclose your information or Third-Party Affiliates’’ information in response to a subpoena or similar investigative demand, a court order, or a request for cooperation from law enforcement or other government agency; to establish or exercise our legal rights; to defend against legal claims; or as otherwise required by law.
(a) Severability. If any provision of this Agreement is unenforceable to any extent, the remainder of this Agreement, or application of that provision to any persons or circumstances other than those as to which it is held unenforceable, will not be affected by that unenforceability and will be enforceable to the fullest extent permitted by law.
(b) Modification; Waiver. No amendment to this Agreement will be effective unless it is in writing and signed by the parties. No waiver of satisfaction of a condition or nonperformance of an obligation under this Agreement will be effective unless it is in writing and signed by the party granting the waiver, and no such waiver will constitute a waiver of satisfaction of any other condition or nonperformance of any other obligation.
(c) Assignment. Except in connection with a merger, acquisition, or sale of all or substantially all of a party’s assets related to this Agreement, neither party may assign this Agreement and its rights and obligations hereunder without the prior written consent of the other party, and any attempted assignment in contravention of this provision shall be null and void and of no force or effect.
(d) Entire Agreement. This Agreement constitutes the entire agreement of the parties relating to the subject matter of this Agreement and supersedes all other oral or written agreements or policies relating thereto.
(e) Headings. The headings contained in this Agreement are inserted as a matter of convenience and for ease of reference only and shall be disregarded for all other purposes, including the construction or enforcement of this Agreement or any of its provisions.
(f) Relationship. The parties are independent contractors and nothing in this Agreement should be construed to constitute the parties as partners, joint ventures, agent and principal or employer and employee. Nothing herein will give either party any right or authority to bind the other, and neither party shall bind the other to any obligation to any third party.
(g) Notices. All notices under this Agreement will be in writing and will be delivered by personal service, confirmed fax, confirmed e-mail, express courier, or certified mail, return receipt requested, to: (i) Equi Digital Media at 6424 E Greenway Pkwy, Scottsdale, AZ 85254; Fax: 1 800 409 0792; Email: Legal@equidigitalmedia.com; or (ii) Affiliate as set forth in the Insertion Order. Notice will be effective upon receipt.
(h) Construction. The parties have had the opportunity to seek the advice of independent legal counsel and have read and understood all of the terms and conditions of this Agreement. This Agreement will not be construed against either party by reason of its drafting.
(i) Counterparts. The parties may sign this Agreement in several counterparts, each of which will be deemed an original but all of which together will constitute one instrument.
(j) Governing Law. This Agreement will be governed and construed in accordance with the laws of Arizona, excluding Arizona's choice-of-law principles, and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, will be governed by the laws of Arizona, excluding Arizona's choice-of-law principles.
(k) Arbitration. The parties shall settle any dispute arising out of the Agreement by arbitration in Phoenix, Arizona, in accordance with the applicable rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrator’s award in any court having jurisdiction.
AFFILIATE ACCEPTABLE USE POLICY
This AFFILIATE ACCEPTABLE USE POLICY (“AUP”) is intended to help you and Third-Party Affiliates to understand the types of websites, email marketing and affiliate conduct that that Equi Digital Media believes to be appropriate or inappropriate. In addition to the AUP, all websites, email marketing and advertising conduct must comply with the Affiliate Agreement and Insertion Order executed between Equi Digital Media and you. If there is any inconsistency between this AUP and the Affiliate Agreement and/or Insertion Order, the Affiliate Agreement or Insertion Order will control. All capitalized terms not defined in this AUP shall have the meaning ascribed to them in the Affiliate Agreement. This AUP is intended as a guideline, and not as an exhaustive list of content and conduct that Equi Digital Media finds appropriate or inappropriate. Equi Digital Media MAY CHANGE THIS AUP AT ANY TIME UPON NOTICE TO YOU.
1. WEBSITE REQUIREMENTS
Any and all websites used to market Campaigns must:
- Be fully functional at all levels, with no “under construction” sites or sections;
- Be represented by a legitimate second-level domain name (e.g. Equi Digital Media) and not a sub-domain or third-level domain (e.g. example.Equi Digital Media or Equi Digital Media/example);
- Be content-based and not simply a “parked” page or list of links or advertisements;
- Close when instructed, i.e. when a user seeks to close or otherwise leave the website or newsletter, the website or newsletter must close down and no other behavior should result;
- Not “mouse trap,” i.e. whereby the website or newsletter does not permit the use of the browser back-button and thereby traps the user on the website, or whereby the website presents other unexpected behavior, such as re-directing to another advertisement or landing page; and
- Not contain automatic audio that plays without user instigation.
3. PROHIBITED CONTENT AND CONDUCT
Prohibited content and conduct includes, without limitation, content and/or conduct that:
- Infringes the rights, including without limitation the copyright, patent, trademark, trade secret or other proprietary rights, of any third party;
- Is false misleading, fraudulent or deceptive;
- Is libelous or defamatory, or violates the privacy or publicity rights of any third party;
- Contains, facilitates or markets “spam” or other advertising or marketing content that violates applicable laws, regulations or industry standards;
- Consists of or contains viruses, Trojan horses, worms, malicious code or other harmful or destructive content;
- Is obscene, lewd, lascivious, filthy or pornographic, that may constitute child pornography, or that may solicit personal information from anyone under the age of 18;
- Depicts excessive violence, contains comments or images that are offensive, abusive, threatening, harassing or menacing, or that incites, encourages or threatens physical harm against another;
- Promotes or glorifies racial or religious intolerance, uses hate and/or racist terms, or signifies hate towards any person or group of people;
- Advocates the violent overthrow of the government of the United States or other conduct that could constitute fraud or other criminal offense, gives rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation;
- Glamorizes the use of hard core illegal substances and drugs;
- Advertises: (i) tobacco products, (ii) ammunition, firearms, paintball guns, bb guns, or weapons of any kind, (iii) gambling, including without limitation, any online casino, sports books, bingo, or poker website, (iv) contests and sweepstakes, (v) get rich quick or other money making opportunities that offer compensation or financial reward in exchange for little or no investment, (vi) adult friend finders or dating sites with a sexual emphasis, (vii) adult toys, videos or other adult products, (viii) uncertified pharmaceutical products, (ix) spy cams or other illegal surveillance products, and (x) web-based, non-accredited colleges that offer degrees;
- Promotes pyramid schemes or chain letters;
- Promotes software pirating (e.g. Warez), phreaking or hacking;
- Promotes or exploits religious, political or other inflammatory issues for commercial use;
- Depicts a health condition in a derogatory or inflammatory way or misrepresents a health condition in any way;
- Offers incentives (e.g. cash, points, prizes, contest entries, etc.) to viewers for clicking on the advertisement, for submitting personally identifiable information, or for performing any other tasks;
4. MESSAGE BOARDS, CLASSIFIEDS, SOCIAL NETWORKS
Campaigns must not be marketed via any internal communication system, chat room, message board, or classified listing of any third-party website, including without limitation, Facebook.com, CraigsList.com, MySpace.com and Twitter. The following types of activity are strictly prohibited:
- Posting Campaign advertising or links in public forums or message boards;
- Placing Campaign advertising or links in forum signatures;
- Posting Campaign advertising or links in private messages or “wall” posts;
- Placing Campaign advertising or links in online marketplace classified listings;
- Harvesting or otherwise collecting email addresses or information from social network websites and online marketplace classified listings and thereafter sending promotional emails containing Campaign advertising or links to those email addresses.
5. FALSE AND MISLEADING ADVERTISING; FTC COMPLIANCE
In connection with the promotion of Campaigns, you shall not, nor shall you allow, assist, authorize or encourage Third-Party Affiliates to:
- Mislead consumers with false or misleading language or claims;
- Promote content, products or services not actually offered by the advertiser of a Campaign;
- Use false claims, testimonials, endorsements or any similar content;
- Use fake or misleading blogs (‘flogs”), news sites or any similar content;
- Use photos, quotes, logos/seals, copyrighted material or trademarks of any third-party, including without limitation, celebrities or business entities, without the express written consent of such third-party; or
- Advertise a discount, trial or free offer without clearly and conspicuously displaying the terms of the offer, future costs, recurring billing, etc., if any.
Further, if you or Third-Party Affiliates publicly endorse any product or service that is the subject of a Campaign, you or Third-Party Affiliates shall disclose clearly and conspicuously, and in close proximity to the endorsement, that you or the Third-Party Affiliates receive compensation in the form of affiliate commissions in exchange for such endorsement.
6. EMAIL PRACTICES
Email used to market Campaigns must not be transmitted:
- With materially false or misleading header information;
- With a “from line” that is materially false or misleading and does not accurately identify the person sending the email;
- With a “subject line” that is misleading, false or misrepresentative or is likely to mislead the recipient about the content of the email;
- Without functioning return email or Internet address, clearly and conspicuously displayed, that functions for thirty (30) days after the email is sent, that a recipient can use to submit a reply email requesting not to receive future commercial emails or Internet communications from the sender;
- Without a clear and conspicuous identification that the email is an advertisement or solicitation, a clear and conspicuous notice of the opportunity to decline to receive further communications, and a valid physical postal address of the you and/or the advertiser; or
- With any content that infringes or violates any applicable law or regulation or any intellectual, proprietary or privacy rights, or is misrepresentative, defamatory, inflammatory, offensive or otherwise objectionable.
- From a domain name with WHOIS registration information that is privacy protected, concealed or false;
- From an email address or domain name that was generated by automated means;
- To an email address that was obtained using an automated means, including without limitation, harvesting software, such as harvesting bots or harvesters, dictionary attacks, etc.;
- To any individual that has requested not to receive any emails more than ten (10) days after receipt of such request.
7. MOBILE MARKETING PRACTICES; TCPA COMPLIANCE
Short Message Service (“SMS”) or text messages (“texts”) are prohibited and must not be used by you or your Third-Party Affiliates to market Campaigns.
The Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et. seq., (the “TCPA”) and TCPA regulations, 47 C.F.R. § 64.1200, prohibit all persons from transmitting, or causing to be transmitted, any texts:
- without the prior express consent of the receiving party to receive texts specifically from the sender;
- using “blast texting” or any other automated system;
- to any telephone number assigned to a cellular telephone service, specialized mobile radio service, paging service, or other radio common carrier service, or any service for which the receiving party is charged for the text.
The same federal laws prohibit all persons from transmitting, or causing to be transmitted, any texts:
- before 8 a.m. or after 9 p.m. local time
- to any phone number on relevant suppression lists populated either by specific requests for opt-outs or the national Do Not Call registry.
You and your Third-Party Affiliates will comply with these legal requirements by refraining from sending any text messages whatsoever.
To the degree Equi Digital Media controls the means and manner of your Campaign, Equi Digital Media expressly prohibits you and your Third-Party Affiliates from sending any text messages on Equi Digital Media’s behalf or on behalf of advertisers. Equi Digital Media will suspend or terminate payment to you upon any reasonable evidence that you or your Third-party Affiliates are sending any texts.
8. FRAUDULENT ACTIVITY
The following activity is considered fraudulent and is strictly prohibited:
- The use of false data, credit/debit card numbers or other financial information on any signup form, contract, online application or registration;
- The use of unauthorized data, credit/debit card numbers or other financial information in the name of third parties on any signup form, contract, online application or registration;
- The manipulation of tracking pixels, codes, links or other tracking information to stimulate leads or inflate commissions;
- The use of “cookie stuffing,” “cookie dropping,” “forced clicks,” or “cookie sprinkling;”
- The artificial inflations of leads or transactions via any device, program, robot, computer script or other automated method;
- The generation of clicks that do not map to a conscious action by an individual, including but not limited to: (i) repeat manual clicks; (ii) the use of robots or other automatic means to generate clicks; and (iii) faking tracking information to stimulate links.