Effective Date: February 3, 2021
THESE TERMS CONTAIN ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT, AMONG OTHER THINGS, WAIVE YOUR RIGHT TO A COURT HEARING AND JURY TRIAL. Arbitration is mandatory and is the exclusive remedy for any and all disputes unless specified below in the section labeled “Arbitration and Class Waiver” or if you opt-out. Please carefully review the dispute resolution provisions in “Arbitration and Class Waiver” below which also describes your right to opt-out.
WEBSITE USE AND CONTENT
The Site contains copyrighted material, trademarks, and other proprietary information, including text, software, photos, graphics, and other similar content owned or licensed to Verified Coupons. The entire contents of the Site are copyrighted as a collective work under United States copyright laws, and we own the copyright in the selection, coordination, arrangement, and enhancement of such content. Without limiting the generality of the foregoing, the Site is protected by copyright, trademark, trade secret, and other intellectual property or proprietary rights laws. All trademarks appearing on the Site are the exclusive property of their respective owners, including Verified Coupons and/or its affiliated companies.
Coupons and offers will vary based on availability and change often. We will make our best attempt to ensure that codes and coupons are up to date, but we cannot guarantee that you will receive any of the coupons or offers listed on the Site, that all or any of the coupons or offers on the Site will be available at all times, or that the coupons or offers are accurate. Verified Coupons disclaims any and all liability for the coupons and offers listed on the Site, including your use of or inability to access or use a coupon or offer. You agree to comply with the terms and conditions associated with any coupon or offer if any.
Verified Coupons works with several partners to provide coupon codes to you so that you may purchase items at a discounted rate from unaffiliated and/or affiliated third parties. Thus, certain content, links, and services available via our Site may include materials from third parties. Third-party links on the Site may direct you to third-party websites over which we have no control. These links are provided for your convenience only. This includes links contained in advertisements, coupon codes, or sponsored links. Verified Coupons has not reviewed these websites and is not responsible for the accuracy, content, privacy policies, or availability of information found on any website that links to or from our Site.
While Verified Coupons may receive a commission, fee, or other similar compensation for clicks or purchases made through third-party links, you acknowledge and agree that Verified Coupons is not responsible for examining or evaluating the content or accuracy of any third-party websites and that Verified Coupons does have any liability or responsibility for any third-party materials or websites, or for any materials, products, or services of such third parties. As such, Verified Coupons is not liable, directly or indirectly, for any harm, loss, or damages caused or alleged to be caused by the purchase or use of the goods, services, resources, content, or any other transactions made in connection with any third-party websites. Verified Coupons is not the seller of any products purchased from the third-party links, and any complaints, claims, concerns, or questions regarding the products should be directed to the applicable third-party. Please review the third-party’s terms and conditions, policies, and practices before you engage in any transaction. If you decide to access any third party’s website, you acknowledge that you do so at your own risk.
RULES OF CONDUCT
You acknowledge and agree to abide by the following Rules of Conduct:
- You may never use, or allow or enable others to use, the Site to:
- Violate any applicable federal or state laws, rules, or regulations;
- Violate the rights of Verified Coupons or the rights of any other person or enterprise;
- Transmit or engage in conduct that could be considered libelous, defamatory, obscene, sexually explicit, racially or ethnically offensive, harmful, harassing, intimidating, threatening, hateful, discriminatory, or abusive;
- Impersonate or indicate an affiliation with, or attempt to do any of the same regarding, Verified Coupons, Verified Coupons’ employees or any other person or enterprise, including, without limitation, other users of the Site;
- Post or use malicious or unauthorized code, viruses, bots, or other potentially harmful materials to the Site in a way that may interrupt, damage, interfere with, destroy, or limit the functionality of any computer software;
- Create a competitive online service, solicit goods and services, or use the Site for any commercial purpose;
- You may not violate or attempt to violate any security features of the Site;
- You may not modify, publish, transmit, display, participate in the transfer or sale, create derivative works, or in any other way exploit the content of the Site or any portion of it;
- You may not attempt to modify, reverse engineer, decompile, disassemble, or otherwise reduce or attempt to reduce any of the source code used in providing the Site;
- You may not attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Site or otherwise violate or attempt to violate any security features of the site or otherwise attempt to interfere with the proper working of the Site.
FEEDBACK AND SUBMISSIONS
You may provide Verified Coupons with suggestions, ideas, questions, comments or feedback (collectively, “feedback”) from time to time regarding the Site and Verified Coupons welcomes any such feedback. By providing such feedback, you represent and warrant that the feedback does not infringe or violate the intellectual property rights of any third party and that you have all rights necessary to share such feedback and enable Verified Coupons to use the feedback. You grant Verified Coupons a non-exclusive, royalty-free, and transferable right and license to reproduce, adopt, publish, transmit, distribute, or use the feedback.
The Indemnified Parties have the right, at any time, to assume the exclusive defense and control of any Claims, and you agree to cooperate with the Indemnified Parties in any such defense.
THIS SITE (INCLUDING ALL CONTENT THEREIN AND ANY PORTION THEREOF) IS MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, OR COMPLETENESS OF ANY INFORMATION ON THIS WEBSITE. WE DO NOT REPRESENT OR WARRANT, AND EXPRESSLY DISCLAIM THAT ALL OR ANY PART OF THE SITE WILL BE AVAILABLE FOR USE, UNINTERRUPTED, PERFORM AS DESCRIBES, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR THE SERVERS THAT MAKE THE SITE ARE VIRUS-FREE OR FREE OF OTHER HARMFUL COMPONENTS, OR THAT THE SITE IS ACCURATE, TIMELY, COMPLETE OR ERROR FREE, THAT THE SITE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. WE ARE NOT LIABLE OR RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, EVEN IF SUCH OCCURS DUE TO MALICIOUS OR UNAUTHORIZED CODE. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOU HAVE THE APPROPRIATE MECHANISMS TO PROTECT AND SECURE YOUR EQUIPMENT AS YOU ARE ASSUMING ALL RISK OF LOSS OR DAMAGE THAT MAY ARISE OR BE ASSOCIATED WITH THE USE OF THE SITE. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THIRD-PARTY RESOURCES OR LINKS, OR THE USE OF THE MATERIALS ON THE SITE IN TERMS OF THEIR CORRECTNESS, ACCURATENESS, AVAILABILITY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE.
LIMITATIONS OF LIABILITIES
VERIFIED COUPONS’ LIABILITY TO YOU IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. IF YOU ARE LOCATED IN A JURISDICTION THAT PROHIBITS THESE LIMITATIONS OR MAKES THESE LIMITATIONS INAPPLICABLE, VERIFIED COUPONS IS ENTITLED TO THE MAXIMUM LIMITATIONS AND EXCLUSIONS PERMITTED. HOWEVER, IN NO EVENT SHALL VERIFIED COUPONS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT OR TORT, EXCEED ONE HUNDRED USD ($100.00).
ARBITRATION AND CLASS WAIVER
In the event of any dispute or controversy, you agree to first contact us at [email protected] to attempt to resolve the dispute or controversy in an informal manner. Any claim arising out of or related to the use of the Site that cannot be resolved through an informal process shall be governed as described below.
PLEASE READ THE BELOW ARBITRATION AND CLASS WAIVER DETAILS CAREFULLY AS IT REQUIRES YOU TO ARBITRATE DISPUTES WITH VERIFIED COUPONS AND LIMITS THE MANNER IN WHICH YOU MAY SEEK RELIEF FROM US.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY.
- ARBITRATION GENERALLY
Arbitration is a manner of resolving any disputes or controversies without filing a lawsuit. In the event any dispute between you and Verified Coupons cannot be resolved informally within ninety (90) days, such dispute shall be settled by binding confidential arbitration administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules, and the judgment on the award shall be binding any may be entered in any court having jurisdiction thereof.
Verified Coupons agrees to such final and binding arbitration and likewise you agree to final and binding arbitration for any disputes that cannot be resolved informally. By agreeing to arbitrate, you are waiving your right to file a lawsuit in court and instead will be submitting your dispute to final and binding confidential arbitration. The arbitration shall have exclusive authority to resolve all disputes and shall grant relief as a court would. This arbitration provision is governed by the rules of the Federal Arbitration Act (the “FAA”), 9 U.S.C §§, 1-16 as amended.
- COMMENCING ARBITRATION
Each party agrees to commence any arbitration within one (1) year after the Claim arises, including any pre-dispute communications. Any Claim commenced after the one (1) year period shall be forever barred.
Either party may commence the arbitration process by submitting a written demand for arbitration with the AAA and providing a copy to the other party. Arbitration that is commenced shall be submitted to the final and binding confidential arbitration before a single arbitrator of the AAA. The arbitrator shall be selected by agreement of the parties, or if the parties cannot agree, in accordance with the Rules of the AAA. The AAA’s Rules are available for access at www.adr.org or by calling 1-800-778-7879. The arbitrator shall have the exclusive and sole authority to determine whether a dispute is arbitrable. Arbitration shall be conducted in San Diego, California, unless otherwise agreed to by the parties.
Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s Rules.
Verified Coupons reserves the right to amend this arbitration provision at any time. Your continued use of the Site shall be affirmation of your consent to such changes.
- OPT-OUT PROCEDURE
You may opt-out of this arbitration provision, class action waiver, and jury trial waiver by providing written notice to Verified Coupons. If you decide to opt-out, you understand that neither you nor Verified Coupons can require the other to participate in an arbitration proceeding. The written notice of your desire to opt-out must be provided within thirty (30) days from the date which you first accessed this Site to the following address:
315 S. Coast Highway 101 #528, Encinitas, CA 92024
GOVERNING LAW AND VENUE
NOTICE AND TAKE-DOWN PROCEDURES
If you have a good faith belief that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you can submit a Notice of Claimed Infringement to Verified Coupons by providing the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
- A description or identification of the copyrighted work or other intellectual property that you claim has been infringed;
- A description or identification of where the material you claim is infringing is located on the Site, with enough detail that Verified Coupons may find it on the Site (preferably a web URL), along with the location where the original or authorized copy of the copyrighted work exists.
- Your contact information, including your address, telephone number, and email address, that is reasonably sufficient to permit us to contact you;
- A statement by you that you have a good faith belief that the use of the material complained of is not authorized by the copyright owner or intellectual property owner, its agent, or the law; and
- A statement of you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Our agent designated to receive claims of copyright or other intellectual property infringement may be contacted only by both email and U.S. Mail at:
315 S. Coast Highway 101 #528, Encinitas, CA 92024
ENTIRE AGREEMENT AND MODIFICATIONS
1. Verified Coupons Affiliate Network/Services. Advertiser agrees to accept and pay for, and Verified Coupons Affiliate Network agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, Verified Coupons Affiliate Network shall undertake marketing campaigns with Advertiser (each an “Ad Campaign”) whereby Verified Coupons Affiliate Network will distribute Advertiser’s proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and similar online media (collectively, “Advertiser Ads”) and/or, where applicable, Verified Coupons Affiliate Network Ads (as defined below) through the Verified Coupons Affiliate Network either:
On Publisher websites via the Verified Coupons Affiliate Network Ad Server for impressions-based Ad Campaigns (“CPM”); or
By Affiliates via e-mail-based marketing, search engine marketing, website-based marketing and/or other online marketing means. In connection with such Ad Campaigns, Advertiser shall pay Verified Coupons Affiliate Network commissions depending on the number of valid clicks, impressions, sales/actions (“CPA”), applications and leads (“Leads”), and/or such other compensable activities generated on behalf of Advertiser as set forth in the subject AMP (collectively, “Actions”). The applicable Actions, the fees due to Verified Coupons Affiliate Network for each Action and other applicable terms and conditions of the Ad Campaigns entered into hereunder shall be specified in each AMP. Verified Coupons Affiliate Network shall not be held liable or responsible for any actions or inactions of its Publishers or Affiliates.
2. Account. Upon the execution of the Agreement, Advertiser must register on the Verified Coupons Affiliate Network website and create a unique, password-protected account (“Account”). Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsibility for any and all actions taken under Advertiser’s Account, whether authorized by Advertiser or not. Advertiser must immediately notify Verified Coupons Affiliate Network of any unauthorized use of Advertiser’s Account. Advertiser is responsible for keeping its Account information current, complete and accurate, and Advertiser acknowledges and agrees that Verified Coupons Affiliate Network will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.
3. Ads. Advertiser shall develop all aspects of the Advertiser Ads, other than where the parties agree that Verified Coupons Affiliate Network shall assist in the development of Ads. The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Ads; other than those portions that Verified Coupons Affiliate Network prepares on Advertiser’s behalf (such portions hereinafter referred to as, the “Verified Coupons Affiliate Network Ads” and together with the Advertiser Ads, the “Ads”). The parties understand and agree that Verified Coupons Affiliate Network is the sole owner of any and all intellectual property rights associated with the Verified Coupons Affiliate Network Ads, other than Advertiser’s trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the Verified Coupons Affiliate Network Ads. Under no circumstances shall Verified Coupons Affiliate Network be authorized to use the Ads other than in connection with Advertiser’s Ad Campaigns as set forth in the AMP(s). Advertiser shall submit all Advertiser Ads to Verified Coupons Affiliate Network for approval prior to the commencement of the subject Ad Campaign set forth in the applicable AMP. Advertiser shall not alter, modify or otherwise change the Ads, or any other Ads-related feature, in any manner whatsoever, without obtaining Verified Coupons Affiliate Network’s prior express written consent, after the applicable Ad has been approved by Verified Coupons Affiliate Network. Notwithstanding the foregoing, Verified Coupons Affiliate Network shall have sole discretion with respect to the creation of the “subject” and “from” lines used in its e-mailing of any Ads. Verified Coupons Affiliate Network reserves the right, in its sole discretion and without liability, to: change any of its Ad Guidelines at any time; and to reject, omit, exclude or terminate any Ad for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad was previously acknowledged, accepted or published by Verified Coupons Affiliate Network. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where Verified Coupons Affiliate Network deems, in its sole discretion, that the Ads, including the applicable products and/or services promoted by such Ads (“Advertiser Products”), and any website linked to from such Ads, are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon Verified Coupons Affiliate Network or any of its Publishers and/or Affiliates. Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and Verified Coupons Affiliate Network shall, subject to the provisions set forth herein, comply with such request as soon as practical but in no event later than three (3) business days after its receipt thereof. Advertiser may cancel or suspend a CPM-based Ad Campaign, or an Ad associated with such a CPM-based Ad Campaign, effective within approximately twenty-four (24) business hours of Verified Coupons Affiliate Network’s receipt of Advertiser’s cancellation notice, which Advertiser can deliver by logging into its Account and following the instructions on the applicable menu.
4. Intellectual Property and Use.
Grant of License to Verified Coupons Intellectual Property. Except as expressly licensed or assigned in this Agreement, Verified Coupons retains all right, title and interest in (including but not limited to all confidentiality, copyright, trade secret, and patent rights) to the “Verified Coupons Intellectual Property”, and any and all upgrades, enhancements, modifications or derivative works of any of the foregoing. “Verified Coupons Intellectual Property” means all information or data (but not any Customer User Data or Confidential Information of Customer) relating to products, services or technology of Verified Coupons including but not limited to software code, algorithms or technology owned or developed by or for Verified Coupons.
Right to Use Third-Party Providers’ Intellectual Property. Verified Coupons licenses certain intellectual property and the rights from Third-Party Providers (including links to third-party licensed intellectual property). Advertiser is responsible for evaluating whether to access or use such intellectual property and agrees to be bound by any applicable “terms and conditions” related to such intellectual property in this Agreement.
Non-Infringement. Advertiser agrees it will not copy, reproduce, distribute, transmit, broadcast, modify, display, sell, license or otherwise exploit Verified Coupons’s Intellectual Property or the Third-Party Providers’ intellectual property, except in strict compliance with the rights, if any, granted to Customer by the Agreement. Verified Coupons will terminate the account of any Advertiser, and block access of any user, who infringes upon any Verified Coupons or Third-Party intellectual property rights.
5. Ownership and Use of Customer and Customer’s visitor/client Data. Advertiser warrants that all data uploaded, shared and/or distributed via Verified Coupons by Advertiser shall comply with all applicable law.
Data Ownership. In order for Verified Coupons to provide the Services, Verified Coupons will collect information about Customer and about a visitor/client to Customer’s website (“Customer User Data”). All Customer User Data is sole property of Customer and Verified Coupons has no ownership rights in any Customer User Data. Customer User Data includes, without limitation, all sales and marketing information provided by Customer to Verified Coupons.
Use of Data. Solely as necessary for Verified Coupons to provide its Services to Customer, Customer grants to Verified Coupons a limited license to use Customer User Data to perform its obligations to Customer. Additionally, Verified Coupons will treat all Customer User Data as confidential, proprietary information of Customer, and will protect the confidentiality of Customer User Data with at least the same degree of care that Verified Coupons uses to protect its own proprietary information, but with no less than reasonable care, including, without limitation, as may be required to transfer, store and administer such information in accordance with all applicable laws, rules and regulations. Customer’s license to Verified Coupons includes the right to collect Customer User Data, either directly from Customer or through other means such as the use of redirects and I-by-I pixels. Verified Coupons will (a) store Customer User Data only for so long as necessary to perform the Services and will delete the Customer User Data after it no longer has application to provision of the Services; and (b) will immediately notify Customer of any breach of Verified Coupons’s systems that might compromise any Customer User Data and cooperate with Customer in its attempts to address such breach and comply with any legal obligations arising in connection therewith. So that Verified Coupons may improve and promote its service offerings, Verified Coupons may aggregate Customer User Data with other data, (and/or segregate portions of the Customer User Data) so that it is non-personally identifiable with respect to both Customer and visitors/clients to Customer Website(s). Such anonymous data is known as “Aggregated Anonymous Data”. Customer agrees that Verified Coupons may create Aggregated Anonymous Data, and may use, execute, display and commercially exploit the Aggregated Anonymous Data. Verified Coupons may disclose Aggregated Anonymous Data to third parties and may transfer or sublicense its rights with respect to Aggregated Anonymous Data.
6. Placement. The positioning, placement, frequency and other editorial decisions related to Ads shall be made by Verified Coupons Affiliate Network and/or its Affiliates and Publishers, as applicable, in their respective sole discretion. The applicable AMP may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable AMP or, in cases where “Run of Affiliate Network” or similar designation is specified in the applicable AMP, the Ads may appear at any point of placement and/or distribution that Verified Coupons Affiliate Network and/or its Affiliates and Publishers may determine, in their respective sole discretion.
7. Ad Codes. Unless otherwise stated in writing by Verified Coupons Affiliate Network, each Ad used by Verified Coupons Affiliate Network in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by Verified Coupons Affiliate Network (“Ad Codes”). Advertiser will not knowingly modify, circumvent, impair, disable or otherwise interfere with any Ad Codes and/or other technology and/or methodology required or made available by Verified Coupons Affiliate Network to be used in connection with any and all Ads. In connection with CPA-based Ad Campaigns, Advertiser agrees to pay Verified Coupons Affiliate Network a default payment of Fifty Cents ($0.50) CPM on a net thirty (30) day basis in instances where conversion data cannot be supplied due to a failure of the Ad Codes and Advertiser’s inability to provide such information, in the alternative. All determinations made by Verified Coupons Affiliate Network in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, Verified Coupons Affiliate Network’s Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Affiliate or other third party.
8. E-mail Marketing. The following terms apply to all Ad Campaigns transmitted via e-mail by Verified Coupons Affiliate Network’s Affiliates on behalf of Advertiser. Any and all e-mail-based Ads:
shall comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003 (“CAN-SPAM”) and any and all Federal Trade Commission implementing regulations;
must not infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity; and
must not result in any consumer fraud, product liability or breach of contract to which Advertiser is a party or cause injury to any third party. Advertiser shall cause a valid physical postal address for Advertiser to appear in each e-mail Ad, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery). Verified Coupons Affiliate Network may make available, at a Verified Coupons Affiliate Network-designated FTP site (“FTP Site”), a suppression list (and associated login information), updated on a regular basis, generated from e-mail Ad Campaigns transmitted by Verified Coupons Affiliate Network’s Affiliates for Advertiser under applicable AMP(s). Advertiser shall upload its own list of suppressed e-mail addresses to the FTP Site, if one is provided by Verified Coupons Affiliate Network, or send its suppressed e-mail addresses to Verified Coupons Affiliate Network via e-mail no less than daily. If no such suppressed e-mail addresses are supplied by Advertiser, then Verified Coupons Affiliate Network may conclude that no such addresses exist. The suppression list and login provided by Verified Coupons Affiliate Network are deemed to be Confidential Information of Verified Coupons Affiliate Network, as defined hereinbelow. Suppression lists may not be used by Advertiser for any purpose other than to comply with applicable laws regulating e-mail transmissions. Advertiser agrees to process any unsubscribe requests within seven (7) days of being posted at the FTP Site.
9. Payments. The rates for Actions shall be set forth in the applicable AMP(s). Commissions Verified Coupons Affiliate Network will invoice Advertiser once monthly. Unless otherwise set forth in the applicable AMP, payment will be due and paid to Verified Coupons Affiliate Network on a “net 5 day” basis following the full calendar month the commission was earned. If payment is not made in a timely manner, Verified Coupons Affiliate Network may, at its option, immediately terminate the Agreement and/or any applicable AMP(s). Interest will accrue on any past due amounts at the rate equal to the lesser of one and one-half percent (1.5 per month or the maximum amount permitted by law. In addition, Advertiser shall be liable to Verified Coupons Affiliate Network for all attorneys’ fees and other costs of collection incurred in collecting such unpaid amounts. Advertiser agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by Verified Coupons Affiliate Network and/or any of its Publishers or Affiliates pursuant to California State Tax Law. In the event a client returns a product to an Advertiser after a commission has been paid to Affiliates or Publishers in the Network, the Affiliate or Publisher agrees to repay or credit the commission to the Advertiser. Advertiser may offset future commissions payable to an Affiliate or Publisher with the amount due as a repayment. In the event no commissions are earned by the Affiliate or Publisher to offset within 30 days of the charge back or return of product, Advertiser may issue an invoice for the commission return to be made upon receipt of the invoice. The Network is not responsible or liable for the repayment of any commissions from any Affiliate or Publisher. Additionally, the Parties agree that the Network may, in its discretion, establish and require a reserve fund of revenues generated from sales reasonably necessary to pay and settle required repayments, chargebacks and returns.
10. Leads/CPA/Unaccepted Actions. In connection with Leads and CPA-based Ad Campaigns, Advertiser will pay Verified Coupons Affiliate Network for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that:
it rejects within five (5) days of its receipt thereof; and
both parties determine is not a Valid Action (as defined below). Where Verified Coupons Affiliate Network determines that such Action is a Valid Action, Advertiser must pay for same. A “Valid Action” means an individual person that:
is not a computer-generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person;
in the case of CPA-based Campaign, is a valid sale that is not fraudulent, cancelled, charged back or otherwise nullified; and
in the case of Leads-based Campaigns, has submitted information that meets all of Advertiser’s criteria as set forth in the applicable AMP. The data associated with any and all Lead/CPA-based Actions (“Action Data”) that are not both accepted and paid for by Advertiser shall be deemed the Confidential Information of Verified Coupons Affiliate Network, subject to any and all restrictions set forth herein (“Unaccepted Action Data”). Upon Advertiser’s acceptance of a Lead/CPA-based Action (and payment to Verified Coupons Affiliate Network therefore in accordance with payment terms set forth herein and in the applicable AMP), Verified Coupons Affiliate Network shall grant to Advertiser joint ownership and the full right to use such Action Data. Where Advertiser does not accept Leads/CPA-based Actions, where Advertiser fails to make payments for same in accordance with the payment terms herein and in the applicable AMP and/or where such Leads/CPA-based Actions are later determined not to be Valid Actions, Advertiser shall have no rights in and to such Action Data, and such Action Data shall be considered and treated as Unaccepted Action Data. Without limiting the generality of the confidentiality obligations set forth herein, Advertiser agrees that it:
will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Action Data to/with any third party;
will not use the information contained in the Unaccepted Action Data on its own behalf in any manner not expressly authorized by Verified Coupons Affiliate Network;
will not use the information contained in the Unaccepted Action Data to create any interactive on-line, CD-ROM or other derivative product;
will not publicly display the information contained in the Unaccepted Action Data on the Internet; and
will notify Verified Coupons Affiliate Network as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Action Data and provide reasonable assistance to Verified Coupons Affiliate Network in the investigation and prosecution of any such unauthorized use or disclosure.
11. Term/Termination. The Agreement shall continue for the term set forth in any underlying IO or AMP, provided that either party may terminate the Agreement and/or any AMP at any time, upon thirty (30) business days’ prior written notice. Upon termination or expiration of the Agreement for any reason:
Advertiser agrees to pay agreed upon termination fees set forth in the underlying AMP;
Advertiser will pay Verified Coupons Affiliate Network all amounts then due and owing as of the termination date within thirty (30) days as set forth in Section 7 hereinabove;
any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate; and
any and all Confidential Information or proprietary information of either party that is in the other party’s possession or control must be immediately returned or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.
12. Warranty/Limitation of Liability.
THE SERVICES, ADS, AD GUIDELINES, ACTIONS AND AD CODES PROVIDED BY UNDER THE AGREEMENT AND/OR ANY APPLICABLE AMP ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT OF THE LAW, Verified Coupons MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND DOES NOT WARRANT OR GUARANTY ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. THE SERVICES, ADS, AD GUIDELINES, ACTIONS AND/OR AD CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. Verified Coupons HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER OR ANY THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND Verified Coupons DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. Verified Coupons HAS NO LIABILITY FOR ADVERTISER’S USE OF, OR INABILITY TO USE, THE AD GUIDELINES OR APPLICABLE ACTIONS AND Verified Coupons DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, THAT ADVERTISER’S USE OF THE Verified Coupons SERVICES, ADS, AD GUIDELINES AND/OR ACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE. Verified Coupons MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES. IN NO EVENT SHALL Verified Coupons BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF Verified Coupons HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Verified Coupons WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY AMP AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND Verified Coupons’S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, Verified Coupons’S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO Verified Coupons BY ADVERTISER DURING THE PRIOR SIX (6) MONTH PERIOD PURSUANT TO THE AGREEMENT. Verified Coupons SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF PUBLISHERS AND/OR AFFILIATES.
13. Representation and Warranties. Advertiser represents and warrants that:
it has the power and authority to enter into and perform its obligations under the Agreement;
at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, CAN-SPAM, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws (collectively, “Laws”);
it owns and/or has any and all rights to permit the use of the Advertiser Ads and, where approved, Verified Coupons Affiliate Network Ads, by Verified Coupons Affiliate Network, its Publishers and Affiliates, as contemplated by the Agreement;
at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;
it will not disable “back” browser functionality to prohibit end-users from returning to the website from which the Ad was selected, if applicable;
Advertiser has a reasonable basis for any and all claims made within the Ads and possesses appropriate documentation to substantiate such claims;
Advertiser shall fulfill all commitments made in the Ads;
no Ad is targeted to end-users under the age of eighteen (18);
the Ads, Advertiser Products, any Advertiser website linked to from the Ads do not:
contain any misrepresentations or content that is defamatory;
contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive;
promote or support gambling or sweepstakes or contests; or
contain any “worm,” “virus” or other device that could impair or injure any person or entity;
Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control (“OFAC”); and (m) Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, a Specially Designated National (“SDN”), as OFAC may so designate from time to time.
Reverse Engineering. Advertiser shall not decompile, reverse engineer or otherwise attempt to derive or modify the Network’s software including but not limited to the Source Code thereof or any code that is placed on the advertiser’s website. Advertiser shall not merge the Network software with another software program. Any desired modifications must be delivered in a written request to the Network.
14. Indemnification. Advertiser shall irrevocably defend, indemnify and hold Verified Coupons Affiliate Network, its Publishers, Affiliates and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving:
Advertiser’s breach of the Agreement, any and all applicable AMP(s) or any representation or warranty contained therein;
the Ads, Advertiser Products and/or Advertiser websites; and/or;
any claim that Verified Coupons Affiliate Network is obligated to pay any taxes in connection with Advertiser’s participation hereunder.
Advertiser additionally agrees to indemnify, defend and hold harmless Verified Coupons and Clients and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Advertiser herein, (ii) any misuse by Advertiser, or by a party under the reasonable control of Advertiser or obtaining access through Advertiser, of the Links, Offers or Verified Coupons intellectual property, or (iii) any claim related to your offer, including but not limited to, the content contained on your offer materials, or your breaches of this agreement which result in claims made by Publishers or Affiliates as against Verified Coupons.
15. Confidentiality. For purposes of the Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party (“Disclosing Party”) to the other party (“Receiving Party”), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:
a party’s business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format;
the material terms of the Agreement and/or any associated AMP(s);
with respect to Verified Coupons Affiliate Network, the Unaccepted Action Data and suppression lists; and Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential;
any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information to any person, company or entity, except to those of its employees and professional advisers:
who need to know such information in order for the Receiving Party to perform its obligations hereunder; and
who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof that: 1) is generally available to or known to the public through no wrongful act of the receiving party;
2) was independently developed by the Receiving Party without the use of Confidential Information; or
3) was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.
16. Non-Circumvention. Advertiser recognizes that Verified Coupons Affiliate Network has proprietary relationships with its Publishers and Affiliates. Advertiser agrees not to circumvent Verified Coupons Affiliate Network’s relationship with such Publishers and Affiliates, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by Verified Coupons Affiliate Network hereunder from any Publisher and/or Affiliate that is known, or should reasonably be known, by Advertiser to have such a relationship with Verified Coupons Affiliate Network, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers and Affiliates already provided such services to Advertiser prior to the date of the first AMP executed by the parties, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that Verified Coupons Affiliate Network shall be entitled to:
injunctive relief (including temporary and preliminary relief) without the requirement to post a bond;
liquidated damages from Advertiser in the amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Publisher and/or Affiliate, as applicable, for the prior twelve (12) month period; and
any and all other remedies available to Verified Coupons Affiliate Network at law or in equity.
17. Force Majeure. Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or Affiliate Network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
Assignment. Neither party may assign, transfer or delegate any of its rights or obligations under the Agreement or any AMP without the prior written consent of the other party, and any attempts to do so shall be null and void; provided, however, that either party may assign the Agreement, any AMP or any portion hereof/thereof, to: 1) an acquirer of all or substantially all of such party’s equity, business or assets;
2) a successor in interest whether by merger, reorganization or otherwise; or
3) any entity controlling or under common control with such party.
Choice of Law/Venue. The Agreement shall be construed in accordance with and governed by the laws of the State of California. In the event that any suit, action or other legal proceeding shall be instituted against either party in connection with the Agreement, each hereby submits to the jurisdiction of either a United States District Court for in California or any California State court of competent jurisdiction, located in San Diego County in California, and further agrees to comply with all the requirements necessary to give such court jurisdiction.
Modification. The Agreement, any exhibits attached hereto and any and all applicable AMP(s) represent the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The Agreement, any exhibits attached hereto and any and all applicable AMP(s) may be amended only by a written agreement executed by an authorized representative of each party. To the extent that anything in or associated with any AMP is in conflict or inconsistent with the Agreement, the AMP shall take precedence.
Non-Waiver/Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement 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 the Agreement will remain in full force and effect.
Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that Verified Coupons Affiliate Network acts as a limited agent of Advertiser for the sole purpose of performing the Services set forth in applicable AMP(s).