Actionpay Advertiser Service Agreement
This Actionpay Advertiser Service Agreement
("Agreement") is made by and agreed to between Echidna LLC
(“Actionpay”, “US”, “us”), and You ("Advertiser", or
As an application service provider, Actionpay facilitates "Affiliate Marketing Programs" through provision of services ("Network Service") via the Internet. An "Affiliate Marketing Program" (or "Program") is where a person, entity, publisher or its agent operating one or more "Web site(s)" (domain or portion of a domain within the Internet) and/or subscription e-mail list(s) ("Publisher") may earn financial compensation ("Payouts") for “Transactions and or Actions" ("Sale(s)" and/or "Leads") made from such Publisher's Web site or subscription e-mails through a click made by a "Visitor" (generally any person or entity that is not the Publisher or the Publisher's agent) on an Internet connection ("Link") to a Web site or Web site content operated by another person or entity ("Advertiser"). The Advertiser compensates the Publisher, in accordance with this Agreement and the Program specifications.
1. Relationship. You agree not to: (a) mislead others; (b) operate or utilize a Web site or e-mail Link to Web sites that contain or promote, any of these types of content: libelous, defamatory, obscene, abusive, violent, bigoted, hate-oriented, cracking, hacking, or offer any illegal good or service, or Link to a Web site(s) that does so; (c) engage in spamming, indiscriminate advertising or unsolicited commercial e-mail or otherwise failing to comply with the CAN-SPAM Act of 2003 (Public Law 108-187) or other applicable laws regulating commercial e-mail; (d) violate any applicable privacy laws; and/or (e) engage in any illegal activity of any type.
You remain solely responsible for Your Web site content. Actionpay is, under no circumstances, responsible for the practices of any Publisher or Advertiser or such Publisher or Advertiser's Web site(s), and/or the content of Publishers' subscription e-mails and/or the content that an Advertiser makes available through the Network Service.
2. Terminating Publishers from Your Program. You may terminate a Publisher, one of its Sub-Publishers, or one of that Publisher's (or Sub-Publisher's) Web sites or subscription e-mail lists from Your Program. Actionpay shall process termination requests received during normal business hours within 24 hours and those received out of normal business operating hours shall be processed within 24 hours of the next business day (excluding holidays). Actionpay is not responsible for Publishers' compliance with Your termination requests. Actionpay may terminate a Publisher from a Your Program in Actionpay's sole discretion.
3.1 Fees. In consideration for payment of the fees due and compliance with this Agreement, Actionpay shall provide You with limited access to the Actionpay Advertiser Interface.
3.2 Services Description.
3.2.1 General and Initial Services. Actionpay shall provide tracking services and reporting capability. Actionpay shall provide to You (a) payment of Payouts to Your Publishers upon receipt from You of funds for such Payouts; (b) U.S. tax form processing and mailing to Your Publishers (including Form 1099); (c) ad serving for all commercially standard Links for product images, banners, buttons and text Links (with no reduction in fees if You elect to serve Your Links Yourself or if Your Links are served by Your Publishers or a Actionpay authorized provider).
3.2.2 Diversity of Tracking Technology. Actionpay Advertisers are provided with integration alternatives such as modified pixel tracking technology, data transfer tracking for interim processing by Advertiser, and rapid integration with standard pixel tracking technology. Alternatively, at Actionpay's sole discretion, Advertiser may utilize the "scheduled data transfer" method of tracking in addition to embedding a pixel image (for auditing purposes) that automates the reporting of Transactions to Actionpay. "Scheduled Data Transfer" means that You are recording Transactions on Your servers and then reporting the Transaction data to Actionpay. If You are approved for and utilize the Scheduled Data Transfer method, You agree to report data Transactions to Actionpay on a daily basis in accordance with the formatting, security, and transfer requirements as directed by Actionpay. In no event shall data be transferred later than 3 business days after the transaction. Actionpay may require You to utilize pixel tracking at its discretion. Transactions reported through Scheduled Data Transfer shall be subject to the Chargeback procedures specified in Section 3.6.
3.3 Ad Serving; Tracking Code Maintenance. You agree to comply with Actionpay's tracking code integration and maintenance requirements as notified to You by Actionpay from time to time. Your Links and all advertisements contained in Your Links ("Ad Content") must be in a Network Service compatible format, as such format may be established by Actionpay from time to time. If You have any non-standard Ad Content or format, these must be served by You, Your Publishers or a Actionpay authorized provider.
If the tracking code is not recording tracking data properly on the Network Service and You are receiving Visitor traffic but Transactions are not being recorded, or if You are using an alternative tracking method to pixel image tracking and You fail to timely comply with Your reporting obligations, Actionpay shall calculate Payouts, and debit Your Account for such Payouts ("Estimated Payouts") based upon an historical analysis of Your Account as applied to an historical analysis of Your Publishers' promotion of You. Transaction Fees shall be applied to such Estimated Payouts and an additional service fee shall be payable to Actionpay equal to 15% times the Estimated Payouts, with a US$100 minimum. If there is not enough performance data for Your Account to make such analyses, Actionpay shall calculate Estimated Payouts based upon a performance average across the Network Service for all Advertisers for the period under review.
3.4 Payouts/Payout Rates. You shall establish through the Network Interface a Payout rate for a qualifying Transaction for each of Your Campaigns. Your Account will be debited with each Payout and corresponding Transaction Fee in accordance with Your Campaign Payout rate for the relevant Campaign for each such Visitor action directly resulting from each of Your Publisher's Web sites or within a subscription e-mail Linking to Your Web site. Unless specifically excluded, all Transactions are eligible for a Payout.
You may discontinue Campaigns or Programs, or decrease any Payout rate upon 7 days written notice via the automated function through the Network Service, with effect from the 8th day from such notice. Actionpay will send Your Publishers a notice regarding each change in Your Payout rate(s), or Campaign or Program discontinuation. If You have established custom Payout rates or other such arrangements, You are responsible for notifying Your Publishers of such changes.
3.5 Payment. Whenever Your Account balance is less than the Minimum Balance Amount, You must immediately remit a payment to Actionpay in an amount equal to any negative balance to restore Your Minimum Balance Amount. Your positive Account balance shall be applied towards Transaction Fees in the first instance and Payouts on Your behalf by Actionpay to Your Publishers. Actionpay is under no obligation to make Payouts to Your Publishers where there are insufficient funds in Your Account. Your Publishers shall have a claim against You directly for non-payment of earned but unpaid Payouts resulting from Your failure to make payment to Actionpay. You may make payments via check (which will not credit to Your Account until the check has cleared and cash has been transferred to Actionpay's bank account) or wire transfer. Your Account will not accrue interest. If Your Account has a negative balance for any period of 45 days or more, Your Account is subject to 1.5% interest per month, compounded monthly. Actionpay may apply amounts earned by You through Actionpay or paid by You to Actionpay, even in a separate Account, towards amounts owed by You as an Advertiser. The number or amount of Transactions and clicks, credits for Payouts, and the charges for "Chargebacks" (as defined in Section 3.6), as calculated by Actionpay, shall be final and binding on You. In the event that Actionpay must incur expenses related to the collection of any outstanding balance or fees, You shall pay Actionpay's reasonable expenses associated with said collection, including attorney and collection agency fees.
3.6 Chargebacks. A "Chargeback" means that the Transaction is not eligible for a Payout, only in the following circumstances: (a) product return; duplicate entry or other clear error; (b) Publisher's failure to comply with Your Program terms or breach of the Publisher Service Agreement with respect to such Publisher's participation in Your Program; or, (c) with respect to a Sale, non-receipt of payment from, or refund of payment to, the Visitor by You. New, Extended and Corrected Transactions must be processed by You, either through the Account Manager user interface or through a scheduled data transfer (in accordance with Actionpay's processes and procedures) by the 10th of the month for Transactions that occurred the prior month. Failure to process a Transaction's status by the 10th of the month results in a Locked Transaction status. Payment of the Payout and Transaction Fees associated with that Transaction must then be authorized by You. "Corrected" means that You have reviewed the Transaction and that You represent and warrant that the Transaction qualifies as a "Chargeback". New Transaction statuses may be changed to Extended status by You only in circumstances where: (a) You are verifying a Lead (for Lead actions); or (b) You have a product return policy or offer that allows the Visitor to return the product during the "Chargeback Period" (but not beyond). "Chargeback Period" means the period of time between the date that a Sale occurred (for Sale actions) or that the Lead was completed (for Lead actions) and the 10th of the following month, or the period defined by You as the custom lifecycle in Your program. If the Transaction is Extended, the Chargeback Period is extended through the 10th of the second month after the date of the Transaction. If you elect to customize the lifecycle in Your Program, You cannot Extend a Transaction.
4.1 Proprietary Rights and Licenses. You grant to Actionpay a revocable, non-transferable, royalty free, international license to display on and distribute from Actionpay's Web site Links to Your Web site for Your Program(s), and all trademarks, service marks, tradenames, and/or copyrighted material ("Content") that You provide to Actionpay through the Network Service for the limited purposes of promoting Your Program to Publishers and potential Publishers, subject to the terms and conditions of this Agreement and the Publisher's Publisher Service Agreement. The rights to display and Link to Your Web site are sub-licensable by Actionpay to Your Publishers.
Actionpay shall not otherwise copy or modify any icons, buttons, banners, graphics files, or Content that You have made available through the Network Service pursuant to the foregoing license, except as necessary to conform Your Links to a Actionpay compatible format.
You represent and warrant that You have all appropriate authority and rights to use all trademarks, logos, service marks, tradenames, and/or content displayed on Your Web site or otherwise utilized hereunder.
4.2 Terminating Licenses. When You terminate any Publisher's participation in Your Program, the Publisher's sublicense to Your Content terminates immediately. You may terminate a Publisher's participation in Your Program immediately if You have reasonable concerns that the sublicensee/licensee is diluting, tarnishing or blurring the value of Your trademarks, service marks, and/or tradenames, and/or breach of Your other intellectual property rights. This Agreement may be terminated in whole or part by either party if such party has reasonable concerns that the other party is diluting, tarnishing or blurring the value of such party's trademarks, service marks, and/or tradenames, and/or for breach of such party's other intellectual property rights.
5.1 Confidentiality. You or Actionpay may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party ("Confidential Information"). The receiving party agrees to make commercially reasonable efforts, but in no case less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information that is or becomes part of the public domain through no act or omission of the receiving party, or is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or that the receiving party had in its possession prior to the date of this Agreement.
You agree that Actionpay may provide Your e-mail address(es) and basic Advertiser Account detail to Publishers. You shall be responsible for all usage and activity on Your account and for loss, theft or unauthorized disclosure of Your password. You shall provide Actionpay with prompt notification to Actionpay client services help desk, and through written notification to Actionpay as provided in Section 6.1 below, of any known or suspected unauthorized use of Your Account or breach of the security of Your Account.
5.2 Collection and Use of Transaction Data. Actionpay collects, owns, and may use as it chooses anonymous Visitor demographic, transactional information, and Actionpay Marketplace information and data. Advertiser is prohibited from providing Actionpay with any personally identifiable information of Visitors and third parties. Without limiting the foregoing, Advertiser shall not provide Actionpay with Order IDs that could potentially be connected to an actual individual, including, but not limited to user names.
6.1 Notices. Except as provided elsewhere herein, both parties must send all notices relating to this Agreement in writing via overnight mail (a) to Actionpay at, Attn: Legal Affairs, 1600 148TH AVE SE STE #D, BELLEVUE, WA, 98007 and, (b) for You, at the address or facsimile number listed on Your Account. Notices shall be effective upon a facsimile confirmation, the notified party's actual receipt (or refusal to accept to receipt, if applicable), or five (5) days after the date of mailing.
6.2 Term and Termination.
6.2.1 Term. This Agreement shall commence upon the date of Your click-through acceptance, and shall be in effect on a per Program basis through twelve (12) months following the date (known as the "Live Activation Date") for such Program in which (i) You have properly installed the Actionpay tracking code within Your Links, (ii) such Links to Your Web site or Web site content are accessible to Your Publishers through the Network Service, and (iii) You have paid to Actionpay the Initial Payment for the Program ("Initial Term").
6.2.2 Termination for Cause. Either party may terminate this Agreement if the other party breaches this Agreement and fails to cure such breach within 30 days of receipt of written notice from the non-breaching party of the existence and nature of the breach. Notwithstanding the preceding, Actionpay may terminate this Agreement immediately upon notice should You engage in illegal activity of any type.
Notwithstanding the foregoing, Actionpay may: (i) immediately deactivate Your Account(s) without notice if You breach Sections 1, 3.5, and 4 or engage in illegal activity of any type, (ii) deactivate Your Account(s) upon 7 days’ notice if You breach Section 3.3 (Ad Serving; Tracking Code Maintenance), and (iii) deactivate Your Account(s) for any other breach of this Agreement upon Your failure to cure such breach within 7 days of receipt of written notice from Actionpay of the existence and nature of the breach. If this Agreement is terminated for Your breach, You shall not be eligible to enter into a new click-through Advertiser service agreement with Actionpay, and any attempt to do so shall be null and void.
6.2.3 Renewal Terms. After the initial Term, this Agreement shall automatically renew for additional twelve (12) month terms ("Renewal Term") unless either party provides the other with sixty (60) days’ notice of termination prior to the end of an Initial or Renewal Term.
6.2.4 Effect of Termination. Upon termination of this Agreement, You shall pay to Actionpay any outstanding debit balance within 10 days of the date of termination. In no event shall outstanding payments be made to Publishers unless and until Actionpay receives payment from You. Upon reconciliation of Your Account, Actionpay shall pay You any outstanding credit balance after the conclusion of the last Chargeback Period.
Upon termination of this Agreement, any license or sublicense granted to You or by You under this Agreement will terminate, and the licensee/sub-licensee shall immediately destroy or delete all physical and electronic copies of the Confidential Information, and cause all Links to Actionpay to be removed. Actionpay shall (a) inform Your Publishers that Your Program(s) has ended (if terminated) or has been temporarily discontinued (in the case of temporary deactivation), (b) stop distributing Links to Your Web site, and (c) request (or suggest, in circumstances of deactivation) that all Links placed by Your Publishers to Your Web site be removed from such Publishers' Web sites and/or subscription e-mail.
6.3 Survival. The provisions of this Section 6 and Sections 1 (last 2 sentences of second paragraph), 3.5, 3.6 (to the extent that Chargebacks that occur post-termination are subject to the same terms and conditions as those that occur during the term of this Agreement), 5, 6.1, 6.2, 7.1, 8, 9.2, 9.5, and 9.6 shall survive the termination of this Agreement, subject to the restrictions outlined in Section 7.1.
7.1 Limitation of Liabilities. ANY LIABILITY OF A PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF ALL FEES PAID AND PAYABLE BY YOU TO ACTIONPAY, AND INTEREST PAID AND PAYABLE BY YOU TO ACTIONPAY, FOR THE TWELVE MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST ACTIONPAY MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY A PUBLISHER OR ADVERTISER OF THE NETWORK SERVICE), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
7.2 Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ACTIONPAY DISCLAIMS ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT ACTIONPAY'S SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF THE PUBLISHER'S INFORMATION OR WEB SITE. ALL 'INFORMATION' AND 'COMPUTER PROGRAMS' PROVIDED TO YOU IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND
EFFORT IS WITH YOU. ACTIONPAY IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY ADVERTISER OR PUBLISHER, OR SUCH ADVERTISER OR PUBLISHER'S WEB SITE(S), AND/OR THE CONTENT OF AN ADVERTISER'S WEB SITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH THE NETWORK SERVICE.
8 Indemnification. You shall indemnify and hold Actionpay harmless against all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys' fees, costs related to in-house counsel time, court costs and witness fees) (collectively "Losses") attributable to or related to Your breach of this Agreement and for claims of product liability ("Claims"). Should any Claim give rise to Your duty of indemnification under the provisions of this Agreement, then Actionpay shall promptly notify You, and You may participate in (at your own expense), but not control, the defense of such Claim. Participation in the defense shall not waive or reduce Your obligations to indemnify or hold Actionpay harmless.
9.1 Relationships of Parties/Third Party Rights. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint ventures or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor. You agree that Your consent is not necessary to modify any Publisher Service Agreement.
9.2 Choice of Law/Attorneys’ Fees. This Agreement shall be governed by the laws of the State of California without respect to choice of law rules and the Parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in San Francisco, California for such purpose. The parties waive the personal service of any process upon them and agree that service may be effected by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement. Actionpay shall be entitled to recover all reasonable costs of collection (including attorneys' fees, in-house counsel costs, expenses and costs) incurred in attempting to collect payment from Advertiser. Actionpay controls and operates its Web site from its offices in the U.S.A. and access or use where illegal is prohibited.
9.3 Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
9.4 Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the Parties' stated intentions. The waiver of any breach of any provision by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
9.5 Entire Agreement, Assignment and Amendment. This Agreement contains the entire understanding and agreement of the parties. You may not modify, amend or assign ("Change") this Agreement without Actionpay's written consent. Actionpay shall have the right to change or assign this Agreement, in whole or in part (including without limitation the fees, charges and monthly minimums payable hereunder), by notifying You of such Change, by email, at least fourteen (14) days prior to the Effective Date of such Change; provided, however, that either party shall have the right to terminate this Agreement pursuant to Section 6.2 in the event that You do not agree to such Change.
9.6 Marketing. Advertiser agrees that Actionpay may identify it as a Actionpay Advertiser in client lists and other marketing materials, and that Actionpay may issue an Advertiser-approved press release announcing the establishment of the relationship between the companies. Any other uses of Advertiser's name and/or logo shall require Advertiser's prior written consent.
9.7 Solicitation of Publishers. During the Term of this Agreement, any renewal Terms, and for 6 months hereafter, You shall not knowingly solicit any Publisher, web site, or e-mail provider that is obtained through the Services provided by Actionpay under this Agreement, nor shall You transfer any Publisher obtained through the Services provided by Actionpay under this Agreement to any third party provider or any in-house program substantially similar to the Services being provided by Actionpay hereunder, and You shall not encourage any such Publisher to so transfer. In the event You do directly solicit or cause to be transferred any affiliate, You shall pay Actionpay what Actionpay would have otherwise earned had You not violated this provision. Except as expressly set forth above, nothing herein shall be deemed to restrict Advertiser from entering into independent strategic partnerships or other agreements with Publishers, or to prohibit Advertiser from advertising, merchandising or promoting its products or services.
9.8 Tax Status and Obligations. Actionpay is not obligated to and shall not provide Advertiser with tax and/or legal advice. Actionpay undertakes no duty to investigate or research Advertiser's tax status and/or obligations, and such research and investigation is the sole responsibility of Advertiser. Advertiser is obligated to independently assess and comply with all relevant tax and legal requirements, and Advertiser is responsible for its own sales tax collection and reporting obligations arising from sales made to Visitors. If Actionpay provides Advertiser with information regarding a particular Publisher, the information shall not be deemed tax or legal advice, and Actionpay shall not be responsible for the accuracy of such information. Any Publisher addresses provided to Advertiser are addresses provided by the relevant Publisher, and such addresses may not necessarily indicate the location or presence of the Publisher in such location or elsewhere.
10 Third Party Disputes. In the event of a third party claim against either: (a) Actionpay's intellectual property; or (b) against Actionpay's right to offer any service or good on Actionpay's Web site(s) or if, in Actionpay's opinion, such a claim is likely, Actionpay shall have the right, at its sole option and in its sole discretion, to (i) secure the right at Actionpay's expense to continue using the intellectual property or good or service; or (ii) at Actionpay's expense replace or modify the same to make it non-infringing or without misappropriation, provided that any such replacement or modification will have similar operating capabilities and functionalities of the allegedly infringing services and deliverables provided hereunder.
Your use of the Network Service is irrefutable acknowledgement by You that You have read, understood and agreed to each and every term and provision of this Agreement. Actionpay may establish from time to time rules and regulations regarding use of the Network Service as published on the Network Service and such rules and regulations are incorporated herein.
Echidna LLC, located at 98007 WA Bellevue 1600 148TH AVE SE STE #D
Confidential and Proprietary Information