MEDIA PARTNER USER AGREEMENT
1. Introduction
1.1 This Agreement covers your (hereinafter “Media Partner”) use of the media tracking platform (“Platform”) owned and operated by Flair: Wear the Joy! And Got Flair (“Flair”), hosted from the URL, www.flairwearthejoy.com, www.gotflair.co, www.got-flair.comand all other performance marketing-related services provided by Flair. You are also referred to herein as “Media Partner”.
1.2 Through the Platform, Flair tracks media, including but not limited to facilitating relationships between “Advertisers” and Media Partner and processes payments for such relationships. An “Advertiser” is any entity that enters into an insertion order (“Electronic Insertion Order” or “EIOs”) to engage Media Partner to promote a marketing campaign (“Campaign”) regarding the Advertiser’s products and/or services. Before You can use the Platform You must read and agree to all the terms and conditions in this User Agreement by clicking through the Agreement below. Flair controls and operates its Platform and website(s) from its offices in the U.S.A. and access or use where illegal is prohibited.
2. Terms of Platform Access
2.1 License: Flair grants to Media Partner a revocable, limited, non-exclusive and non-transferable license permitting Media Partner to use the Platform and to enter into relationships with Advertisers and participate in Campaigns. All other rights in and to the Platform are reserved by Flair. The Platform includes: (i) the secure portions of the URLS (and all other urls from which the Platform can be accessed and used); (ii) the content offered from the Platform; (iii) the Platform’s look and feel, graphic user interface and functionality; and (iv) the software (in object code and source code format) that powers the Platform and that is used to provide the functionality and content on it.
2.2 Advertiser Relationships: Media Partners and Advertisers, parties to a “Master Campaign Agreement”, shall enter into legally binding “EIOs” in relation to a Campaign. EIOs shall contain any supplemental terms and conditions as agreed upon between the Advertiser and Media Partner in EIOs using the “Insertion Order” function on the Platform. The EIOs shall specify the “Actions” and qualifying parameters that entitle Media Partner to compensation from the Advertiser (“Payouts”).
2.3 Users: Media Partner shall set-up an “Account” on the Platform. Media Partner acknowledges and agrees that it is solely responsible for access of Media Partner’s Account by each person Media Partner authorizes to access the Account. Each person must have a unique log-in and password, Media Partner shall maintain accurate and complete information in Media Partner’s Account. Media Partner shall notify Flair in writing immediately if Media Partner becomes aware of any unauthorized use of Media Partner’s Account.
2.4 Platform Use Obligations. Media Partner must at all times utilize the Platform for its intended purpose. Further, Media Partner must promote Advertiser using only those methods approved or prescribed by the Advertiser.
(a) Prohibited Methods. Unless explicitly authorized in an EIO, Media Partner shall not promote an Advertiser using the following means:
(i) provision of leads obtained other than through intended consumer (“End User”) action
(ii) use of fake redirects, automated software, or other mechanisms to generate Actions; or
(iii) Actions that are not in good faith, such as those using any device, robot, Iframes or hidden frames.
(c) Rules for Using Applications to Deliver Creative. If You use applications to deliver Creative, and those applications are not Adware, Spyware or Malware, You must disclose to the End User a clear and concise description of the core functionality of the applications (including a description of that functionality that is Your source of revenue).
Further, You must:
(i) Get the End User’s consent to download/install the application, and agree to the appropriate End User License Agreement (“EULA”), before installation.
(ii) Not distribute the application using an Active X (or similar) install.
(iii) Not collect via the application any information from the End User without full disclosure and consent thereto of the information to be collected, such as in a EULA or privacy policy, prior to installation; and the application should not match the End User’s online activity with any personal data about the End User unless the End User has affirmatively and knowingly opted-in to such activities.
(iv) Brand clearly all advertisements by the company advertised.
(v) Enable the application to be fully removable using the add/remove programs feature on the computer.
(vi) Include an uninstaller on the application that entirely disables the application (and does not reinstall it).
(vii) Neither require the End User to visit a website or provide personal data or feedback before uninstalling the application, nor require Internet access to uninstall.
(viii) Use industry standard verification methods and automatic updates should not change the core functionality of the application without additional disclosures to and consent of the End User. :
(ix) Not monitor keystrokes, emails, instant messages, open programs or documents unless the End User has affirmatively and knowingly opted-in to such activities.
(x) Not cause damage to, or remove, any component of the End User’s operating system or winsock files.
(xi) Not use any means to remove or disable any security, anti-spyware or anti-virus software on End User’s computer.
(d) Further Requirements. You agree that when using the Platform You will only publish, transmit, upload and/or distribute information, data, content and material about Yourself, Your Advertisers and about Campaigns that is legal, proper, decent, honest and accurate. If You intend to use incentives to promote Advertiser and procure clicks, leads or sales, You are required to notify Advertiser prior to executing an EIO with Advertiser, and Your use of incentives must be in a bona fide way. Additionally, You must not:
(i) depict nudity of any sort (including cartoons, fantasy art or manga).
(ii) misrepresent the source of anything You post or upload, including impersonation of another individual or entity.
(iii) include unauthorized content of someone else’s violating their intellectual property rights, rights of privacy or publicity, or any other applicable law.
(iv) harm or exploit minors in any way.
(v) violate any applicable law including.
(vi) threaten, stalk, defame, defraud, degrade, victimize or intimidate an individual or group of individuals for any reason; including on the basis of age, gender, disability, ethnicity, sexual orientation, race or religion; or incite or encourage anyone else to do so.
(vii) harm or disrupt, or intend to harm or disrupt, an End User's computer.
(viii) contain or be considered to contain 'junk mail', 'spam', 'chain letters', or 'pyramid schemes'.
(ix) attempt to manipulate services of others, including but not limited to ranking and reputation systems, or collude with others to do any of the foregoing.
2.5 Additional Services. Flair may at Flair’s discretion offer additional services for a fee to Media Partner that Media Partner may elect to opt-in to using.
2.6 Platform Availability: Flair shall use commercially reasonable efforts to ensure Platform availability. However, Media Partner acknowledges that from time to time the Platform may be unavailable due to Platform maintenance, but Flair shall endeavor to keep such temporary Platform unavailability to a minimum and outside of Flair’s business hours.
2.7 Advertiser Relationships: Media Partner enters into performance marketing relationships (such as EIOs with Advertisers) in Media Partner’s sole discretion.
3. Intellectual Property
3.1 Intellectual Property Defined. “Intellectual Property” means trade marks (whether registered or unregistered together with all goodwill in connection thereto), unregistered and registered designs, copyright, database rights, rights in computer software, domain names, rights in “Confidential Information” (as defined below) and all other intellectual property rights (whether now subsisting or in the future created) both in the USA and all other countries of the world for the full period of those rights (including any extensions and renewals).
3.2 All right, title and ownership to all Intellectual Property in the Platform remains with Flair (or its licensor(s)). Except for the use license in Section 2.1, nothing shall be construed to grant to Media Partner any right, title or interest in or to the Platform. Further, Media Partner shall not:
(a) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any component of the Platform, except as may be allowed by applicable law;
(b) access all or any part of the Platform in order to build a product, service or customer list which competes with the Platform;
(c) write or develop any derivative software program based in whole or in part upon the Platform or any Confidential Information belonging to or licensed to Flair
3.3 Creative:
(a) “Creative” includes all artwork, copy, data, text, models, graphics, messages, tags, designs, photographs, images, logos and other audio and/or visual content and material provided by Advertiser for use in connection with the Campaigns.
(b) Media Partner acknowledges that all Intellectual Property subsisting in Creative is and shall remain the property of the applicable Advertiser.
(c) Media Partner represents and warrants that Media Partner’s use of Creative complies with this User Agreement, the applicable EIO and all applicable laws, rules and regulations. Flair shall not be responsible for or liable for Creative and can remove any Creative from the Platform at any time. If requested by Flair, Media Partner shall cease utilizing such Creative when requested to do so by the Advertiser or Flair
3.4 Data: Flair collects and stores through the Platform tracking data, traffic data and data regarding Media Partner’s relationships with Advertisers. Flair uses the data variously, such as to perform analytics, to make payment for Payouts on Advertisers’ behalves, and in the performance of Flair’s obligations under this Agreement and agreements with relevant Advertisers. Flair retains any and all rights in and to such data as Flair’s “Confidential Information” (as defined in Section 4). Media Partner may utilize the data available to Media Partner through the Platform reporting system during the duration of this Agreement. Flair does not collect personally identifiable information from End Users and Media Partner warrants that Media Partner shall not pass to Flair personally identifiable information from End Users.
4. Confidentiality
4.1 “Confidential Information” means all confidential information and data of whatever nature, whether in tangible or intangible form such as trade secrets, financial, and technical information, technology, processes, customers, prices, discounts, and margins.
4.2 Obligations. A party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) agrees to agrees to (a) hold all Confidential Information in confidence and protect it with the same degree of care with which the party protects its own Confidential Information; (b) use such Confidential Information only for the purposes of this Agreement and as permitted by this Agreement; (c) not copy or otherwise duplicate such Confidential Information, except for the purpose of this Agreement; and (d) restrict disclosure of such Confidential Information solely to those employees and agents with a need to know such Confidential Information for the purposes of this Agreement, who are told of its confidentiality and who are bound in writing to protect the same. Receiving Party shall be obligated to inform its employees and agents of the confidential nature of the Confidential Information.
4.3 If the Receiving Party receives a request pursuant to a court order, governmental body request or other legal process to disclose the Disclosing Party’s Confidential Information, the Receiving Party shall promptly notify the Disclosing Party and reasonably assist the Disclosing Party in obtaining a protective order requiring that any portion of the Confidential Information required to be disclosed be used only for the purpose for which a court issues an order or as otherwise required by law. Each party shall bear its own legal expenses in connection therewith.
4.4 Exceptions. The obligations of Receiving Party with respect to Confidential Information shall not apply to any information designated as confidential if, prior to any release of such information, such Confidential Information: (a) was already known to it, free of any obligation to keep it confidential or proprietary; (b) is or becomes publicly known through no wrongful act of the party; (c) was received from a third party without any restriction or confidentiality; (d) was disclosed to third parties by the Disclosing Party without any obligation of confidentiality; (e) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party or (f) is approved for release by prior written authorization of the Disclosing Party.
5. Payouts, Flair Platform Fees and Payment Terms
5.1 Payouts and additional service charges. All payments processed via the Platform shall be in US ($) Dollars. Flair makes payment to Media Partner after receipt of payment for Payouts from Advertisers. Payouts are aggregated from all Advertisers that Media Partner has earned Payouts from. Flair may, if Media Partner elects optional Flair services for which there are charges, deduct from Media Partner’s Payouts the costs of the optional services.
5.2 Reactivation: If Media Partner’s Account has been suspended, Flair may, in Flair’s sole discretion, require prior to reactivation that Media Partner provide proof of Media Partner’s compliance, or ability to comply, with this User Agreement and any other reasonable requirement of Flair.
5.3 Taxes: Media Partner is responsible for the taxes, if any, on Payouts.
6. Representations, Warranties & Disclaimers
6.1 Flair Warranties: Flair represents and warrants to Media Partner that Flair:
(a) has the full power and authority to carry out the actions contemplated under this User Agreement;
(b) that its entry into and performance of its obligations under the terms of this User Agreement shall not infringe the rights of any third party or cause it to be in breach of any obligations to a third party; and
(c) shall supply its services under this User Agreement with reasonable skill and care.
6.2 Media Partner Warranties: Media Partner represents and warrants to Flair that Media Partner:
(a) has the full power and authority to carry out the actions contemplated under this User Agreement and each Campaigns;
(b) is over the age of 18;
(c) will not infringe the rights of any third party or cause it to be in breach of any obligations to a third party by and through Media Partner’s entry into and performance of Media Partner’s obligations hereunder;
(d) shall at all times in using the Platform and access Flair website(s) comply fully with any and all applicable laws, rules and regulations; and
(e) shall comply with the terms and conditions of this Agreement.
6.3 FLAIR DISCLAIMERS: MEDIA PARTNER EXPRESSLY AGREES THAT MEDIA PARTNER’S USE OF THE PLATFORM AND ANY FLAIR WEBSITE IS AT MEDIA PARTNER’S OWN RISK, AND THAT THE PLATFORM AND WEBSITE(S) ARE AVAILABLE “AS IS”. EXCEPT AS PROVIDED FOR IN SECTION 6.1, THE PLATFORM AND WEBSITE(S) ARE PROVIDED WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, BY FLAIR (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, ACCURACY OR TRADE USAGE), REGARDING THE PLATFORM, THIRD PARTY PRODUCTS OR INFORMATION, OR FLAIR WEBSITES. FLAIR SHALL IN NO EVENT BE LIABLE FOR ANY ACTS OR OMISSIONS OF ADVERTISERS. FLAIR DOES NOT GIVE ANY GUARANTEE OR OTHER LEGALLY BINDING COMMITMENT THAT THE PROVISION OF SUCH SERVICES SHALL INCREASE THE REVENUES THAT MEDIA PARTNER GENERATES FROM ITS USE OF THE PLATFORM.
6.4 Limitations of Liability: FLAIR WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE, PROFITS OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT OR PLATFORM USE, EVEN IF FLAIR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FLAIR’S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT SHALL NOT EXCEED, IN ANY EVENT, THE TOTAL AMOUNT OF PAYOUTS EARNED BY YOU FROM ADVERTISERS PURSUANT TO EIOs (EXCLUDING AMOUNTS CHARGEDBACK) DURING THE 3 MONTHS PRIOR TO THE DATE UPON WHICH THE EVENT GIVING RISE TO THE LIABILITY FIRST OCCURRED. FLAIR DISCLAIMS LIABILITY FOR YOUR SELECTION OR RETENTION OF ADVERTISERS, OR ANY ACTS, ERRORS, OR OMISSIONS BY ANY THIRD PARTY, INCLUDING THIRD PARTY SERVICE PROVIDERS OF FLAIR.
7. Indemnification
Subject to Section 6.3 and 6.4, each party ("Indemnitor") shall defend, indemnify and hold the other party and its respective shareholders, directors, officers, employees, subcontractors and agents ("Indemnitee") harmless against all claims, suits, costs, damages liabilities, expenses (including court costs and reasonable attorney's fees), settlements and judgments incurred, claimed or sustained by third parties (“Claims”) for the Indemnitor's breach of this Agreement and for breach of a third party's Intellectual Property rights, provided that: (a) Indemnitee notifies Indemnitor in writing within a commercially reasonable time after its receipt of notice of any Claim; (b) Indemnitor has sole control of the defense and all related settlement negotiations (except that the Indemnitor shall not settle any Claim in any manner which would admit fault by the Indemnitee without Indemnitee’s reasonable consent); and (c) Indemnitee provides Indemnitor with reasonable assistance, information and authority necessary to perform its obligations under this Section. Indemnitee may participate in the defense of a Claim at Indemnitee’s expense, and such participation shall not waive or reduce any obligations on the Indemnitor under this Section.
8. Term and Termination
8.1 This Agreement is effective on the date that Media Partner establishes a Media Partner Account and continues unless and until terminated in accordance with Section 8.2. Without prejudice to the other remedies of Flair under this User Agreement, Flair may suspend Media Partner’s use of the Platform, any Campaign or any EIO at any time if Media Partner breaches this User Agreement, or the relevant Advertiser’s agreement with Flair or an EIO.
8.2 This User Agreement may be terminated:
(a) by either Party upon 30 (thirty) days’ prior written notice to the other Party or pursuant to Section 9.1;
(b) by Media Partner pursuant to Section 9.6;
(c) by Flair with immediate effect if Media Partner infringes the Intellectual Property of Flair or a third party, or Media Partner breaches Section 2, or, if in Flair’s sole discretion Media Partner’s actions may cause it financial loss or liability to any third party; or
(d) by either Party in the event that a party is prohibited from performing all or a material part of their obligations under this User Agreement; or makes this User Agreement cost-prohibitive for the Party seeking to terminate this User Agreement.
8.3 Any termination of this User Agreement shall be without prejudice to any other rights or remedies a Party may be entitled to under this User Agreement or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of this User Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
8.4 On termination of this User Agreement all licenses granted hereunder shall terminate, and, subject to compliance with any applicable law, each Party shall return Confidential Information of the other Party in their possession or under their control. Further, Media Partner shall cease using Creative and remove all uses thereof.
9. General
9.1 Force Majeure. "Force Majeure" means circumstances beyond the reasonable control of a party, including but not limited to acts of God, war, terrorist action, fire, flood, governmental act Internet or other telecommunications failure. Neither party shall be liable to the other party for any failure or delay in performing any of its obligations hereunder if such failure or delay is caused by the occurrence of an event of Force Majeure. If a party becomes aware of a Force Majeure event, such party shall immediately notify the other party in writing. If the event of Force Majeure continues period in excess of three (3) weeks, then either party may terminate this User Agreement by written notice to the other party with immediate effect.
9.2 Waiver of Remedies: No forbearance or delay by either Party in exercising or enforcing the provisions of this User Agreement shall prejudice or restrict the rights (whether provided by the User Agreement or by law) of that Party nor shall any waiver of its rights operate as a waiver of any subsequent breach. No right, power or remedy herein conferred upon or reserved for either Party or available by law is exclusive of any other right, power or remedy available to that Party (whether under this User Agreement or at law) and each such right, power or remedy shall be cumulative.
9.3 Assignment: Either party may assign this User Agreement upon written notice to the other party. Notwithstanding the foregoing, if this Agreement is assigned to a competitor of Flair, Flair shall have the option to terminate this Agreement immediately.
9.4 Entire Agreement: This User Agreement represents the entire understanding and constitutes the entire agreement between the Parties in relation to its subject matter and supersedes any previous agreement between the Parties as to such subject matter. Each of the Parties acknowledges and agrees that in entering into this User Agreement it has not relied on any representation or warranty other than those expressly set out in the User Agreement.
9.5 Electronic Signatures: You acknowledge and agree that by clicking-through acceptance of this Agreement, Electronic Insertion Orders, and other click-through offers on the Platform, You are submitting a legally binding electronic signature and are entering into a legally binding contract. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PRODUCTS AND/OR SERVICES OFFERED BY FLAIR. Further, You hereby waive any rights or requirements under any applicable statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. Notwithstanding the foregoing, the Parties may agree to mutually execute a printed version of this Agreement. If the Parties do so, such document shall supersede the click-through version of this Agreement.
9.6 Modifications: Flair may propose amendments to this Agreement with thirty (30) days’ notice (“Notice Period”). If Media Partner does not agree to such amendments, Media Partner may terminate this Agreement prior to the end of the Notice Period. If Media Partner does not terminate this Agreement, the amendments shall become effective on the date proposed by Flair to Media Partner, unless mutually agreed otherwise by the parties in writing. Otherwise, this User Agreement may not be altered, amended or modified except in writing signed by duly authorized representatives of each of the Parties hereto.
9.7 Audit Rights: Each Party agrees to maintain adequate books and records relating to its compliance with the terms of this Agreement during the term of this Agreement and for a period of one (1) year thereafter. Copies of such records shall be made available to the other party upon written request. An officer of the party supplying the records shall certify the authenticity of the copies.
9.8 Notices: All notices which are required to be given under this User Agreement shall be in writing and shall be sent to the postal address or facsimile number of the Party as follows: (a) to Flair, as set out below, and (b) to Media Partner, at as provided in Media Partner’s Account; or, with respect to either Party, such other address as updated by the Party pursuant to this Section. Any such notice may be delivered personally or by first class pre-paid letter (or by air-mail if overseas) or by facsimile transmission, and shall be deemed received, when delivered (if by hand); or if by mail five (5) days after deposit in mail, if by facsimile transmission, when successfully dispatched in full.
9.9 Severability: If any provision in this User Agreement is, in whole or in part, held by a court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable under any enactment or rule of law then that provision or part shall be deemed not to form part of this User Agreement and the enforceability and validity of the remainder of this User Agreement shall not be affected. The parties shall in good faith attempt to modify any invalidated provision or part to carry out the parties' stated intentions.
9.10 Survival: All provisions that by their sense and context are intended to survive the termination or expiration of this Agreement, including any rights arising out of a breach of this Agreement, shall survive the termination or expiration of this Agreement.
9.11 Relationship of the Parties: The relationship of the Parties is that of independent contractors and this User Agreement does not constitute either Party the agent of the other, or create a partnership, joint venture or similar relationship between the Parties, and neither Party shall have the power to bind the other or to create a liability against the other in any way.
9.12 Dispute Resolution. The Parties will attempt in good faith to resolve through negotiation any dispute, claim, or controversy arising out of or relating to this Agreement or interpretation or validity thereof, including this section (“Dispute”). If the Dispute is not resolved through verbal and written communications, the matter will be submitted to JAMS for arbitration in Seattle, Washington, USA before a sole arbitrator, in English, in accordance with the laws of the State of Washington for agreements made in and to be performed therein. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitrator will have no authority to award punitive damages or any other damages not measured by the prevailing party’s actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of this Agreement. Judgment on the arbitration award may be entered in any court having jurisdiction. The arbitrator may, but shall not be obligated, to allocate all of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the party that primarily prevails, against the party that did not primarily prevail.
9.13 Governing Law and Venue: This Agreement is governed by the laws of the State of Washington (USA), except for its conflict of law provisions. Each party may apply to the state courts (or federal courts, as applicable) in Seattle, Washington, USA for injunctive relief until such time as an award is rendered or the dispute is otherwise resolved, and the parties agree that those courts and JAMS arbitration (in accordance with Section 9.12 above) shall be the exclusive fora for any such actions related to this Agreement. Both parties consent to such venue and jurisdiction. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys' fees and costs.
© Flair:Wear the Joy!
November 1, 2013
1. Introduction
1.1 This Agreement covers your (hereinafter “Media Partner”) use of the media tracking platform (“Platform”) owned and operated by Flair: Wear the Joy! And Got Flair (“Flair”), hosted from the URL, www.flairwearthejoy.com, www.gotflair.co, www.got-flair.comand all other performance marketing-related services provided by Flair. You are also referred to herein as “Media Partner”.
1.2 Through the Platform, Flair tracks media, including but not limited to facilitating relationships between “Advertisers” and Media Partner and processes payments for such relationships. An “Advertiser” is any entity that enters into an insertion order (“Electronic Insertion Order” or “EIOs”) to engage Media Partner to promote a marketing campaign (“Campaign”) regarding the Advertiser’s products and/or services. Before You can use the Platform You must read and agree to all the terms and conditions in this User Agreement by clicking through the Agreement below. Flair controls and operates its Platform and website(s) from its offices in the U.S.A. and access or use where illegal is prohibited.
2. Terms of Platform Access
2.1 License: Flair grants to Media Partner a revocable, limited, non-exclusive and non-transferable license permitting Media Partner to use the Platform and to enter into relationships with Advertisers and participate in Campaigns. All other rights in and to the Platform are reserved by Flair. The Platform includes: (i) the secure portions of the URLS (and all other urls from which the Platform can be accessed and used); (ii) the content offered from the Platform; (iii) the Platform’s look and feel, graphic user interface and functionality; and (iv) the software (in object code and source code format) that powers the Platform and that is used to provide the functionality and content on it.
2.2 Advertiser Relationships: Media Partners and Advertisers, parties to a “Master Campaign Agreement”, shall enter into legally binding “EIOs” in relation to a Campaign. EIOs shall contain any supplemental terms and conditions as agreed upon between the Advertiser and Media Partner in EIOs using the “Insertion Order” function on the Platform. The EIOs shall specify the “Actions” and qualifying parameters that entitle Media Partner to compensation from the Advertiser (“Payouts”).
2.3 Users: Media Partner shall set-up an “Account” on the Platform. Media Partner acknowledges and agrees that it is solely responsible for access of Media Partner’s Account by each person Media Partner authorizes to access the Account. Each person must have a unique log-in and password, Media Partner shall maintain accurate and complete information in Media Partner’s Account. Media Partner shall notify Flair in writing immediately if Media Partner becomes aware of any unauthorized use of Media Partner’s Account.
2.4 Platform Use Obligations. Media Partner must at all times utilize the Platform for its intended purpose. Further, Media Partner must promote Advertiser using only those methods approved or prescribed by the Advertiser.
(a) Prohibited Methods. Unless explicitly authorized in an EIO, Media Partner shall not promote an Advertiser using the following means:
(i) provision of leads obtained other than through intended consumer (“End User”) action
(ii) use of fake redirects, automated software, or other mechanisms to generate Actions; or
(iii) Actions that are not in good faith, such as those using any device, robot, Iframes or hidden frames.
(c) Rules for Using Applications to Deliver Creative. If You use applications to deliver Creative, and those applications are not Adware, Spyware or Malware, You must disclose to the End User a clear and concise description of the core functionality of the applications (including a description of that functionality that is Your source of revenue).
Further, You must:
(i) Get the End User’s consent to download/install the application, and agree to the appropriate End User License Agreement (“EULA”), before installation.
(ii) Not distribute the application using an Active X (or similar) install.
(iii) Not collect via the application any information from the End User without full disclosure and consent thereto of the information to be collected, such as in a EULA or privacy policy, prior to installation; and the application should not match the End User’s online activity with any personal data about the End User unless the End User has affirmatively and knowingly opted-in to such activities.
(iv) Brand clearly all advertisements by the company advertised.
(v) Enable the application to be fully removable using the add/remove programs feature on the computer.
(vi) Include an uninstaller on the application that entirely disables the application (and does not reinstall it).
(vii) Neither require the End User to visit a website or provide personal data or feedback before uninstalling the application, nor require Internet access to uninstall.
(viii) Use industry standard verification methods and automatic updates should not change the core functionality of the application without additional disclosures to and consent of the End User. :
(ix) Not monitor keystrokes, emails, instant messages, open programs or documents unless the End User has affirmatively and knowingly opted-in to such activities.
(x) Not cause damage to, or remove, any component of the End User’s operating system or winsock files.
(xi) Not use any means to remove or disable any security, anti-spyware or anti-virus software on End User’s computer.
(d) Further Requirements. You agree that when using the Platform You will only publish, transmit, upload and/or distribute information, data, content and material about Yourself, Your Advertisers and about Campaigns that is legal, proper, decent, honest and accurate. If You intend to use incentives to promote Advertiser and procure clicks, leads or sales, You are required to notify Advertiser prior to executing an EIO with Advertiser, and Your use of incentives must be in a bona fide way. Additionally, You must not:
(i) depict nudity of any sort (including cartoons, fantasy art or manga).
(ii) misrepresent the source of anything You post or upload, including impersonation of another individual or entity.
(iii) include unauthorized content of someone else’s violating their intellectual property rights, rights of privacy or publicity, or any other applicable law.
(iv) harm or exploit minors in any way.
(v) violate any applicable law including.
(vi) threaten, stalk, defame, defraud, degrade, victimize or intimidate an individual or group of individuals for any reason; including on the basis of age, gender, disability, ethnicity, sexual orientation, race or religion; or incite or encourage anyone else to do so.
(vii) harm or disrupt, or intend to harm or disrupt, an End User's computer.
(viii) contain or be considered to contain 'junk mail', 'spam', 'chain letters', or 'pyramid schemes'.
(ix) attempt to manipulate services of others, including but not limited to ranking and reputation systems, or collude with others to do any of the foregoing.
2.5 Additional Services. Flair may at Flair’s discretion offer additional services for a fee to Media Partner that Media Partner may elect to opt-in to using.
2.6 Platform Availability: Flair shall use commercially reasonable efforts to ensure Platform availability. However, Media Partner acknowledges that from time to time the Platform may be unavailable due to Platform maintenance, but Flair shall endeavor to keep such temporary Platform unavailability to a minimum and outside of Flair’s business hours.
2.7 Advertiser Relationships: Media Partner enters into performance marketing relationships (such as EIOs with Advertisers) in Media Partner’s sole discretion.
3. Intellectual Property
3.1 Intellectual Property Defined. “Intellectual Property” means trade marks (whether registered or unregistered together with all goodwill in connection thereto), unregistered and registered designs, copyright, database rights, rights in computer software, domain names, rights in “Confidential Information” (as defined below) and all other intellectual property rights (whether now subsisting or in the future created) both in the USA and all other countries of the world for the full period of those rights (including any extensions and renewals).
3.2 All right, title and ownership to all Intellectual Property in the Platform remains with Flair (or its licensor(s)). Except for the use license in Section 2.1, nothing shall be construed to grant to Media Partner any right, title or interest in or to the Platform. Further, Media Partner shall not:
(a) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any component of the Platform, except as may be allowed by applicable law;
(b) access all or any part of the Platform in order to build a product, service or customer list which competes with the Platform;
(c) write or develop any derivative software program based in whole or in part upon the Platform or any Confidential Information belonging to or licensed to Flair
3.3 Creative:
(a) “Creative” includes all artwork, copy, data, text, models, graphics, messages, tags, designs, photographs, images, logos and other audio and/or visual content and material provided by Advertiser for use in connection with the Campaigns.
(b) Media Partner acknowledges that all Intellectual Property subsisting in Creative is and shall remain the property of the applicable Advertiser.
(c) Media Partner represents and warrants that Media Partner’s use of Creative complies with this User Agreement, the applicable EIO and all applicable laws, rules and regulations. Flair shall not be responsible for or liable for Creative and can remove any Creative from the Platform at any time. If requested by Flair, Media Partner shall cease utilizing such Creative when requested to do so by the Advertiser or Flair
3.4 Data: Flair collects and stores through the Platform tracking data, traffic data and data regarding Media Partner’s relationships with Advertisers. Flair uses the data variously, such as to perform analytics, to make payment for Payouts on Advertisers’ behalves, and in the performance of Flair’s obligations under this Agreement and agreements with relevant Advertisers. Flair retains any and all rights in and to such data as Flair’s “Confidential Information” (as defined in Section 4). Media Partner may utilize the data available to Media Partner through the Platform reporting system during the duration of this Agreement. Flair does not collect personally identifiable information from End Users and Media Partner warrants that Media Partner shall not pass to Flair personally identifiable information from End Users.
4. Confidentiality
4.1 “Confidential Information” means all confidential information and data of whatever nature, whether in tangible or intangible form such as trade secrets, financial, and technical information, technology, processes, customers, prices, discounts, and margins.
4.2 Obligations. A party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) agrees to agrees to (a) hold all Confidential Information in confidence and protect it with the same degree of care with which the party protects its own Confidential Information; (b) use such Confidential Information only for the purposes of this Agreement and as permitted by this Agreement; (c) not copy or otherwise duplicate such Confidential Information, except for the purpose of this Agreement; and (d) restrict disclosure of such Confidential Information solely to those employees and agents with a need to know such Confidential Information for the purposes of this Agreement, who are told of its confidentiality and who are bound in writing to protect the same. Receiving Party shall be obligated to inform its employees and agents of the confidential nature of the Confidential Information.
4.3 If the Receiving Party receives a request pursuant to a court order, governmental body request or other legal process to disclose the Disclosing Party’s Confidential Information, the Receiving Party shall promptly notify the Disclosing Party and reasonably assist the Disclosing Party in obtaining a protective order requiring that any portion of the Confidential Information required to be disclosed be used only for the purpose for which a court issues an order or as otherwise required by law. Each party shall bear its own legal expenses in connection therewith.
4.4 Exceptions. The obligations of Receiving Party with respect to Confidential Information shall not apply to any information designated as confidential if, prior to any release of such information, such Confidential Information: (a) was already known to it, free of any obligation to keep it confidential or proprietary; (b) is or becomes publicly known through no wrongful act of the party; (c) was received from a third party without any restriction or confidentiality; (d) was disclosed to third parties by the Disclosing Party without any obligation of confidentiality; (e) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party or (f) is approved for release by prior written authorization of the Disclosing Party.
5. Payouts, Flair Platform Fees and Payment Terms
5.1 Payouts and additional service charges. All payments processed via the Platform shall be in US ($) Dollars. Flair makes payment to Media Partner after receipt of payment for Payouts from Advertisers. Payouts are aggregated from all Advertisers that Media Partner has earned Payouts from. Flair may, if Media Partner elects optional Flair services for which there are charges, deduct from Media Partner’s Payouts the costs of the optional services.
5.2 Reactivation: If Media Partner’s Account has been suspended, Flair may, in Flair’s sole discretion, require prior to reactivation that Media Partner provide proof of Media Partner’s compliance, or ability to comply, with this User Agreement and any other reasonable requirement of Flair.
5.3 Taxes: Media Partner is responsible for the taxes, if any, on Payouts.
6. Representations, Warranties & Disclaimers
6.1 Flair Warranties: Flair represents and warrants to Media Partner that Flair:
(a) has the full power and authority to carry out the actions contemplated under this User Agreement;
(b) that its entry into and performance of its obligations under the terms of this User Agreement shall not infringe the rights of any third party or cause it to be in breach of any obligations to a third party; and
(c) shall supply its services under this User Agreement with reasonable skill and care.
6.2 Media Partner Warranties: Media Partner represents and warrants to Flair that Media Partner:
(a) has the full power and authority to carry out the actions contemplated under this User Agreement and each Campaigns;
(b) is over the age of 18;
(c) will not infringe the rights of any third party or cause it to be in breach of any obligations to a third party by and through Media Partner’s entry into and performance of Media Partner’s obligations hereunder;
(d) shall at all times in using the Platform and access Flair website(s) comply fully with any and all applicable laws, rules and regulations; and
(e) shall comply with the terms and conditions of this Agreement.
6.3 FLAIR DISCLAIMERS: MEDIA PARTNER EXPRESSLY AGREES THAT MEDIA PARTNER’S USE OF THE PLATFORM AND ANY FLAIR WEBSITE IS AT MEDIA PARTNER’S OWN RISK, AND THAT THE PLATFORM AND WEBSITE(S) ARE AVAILABLE “AS IS”. EXCEPT AS PROVIDED FOR IN SECTION 6.1, THE PLATFORM AND WEBSITE(S) ARE PROVIDED WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, BY FLAIR (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, ACCURACY OR TRADE USAGE), REGARDING THE PLATFORM, THIRD PARTY PRODUCTS OR INFORMATION, OR FLAIR WEBSITES. FLAIR SHALL IN NO EVENT BE LIABLE FOR ANY ACTS OR OMISSIONS OF ADVERTISERS. FLAIR DOES NOT GIVE ANY GUARANTEE OR OTHER LEGALLY BINDING COMMITMENT THAT THE PROVISION OF SUCH SERVICES SHALL INCREASE THE REVENUES THAT MEDIA PARTNER GENERATES FROM ITS USE OF THE PLATFORM.
6.4 Limitations of Liability: FLAIR WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE, PROFITS OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT OR PLATFORM USE, EVEN IF FLAIR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FLAIR’S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT SHALL NOT EXCEED, IN ANY EVENT, THE TOTAL AMOUNT OF PAYOUTS EARNED BY YOU FROM ADVERTISERS PURSUANT TO EIOs (EXCLUDING AMOUNTS CHARGEDBACK) DURING THE 3 MONTHS PRIOR TO THE DATE UPON WHICH THE EVENT GIVING RISE TO THE LIABILITY FIRST OCCURRED. FLAIR DISCLAIMS LIABILITY FOR YOUR SELECTION OR RETENTION OF ADVERTISERS, OR ANY ACTS, ERRORS, OR OMISSIONS BY ANY THIRD PARTY, INCLUDING THIRD PARTY SERVICE PROVIDERS OF FLAIR.
7. Indemnification
Subject to Section 6.3 and 6.4, each party ("Indemnitor") shall defend, indemnify and hold the other party and its respective shareholders, directors, officers, employees, subcontractors and agents ("Indemnitee") harmless against all claims, suits, costs, damages liabilities, expenses (including court costs and reasonable attorney's fees), settlements and judgments incurred, claimed or sustained by third parties (“Claims”) for the Indemnitor's breach of this Agreement and for breach of a third party's Intellectual Property rights, provided that: (a) Indemnitee notifies Indemnitor in writing within a commercially reasonable time after its receipt of notice of any Claim; (b) Indemnitor has sole control of the defense and all related settlement negotiations (except that the Indemnitor shall not settle any Claim in any manner which would admit fault by the Indemnitee without Indemnitee’s reasonable consent); and (c) Indemnitee provides Indemnitor with reasonable assistance, information and authority necessary to perform its obligations under this Section. Indemnitee may participate in the defense of a Claim at Indemnitee’s expense, and such participation shall not waive or reduce any obligations on the Indemnitor under this Section.
8. Term and Termination
8.1 This Agreement is effective on the date that Media Partner establishes a Media Partner Account and continues unless and until terminated in accordance with Section 8.2. Without prejudice to the other remedies of Flair under this User Agreement, Flair may suspend Media Partner’s use of the Platform, any Campaign or any EIO at any time if Media Partner breaches this User Agreement, or the relevant Advertiser’s agreement with Flair or an EIO.
8.2 This User Agreement may be terminated:
(a) by either Party upon 30 (thirty) days’ prior written notice to the other Party or pursuant to Section 9.1;
(b) by Media Partner pursuant to Section 9.6;
(c) by Flair with immediate effect if Media Partner infringes the Intellectual Property of Flair or a third party, or Media Partner breaches Section 2, or, if in Flair’s sole discretion Media Partner’s actions may cause it financial loss or liability to any third party; or
(d) by either Party in the event that a party is prohibited from performing all or a material part of their obligations under this User Agreement; or makes this User Agreement cost-prohibitive for the Party seeking to terminate this User Agreement.
8.3 Any termination of this User Agreement shall be without prejudice to any other rights or remedies a Party may be entitled to under this User Agreement or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of this User Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
8.4 On termination of this User Agreement all licenses granted hereunder shall terminate, and, subject to compliance with any applicable law, each Party shall return Confidential Information of the other Party in their possession or under their control. Further, Media Partner shall cease using Creative and remove all uses thereof.
9. General
9.1 Force Majeure. "Force Majeure" means circumstances beyond the reasonable control of a party, including but not limited to acts of God, war, terrorist action, fire, flood, governmental act Internet or other telecommunications failure. Neither party shall be liable to the other party for any failure or delay in performing any of its obligations hereunder if such failure or delay is caused by the occurrence of an event of Force Majeure. If a party becomes aware of a Force Majeure event, such party shall immediately notify the other party in writing. If the event of Force Majeure continues period in excess of three (3) weeks, then either party may terminate this User Agreement by written notice to the other party with immediate effect.
9.2 Waiver of Remedies: No forbearance or delay by either Party in exercising or enforcing the provisions of this User Agreement shall prejudice or restrict the rights (whether provided by the User Agreement or by law) of that Party nor shall any waiver of its rights operate as a waiver of any subsequent breach. No right, power or remedy herein conferred upon or reserved for either Party or available by law is exclusive of any other right, power or remedy available to that Party (whether under this User Agreement or at law) and each such right, power or remedy shall be cumulative.
9.3 Assignment: Either party may assign this User Agreement upon written notice to the other party. Notwithstanding the foregoing, if this Agreement is assigned to a competitor of Flair, Flair shall have the option to terminate this Agreement immediately.
9.4 Entire Agreement: This User Agreement represents the entire understanding and constitutes the entire agreement between the Parties in relation to its subject matter and supersedes any previous agreement between the Parties as to such subject matter. Each of the Parties acknowledges and agrees that in entering into this User Agreement it has not relied on any representation or warranty other than those expressly set out in the User Agreement.
9.5 Electronic Signatures: You acknowledge and agree that by clicking-through acceptance of this Agreement, Electronic Insertion Orders, and other click-through offers on the Platform, You are submitting a legally binding electronic signature and are entering into a legally binding contract. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PRODUCTS AND/OR SERVICES OFFERED BY FLAIR. Further, You hereby waive any rights or requirements under any applicable statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. Notwithstanding the foregoing, the Parties may agree to mutually execute a printed version of this Agreement. If the Parties do so, such document shall supersede the click-through version of this Agreement.
9.6 Modifications: Flair may propose amendments to this Agreement with thirty (30) days’ notice (“Notice Period”). If Media Partner does not agree to such amendments, Media Partner may terminate this Agreement prior to the end of the Notice Period. If Media Partner does not terminate this Agreement, the amendments shall become effective on the date proposed by Flair to Media Partner, unless mutually agreed otherwise by the parties in writing. Otherwise, this User Agreement may not be altered, amended or modified except in writing signed by duly authorized representatives of each of the Parties hereto.
9.7 Audit Rights: Each Party agrees to maintain adequate books and records relating to its compliance with the terms of this Agreement during the term of this Agreement and for a period of one (1) year thereafter. Copies of such records shall be made available to the other party upon written request. An officer of the party supplying the records shall certify the authenticity of the copies.
9.8 Notices: All notices which are required to be given under this User Agreement shall be in writing and shall be sent to the postal address or facsimile number of the Party as follows: (a) to Flair, as set out below, and (b) to Media Partner, at as provided in Media Partner’s Account; or, with respect to either Party, such other address as updated by the Party pursuant to this Section. Any such notice may be delivered personally or by first class pre-paid letter (or by air-mail if overseas) or by facsimile transmission, and shall be deemed received, when delivered (if by hand); or if by mail five (5) days after deposit in mail, if by facsimile transmission, when successfully dispatched in full.
9.9 Severability: If any provision in this User Agreement is, in whole or in part, held by a court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable under any enactment or rule of law then that provision or part shall be deemed not to form part of this User Agreement and the enforceability and validity of the remainder of this User Agreement shall not be affected. The parties shall in good faith attempt to modify any invalidated provision or part to carry out the parties' stated intentions.
9.10 Survival: All provisions that by their sense and context are intended to survive the termination or expiration of this Agreement, including any rights arising out of a breach of this Agreement, shall survive the termination or expiration of this Agreement.
9.11 Relationship of the Parties: The relationship of the Parties is that of independent contractors and this User Agreement does not constitute either Party the agent of the other, or create a partnership, joint venture or similar relationship between the Parties, and neither Party shall have the power to bind the other or to create a liability against the other in any way.
9.12 Dispute Resolution. The Parties will attempt in good faith to resolve through negotiation any dispute, claim, or controversy arising out of or relating to this Agreement or interpretation or validity thereof, including this section (“Dispute”). If the Dispute is not resolved through verbal and written communications, the matter will be submitted to JAMS for arbitration in Seattle, Washington, USA before a sole arbitrator, in English, in accordance with the laws of the State of Washington for agreements made in and to be performed therein. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitrator will have no authority to award punitive damages or any other damages not measured by the prevailing party’s actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of this Agreement. Judgment on the arbitration award may be entered in any court having jurisdiction. The arbitrator may, but shall not be obligated, to allocate all of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the party that primarily prevails, against the party that did not primarily prevail.
9.13 Governing Law and Venue: This Agreement is governed by the laws of the State of Washington (USA), except for its conflict of law provisions. Each party may apply to the state courts (or federal courts, as applicable) in Seattle, Washington, USA for injunctive relief until such time as an award is rendered or the dispute is otherwise resolved, and the parties agree that those courts and JAMS arbitration (in accordance with Section 9.12 above) shall be the exclusive fora for any such actions related to this Agreement. Both parties consent to such venue and jurisdiction. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys' fees and costs.
© Flair:Wear the Joy!
November 1, 2013
