These Partner Terms and Conditions ("Agreement") govern the services provided by ListMarketer Software, Inc., a Wyoming limited liability (“ListMarketer”). By using the services and becoming an ListMarketer Partner, you (“Partner”) agree to be bound by this Agreement.
This Agreement may be amended from time to time in ListMarketer’s discretion and pursuant to applicable law. Amended versions of this Agreement will be effective upon posting at www.ListMarketer.com.
1. Definitions. As used in this Agreement, the following terms shall have the meanings set out below or as defined elsewhere in this Agreement:
Customer: means an entity that pays ListMarketer for email delivery software or services
Lead(s): means any Lead or activity specified by ListMarketer and its Customers for which ListMarketer is to compensate Partner.
Consumer: An individual who receives or responds to an advertisement.
Art: means a graphic file(s) or Art work made available to Partner.
Invalid Leads: shall mean fraudulent, incomplete or duplicate Leads as further defined herein. Fraudulent Leads shall include Leads that result from Partner or its sub-Partners engaging in the entry of Consumer information without the consent of the actual Consumer such as adding leads or clicks or inflating leads or clicks by fraudulent traffic generation such as pre-population of forms or mechanisms not approved by ListMarketer. Incomplete Leads include Leads in which the information sent to ListMarketer does not contain the data or information required by ListMarketer or its Advertisers. Duplicate Leads includes Leads that Partner sends to ListMarketer that contains identical information Partner has previously sent to ListMarketer.
Advertisement: Text or art that contains a promotion or opportunity directed to Consumers that may be made available from time to time by ListMarketer for publishing by Partner.
2. Services. ListMarketer hereby grants Partner the limited right to make ListMarketer’s Advertisements and Art available for publication and to otherwise use such materials in accordance with (i) the terms and conditions set forth in this Agreement and (ii) any additional terms of a particular Advertisement as specified by ListMarketer. ListMarketer does not authorize Partner to distribute ListMarketer’s Advertisements to sub-Partners.
3. Term and Termination. Either party may terminate this Agreement on three(3) business days advance notice to the other party. In the event either party in good faith believes that the other party is in violation of applicable law or in breach of any terms of this Agreement, such party shall have right to terminate the Agreement immediately upon written notice to the other party. ListMarketer further reserves the right to terminate this Agreement and Partners participation in the services hereunder without prior notice to Partner.
4. Payment. Filling out this form constitutes an agreement between ListMarketer and Partner. The commission payment that is generated to the Partner is 5% of the net ListMarketer invoiced fees for a period of up to six (6) months per client, not including ISP charges. This commission payment is made approximately 15 days after the end of the month after receiving payment from the Customer. Delinquent Customer payments received by ListMarketer will be credited to the Partner in the month that they are received. ListMarketer does not guarantee payment to the Partner if the Customer does not pay ListMarketer. Commission payment totals must exceed $250.00; otherwise this payment will not be made until the $250.00 minimum is reached. International Partners (outside of the United States) agree to a minimum $250.00 to be reached.
5. Partner Obligations. Partner shall at all times comply with the following:
All websites, newsletters, companies, or individuals need official approval from ListMarketer. Only websites and newsletters that have been approved are permitted to promote the ListMarketer service. ListMarketer reserves the right to withhold or refuse approval on any website, newsletter, company, or individual for any reason whatsoever.
In order to be eligible for approval, all websites and newsletters must meet the following criteria:
The content of the website and/or newsletter cannot contain any adult content nor link from, or to, any adult materials including but not limited to:
The content of the website and/or newsletter cannot infringe on any personal, intellectual property or copyrights including but not limited to:
Partner cannot place ListMarketer advertisements into a ListMarketer framed environment, unless approved by ListMarketer in writing.
Unless expressly approved in writing by ListMarketer or specified in the campaign description, PARTNER IS NOT PERMITTED to provide compensation, benefits, or incentives of any kind whatsoever, including, but not limited to, points, cash, contest entries, or rewards, to encourage a user to click on an advertisement or to complete a form without the prior written consent of ListMarketer. If a site is incentivized and an Partner receives a high rate of complaints from ListMarketer advertisers or immediate cancellations, Partner’s account may, at ListMarketer's discretion, be evaluated and removed from the network. If ListMarketer suspects fraud or the encouragement of cancellations, ListMarketer reserves the right to remove all leads from Partner’s account on a case by case basis.
If Partner fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (as determined solely by ListMarketer, such as pre-population of forms or mechanisms not approved by ListMarketer), ListMarketer reserves the right to forfeit Partner’s entire commission for all programs and terminate Partner’s account. ListMarketer reserves sole judgment in determining fraud.
It is the OBLIGATION of the Partner to prove to ListMarketer that it did not commit fraud. ListMarketer reserves the right to hold Partner’s payment in 'Pending Status' until Partner satisfactorily provides evidence that it was not defrauding the system.
ListMarketer flags accounts that:
Editing of an Advertiser's program images or copy is strictly prohibited. Partner will only use approved banners and text to link to an Advertiser's sign-up pages. Partner will not mislead people to make it seem that they are signing up for an Advertisement that is offered by the Partner site. Partner can ONLY use banners and approved text; any other use will result in the loss of all payments accrued for the Partner.
ListMarketer requires ALL Partners to follow all Mandates outlined in the Can Spam Act of 2003. The "Can Spam Act of 2003" is a broad explanation of rules and requirements. Partner shall operate under its most strict interpretation.
6. Limitation of Damages and Liability.
Except as expressly set forth in this Agreement, NEITHER PARTY makes ANY warranties and expressly disclaims all warranties, express or implied, as to the subject matter of this Agreement, including implied warranties of merchantability and fitness for a particular purpose. IN NO EVENT SHALL LISTMARKETER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS OR REVENUES, OR HARM TO BUSINESS) EVEN IF IT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LISTMARKETER'S LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY, BE GREATER THAN THE TOTAL AMOUNT PAID WITHIN THE PRIOR SIX MONTHS BY LISTMARKETER TO PARTNER HEREUNDER.
Each party agrees to indemnify, defend and hold harmless the other, its vendors and suppliers, the Partners, and their respective subsidiaries, Partners, agents, partners, officers, directors and employees from and against any third party loss, cost, claim, injury or damage (including reasonable attorneys' fees) resulting from claims or actions arising out of or in connection a breach of a party’s representations or warranties made in this Agreement or a breach of the terms and conditions of this Agreement.
7. Mutual Representations and Warranties.
Each party represents and warrants to the other party that (i) such party has the full corporate or organizational right, power, and authority to enter into the Agreement and to perform the acts required of it, (ii) the execution of the Agreement by such party, and the performance by such party of its obligations and duties, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound, or any applicable federal, state or municipal law or regulation to which it is subject, (iii) each party shall render all services to the other party in a professional and commercially reasonable manner, in accordance with generally accepted industry standards; and (iv) each party owns or has the authority and valid license to use all intellectual property and content on its website(s).
Each party represents and warrants that it is fully compliant with applicable privacy laws. Each party shall provide notice for, and fully disclose, its respective privacy policy and practices to visitors to its website(s).
If Partner is an individual, Partner represents that he/she is 18 years or older.
8. Confidential Information.Each party agrees to use the other party's Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party's Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing party. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, Advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services. Notwithstanding the foregoing, Partner agrees that ListMarketer may divulge its personal and/or otherwise Confidential Information to an Advertiser, agency, legal or regulatory authority, person or entity relating to investigations, claims or actions that Partner has violated this Agreement or any applicable law or regulation.
9. General.
Governing Law. The rights and obligations of the parties under or arising out of this Agreement shall be governed by and construed under the laws of the State of Wyoming without reference to its conflict of laws principles.
Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.
Relationship. The relationship of Partner and ListMarketer established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other.
Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile or confirmed electronic transmission; (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective party as indicated herein; or (iv) in the event of material changes to this Agreement, notice shall be deemed effective upon posting at www.ListMarketer.com. Copies of all notices shall be sent to ListMarketer Software, Inc., 355 NE 5th Avenue, Suite 6, Delray Beach, FL 33483, Attn: Legal Department.
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
Waiver. The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect.
Amendment. Changes, amendments or modifications of any provision of this Agreement shall be valid upon posting at www.ListMarketer.com.
Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision (or part thereof) of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms.
Dispute Resolution. In the event of disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, the parties shall first attempt to resolve the dispute(s) through good faith negotiation. The prevailing party in any action shall be entitled to recover its reasonable attorneys’ fees and costs incurred. Further, in the event of a dispute resulting in resort to litigation, each party consents to the exclusive jurisdiction of the federal and state courts in Cheyenne, WY, USA and any such litigation will be brought within such courts.
Survival. Any obligation of the parties relating to limitations on liability, confidentiality and indemnification shall survive termination or expiration of this Agreement.
Interpretation. Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either party by reason of its drafting.
By using the services and becoming a ListMarketer Partner, you (“Partner”) agree to be bound by this Agreement.
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