Red Pocket Affiliate Program Marketing Agreement
By submitting an online application you are agreeing that you have read and understand the terms and conditions of this agreement and that you agree to be legally responsible for every term and condition. This is a legal agreement between Red Pocket, Inc. ("Company" or “Red Pocket”) and you as the Partner, Network, Affiliate, Partner, or Web Site ("Publisher").
1) Marketing Relationship
a) This agreement outlines the details of a marketing relationship between the Company and Publisher, whereby Publisher will advertise Red Pocket products and/or services using Red Pocket-provided creative elements as appropriate and Red Pocket will compensate Publisher on a CPA (cost per acquisition) basis.
b) During the course of the marketing relationship, the Company may make a device(s) and/or service plan available to Publisher for review. Publisher agrees that receipt and use of such device and/or service plan constitutes an agreement between the parties whereby Publisher will commit to publish a textual or video review of Company's products within premium web inventory on Publisher web property. If Publisher fails to publish a textual and video review within a reasonable amount time, Publisher agrees to compensate Company for the MSRP price for the device(s) and/or service plan received as well as any data or value-added services used.
c) Publisher agrees that any text and video review may, at Company’s discretion,remain on YouTube and/or Company Review page in perpetuity.
2) Publisher Participation Requirements
a) Prohibited Content and Behavior. All Publishers must meet the following criteria:
i) Publisher cannot offer incentives to users to click on ads; incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.;
ii) Publisher will not Intentionally place creatives on blank web pages or on web pages with no content;
iii) Publisher's site must be fully functional at all levels; no "under construction" sites or sections;
iv) Publisher's site content and/or newsletter cannot contain any adult content or link from or to any adult materials;
v) Publisher cannot place the Company's advertisements into a framed environment unless approved by the Company in writing;
vi) Publisher's web site and/or newsletter cannot be 'point, lottery, or rewards' based encouraging users to click on the Company's banner ads or use the Company's advertising to generate revenue for users to win points, get rewards, or other incentives unless expressly approved in writing from the Company;
vii) Publisher may NOT place any of the Company's advertisements on alternative Publishers without written consent and approval from the Company;
viii) Publisher will not place advertisements on illegal websites (not approved by RIAA) including but not limiting to Bit-Torrent sites, P2P and/or Spyware or malicious code of any sort and/or alternatively questionable areas. In the event advertisements are placed in such prohibited locations, the Company reserves the right to withhold payment for the entire campaign and/or submit an immediate legal action against the Publisher.
ix) Publisher agrees not to carry objectionable materials on their website which would revoke their affiliation as determined by the Company.
x) Publisher will only run approved banners and text on their site/s and will NOT create their own banners or advertising text, unless expressly approved in writing from the Company.
xi) Email marketing will be permitted only upon written approval by Company. Publisher must use Company-approved Email Assets and comply fully with CAN-SPAM Act regulations as outlined at: http://business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-business. This re quired compliance by Publisher may include, at Company’s request, Publisher downloading and implementing Company’s suppression list before each mailing via an email suppression list 3rd party platform. Failure to comply will result in expulsion from the program, reversal of commissions and possibly a US$1,000 fine for each CAN-SPAM Act infringement. Only emails whose principal purpose and intent are the distribution of information or content unrelated to Company’s advertising, and which do not include directed communications intended or calculated to directly or indirectly entice the recipient or recipients to purchase from Company, will be approved.
xii) Editing of Company's ads, images or copy is strictly prohibited. Publisher will only use approved banners or text unless Publisher receives written and verbal permission from Company.
xii) Publisher will not engage in any form of solicitation activities, meaning that Publisher will not directly or indirectly communicate with a specific person or persons whether by telephone, distributing flyers, coupons, newsletters, or other promotional material, whether in person, or by electronic means, in a manner that is intended to and/or calculated to entice the person or persons to purchase from Company.
xiv) Publisher agrees to annually certify under penalty of perjury on such form as supplied by the Company that they have not engaged in any prohibited solicitation activities during the previous year and, if an organization, its website includes information directed at its members alerting them to the prohibition against their solicitation on behalf of Publisher.
i) Violation of the aforementioned requirements forfeits your payment.
ii) If you fraudulently generate impressions, add leads or clicks, or inflate impressions, leads or clicks by fraudulent traffic generation (as determined solely by the Company), you will forfeit your entire payment for all traffic generated and your account will be terminated.
iii)The Company reserves sole judgment in determining fraud and you agree to this clause. It is the OBLIGATION of Publisher to prove to the Company that they are NOT committing fraud. The Company will hold your payment in 'Pending Status' until you have satisfactorily provided evidence that you are not defrauding the program.
The Company reserves the right to terminate any Publisher's contract for any reason whatsoever. Termination notice will be provided via email and will be effective immediately or at a later date at Company’s discretion. Any legitimate funds due to Publisher will be paid during the next billing cycle. If Publisher commits fraud, in Company’s sole judgement, then payment is revoked as determined solely by the Company.
4) Representations and Warranties
a) Publisher guarantees that all content, products, and services on Publisher’s website(s) are legal to distribute and that Publisher owns or possesses the legal right to use any and all such material therein, including copyrighted materials. Publisher irrevocably covenants, promises and agrees to indemnify the Company and to hold the Company harmless from and against any and all losses, claims, expenses, suits, damages, costs, demands or liabilities, arising from any and all claims and lawsuits for copyright, slander, libel, and trademark violation as well as all other claims resulting from Publisher’s web pages. If Publisher violate any element of this Agreement, or commits or attempts to commit fraudulent activity, Publisher voids the right to receive payment under this Agreement, and the Company reserves the right to withhold payment from Publisher and take appropriate legal action to cover its damages.
b) In the event of any legal action taken by an advertiser, agency, client, person, or entity against the Company (“Claimant”) for actions of the Publisher, the Publisher understands and accepts that the Company will work with such Claimant, which may include divulging the Publisher’s personal information by Company. Publisher further agrees that the Company is not liable in any manner for Publishers actions, and that Publisher will bear all costs (legal or otherwise) that the Company incurs if the Company is sued by advertiser, client, agency, person, or entity.
c) If any provision of this Agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this agreement shall not be affected thereby.
d) No rights or obligations under this Agreement may be assigned by Publisher without the prior written consent of Company. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. Company and any of its subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties under this Agreement to any party. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
a) Publishers will be paid within thirty (30) days from the last business day of each month in which earnings are accrued, unless specified otherwise in this agreement. Publishers will be paid by an affiliate platform selected by Company. All accounts will be settled in US dollars. No payments will be issued for any amount less than $75 (the “Minimum Payment Threshold”). Any unpaid earnings will rollover to the next pay period. As a condition to Company's obligation to make payments hereunder to Publisher, Publisher must have on file with Company a completed and accurate W-9 (for US-based Publishers) or a completed and accurate W-8 (for non-US-based Publishers). Publisher payments will be withheld until the appropriate tax documents are received by Company.
b) Company reserves the absolute right to withhold payment from accounts or Publishers that violate any of the terms and conditions set forth herein. Company will determine, in its sole discretion, whether acts or omissions are deceptive, fraudulent or violate this Agreement. All reported numbers for the purposes of billing and general delivery reporting are based on the Company's server reports unless mentioned elsewhere in this Agreement.
6) Miscellaneous Provisions
a) Entire Agreement: This Agreement shall be the entire, full and complete agreement between Red Pocket and Publisher concerning the subject matter hereof, and supersedes all prior agreements regarding such subject matter. No other representation have induced Red Pocket or Publisher to execute this Agreement, and there are no representations, inducements, promises or agreements, oral or otherwise, between the parties not embodied herein, which are of any force or effect with reference to this Agreement or otherwise. No amendment, change or variance from this Agreement shall be binding on either party unless executed in writing. Captions, paragraph designations and section or convenience only, and in no way define, limit, construe or described the scope or intent of the respective parts of this Agreement. No amendment or modification of this Agreement shall be effected by the use, acknowledgement, or verbal written, signed or electronic acceptance of Publisher’s purchase order or other form stipulating additional or different terms and/or conditions than are contained in this Agreement. In the event of a conflict between this Agreement and any other document, including but not limited to purchase orders (including those executed by either or both parties), this Agreement shall control.
b) Review of the Agreement. Publisher represents that it has carefully reviewed this Agreement and has had enough time to consult with a lawyer, accountant, or other professional advisor and Publisher understands and agrees to be bound by the terms, conditions and obligations of this Agreement. Publisher represents and warrants that, if it did not use a professional advisor, it is satisfied in relying on its own education, experience, and skill in evaluating the merits of and entering into this Agreement. Publisher further represents that it has entered into this Agreement freely and voluntarily and not as a result of any threats, coercion, duress, or other improper influence. Publisher further represents and warrants that Publisher has conducted an independent investigation of the business to be operated hereunder, recognizes that the business venture contemplated by this Agreement involves business risks, and that its success will be largely dependent upon the ability of Publisher and its organization as independent business persons and managers. Red Pocket expressly disclaims the making of, and Publisher acknowledges that it has not received from Red Pocket, or any person, employee, representative, agent or other party purporting to act on behalf of Red Pocket, any warranty, promise, or guarantee, express or implied, as to the potential sales volume, profits, or success of the business venture contemplated by this Agreement.
c) INDEMNIFICATION: A party (“Indemnifying Party”) shall, at its expense and the request of the other party (“Indemnified Party”), defend any third-party claim or action brought against the Indemnified Party, and its affiliates, directors, officers, employees, licensees, agents and independent contractors, to the extent it is based upon a claim that, if true, would constitute a breach of a warranty, representation or covenant of the Indemnifying Party set forth in this Agreement (collectively, “Indemnified Claims”). The Indemnified Party shall promptly notify the Indemnifying Party in writing, specifying the nature of the action and the total monetary amount sought or other such relief as is sought therein. The Indemnified Party shall cooperate with the Indemnifying Party at the Indemnifying Party’s expense in all reasonable respects in connection with the defense of any such action. The Indemnifying Party may upon written notice to the Indemnified Party undertake to control and conduct all proceedings or negotiations in connection therewith, assume and control the defense thereof, and if it so undertakes, it shall also undertake all other required steps or proceedings to settle or defend any such action, including the employment of counsel which shall be reasonably satisfactory to the Indemnified Party, and payment of all reasonably incurred expenses. The Indemnified Party shall have the right to employ separate counsel to provide input into the defense, at Indemnified Party’s own cost. The Indemnifying Party shall reimburse the Indemnified Party upon demand for any payments made or loss suffered by it at any time after the date of tender, based upon the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of claims, demands, or actions, in respect to any damages to which the foregoing relates. The Indemnifying Party shall not settle any claim or action under this Section 11 on the Indemnified Party’s behalf without first obtaining the Indemnified Party’s written permission, which permission shall not be unreasonably withheld, and the Indemnifying Party shall indemnify and hold the Indemnified Party harmless from and against any costs, damages and fees reasonably incurred by Indemnified Party, including but not limited to fees of attorneys and other professionals, that are attributable to such Indemnified Claims. The Indemnified Party shall provide the Indemnifying Party reasonably prompt notice in writing of any such Indemnified Claims and provide the Indemnifying Party with reasonable information and assistance, at the Indemnifying Party’s expense, to help the Indemnifying Party to defend such Indemnified Claims.
d) WARRANTIES: The product warranty and repair guidelines provided by the manufacturer of the Products will control servicing and repairs of Products under any manufacturer warranty. Manufacturer’s warranties may change from time to time. Warranty terms may be contained with the handset or other Product to which the warranty is applicable. This Agreement does not exclude or modify any conditions of warranty implied into this Agreement or any liability imposed on Red Pocket by any law if to do so would contravene that law or make any part of this clause void or unenforceable. However, to the maximum extent permitted by law, Red Pocket excludes all conditions, liabilities and warranties that may be expressed or implied into this Agreement.
RED POCKET MAKES NO WARRANTIES OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED, TO PUBLISHER OR ANY OTHER PURCHASER OR END-USER OF THE PRODUCTS. RED POCKET SPECIFICALLY MAKES NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR DOES RED POCKET WARRANT THE RESULTS OF PRODUCT USAGE, THAT A PRODUCT WILL OPERATE UNINTERRUPTED OR ERROR FREE, OR THAT A PRODUCT’S FUNCTIONALITY WILL MEET ANY USER REQUIREMENTS. PUBLISHER HEREBY WAIVES ALL OTHER WARRANTIES, GUARANTEES, CONDITIONS OR LIABILITIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE. PUBLISHER'S SOLE AND EXCLUSIVE REMEDY RELATING TO THIS AGREEMENT AND/OR PRODUCTS SHALL BE THE REMEDY, IF ANY, AFFORDED BY THE MANUFACTURER OF SUCH PRODUCTS TO PUBLISHER OR PUBLISHER’S CUSTOMERS.
e) EXCLUSION OF LIABILITY: NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY. IN NO EVENT SHALL RED POCKET BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR OTHER MONETARY LOSS, ARISING OUT OF RED POCKET’S PERFORMANCE OR FAILURE TO PERFORM OR THE FAILURE OR POOR PERFORMANCE OF THE SYSTEMS, PRODUCTS OR SERVICES, WHETHER OR NOT ANY SUCH MATTERS OR CAUSES ARE WITHIN RED POCKET’S CONTROL OR DUE TO NEGLIGENCE OR OTHER FAULT ON THE PART OF RED POCKET OR IT’S RESPECTIVE AGENTS, AFFILIATES, EMPLOYEES OR OTHER REPRESENTATIVES, OR WHETHER RESULTING FROM THE FAILURE IN THE OPERATION OF OR OTHER DEFECT IN ANY PRODUCT DISTRIBUTED OR SOLD HEREUNDER.
f) INDEPENDENT CONTRACTORS: The relationship between Red Pocket and Publisher during the Term of this Agreement shall be that of independent contractors. Neither Publisher nor its owners, agents, representatives, managers or other employees shall under any circumstances be, nor shall they in any manner represent themselves as, owners, agents, representatives or directors, officers, employees, partners or joint ventures of or with Red Pocket. Publisher shall have no right to enter into any contracts or commitments in the name of or on behalf of Red Pocket or to obligate Red Pocket in any respect whatsoever.
g) Publisher also expressly agrees not to contact or solicit Red Pocket’s Customers for any purpose. Publisher, either on its own or through any third party, shall not proactively solicit any Red Pocket Customers to switch to another wireless service. In the event that it is determined that Publisher has proactively encouraged the solicitation of Red Pocket Customers to another wireless service, as set forth above, Publisher will be responsible for the lost value of those switched Customers, with said value being due upon demand from Red Pocket.
h) Governing Law. This Agreement shall be in all respects, governed by and construed and enforced in accordance with the laws of the State of California. Any action to enforce or interpret the terms of this Agreement shall be instituted and maintained in the city of Los Angeles, California. The parties hereby consent to the jurisdiction of such court and waive any objections to such jurisdiction.
BY APPLYING FOR THE RED POCKET PROGRAM AND CLICKING ON THE APPLY BUTTON YOU ARE SIGNIFYING YOUR AGREEMENT TO BE PRESENTLY BOUND BY THE TERMS OF THIS AGREEMENT TO THE SAME EXTENT AS IF YOU HAD PERSONALLY SIGNED THIS AGREEMENT.