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Affiliate Terms of Use

This is a legal agreement (“Agreement”) between Express Revenue, Inc. (“Express Revenue,” “Company” or “we”) and the person or entity (“Affiliate” or “You”) that has submitted an application to participate as an affiliate (otherwise commonly referred to as a “publisher”) in Company’s online advertising network (“Network,” as further defined below). You and Company may also be individually referred to herein as a “Party” and collectively as “Parties”. This Agreement governs Your participation in the Network and provides the terms and conditions under which You may earn payment for promoting offers for goods or services made available by third party advertisers (each, an “Advertiser”) participating in the Network.

This Agreement constitutes the entire and only agreement between us and You, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Network (which include, without limitation, the website through which you access the Network and any services offered by the Company in connection with the Network now or in the future), the content and computer programs provided by or through the Network, and the subject matter of this Agreement. Company may change or update this Agreement at any time without specific notice to You. The current version of this Agreement will be posted on the Company’s web site interface made available to you by the Company to access the Network, available at www.ExpressRevenue.com and sub-pages thereon (“Affiliate Site”), and you should review this Agreement prior to each use of the Network. Your continued use of the Network after any such modification shall constitute Your consent to such modification.  You agree to use the Network only in accordance with this Agreement. If you do not so agree, You should not be part of the Network and shall not be entitled to any payment or other benefits or rights under this Agreement.

1.  Network Description; Use of the Network.

  Through the Affiliate Site, Company will make creative advertising images and data (“Programs”) of Advertisers available to you for placement on or distribution through Your media properties (“Media”), such as by posting on your web sites(s) or distributing to your email distribution lists.  Each Program will include specific terms governing your use of the Program (“Program Terms”).  You must place or distribute the Program through your Media in accordance with the Program Terms.  The Program Terms will specify the amount and terms under which You may receive payment (“Bounty”) for placing or distributing the Program when the requirements set forth in the Program Terms are fulfilled. Bounties are generated from a specified event (“Event”) as specified in the Program Terms, such as clicks, click-throughs, sales, registrations, impressions and/or leads. Company and/or its Advertisers may change the Program Terms for any Program at any time upon notice to You, at which time You must promptly make any changes in your presentation or distribution of the Program to accommodate any such changes to the Program Terms, or immediately cease using the Program. 

Company will track all active Programs and compile, calculate and electronically deliver data required to determine the compensation that may be owed to you as a Bounty under this Agreement. Upon delivery of any such report to you, you must submit any questions or disputes regarding Company’s data and calculations to Company in writing, including a detailed explanation for any such dispute, within two (2) days of the report delivery date; otherwise, Company's figures and calculations shall be deemed accurate and accepted as such by You.

2.  Application to Participate.

Participation in the Network is subject to our prior approval.  We reserve the right to refuse acceptance of your application, in our sole discretion, with or without cause.  If we accept Your application and later determine that acceptance was granted in error for any reason at our discretion, we may immediately terminate this Agreement upon notice to You. 

You have an ongoing responsibility to update any information provided to us in your application, including Your list of Media that may be used to place or distribute Programs, to ensure that our files remain current.  You acknowledge, agree and consent that we may communicate with you regarding your participation in the Network and any other aspect of the Network via email, telephone, mail, or any other means.  We may, from time to time, send necessary communications relating to the Network and this Agreement to the email address then-currently associated with your Account (as defined below). You will be deemed to have successfully received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your account is no longer current.
 
Upon our approval of Your application, you will receive an account and password (“Account”) to access the Affiliate Site. Upon termination of this Agreement for any reason, we will disable your Account.  You are solely responsible for all activities that occur under Your Account.  You are solely responsible for maintaining the security of your password.  You may not disclose Your password to any third party for any reason (other than third parties authorized by you to use your Account in accordance with this Agreement).  If your password is compromised you must immediately notify us.  We will not be liable for any loss or damage arising from your failure to comply with the requirements of this paragraph. 

3.  Affiliate Responsibilities.

The following responsibilities (“Affiliate Responsibilities”) apply to You as well as any of Your Sub-Affiliates (as defined in Section 4).  You are responsible for ensuring each of Your Sub-Affiliate’s compliance with the Affiliate Responsibilities.  References below to “You” or “Affiliate” refers to any Affiliate or Sub-Affiliate described in this Section.

A.        You are solely responsible for all aspects of any Media used by You to display or distribute advertising, including but not limited to the development, operation, and maintenance of Your Media and all content that appears on or within Your Media.  You must conduct all marketing and other activities related to your participation in the Network in full compliance with all then-current applicable laws, regulations, and guidelines of the jurisdiction(s) in which the advertising will be distributed, including but not limited to the Federal Trade Commission Act (“FTC Act”), the CAN-SPAM Act, Federal Trade Commission (“FTC”) regulations and guidelines implementing the FTC Act and the CAN-SPAM Act, and FTC Guides Concerning the Use of Endorsements.  For the avoidance of doubt, You will be responsible for any and all claims, allegations, liabilities, costs and expenses arising out of Your violation of the Affiliate Responsibilities.

B.        Without limiting the foregoing, Your Media must meet the following requirements:

    • Not include content that is deceptive, misleading, false, untruthful, unsubstantiated, or otherwise fails to comply with applicable federal, provincial and state consumer protection laws, regulations, and guidelines of the jurisdiction(s) in which the content will be distributed.  
    • Not include any express or implied claims about the efficacy of, or generally expected results of using, any product, service or program unless You possess competent and reliable scientific evidence to substantiate the claim, which shall mean tests, analyses, research, or studies, conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.
    • Where the Media includes a message that consumers are likely to believe reflects the unbiased opinions, beliefs, findings, or experiences of You or any other person or party (“Endorser”) other than the Advertiser (including but not limited to consumer testimonials or celebrity or expert endorsements, blogs, and other statements), the message: (a) must reflect the honest opinions, findings, beliefs and/or experience of the Endorser, and may not convey an express or implied representation that would be deceptive if made directly by the Advertiser; (b) may not be presented out of context or reworded so as to distort in a material way the Endorser’s opinion or experience with the Advertiser’s product, service, or brand; (c) if the message represents that the Endorser uses the Advertiser’s product, service, or brand, the Endorser must have been a bona fide user of it at the time the message was distributed and the message may remain posted only as long as You have good reason to believe the Endorser continues to subscribe to the views presented; (d) may not claim that the experience is representative of what consumers will generally achieve; (e) must include in the Advertisement a disclosure that the Endorser has received consideration for his/her message, or otherwise disclose the material connection between the Endorser and the Affiliate or Advertiser, as appropriate. 
    • Not infringe on the personal rights, trademark, service mark, trade dress, trade name, logo, publicity right, copyright, patent rights, or any other intellectual property right of any third party.
    • Not be labeled as an “official site” or similar designation or include any other designation indicating that the Media is an “official” advertisement of the Advertiser.
    • Not use any methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of a consumer.  
    • Not serve advertising, or drive traffic to advertising or Media, using spyware, adware, parasiteware, or any downloadable application.
    • Not constitute deceptive software download or computer setting practices, including but not limited to, installing software without the user’s knowledge, changing a user’s home page without securing the user’s permission, or offering downloadable software that does not include an uninstaller or that cannot be uninstalled by add/remove programs.
    • Be content-based, not simply a list of links or advertisements, nor can the site be marketed towards earning money from Company’s Advertisers.
    • Have a top-level domain name.
    • Not offer incentives to users to click on ads or to sign-up for advertiser offers, including but not limited to awarding them cash, points, prizes, contest entries, etc.
    • Not promise gifts or anything else of value as a reward or incentive for participating in an online quiz or survey.
    • Be fully functional at all levels; no 'under construction' sites or sections.
    • Not include racial, ethnic, political, hate-mongering or otherwise objectionable content.
    • Not include gratuitous violence or profanity, and not include material that defames, abuses, or threatens physical harm to others.
    • Not include or promote any illegal activity including, without limitation, the promotion of illegal substances or activities such as how to build a bomb or commit any other criminal act, counterfeiting money, etc. 
    • Not constitute software pirating (e.g., Warez, Hotline), hacking or phreaking.
    • Not spoof, redirect, or traffic from adult-related websites in an effort to gain traffic.

C.        If email marketing is permitted by the applicable Program Terms, Affiliate shall comply with the federal CAN-SPAM Act of 2003, 15 U.S.C. 7704, and all state laws and regulations concerning email marketing, including but not limited to Cal. Bus. and Prof. Code 17529.5 et seq.  Without limiting the foregoing, Affiliate shall comply with the following provisions when sending or initiating emails promoting products or services or running Programs pursuant to this Agreement.

    • Affiliate shall not falsify any email “header” information, as that term is defined in the CAN-SPAM Act. Emails must have truthful, accurate, and non-misleading email header information (including source, destination, date and time, and routing information), subject lines and from lines. Emails shall not mask the email origin. 
    • Affiliate shall not alter any “subject” line provided in the Program Terms, or otherwise use any “subject” line that is false or misleading.
    • The “from” line used in transmitting message shall not be materially false or misleading. 
    • Affiliate shall download the most recent suppression file(s) for any particular campaign, and shall suppress all email addresses within its database that are found on such list. Affiliate shall not sell, lease, exchange, transfer, release, or use the suppression list either directly or indirectly any purposes whatsoever other than to fulfill its obligations under this Agreement. Affiliate shall not transmit, initiate, or send any emails to any recipient who previously requested not to receive commercial email messages from or on behalf of Advertiser or any “sender” of the email as that term is defined in the CAN-SPAM Act.
    • Affiliate shall download and remove from its email distribution lists the domains located on the Federal Communication Commission’s (“FCC”) wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from all current data used in all mailings.
    • Emails shall include a clear and conspicuous notice of the recipient’s right to opt-out of receiving future emails from Advertiser, and a functioning return email address and other Internet-based mechanism that a recipient may use to make such an “opt-out request” from the “sender” of the email as that term is defined in the CAN-SPAM Act.  The opt-out mechanism must remain active for at least thirty (30) days from the date the email is sent or the life of the Program, whichever is longer.  Affiliate shall honor email unsubscribe request within ten (10) days from receipt of request.
    • Emails shall include a clear and conspicuous identification that the message is an advertisement or solicitation. Such an identification shall state “This is an advertisement” or words of identical meaning.  Each email shall identify the “sender” of the email (as that term is defined in the CAN-SPAM Act) and shall provide a physical address of the email “sender.” 
    • Emails shall use only creatives, domain names, email addresses and other header information, including an email’s “From,” “To,” and “Reply-To” provided with the applicable Program.  Affiliate shall not remove or alter creatives, subject lines or from lines provided by Express Revenue or pre-approved by Express Revenue in writing. 
    • Affiliate shall not use email accounts or domain names that were created using information that falsifies the identity of the registrant. 

 

D.        All email addresses to whom Affiliate transmits or initiates Programs shall be:

  • Collected and maintained in compliance with all federal, state and provincial laws, regulations and rules of the jurisdiction(s) in which the emails will be distributed;
  • Collected from websites and other online venues only in compliance with the applicable websites’ and or other online venues’ privacy policies, provided that such privacy policies specifically allow for Affiliate to use such email addresses as contemplated hereunder; and
  • Collected from recipients who manifested affirmative, direct consent to receive commercial emails from Affiliate and Advertiser.  Affiliate shall maintain at all times during the term of the Agreement, and for a period of four years thereafter, complete and accurate subscriber sign-up/registration data for every email address on each email list.  

 

E.         In the event that telephone or text message marketing is permitted in the applicable Program Terms, Affiliate shall comply with the Telephone Consumer Protection Act (47 USC § 227), and implementing regulations adopted by the Federal Communications Commission (“FCC”), as amended from time-to-time (collectively, the “TCPA”).  Without limiting the foregoing, Affiliate shall comply with the following provisions when sending any text messages or making any telephone calls (as that term is defined by the TCPA, the FCC and reviewing courts).

  • Affiliate shall obtain “prior express written consent” (as defined TCPA, the FCC, and interpreting courts) to receive marketing text messages and telephone calls (including pre-recorded calls, artificial voice calls and/or autodialed calls) from Affiliate and on behalf of the Advertisers and/or entities whose products and services are promoted in the telephone calls and text messages. 
  • Affiliate shall retain the records of each individual’s “prior express written consent” (“Consent Records”) for a minimum of five (5) years, and shall provide such Consent Records to Express Revenue within one (1) day of receipt of a request from Express Revenue.  The Consent Records shall include, at a minimum, the name, telephone number, IP address and web forms of the source of the consumer data (or telemarketing voice consent capture tapes, if applicable) and the date and time stamp indicating the time that the consumer data was collected. 
  • Affiliate shall scrub against its outbound telephone recipient list, all telephone numbers that are provided by Express Revenue in the applicable Program Terms or otherwise.
  • Affiliate shall comply with all federal and state laws, rules, and requirements concerning “do not call” requests, including downloading and scrubbing telephone numbers on federal and state do not call registries from outbound calling and text message lists.
  • Affiliate shall comply with all federal and state laws, rules, and requirements concerning telemarketing registration.
  • Affiliate shall comply with all federal and state telephone calling time restrictions.
  • Affiliate shall maintain an internal do-not-call suppression list of telephone numbers associated with subscribers who have requested not to receive further calls or text messages from or on behalf of Affiliate or the Advertiser.  Affiliate shall honor all reasonable requests to opt-out, including but not limited to the words “stop,” “opt-out”, and “unsubscribe.”  Affiliate shall transmit the telephone numbers associated with such requests to Express Revenue on a daily basis.  Recipients who opt-out must be removed from Affiliate’s outbound calling and text messaging lists immediately. 
  • The content of all text messages and telephone calls shall comply with all applicable laws, rules and regulations including, without limitation, the TCPA.
  • Affiliate shall implement, as part of its routine business practices, written procedures to comply with the TCPA, including national do-not-call rules; training of personnel, and any entity assisting in its compliance, in procedures to comply with the TPCA including the national do-not-call rules; maintain and record a list of telephone numbers that the seller may not contact; and use a process to prevent telephone solicitations to any telephone number on any list established pursuant to the do-not-call rules; employ a version of the national do-not-call registry obtained from the administrator of the registry no more than 31 days prior to the date any call is made; and maintain records documenting this process.

 

F.         It is solely Affiliate’s obligation to ensure that all of its advertising and marketing comply with all applicable laws, rules, and regulations, and this Agreement.  You agree not to rely upon our approval of any creative, email, script or portion thereof for compliance with applicable laws, rules, or regulations or assert any claim that You are in compliance with applicable laws, rules, and regulations based upon our or any Advertiser’s approval or non-objection. Without limiting anything else in this Agreement, any violation of this section by Affiliate may result in immediate termination and Affiliate forfeiting all Bounties (whether accrued or paid). 

G.        You shall not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Network tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service (“Network Data”).  If instructed to do so by Company and/or if this Agreement terminates, You will immediately remove and discontinue the use of any Network Data.  You acknowledge that Company does not represent, warrant, or make any specific or implied promises as to the successful outcome of any Programs.  You agree to display the creative exactly as it appears on the Program and will not alter any creative that has been submitted to the Network.  If any errors or undesirable results occur from Your use of the Network, Company shall not be responsible for losses and You may not be compensated.

H.        Affiliate agrees that it shall comply with all Program Terms as made available by Company through the Network.  You shall maintain and post in a conspicuous manner on all Your websites involved in the Program(s), a privacy policy that clearly and adequately describes how consumer information is collected and used.  You represent and warrant that Your privacy policy permits the collection, use and transfer of data as contemplated hereby and the Program Terms. 

4.  Use of Sub-Affiliates.

Affiliate represents and warrants that it shall not use sub-affiliates, third party affiliates, or its own network, each a “Sub-Affiliate” for purposes of this Agreement, without Company’s prior written consent.  Affiliate shall not broker Programs to any Sub-Affiliate, or to any directly enrolled affiliates, without Company’s prior written permission.  If Affiliate contracts with or otherwise engages or arranges for Sub-Affiliates to distribute Programs, Affiliate (a) must require each Sub-Affiliate to agree in writing to terms and conditions substantially similar to the terms and conditions of this Agreement and the Affiliate Responsibilities, and (b) remain solely responsible and liable to the Company and/or Advertiser(s), as applicable, for all of the actions (or failure to act) of any such Sub-Affiliates or any other parties working with, for, or under such Sub-Affiliates.  Affiliate must keep records of all Sub-Affiliates and Programs distributed by Sub-Affiliates during the term that this Agreement remains effective and for a period of one (1) year thereafter and provide such records to Company upon request.  Affiliate must immediately comply with any demand made by the Company to terminate any Sub-Affiliate from distributing Programs; failure to comply immediately with this demand may result in Affiliate’s termination from the Network, loss of Bounties, and/or any other remedy available to the Company at its discretion. Affiliate shall contractually bind, to all terms of this Agreement, all of its Sub-Affiliates who perform services under this Agreement.  Affiliate shall require and confirm that all Sub-Affiliates affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Programs.  If a Sub-Affiliate fails to adhere to the requirements set forth herein, in addition to other remedies available to Company, Affiliate may be terminated at Advertiser’s sole discretion, and Affiliate shall indemnify Company for any resulting third party claims against it.

5.  Intellectual Property.

Company grants You, if approved, a non-transferable, non-exclusive limited license to use the Network(s) and any data, reports, information or analyses arising out of such use, subject to the terms and conditions set forth herein. You acknowledge and agree that You do not have, nor will You claim any right, title or interest in the Networks’ software, applications, data, methods of doing business or any elements thereof. You may only access the Network via web browser, email or in a manner approved by Company. Network integration tags must NOT be altered. Altering tags may jeopardize Your ability to be paid for Events as Company may determine.

6.  Fraud.

Company actively monitors traffic for fraud. If we suspect fraud on the part of You or any of your Sub-Affiliates, Your Account will be made inactive pending further investigation.
If You or any Sub-Affiliate fraudulently adds leads, clicks or conversions or inflate leads, clicks or conversions by fraudulent traffic generation (as determined solely by the Company, such as pre-population of forms or any mechanism not approved by Company), You will forfeit Your entire commission for all Programs and Your Account will be terminated. Company reserves sole judgment in determining fraud.

It is the OBLIGATION of the Affiliate to prove to the Company that Affiliate or its Sub-Affiliate is NOT committing fraud. The Company will hold Your payment in “Pending Status” until You have satisfactorily provided evidence that You or your Sub-Affiliate is not defrauding the Network.  Potential evidence of fraud that triggers the Company’s recourse under this Section include, but are not limited to, the following:
  

  • Have click-through rates that are much higher than industry averages and where solid justification is not evident.
  • Have ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks reported.
  • Have conversion rates that are much higher than industry averages without justification.
  • Have shown fraudulent leads as determined by our Advertisers.
  • Use fake redirects, automated software, and/or fraud to generate clicks or leads from our programs.
  • Engage in credit card fraud (“Carding”) to generate conversions or sales. Carding includes recommending and/or promoting affiliate links to friends, immediate and/or extended family, business associates and/or partners and/or any other individual considered by the Company or the advertiser to be an illegitimate customer.

In addition to any other rights and remedies available to Company under this Agreement, or law or equity, Company reserves the right to withhold any unpaid Bounties, charge back paid Bounties to Affiliate’s account, and deduct Bounties paid to Affiliate against future payments if (i) Company determines in its sole discretion that Affiliate has breached this Agreement, (ii) Company receives any complaints about Affiliate which Company reasonably believes to indicate Affiliate’s breach of this Agreement, (iii) if Advertiser alleges or asserts that Affiliate or Sub-Affiliate engaged in fraud or any Events were generated as a result of a violation of any law, rule, or regulation; or (iv) Company determines in its sole discretion that Bounties were associated with a breach of this Agreement or the Program Terms. The foregoing shall be used to offset any losses and liabilities to Company associated with Affiliate’s breach, including Company’s attorneys’ fees and costs.  Thus, such Bounties may be withheld, deducted, or charged back without regard to whether such Bounties were earned as a result of such breach.  If any breach of this Agreement occurs and Company determines that the breach has been cured, Company may return some or all of such amounts as it deems appropriate in its sole discretion.

7.  Payment.

You will be paid per the payment terms as set forth in Your Account. Upon nearing payment being due, you will be sent an invoice to the email address then-currently associated with Your Account that reflects the payments to be made to You based on the Events and corresponding Bounties as reported by the Company. The Company reserves the right, in its sole discretion, to revoke or modify any invoice at any time due to any errors, inaccuracies, service interruptions, or any other reason that the Company may deem appropriate.

Every Affiliate Account must have a unique, valid taxpayer identification number (TIN) or valid Social Security number on file with the Company. All payments are based on actual figures as defined, accounted and audited by the Company.   

The Company reserves the right to suspend payments without notice if payment is not received from the Advertiser. Company is not obligated to make the payment to You if Company does not receive payment from the Advertiser, or if Advertiser charges back or requests refund of payments, or alleges that any Event was fraudulent or was a result of a violation of an applicable law, rule or regulation,. Company does not guarantee payments on behalf of the Advertiser.

Company will not pay for any Events that occur before a Program is initiated, after a Program terminates or for Events for a Program that the Affiliate was not invited to or is not assigned to promote. The Company will not be responsible to compensate You for Events that are not recorded due to Your error.

8.  Termination.

This Agreement is effective as of the date that you electronically submit Your application to participate in the Network, provided that this Agreement shall become null and void if Company denies your application for any reason.  This Agreement may be terminated by either Party upon three (3) days’ notice, or without notice by the Company if Company believes, in its sole discretion, that You have violated this Agreement (including any representations and warranties herein), or any applicable law, rule, or regulation, or have engaged in fraud. This Agreement shall terminate immediately upon the dissolution or insolvency of either Party. The Company reserves the right, in its sole and absolute discretion, to terminate a Program and remove any advertisements at any time for any reason. The Company also reserves the right to suspend or terminate Your access to the Network at any time without notice.

Termination notice may be provided via email, and will be effective immediately. All Bounties due to Affiliate, subject to the terms of this Agreement, will be paid during the next billing cycle.  If Affiliate commits fraud or breaches this Agreement (as determined by Company in its sole discretion) then payment is revoked as determined solely by Company. If Your email address is not operative, Company’s actual attempt to send the termination notice email to Your last known address or email address shall suffice as termination notice hereunder.

The representations, warranties and obligations contained in Sections 7, 8, 9, 10, 11, and 12 of this Agreement shall remain in full force and effect after termination of this Agreement.

9.  Representations and Warranties.

A.        Affiliate represents and warrants that it will at all times comply with the material obligations imposed on it under this Agreement.  The failure to comply with any obligation of this Agreement shall result in the loss of payment of Bounties, in addition to any other remedy available to the Company at law or in equity.  Affiliate acknowledges that the Company makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement; and
B.        Each Party represents and warrants to the other Party that such Party has the full corporate right, power, and authority to enter into this Agreement, to grant the rights and licenses granted and to perform the acts required of it;

10.  Customer Information; Non-Disclosure.

As applicable, all information about consumers (“Customer Information”) submitted to the Affiliate by reason of Affiliate’s participation in distributing a Program through the Network is proprietary to and owned by the Company and/or its Advertiser(s).  Such Customer Information is confidential and may not be disclosed by You or used for any purpose by You except as may be permitted by this Agreement or the Program Terms for any particular Program.

Each Party agrees to use the other Party's Confidential Information (as defined below) solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other Party’s Confidential Information or the Company’s Advertisers’ Confidential Information (including Customer 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; (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.  As used in this Agreement, “Confidential Information” means any and all oral or written information that is identified as confidential and is provided by one Party to the other, or information which, under the circumstances surrounding the disclosure, reasonably ought to be treated as confidential.

11.  Limitation of Liability; Disclaimer of Warranty.

IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE NETWORK, OPERATION OF A PROGRAM, THE PRODUCTS OR SERVICE PROMOTED IN ANY PROGRAM, OR YOUR DISPLAY OF ANY PROGRAM CREATIVE ON YOUR MEDIA, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOST REVENUE, OR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR OTHER DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE PROGRAMS, NETWORK, AND THE INFORMATION, CONTENT AND SERVICES AVAILABLE ON AND THROUGH THE NETWORK AND ALL TECHNOLOGY, SOFTWARE, MATERIALS, DATA, OR IMAGES PROVIDED OR USED BY OR ON BEHALF OF US OR OUR LICENSORS IN CONNECTION WITH THE NETWORK (COLLECTIVELY, THE “NETWORK OFFERINGS”) ARE PROVIDED ON AN 'AS IS' AND ‘AS AVAILABLE’ BASIS. YOU USE THE NETWORK AND RUN PROGRAMS AT YOUR OWN RISK.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE NETWORK OFFERINGS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENTS, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ON THE NETWORK OR PROVIDED BY COMPANY IS ACCURATE, COMPLETE OR CURRENT.

WE WILL NOT BE HELD RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTIONS, DAMAGE OR LOSS OF, ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT.  WE MAY DISCONTINUE THE NETWORK OR NETWORK OFFERINGS, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE OR OPERATION OF THE NETWORK OR NETWORK OFFERINGS, AT ANY TIME AND FROM TIME TO TIME.  THE COMPANY SHALL NOT BE LIABLE FOR ANY ACTS OF ADVERTISERS OR OTHER CONTENT PROVIDERS WHOSE CONTENT OR OFFERS APPEAR ON THE NETWORK AND/OR IS MADE AVAILABLE TO YOU THROUGH THE NETWORK, NOR THE CONTENTS OF ANY OTHER ADVERTISEMENTS, WEB SITES, OR WEB PAGES.
  
12.  Indemnity.

You shall indemnify, defend and hold the Company, its parent, successors, subsidiaries, and Affiliates and their respective directors, officers, agents and employees harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys’ fees) by third parties arising out of: (i) Affiliate’s breach of this Agreement, including any breach of Affiliate’s representations and warranties herein; (ii) Affiliate’s operation of or participation in the Programs; (iii) the negligence or willful misconduct of Affiliate or Sub-Affiliate; (iv) a violation of any laws, rules or regulations in the performance of Affiliate’s obligations under this Agreement; (v)  a violation or infringement of the intellectual property rights of any third party; (vi) false, deceptive or misleading advertising or the supply of inaccurate information, material or data; (vii) fraud; or (viii) any other act, omission or misrepresentation by Affiliate or Sub-Affiliate directly or indirectly related to this Agreement.

13.  Assignment and Jurisdiction; Dispute Resolution.

If any dispute arises under this Agreement, the parties agree to submit the dispute to binding arbitration in the State of Florida, conducted under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. Notwithstanding the foregoing, Express Revenue may initiate a dispute either by submitting it to binding arbitration or by filing in a state or federal court located in the State of Florida or any other state where personal jurisdiction exists over Advertiser, at Express Revenue’s sole discretion.  Affiliate shall be responsible for the payment of all attorney’s fees and expenses incurred by Express Revenue to enforce this Agreement.

14.  Severability.

If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.

15.   Miscellaneous.

This Agreement shall be deemed to have been in effect during all periods that Affiliate was a participant in Company’s Network. This Agreement is non-exclusive to the Company, and we shall have the right to enter into similar agreements with other third parties. Each Party is an independent contractor and not a partner, joint venture or employee of the other. All notices shall be sent to You to the addresses submitted by You on your application to participate in the Network by certified mail, overnight service (e.g., Federal Express), fax, email or courier.    



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