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ClassesUSA.com, Inc. doing business as Affiliate Fuel ADVERTISER AGREEMENT UPDATED: THIS
ADVERTISER AGREEMENT, (“Agreement”), is made and entered into, as of the date
of Affiliate Fuel’s signature below, by and between, ClassesUSA.com, Inc., doing
business as Affiliate Fuel, (“Affiliate Fuel”), a Delaware corporation with a place
of business at 2401 Colorado Avenue Suite 200, Santa Monica, CA 90404, and you
as the Advertiser (“Advertiser,” “You,” or “Your,”). The purpose of this
Agreement is to set forth the terms and conditions upon which Affiliate Fuel
will perform certain advertising services for Advertiser pursuant to insertion
orders. UPON AFFILIATE
FUEL’S ACCEPTANCE OF YOU AS AN ADVERTISER, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE
TERMS AND CONDITIONS CAREFULLY AND AGREE TO THE SAME. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS AND
CONDITIONS, OR IF ANY OR ALL OF THE FOLLOWING ARE PROHIBITED WITHIN YOUR
JURISDICTION, DO NOT ACCESS OR USE THIS WEB SITE, THE SERVICES, OR ANY INFORMATION
CONTAINED ON THIS WEB SITE. YOUR ACCESS TO AND USE OF THIS WEB SITE CONSTITUTE YOUR
AGREEMENT TO ABIDE BY, AND UNDERSTANDING OF, EACH OF THE TERMS AND CONDITIONS
SET 1. DEFINITIONS a. “Advertisement” or “Advertisements” means all written or graphically rendered marketing
materials provided for in an Insertion Order (including but not limited to
banners, text or graphic links, pop-ups, emails and newsletters or any other
similarly designed advertising format); b. “Campaign” means the specifications and
period upon which Advertisements will be placed by Affiliate Fuel as set forth
in the applicable Insertion Order; c. “Confidential Information” includes,
without limitation, this Agreement, the Insertion Order, all information
related to the Campaign, information pertaining to Affiliate Fuel’s Publishers
and other Advertisers, marketing strategies, non-public financial and
commercial information, and trade secrets; d. “Cost Per Action” or “CPA” means the required payment by
Advertiser for (i) Leads in compliance with paragraph
7 below or (ii) if specifically set forth in an Insertion Order, such other
action or criteria set forth therein; e. “Insertion Order” means an order
document signed by Advertiser to Affiliate Fuel requesting specific Advertisements
and/or Advertisement Campaigns; f. “Lead” means each time a visitor clicks
on an Advertisement; g. “Service” or “Services” means the placement of the Advertisements provided by the
Advertiser according to the applicable Insertion Order; 2. EFFECTIVE
DATE AND TERMS. This Agreement is
effective upon transmission from Affiliate Fuel of a written confirmation that
the initial Insertion Order is accepted and the Campaign has begun. Upon
acceptance by Affiliate Fuel, each Insertion Order is incorporated herein by
this reference. This Agreement will remain in effect until terminated as
permitted herein. In the event of any
inconsistency between the Insertion Order and this Agreement the Insertion
Order will control; however, any modifications to sections 8, 11, 12, 13, 14,
15, 16, 17 and 20 via an Insertion Order must specifically reference the section
being modified and require the written approval of both Affiliate Fuel and
Advertiser. 3. SCOPE OF SERVICE.
a. No Design Services. Unless otherwise detailed in the applicable Insertion
Order, Advertiser acknowledges that Affiliate Fuel is not obligated to provide
any creative or design services to Advertiser. b. Advertisement Modification. Affiliate Fuel will not change, modify or
optimize Advertisements at any time without Advertiser’s prior written approval
(however, Advertiser agrees that Affiliate Fuel may, without Advertiser’s prior
approval) make changes (within any restrictions set forth in the applicable
Insertion Order) effecting sizing and other factors so long as such changes do not
materially alter the overall presentation of the Advertisement). Unless such materials are generated or
provided by Affiliate Fuel, Advertiser is responsible for submitting all supporting
materials for each Advertisement (defined as artwork, active URL's and active
target site) in accordance with the requirements stipulated in the Insertion
Order and Affiliate Fuel's other criteria, which may be provided to Advertiser
on an as needed basis. c. Advertisement Specifications. Final specifications for each Advertisement
must be submitted to and approved by Affiliate Fuel within a reasonable period
of time following receipt of the Insertion Order. In accordance with the
applicable Insertion Order, Affiliate Fuel will use commercially reasonable
efforts to deliver no less than the number of click-throughs, Leads, sales, or
impressions set forth therein. 4. AFFILIATE FUEL
PARTNERS. Advertiser acknowledges and agrees that
Affiliate Fuel may provide the Services directly and/or via third party
partners (including without limitation third-party internet content providers
(“Publishers”). Advertiser hereby agrees
that Affiliate Fuel may sublicense its rights under this Agreement to such
third party partners for the purpose of performing the Services. 5. CAMPAIGN TERM.
Affiliate Fuel will use commercially reasonable efforts to have Advertisements
placed on the Campaign start date requested in the applicable Insertion Order,
and unless terminated as provided in this Agreement an Advertisement will remain
placed for the Campaign period designated in the applicable Insertion Order. Unless
specifically prohibited in the applicable Insertion Order, Affiliate Fuel
reserves the right to extend the Campaign in order to deliver the Advertisement
in compliance with the specifications set forth in such Insertion Order. 6. CAMPAIGN MODIFICATIONS AND CANCELLATION. Unless expressly prohibited in the applicable Insertion Order, Advertiser may terminate an Insertion Order, or one or more Campaigns within an Insertion Order upon thirty (30) days advance written notice to ClassesUSA dba Affiliate Fuel. Unless prohibited in the applicable Insertion Order. Advertiser will continue to be responsible for all CPA accrued under a Campaign until requested changes are effective. ClassesUSA dba Affiliate Fuel may terminate this Agreement, any Insertion Order or any Campaign at any time and for any reason whatsoever, or for no reason at all, by providing written notice thereof to Advertiser. 7. LEAD VALIDITY AND REVERSAL. Cost Per
Action shall be payable only on Leads that are deemed valid pursuant to this
Section 7.a. and that are not reversed under Section 7.b. a. Lead Validity. A Lead will be deemed valid as set forth in
this Section 7.a. (i) Affiliate Fuel may require that
Advertiser install a tracking pixel (“Tracking Pixel”), which will be
programmed by Affiliate Fuel with the criteria for valid Leads. Advertiser is solely responsible for
installation and use of the Tracking Pixel and may not make any modification to
the Tracking Pixel. Leads will be deemed
valid as tracked by the Tracking Pixel. In
the event that the Tracking Pixel is not properly installed or of any unauthorized
modification (“Tracking Error”) made by Advertiser, Advertiser shall have three
calendar days to correct the same and notify Affiliate Fuel of such correction.
Failure to make such corrections will result in all Leads tracked being deemed valid. Affiliate Fuel reserves the right to make
additional equitable adjustments to the number of valid Leads as a result of
such Tracking Error. No Lead reversals
will be permitted for Leads which result from Tracking Error. (ii) If
the Tracking Pixel is not used, a Lead will be deemed valid if it conforms to
all requirements of Affiliate Fuel's then current Lead Validation Policy,
available at the following URL: http://www.affiliatefuel.com/advertisers/leadpolicy.htm. b. Lead Reversal. Valid Leads may be reversed in accordance
with Affiliate Fuel's then current Lead Reversal Policy, available at the
following URL: http://www.affiliatefuel.com/advertisers/leadreversalpolicy.htm.
Notice must be provided to Affiliate Fuel for any Leads reversed. c. Reporting and Final Determination of Leads. (i) Advertiser must provide a monthly CPA
report for all Advertisements placed by Advertiser with Affiliate Fuel
(“Monthly Report”). The Monthly Report
is due on or before the fifth business day of the month following the month in
which the Services were delivered. The Monthly Report shall include gross Lead
totals and a Lead reversal file summary. The Lead reversal file summary must
include: all submitted data, the referring Affiliates six (6) digit ID (“Sub
ID”), date of Lead generation and a specific non-generic reversal reason as
permitted in the relevant insertion order or Affiliate Fuel's Lead Reversal
Policy (e.g. “incorrect phone”, or “incorrect address”, not “bad data”). (ii) Final
counting and tracking of Leads for Cost Per Action billing
purposes will be based on Affiliate Fuel's internal tracking procedures or
Advertiser’s Monthly Report data of valid Leads, whichever is higher. 8. CONTENT. Affiliate Fuel will not accept or place any
Advertisement that, in Affiliate Fuel’s determination in its sole discretion contains,
promotes or links to inappropriate content
which includes, but is not limited to: content regarding use of alcohol,
tobacco or illegal
substances; nudity, sex,
pornography, or adult-oriented content;
expletives or inappropriate
language; content promoting
illegal or unethical activity,
racism, hate, "spam," mail
fraud, pyramid schemes,
credit-repair or advice not
permitted under law including any material of any kind or nature that is
in violation of the federal Controlling the Assault of Non-Solicited
Pornography and Marketing Act of 2003 (“CAN-SPAM Act of 2003”); content that is
libelous, defamatory, infringing, false, misleading, contrary to public policy,
or otherwise unlawful; content which includes diversionary links, exit “pops”
or any other element which distracts from the primary advertisement content; content
which may bring Affiliate Fuel and/or its affiliated companies negative
publicity, or any other content
deemed inappropriate by
Affiliate Fuel in its
sole discretion. 9. PLACEMENT AND
POSITIONING. Affiliate Fuel will use
reasonable commercial efforts to comply with the Advertisement specifications
contained in the Insertion Order, including all placement requests. Advertiser
hereby acknowledges and agrees that Affiliate Fuel does not control Advertisement
placements, and cannot guarantee any particular Advertisements placement, nor its physical positioning on any Publisher website. Affiliate Fuel reserves the right to reject,
not publish, or not place any Advertisement at any time in its sole discretion.
A decision by Affiliate Fuel to not
publish or not place any requested Advertisement does not constitute a breach
of this Agreement nor otherwise entitle Advertiser to any legal remedy, provided
an appropriate refund will be made for any prepayment by Advertiser for the
Campaign. 10. NON-CIRCUMVENT. Advertiser
agrees and acknowledges that Affiliate Fuel has expended a substantial amount
of time and costs to develop its arrangements with Publishers in order to offer
the Services to Advertiser. Accordingly,
during the term of this Agreement and for a period of one hundred and twenty
(120) days commencing on the end date of then latest Campaign, without
Affiliate Fuel's prior written approval, Advertiser may not enter into an
agreement or arrangement for an advertising campaign (including but not limited
to placement of an insertion order) either directly or indirectly (e.g. through
an advertising agency or other similar competing advertising network) with (i) any entity that Affiliate Fuel has identified as a Publisher
or (ii) a Publisher who has previously promoted an offer of Advertiser via
Affiliate Fuel. In the event Advertiser
breaches this provision Affiliate Fuel is entitled to monetary compensation
equal to the value of the total revenue Affiliate Fuel would have realized had such
campaign be provided via Advertiser, plus any and all expenses incurred by
Affiliate Fuel to enforce this provision, including attorney’s fees. 11. PAYMENT TERMS. Advertiser agrees to pay to Affiliate Fuel the
Cost Per Action as set forth in the Insertion
Order. All payments are due Net 30 days
from the date of each invoice; alternate or additional pre-payment or deposit
terms may be indicated on the applicable Insertion Order. All payments must be made to Affiliate Fuel via
wire transfer, check, money order or cashiers check; credit card payments are
not accepted without the prior written approval of Affiliate Fuel. a. Net30 Accounts. Net30 accounts may be established by
Affiliate Fuel in its sole discretion and Affiliate Fuel may cancel or change
the terms of Customer's credit account at any time, subject to advance notice
by Affiliate Fuel. Payment of the total
invoice amount, without offset or deduction, is due 30 days from the end of
month in which the Leads or actions are delivered. On any past due invoice, Affiliate Fuel may
charge interest from the payment due date to the date of payment (at 1½% per
month, or the maximum rate allowed by law), plus reasonable attorney’s fees and
collection costs. b. Payment Assignment. Affiliate Fuel shall have the right to assign its right to collect and receive any and all payment, in whole or in part, due under this Agreement by Advertiser to any third party. Advertiser acknowledges and agrees that such third parties are therefore limited third-party beneficiaries of this Agreement to the extent of such assignment. Any payment to a third party pursuant to an assigned claim shall not relieve Advertiser’s obligations with respect to any payment not so assigned. 12. FORCE MAJEURE. Neither party
will be liable for failure or delay in performing any of its obligations if
such failure or delay is due to circumstances beyond the party’s reasonable
control, including, without limitation, acts of God, any governmental body or
failure of software or equipment of third-parties. This section does not apply to the obligations
in section 10. 13. WARRANTY DISCLAIMER. AFFILIATE
FUEL MAKES NO WARRANTY REGARDING ANY SERVICES, SOFTWARE OR OTHER MATERIALS PURCHASED
OR OBTAINED FROM AFFILIATE FUEL (DIRECTLY OR THROUGH PUBLISHERS OR OTHER THIRD
PARTIES). YOU EXPRESSLY AGREE THAT USE OF ALL WEB SITES AND SERVICES ARE AT
YOUR SOLE RISK. ANY AND ALL WEB SITES
AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS
AVAILABLE" BASIS. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, AFFILIATE
FUEL EXPRESSLY DISCLAIMS, ON BEHALF OF ITSELF AND ITS PUBLISHERS, ALL
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED BY LAW, COURSE OF CONDUCT, INDUSTRY
STANDARDS, CUSTOM OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT. 14. ADVERTISER
WARRANTY. Advertiser warrants and represents that (a)
Advertiser has the right and authority to permit the use, reproduction,
distribution and transmission by Affiliate Fuel and its Publishers of the
Advertisements and all other materials provided by Advertiser to Affiliate Fuel;
(b) the Advertisements do not promote or make claims that are not easily
provable, and Advertiser has sufficient substantiation for all claims made; (c)
the use, reproduction, distribution, or transmission of the Advertisements and
any and all other materials provided by Advertiser to Affiliate Fuel shall not,
and the Advertisements and any and all other materials provided by Advertiser
to Affiliate Fuel do not, violate any foreign or domestic, federal, state, or
local law or regulation, or any rights of any third party, including, but not
limited to, any copyright, patent, trademark, trade secret, music, image, or
other proprietary, property or contractual right, or constitute false
advertising, unfair competition, invasion of privacy or rights of celebrity, or
any other right of any person or entity. 15. LIMITATION ON
LIABILITY. UNDER NO CIRCUMSTANCES WILL AFFILIATE FUEL BE
LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF
AFFILIATE FUEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) INCLUDING,
BUT NOT LIMITED TO, ANY LOSS OF REVENUE, PROFITS OR DATA ARISING FROM BREACH OF
THIS AGREEMENT, THE SERVICES (INCLUDING, WITHOUT LIMITATION, AFFILIATE FUEL’S
WEB SITE) OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT. IN NO EVENT SHALL AFFILIATE FUEL’S AGGREGATE
LIABILITY ARISING OUT OF OR WITH RESPECT TO THIS AGREEMENT EXCEED THE TOTAL
AMOUNTS PAID BY YOU UNDER, OR IN CONNECTION WITH, THIS AGREEMENT IN THE SIX (6)
MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. 16. INDEMNIFICATION.
Each party will indemnify and
hold harmless the other party from and against any and all liability, loss, damage, claim and expense,
including reasonable legal fees and expenses that may be incurred by a party (and
its’ successors and assigns) arising out of or relating to the other party’s breach
of any provision or term of this Agreement. In addition
Advertiser will indemnify and hold
harmless Affiliate Fuel from
and against any and all liability, loss, damage, claim and expense, including
reasonable legal fees and expenses that may be incurred by
Affiliate Fuel, and/or its’ Publishers arising out of or relating to (i) the content or subject matter of any
Advertisement, Insertion Order or collateral information to the extent used by Affiliate
Fuel or its Publishers in accordance with this Agreement (including, but not
limited to, allegations that subject matter violates the rights of a third
party, causes emotional or physical injury to any third-party is defamatory or
obscene or violates any law, regulation or other judicial or administrative
action); (ii) the advertisers intellectual property, including but
not limited to any infringement action, misuse, registration or
non-registration. 17. CONFIDENTIALITY.
Unless otherwise required by law or court order, You
agree to keep Affiliate Fuel’s Confidential Information strictly confidential
and not disclose such information to any third party, including but not limited
to, any competing affiliate network, advertising network, advertiser, or to the
media. You agree to take all necessary
action to protect the confidentiality of the Confidential Information. You may only disclose Confidential
Information Your officers, directors, employees, attorneys and advisors on a
strict need to know basis only, provided that such person is subject to a
confidentiality agreement sufficient to comply with the terms of this Agreement. 18. ADVERTISER
REPRESENTATIVE. In the event this Agreement is being executed
by an agency or other representative (“Agent”) on behalf of Advertiser, Agent
hereby represents that it has all due authority to create a legally binding
agreement on behalf of Advertiser and this Agreement shall be so binding. Agent further agrees that it will be jointly
and severally liable for any and all payments, damages and other liabilities
under this Agreement to which Advertiser would be responsible. 19. TERMINATION. Affiliate Fuel may terminate or
cancel this Agreement at any time in its sole discretion,
upon written notice to Advertiser (such notice may be in the form of electronic
notification). 20. GENERAL. a. b. Assignment. Advertiser may not assign this Agreement
without the prior written consent of Affiliate Fuel. Affiliate Fuel may not assign this Agreement
without prior written consent of Advertiser, provided however Affiliate Fuel
may assign this Agreement to its parent or other affiliated corporate entity or
to a successor in interest without consent from or notice to Advertiser. This Agreement is binding on successors and
assigns. c. Modification. An Insertion Order may only be modified via
written notice and the written agreement of both parties (such notice may be in
the form of electronic notification). Notwithstanding
the foregoing, in the event any modifications requested to an Insertion Order
are requested by Advertiser in writing, and such changes are subsequently
implemented by Affiliate Fuel (with or without any other written confirmation),
such modifications will be deemed accepted by both parties. No modification will be effective to this
Agreement unless made in writing and signed by both parties. d. Relationship. Affiliate Fuel and Advertiser are independent
contractors and agree that this Agreement does not establish any agency, joint
venture or partnership. e. Waiver. Affiliate Fuel's failure to object to any
document, communication, or act of Advertiser will not be deemed a waiver of
any of these terms and conditions and any waiver shall not be deemed to be a waiver
of any subsequent defaults of the same or different kind. f. Severability. If any provision of this Agreement is found
to be invalid or unenforceable by a court of competent jurisdiction, such
provision shall be severed from the remainder of the Agreement, which shall
remain in full force and effect. g. Compliance with Laws. Advertiser and Affiliate Fuel will comply
with all applicable laws and regulations. h. Survival. In the event this Agreement is terminated,
the following provisions will survive such termination: Sections 10, 13, 14, 15,
16, 17, 18 and 20. |
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