Terms & Conditions for the Previews Network Affiliate Program
USER AGREEMENT
By accessing and using the Previews Network Affiliate
Program, affiliate agrees to the terms of this Agreement.
1. License to Access and Use Products
1.1. Use.
Subject to the terms of this Agreement, Previews Network licenses to affiliate access to the use of the Previews Network Affiliate Program on a non-exclusive, revocable basis for the purpose
of affiliate’s partnership (and to enter partnerships) with Advertisers and
pursuant to affiliate’s performance under User Agreement. Previews Network’s
obligations and the Products’ functionalities and/or Services may be performed
by a Previews Network Affiliate.
1.2. Restrictions.
(a) General.
Affiliate and its Users shall not: (a) share, rent or use the Previews Network Affiliate Program
for the benefit of any person or entity other than affiliate; (b) modify, copy,
reverse compile, disassemble, reverse engineer, decompile, prepare derivative
works based on, the Previews Network platform, or attempt in any manner to
derive its source code; (c) hack, abuse, adversely interfere with the Previews
Network Affiliate Program, or infect the Previews Network platform
with viruses, worms or other malicious or
destructive code; and (d) authorize Users that are not employees, directors or
officers of affiliate without Previews Network ‘s prior written
permission (at Previews Network’s sole discretion). Affiliate must always
utilize the Previews Network Affiliate Program for its intended purpose.
(b) Use Approved Methods.
Affiliate must promote each Advertiser using only those methods approved or prescribed by
the Advertiser, and in any case not through: (i) provision of leads obtained
other than through intended Visitor action (e.g. through scraping or other data
mining, or through use of compilations of personal data); (ii) use of
fake redirects, automated software, or other mechanisms to generate actions;
and/or (iii) actions using any device, robot, iframes or hidden frames; or (iv)
adware, spyware or malware. If affiliate wants to use applications to deliver
Advertiser Content, affiliate must disclose to the Visitor a clear and concise
description of the core functionality of the applications (including a
description of that functionality that is Media Partner’s source of revenue).
Further, affiliate must meet or exceed then-current industry standards
for applications (such as getting Visitor’s consent to download/install, etc.).
(c) Compliance/Quality.
Affiliate agrees that when using the Previews Network Affiliate Program,
it will only publish, transmit, upload and/or distribute information, data,
content and material about affiliate, Advertisers and Advertiser Content that
is legal, accurate, and in accordance with the User Agreement agreed with the
Advertisers. If affiliate intends to use incentives to promote an
Advertiser and procure clicks, leads or sales, affiliate is required to notify Previews
Network prior to entering into a User Agreement, and affiliate’s use of
incentives must be in a bona fide way. Additionally, affiliate and its
website(s) and promotional means must comply with all rules, laws, regulations
and industry standards, the User Agreement, and be of high quality (including
but not limited to: not depicting nudity of any sort (including cartoons,
fantasy art or manga); not misrepresenting the source of anything posted or
uploaded, including impersonation of another individual or entity; not
including unauthorized content of someone else's or otherwise violating their
intellectual property rights, rights of privacy or publicity; not harming or
exploiting minors in any way; not threatening, stalking, defaming, defrauding,
degrading, victimizing or intimidating an individual or group of individuals
for any reason (including on the basis of age, gender, disability, ethnicity,
sexual orientation, race or religion; or incite or encourage anyone else to do
so); not harming or disrupting, or intending to harm or disrupt, an Visitor's
computer; not containing or being considered to contain 'junk mail', 'spam',
'chain letters', or 'pyramid schemes'; and/or not attempting to manipulate
services of others, including but not limited to ranking and reputation
systems, interception of Visitor traffic (i.e. through cookie stuffing or other
means) or collude with others to do any of the foregoing).
1.3. Responsibilities.
Affiliate shall ensure that each User utilizes its own unique log-in and password that
are not shared with anyone. Affiliate shall remove User permission and access
rights for each User no longer authorized by affiliate to access affiliate’s
Account. Previews Network must be notified by affiliate in writing immediately
if affiliate becomes aware of any unauthorized access or use of the Previews
Network platform. Affiliate represents and warrants that it will use the Previews
Network platform only in accordance with applicable laws, rules and
regulations, including but not limited to Applicable Privacy and Data Security
Laws. In no event will Previews Network be responsible or liable for defects,
problems, or failures of products and/or software not provided by Previews
Network or its agents; defects, problems or failure of the Internet; or any
third party that affiliate partners with (including but not limited to
Advertisers).
1.4. Consequences.
Breach of these Section 1 license and use terms may result in suspension of an affiliate’s access and
use of the Products, or immediate termination of this Agreement.
2. Ownership & Reservation of Rights.
2.1. Previews Network Intellectual Property.
Previews Network reserves all rights, title and interest in and
to, as well as all Intellectual Property Rights in, the Previews Network Affiliate
Program subject to the limited, non-exclusive, revocable, access and use rights
expressly provided for herein. All derivatives of, improvements to, or
modification to the Previews Network Affiliate Program are owned exclusively by
Previews Network. Affiliate, on behalf of itself and its Users, acknowledges
that the Previews Network platform and Affiliate Program is covered by or
subject to Intellectual Property Rights owned or licensed by Previews Network
(collectively, “Previews Network IP Rights”). Except for the license granted
pursuant to Section 1, no license or other rights (express or implied) in or to
the Previews Network Affiliate Program or Previews Network IP Rights, are
granted, assigned, licensed or conveyed to affiliate and/or its Users, and all
such Previews Network platform and Previews Network IP Rights are hereby
expressly reserved exclusively by Previews Network. Except as expressly
provided for below in Section 9.5, all licenses in and to the Previews Network Affiliate
Program are non-transferable. Affiliate may not encumber, assert a claim
to or ownership of, or adverse interest in, the Previews Network platform or
any Previews Network IP Rights or any goodwill associated therewith.
2.2. Advertiser Data.
During affiliate’s use and access of the Previews Network Affiliate Program, Previews Network will
provide affiliate with access to Advertiser Data solely in relation to affiliate’s
performance of User Agreement. The Advertiser Data constitutes the
Advertiser’s Confidential Information, and its use is subject to the terms of
the User Agreement.
2.3. Advertiser Relationships.
Affiliate acknowledges and agrees that as between affiliate and Previews Network,
Previews Network will not be liable for any loss or Claim: (a) arising from any
of the Advertiser Content, including but not limited any errors or omissions
therein; or (b) incurred as a result of affiliate and its Users use of, access
to, or denial of access to the Advertiser Content. Previews Network may without
notice or liability investigate (or not investigate) any complaints or
suspected violations and/or compliance by affiliate of this Agreement,
applicable laws, rules or regulations, the User Agreement and/or affiliate’s
use of Advertiser Content, and may take any action that it believes, in its
reasonable discretion, is appropriate, including, but not limited to, rejecting
Actions, refusing to host, or removing any Advertiser Content, Advertiser Data,
or restricting, suspending, or terminating affiliate’s or any User’s access to
or use of the Advertiser Content and/or Previews Network Affiliate Program;
however, Previews Network also reserves the right not to take any action. Affiliate
is solely responsible for choosing Advertisers to work with and all aspects of
those relationships. In no event will Previews Network be liable for Users’, Affiliate’s
or any Advertiser’s acts, errors or omissions. From time to time, Previews
Network may perform actions on behalf of Advertisers or affiliate as needed to
perform the Previews Network Affiliate Program. Previews Network disclaims
liability for such actions when undertaken by Previews Network in good faith
and using a commercially reasonable interpretation of such instructions or as
is reasonable to perform the Previews Network Affiliate Program. Previews Network
may also take actions that have a direct or indirect Previews Network on affiliate’s
use of the Previews Network Affiliate Program for the protection of or in the
interests of the integrity and performance of the Previews Network Affiliate
Program, in Previews Network’s sole discretion.
3. Payment of Compensation & Taxes
3.1. Payment.
All Affiliate Compensation for compensable Events tracked by Previews Network or reported
and/or recorded through the Previews Network Affiliate Program must be paid by Previews
Network in the affiliate’s currency, unless affiliate elects within its Account
to receive payment in another currency (which will be subject to processing,
including associated costs and charges, via foreign exchange). Payment
shall be made pursuant to the terms of each User Agreement. In no event
will Previews Network be liable to affiliate for such compensation amounts
unless full payment is made by the Advertiser to Previews Network of all
amounts owed by the Advertiser to Previews Network, as well as all amounts owed
to all the Advertiser’s partners (including affiliate). Previews Network will
not offset amounts owed by affiliate to Advertisers (or Previews Network) from
amounts credited to affiliate’s Account as compensation under User Agreement.
Compensation amounts may be disqualified pursuant to User Agreement terms, and
if already paid out to affiliate, Previews Network (on the Advertiser’s behalf)
may seek return of compensation from affiliate that was previously paid out,
even after the effective date of termination (this will only apply if a refund happens
to yearly memberships). Payment of any amounts earned by
Advertisers is subject to affiliate complying with all relevant laws, rules and
regulations, including those concerning tax form completion and meeting minimum
thresholds for payment, which may vary based upon the payment method elected by
affiliate. If affiliate does not accurately complete any such required
forms as per the requirements of the relevant jurisdiction and/or Previews
Network is unable to verify the information and/or documents submitted by affiliate,
amounts earned by affiliate shall be recorded by Previews Network.
3.2. Taxes.
With respect to Affiliate Compensation and Previews Network membership fees, affiliate is solely
responsible for any taxes, levies, duties or similar governmental assessments
of any nature that are assessable by any jurisdiction whatsoever (collectively,
“Taxes”). If Previews Network has a legal obligation to pay, withhold or
collect Taxes for which affiliate is responsible under this Agreement and/or
the User Agreement, Previews Network will invoice affiliate and affiliate will
pay that amount to Previews Network unless affiliate provides Previews Network
with a valid tax exemption certificate authorized by the appropriate taxing
authority. For clarity, Previews Network is solely responsible for taxes
assessable against Previews Network based on Previews Network 's income,
property and employees. All late charges, penalties or interest due
to affiliate late payment of Taxes invoiced to affiliate are solely the
responsibility of affiliate. Every affiliate is
responsible for submitting their own income taxes every year.
3.3. Previews Network Membership Fees and Compensation Plan.
It will be the responsibility of affiliate to pay the monthly subscription every month (unless
the Yearly Membership was purchased then every year). ***Failure to make the
payment will result in not getting paid the monthly commissions. *** The
monthly commissions will be paid on the 15th of every following
month (i.e. All commissions collected in June will be paid fully on the 15th
of July and so on).
Commissions will be paid as follows
Previews Membership
Monthly Yearly
Level 1 - $15/month Level 1 - $150/year
Level 2 - $10/month Level 2 - $100/year
Level 3 - $5/month Level 3 - $50/year
Level 4 - $3/month Level 4 - $30/year
Level 5 - $2/month Level 5 - $20/year
Business Membership
Monthly Yearly
Level 1 - $45/month Level 1 - $450/year
Level 2 - $26/month Level 2 - $260/year
Level 3 - $14/month Level 3 - $140/year
Level 4 - $9/month Level 4 - $90/year
Level 5 - $4/month Level 5 - $40/year
If affiliate quits and stops paying for the chosen membership in a good manner,
Previews Network will continue to pay commissions for a period of one year.
4. Term & Termination
4.1. General.
This Agreement shall commence on the Effective Date and shall remain in force unless modified,
superseded or terminated. Affiliate may terminate this Agreement upon written
notice to Previews Network to stop using the Previews Network Affiliate Program
at any time. Previews Network may terminate this Agreement by written notice:
(a) upon ten (30) days’ notice (a “Notice Period”) to affiliate due to affiliate’s
and/or its Users’ breach of this Agreement if such breach is not cured prior to
the end of the Notice Period (unless incurable, pursuant to Section 1.4
or if a repeated breach, then prior written notice is not required); (b) due to
Previews Network’s continued delay or inability to provide the Previews Network
Affiliate Program or due to any cause(s) beyond Previews Network’s control (a
“Force Majeure”); or (c) for any or no reason upon thirty (30) days prior
written notice (a “Notice Period”). Termination is effective as of
the end of the Notice Period (if prior written notice is required and the
conditions for termination are met), or upon written notice in all other
cases.
4.2. Effect of Termination.
Upon the effective date of termination, Previews Network
shall cease providing access to and affiliate shall cease all use of the Previews
Network Affiliate Program. Previews Network may seek return of Affiliate
Compensation previously paid out, even after the effective date of termination,
due to affiliate’s non-compliance with this Agreement and/or the User Agreement.
Post-termination obligations in Section 6.3 shall apply to each Party’s
Confidential Information and/or the Data Protection Agreement with respect to
Personal Data.
5. Representations and Warranties
5.1. Continuing Warranties/Disclaimers.
Affiliate represents and warrants to that the statements contained in this Section 5 are true and correct as of the Effective Date and shall continue to be true and correct through the date of termination
of this Agreement (unless stated otherwise). PREVIEWS NETWORK DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR USE AND FITNESS FOR A
PARTICULAR PURPOSE. PREVIEWS NETWORK PRODUCTS AND SERVICES ARE PROVIDED “AS
IS”. PREVIEWS NETWORK DOES NOT WARRANT THAT THE PREVIEWS NETWORK AFFILIATE
PROGRAM WILL RUN UNINTERRUPTED OR BE ERROR FREE, NOR DOES IT MAKE ANY WARRANTY
AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PREVIEWS NETWORK
AFFILIATE PROGRAM OR AS TO ANY USABILITY OR AVAILABILITY OF ADVERTISER CONTENT,
ADVERTISER DATA, OR PARTNER DATA PROCESSED BY PREVIEWS NETWORK. IN NO EVENT
WILL PREVIEWS NETWORK BE LIABLE FOR ACTS, ERRORS OR OMISSIONS OF THIRD PARTIES
(INCLUDING BUT NOT LIMITED TO ADVERTISERS).
5.2. Warranties.
Affiliate represents and warrants that: (i) it has full power and authority to execute,
deliver and perform its obligations under this Agreement, and will do so
without conflict with any obligation, contract, lease, license, third party’s
rights, applicable law or agreement to which affiliate is a party or by which affiliate
is bound; (ii) in performance of this Agreement and its use of the Previews Network
Affiliate Program, affiliate will comply with all applicable laws (including
but not limited to Applicable Privacy and Data Security Laws); (iii) it has the
right to transmit all affiliate Data through the Previews Network platform;
(iv) it will use the Advertiser Content and promote the Advertisers pursuant to
the terms of this Agreement (including the Data Protection Agreement) and the User
Agreement, and will not use Advertiser Content or promote the Advertiser in a
way that infringes or misappropriates any third party’s Intellectual Property
Rights or violates applicable law, rule or regulation; and, as applicable, (v)
it has and will at all times comply with Applicable Privacy and Data Security
Laws, including but not limited to making legally required notices to and/or
obtaining any legally required consents from each Visitor for Previews Network,
as a service provider of affiliate, to Process the Visitor’s Personal Data
pursuant to the Data Protection Agreement.
6. Confidentiality & Personal Data
6.1. Scope.
The Receiving Party shall prevent disclosure of the Disclosing Party’s Confidential Information to
anyone (including employees, contractors and agents) other than those with a
need to know such Confidential Information for the purposes of this Agreement,
and who are contractually obligated to keep Disclosing Party’s Confidential
Information confidential. The Receiving Party may use the Disclosing Party’s
Confidential Information only for the purposes permitted under this Agreement.
Disclosure to third parties may be made only to those that the Disclosing Party
has authorized such disclosure (including Advertisers for the purpose and/or
prospect of User Agreement), and Confidential Information shall include
information provided by Advertisers that is authorized for disclosure to affiliate.
The Receiving Party must use reasonable efforts to maintain the confidentiality
of the Confidential Information, including steps to protect it as the Receiving
Party takes to protect its own similarly valuable confidential and proprietary
information, and in no event less than a reasonable standard of care. All
Confidential Information, including, without limitation, all copies of
Confidential Information exchanged under the Agreement, is and will remain the
property of the Disclosing Party and/or Disclosing Party’s licensors.
6.2. Compliance with Law.
The Receiving Party may disclose Confidential Information that it is obligated to
produce by law or other similar requirement of a governmental agency or a
subpoena for the limited purpose required by a court or government agency, so
long as the Receiving Party provides the Disclosing Party with written notice
in advance of any such disclosure (unless prohibited by law or order), and
complies with any applicable protective order or equivalent designed to protect
the confidentiality of the Confidential Information.
6.3. Continuing Obligations.
Upon termination or expiration of this Agreement, the Receiving Party shall
destroy the Disclosing Party’s Confidential Information, unless return of
Confidential Information is requested in writing by the Disclosing Party
within sixty (60) days after termination or expiration of the
Agreement. Notwithstanding foregoing, the Receiving Party shall not be
obligated to purge any Disclosing Party Confidential Information archived
pursuant to the Receiving Party’s normal document retention practices, subject
to the continuing obligations of Section 6.1 with respect to such not-readily
accessible, archived Confidential Information. Affiliate Data Processed
by Previews Network may be retained by Previews Network for as long as
necessary to comply with its obligations under this Agreement and/or as
permitted or required by applicable laws, rules and/or regulations. The
obligations of confidentiality, non-use and non-disclosure of Confidential
Information shall survive the expiration or termination of this Agreement.
6.4. Personal Data.
This Agreement is subject to the then-current Data Protection Agreement which is
incorporated herein by this reference and each Party acknowledges acceptance of
its terms. When use of the Previews Network Affiliate Program requires Previews
Network to Process Personal Data of Users and Visitors, such Processing will be
done in accordance with the Data Protection Agreement.
7. Indemnity
7.1. Previews Network Indemnity.
Previews Network (as an “Indemnifying Party”) agrees to indemnify, hold
harmless, and defend (“Indemnify”) affiliate, its officers, directors,
employees, agents, successors and assignees of each (each a “Affiliate
Indemnified Party”), from and against all Claims because of Previews Network’s
violation of or failure to comply with Applicable Privacy and Data Security
Laws. Previews Network’s indemnification obligations are subject to
Section 7.3 and limited to the extent and percentage a Claim arises from affiliate’s
(i) breach of this Agreement and/or the Data Protection Agreement, (ii)
negligence, (iii) illegal conduct, and/or (iv) willful misconduct.
7.2. Affiliate Indemnity.
Affiliate (as an “Indemnifying Party”) agrees to Indemnify Previews Network, Previews
Network Affiliates and each of their officers, directors, employees, agents,
third party service providers (for products & services resold by Previews
Network) and Advertisers, successors and assignees of each (each an “Previews
Network Indemnified Party”), from and against all Claims because of: (a) Affiliate’s
violation of or failure to comply with any applicable law, ordinance,
regulation, rule or order (including but not limited to Applicable Privacy and
Data Security Laws); (b) Affiliate’s breach of Section 6 (Confidentiality); and
(c) Affiliate’s breach of any of its representations and warranties and/or
terms in this Agreement.
7.3. Requirements.
An Indemnifying Party’s obligation to Indemnify pursuant to this Section
7 is subject to (a) the Indemnified Party providing the Indemnifying Party with
timely written notice of the Claim, (b) the Indemnified Party giving the
Indemnifying Party the sole right to defend, compromise, and settle any such
Claim (except where settlement would impose any cost or limitation on the
Indemnified Party, or would admit fault by the Indemnified Party without the
Indemnified Party’s consent), and (c) the Indemnified Party providing
reasonable cooperation and assistance to the Indemnifying Party, at the
Indemnified Party’s sole expense. Notwithstanding the foregoing, the
Indemnified Party shall be entitled to participate in its own defense at the
Indemnified Party’s own expense, although such participation does not reduce or
relieve the Indemnifying Party’s obligations under this Section 7.
8. Limitations of Liability
8.1. Disclaimers.
Previews Network shall not be liable for: (a) Affiliate’s use of the Previews Network
Affiliate Program in breach of this Agreement (including but not limited to
Section 1 and/or the Data Protection Agreement); (b) Affiliate’s and/or its
Users acts, errors and omissions; (c) defects, problems, or failures of
products, services and/or software not provided by Previews Network; and/or (d)
defects, problems or failure of the Internet. Affiliate shall be fully
responsible and liable to the fullest extent permitted under law for affiliate’s
misappropriation or breach of Previews Network’s Intellectual Property Rights
or affiliate’s obligations under Section 6 (Confidential Information &
Personal Data), and for return or recoupment of all Affiliate Compensation paid
out but unearned or generated in breach of this Agreement. For the
avoidance of doubt, this Section 8 shall survive the termination of this
Agreement.
8.2. LIMITS.
PREVIEWS NETWORK’s AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT,
WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT
EXCEED TWENTY-FIVE THOUSAND US DOLLARS ($25,000). IN NO CIRCUMSTANCE WILL
PREVIEWS NETWORK HAVE ANY LIABILITY TO AFFILIATE, ITS USERS, OR ANY THIRD PARTY
FOR ANY LOST PROFITS OR LOST REVENUES OR OTHER INDIRECT, SPECIAL,
CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT,
TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT PREVIEWS NETWORK
IS ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. THIS SECTION 8.2 DISCLAIMER
DOES NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW, OR TO PREVIEWS
NETWORK’s LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF PREVIEWS
NETWORK.
8.3. ALLOCATION OF RISK.
THE ABOVE LIMITATIONS ON LIABILITY REFLECT THE PARTIES’ AGREED UPON ALLOCATION
OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION 8
WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT
IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
9. Miscellaneous
9.1. Independent Contractor.
Previews Network is and shall remain an independent contractor of affiliate and
nothing herein shall be deemed or construed to create an employer/employee,
joint venture or partnership relationship between the Parties. Neither
Party shall have any authority to incur any obligations on behalf of the other
Party or to make any promise, representation or contract of any nature on
behalf of the other Party.
9.2. Governing Law.
The validity, interpretation and performance of this Agreement shall be governed
and construed in accordance with the laws of Alberta, Canada without reference
to its choice of law doctrine. Each Party shall be entitled to pursue all
remedies that are available to it at law or equity in state or federal court in
Calgary, Alberta, Canada. Each Party agrees that it shall not raise, and
waives, any defenses based upon venue, inconvenience of forum or lack of
personal jurisdiction.
9.3. Entire Agreement.
This Agreement and the Data Protection Agreement represent
the entire understanding and agreement between the Parties that related to the
subject matter hereof, and supersede all prior contracts, agreements,
understandings or representations, whether written or oral. The Parties
expressly agree that any confidentiality and non-disclosure agreement(s)
executed between the Parties prior to the date of this Agreement are terminated
and such terms are superseded by the terms of this Agreement. The Parties may
agree to additional terms and conditions that are applicable to specific Previews
Network Affiliate Program functionalities and/or services. Each of the
Parties acknowledges that there are no other promises, representations, or
warranties whatsoever, whether by a Party, its Affiliate, employee, contractor,
officer director, agent or attorney of such Party, and acknowledges that it has
not executed or authorized the execution of this Agreement in reliance upon any
such promise, representation or warranty, that is not expressly contained in
this Agreement.
9.4. Third Party Beneficiaries.
This Agreement is made solely for the benefit of the Parties to this Agreement, Previews
Network’s Affiliates and their respective permitted successors and assigns.
Other than pursuant to a Party’s indemnification obligations (as applicable)
and Affiliates, no other person or entity shall have or acquire any right,
power or privilege by virtue of this Agreement, or have any benefit or
interest, arising out of this Agreement. Any obligation of Previews Network may
be performed by a Previews Network Affiliate, and the terms of this Agreement
may be enforced by a Previews Network Affiliate. Previews Network may amend
this Agreement (or any part thereof) upon written notice to affiliate which may
be through affiliate’s Account or to the email address listed on affiliate’s
Account. Except as specifically provided for in the preceding sentence or
otherwise in this Agreement, no alteration, amendment, waiver, cancellation or
any other change in any term or condition of this Agreement shall be valid or
binding on either Party except by written mutual agreement.
9.5. Assignment.
Affiliate may not assign this Agreement or delegate its duties to any third party without
the prior written consent of Previews Network, including but not limited to
transfers to any successor in interest (such as in a merger, consolidation or
sale of all or substantially all the Party’s stock or assets). Previews
Network may freely assign and transfer this Agreement and delegate its duties.
This Agreement shall be binding upon, and shall inure to the benefit of, the
Parties and their respective successors and permitted assigns.
9.6. Notice.
No notice required or permitted hereunder shall be valid unless given in writing and
shall be deemed to have been validly given only if delivered as follows: (a) by
Previews Network to affiliate – within the messaging functionality of the Previews
Network Affiliate Program or at the email address listed on affiliate’s
Account; and (b) by affiliate to Previews Network - by registered or
certified mail, postage prepaid, return receipt requested, or commercial
courier to: Previews Network Inc., 77 Evergreen Way SW, Calgary, Alberta,
Canada, T2Y 3R3. Notice is effective upon receipt (or refusal to accept
receipt), and, in the case of email notice, upon delivery.
9.7. Survival/Severability.
Except as otherwise provided herein, warranties and obligations contained
herein shall survive termination of this Agreement, regardless of the reason
for such termination, and shall continue in full force and effect. The
provisions of this Agreement are severable, and if any clause or provisions
hereof shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall affect only such
clause or provision, or part thereof, in such jurisdiction and shall not in any
manner affect such clause or provision in any other jurisdiction, or any other
clause or provision in this Agreement in any jurisdiction. Any such
clause or provision held invalid or unenforceable, in whole or in part, to the
extent permitted by law, shall be restricted in applicability or reformed to
the minimum extent required for such clause or provision to be enforceable.
9.8. Remedies/Waiver.
Unless explicitly stated otherwise, each Party’s rights and remedies whether in
contract, law or equity, are cumulative. Any waiver by either Party of any
provision or condition of this Agreement shall not be construed or deemed to be
a waiver of any other provision or condition of this Agreement, nor a waiver of
a subsequent breach of the same provision or condition, unless such waiver is
expressed in writing and signed by the Parties. Delay in the enforcement
of any remedy in the event of a breach of any term or condition, or in the
exercise by either Party of any right, shall not be construed as a waiver of
such remedy or right, unless the Agreement provides for a specific period for
notice of breach or exercise of a right.
9.9. Electronic Signatures/Interpretation.
The Parties acknowledge that they have had an opportunity to review this Agreement, seek counsel regarding interpretation of its terms, and an opportunity to negotiate and make amendments to these
terms. In the event of an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties, and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of this
Agreement. AFFILIATE HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES,
CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES,
POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE
PRODUCTS. Further, affiliate hereby waives any rights or requirements under any
applicable statutes, regulations, rules, ordinances or other laws in any
jurisdiction which require an original signature or delivery or retention of
non-electronic records, or to payments or the granting of credits by other than
electronic means.
10. Additional Terms and Conditions for Creators.
In addition to the terms and conditions contained in the
Partner User Agreement (“Agreement”), all affiliates that are social media
influencers (“Creators”) are required to comply with the provisions below. From
time to time, Previews Network may modify or amend these terms and/or the
Agreement. Any such modifications or changes will be posted on our website or
otherwise notified to each Creator at the email address that the Creator have
provided to Activate. If a Creator continues to use the Service following such
a posting or notification, the Creator has accepted any such change or
modification.
The Services (including use of any Previews Network website)
are intended solely for persons who are 18 years of age or older. Any access to
or use of the Services by anyone under 18 is expressly prohibited. By accessing
or using the Service, the Creator represents and warrants that the Creator is
18 or older. By using the Services, Creator is also representing and warranting
that the Creator will use the Services in compliance with all applicable laws
and regulations. Participation was prohibited by law is void.
10.1. Programs & Campaigns.
By applying to a Program to promote an Advertiser and/or a specific Campaign
(including through invitation), Creator agrees that the Creator is able and
willing to perform the work outlined in the collaboration brief as documented
and displayed on the Services. If chosen to participate in a Campaign, all
compensation for participation is contingent upon successful and complete
execution of the instructions outlined in the brief as presented to the Creator
at the time the Creator accepts the Campaign collaboration brief. The Creator
is responsible for supplying all requested metrics for content that the Creator
distributes on social media platforms in connection with a Campaign. This may
include but is not limited to: producing original content within any
guidelines, providing materials requested on or before any stated deadlines
(including both drafts for approval and final content), requesting and
receiving approval prior to posting content on social media platforms, posting
content on social media platforms on or before any stated deadlines, abiding by
any stated exclusivity clauses for the stated periods of time, abiding by these
terms and the Agreement, and any additional requirements that are stated in the
Campaign brief.
Creators as required to comply with the highest industry standards for
advertising and the Editorial Standards below. Additionally, Creators may
provide certain of the Creator’s own information and materials, including text,
narrative, images, photos, graphs, videos, designs, logos, trademarks, URL
links and data (all collectively “Creator Content”). Creator represents and
warrants that the Creator Content and any social media network and/or website
provided by Creator or on Creator’s behalf for Campaigns shall not contain, or
contain links to, improper or illegal content and will comply with the
standards in these terms. Previews Network reserves the right to remove or
reject any Creator Content, or any URL link embodied within a Campaign at any
time. Creator represents and warrants that Creator has the right to publish the
Creator Content, without infringing any rights of third parties (including Previews
Network’s). Previews Network will not, under any circumstance, be liable in any
way for any Creator Content or Advertiser Content, including, but not limited
to, any errors or omissions in any such Content, or any loss or damage of any
kind that Creator incurs as a result of Creator’s use of, or acting in reliance
on, any Creator Content or Advertiser Content posted, e-mailed, transmitted, or
otherwise made available in or from the Services.
Creator agrees to keep strictly confidential the amount of the payment under
Campaigns, and shall not disclose such information to any other person or
entity, unless required by applicable securities or other laws, or disclosed in
confidence to Creator’s attorneys or accountants.
10.2. Linking to Advertisers.
Upon acceptance into a Program, Advertiser Content will be made available to
Creator through the Previews Network Services via Creator’s Account. By
participating in Programs, Creator agrees to use, without manipulation of any
kind, the Advertiser Content as provided through Creator’s Account on the
Services only. Creator acknowledges and agrees that Advertiser Content is
protected by one or more intellectual property rights, including but not
limited to copyright, trade and/or service mark, and trade dress. Creator’s use
of Advertiser Content is subject to the Advertiser’s license and brand
guideline terms as provided for in the Program terms; however, the following
default terms will apply if any Program does not contain license terms –
Creator is granted a limited, non-transferable, revocable, non-exclusive,
royalty-free right to display, reproduce, broadcast, publicly perform,
distribute the Advertiser Content for the sole purpose of fulfilling Creator’s
obligations in connection with the Program. Creator’s license rights to
Advertiser Content will terminate the earlier of when Creator’s participation
in the Program ends or the Advertiser revokes any such license at the
Advertiser’s sole discretion. The period for performing services shall begin
and end on the date specified on the applicable Campaign description.
10.3. Editorial Standards; Prohibited Activities.
This Section 3 includes an illustrative and non-exclusive list of the editorial standards for Creator Content and use of Advertiser Content. The list of standards specified below, however, is not a
comprehensive listing of prohibited conduct by Creators, who remain fully and
solely responsible for ongoing monitoring of Content on Creator’s website(s),
social channel(s), and/or any related sites with which Creator is associated
that may or may not be directly linked to Creator’s Previews Network Account.
This includes all information, text, images, photographs, graphics, e-mail
addresses, web pages, comments and reviews, discussion board postings and other
materials contained in Creator’s Account or linked to Creator.
The Editorial Standards include the following:
(a)“Unacceptable Content as defined as Content that:”
Is lewd, profane, obscene, or indecent, including any content that is violent or pornographic or that contains nudity, explicit violent or sexual material, or depictions of violent or sexual acts. Is harassing, threatening abusive, inflammatory or otherwise objectionable, including content used to harass, stalk or threaten a person. Is unlawful or that could facilitate the violation of any applicable law, regulation or governmental policy. Offers or disseminates any fraudulent goods, services, schemes or promotions, including any make-money-fast schemes, chain letters, or pyramid schemes. Is libelous, defamatory, knowingly false or misrepresents another person, brand or campaign you are working with. Infringes upon the intellectual property rights of any third party (including Previews Network’s), including the copyrights, trademarks, trade names, trade secrets or patents of such third party. Is harmful to Previews Network or any other party’s systems and networks, including any transmissions which may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data or personal information. Violates any obligation of confidentiality. Violates the privacy, publicity, moral or any other right of any third party; and Consists of any other Content that Previews Network in its sole discretion deems to be Unacceptable Content.
(b)“Editorial Consistency. Creators must also:”
Ensure that all Content is original material created by the Creator, or if not the original material of Creator, ensure that express permission of the owner(s) of such material has been obtained; and Ensure that all opinions and statements are representative of Creator’s honest views. Previews Network, in its sole discretion, will determine what constitutes Unacceptable Content under these Editorial Standards. Ensure professionalism and responsiveness during a collaboration. If a Creator goes unresponsive for two or more campaigns in a calendar year, Previews Network, in its sole discretion, reserve the right to flag and terminate the Account.
(c)“Fraudulent Activity:”
Creator agrees not to engage in deceptive or fraudulent practices in relation to the performance of
the Services and to the Content created for the Client, including but not
limited to the purchase of social media followers and website visits or clicks
or submission of fraudulent metrics. Any activity of that kind for which there
is reasonable proof will result in the immediate termination of the Agreement,
and cancellation of any outstanding payment for Services due to the Creator.
Previews Network is under no obligation to monitor the Creator for compliance
with these Editorial Standards. Previews Network may change the Editorial
Standards at any time and Previews Network reserves the right to terminate this
Agreement without prior notice and without payment of Services in the event
that, Previews Network’s judgment, Creator has violated the Editorial Standards
or the other requirements for the Creator set forth in this Agreement.
Regardless of whether you are the Creator, or a User on an Creator’s Account
(such as a Talent Manager) or are just accessing the website, the following
behaviors are prohibited in the Services:
Impersonating another person or entity. Stalking and other types of harassment or harmful, fraudulent, deceptive, threatening, defamatory, obscene, or otherwise objectionable behavior. Engaging in unauthorized collection of users' content or information, and/or otherwise accessing the Service by automated means (including, but not limited to, so-called bots or scrapers) without an authorization from us. Transmission of viruses, malware, or other malicious code in the Service. Modification, reverse-engineering, decompiling, or other manipulation of the Service. Using the Service to offer, display, distribute, transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party (including Previews Network). Attempting, in any manner, to obtain the password, account, or other security information from any other user. Going unresponsive on two or more campaigns in a calendar year. Submission of fraudulent metrics. Jeopardizing the security of your Creator account or anyone else’s (such as allowing someone else to log in to the Service as you). Using the Service in a manner that violates any law or regulation, including, without limitation, any applicable export control laws. Interfering with, or disrupting, the Service. Copying or storing any significant portion of any content You access through the Service (including on the website); and Violating the security of any computer network or cracks any passwords or security encryption codes.
(d)“Prohibitions:”
Creator is PROHIBITED from referring themselves via the Advertiser Content or
creating multiple, fictitious or fake accounts to join Advertiser Programs.
Creator may not use its participation in the Program to violate any law,
infringe or violate the rights of any third party, or otherwise act,
intentionally or unintentionally, in a manner that is deemed harassing,
harmful, illegal, hateful, obscene or outside the spirit and intent of the
Program, as determined by the relevant Advertiser in its sole discretion. In
addition, Creator may not (i) tamper with or otherwise compromise the integrity
of an Advertiser’s Program, (ii) act in an unfair or disruptive manner, or
(iii) use any system, software, bot or other device to participate in or
receive any benefit in any Program. Any attempt to deliberately damage or
undermine the legitimate operation of a Program may be in violation of criminal
and/or civil laws. Creator may be subject to, and Advertisers and Previews Network
reserves the right to seek, remedies and damages (fully including attorney and
other legal fees) of the law, including but not limited to referral for
criminal prosecution.
10.4. Intellectual Property Rights.
Unless stated explicitly otherwise in a Campaign collaboration brief, Previews Network
will have an exclusive, worldwide, perpetual, irrevocable and transferable
right and license, with the right to sublicense through multiple tiers, to use,
distribute, reproduce, copy, display, perform, store, modify, create derivative
works based upon, promote and otherwise commercialize and fully exploit the
Creator Content (or any portion thereof) for any commercial or non-commercial
purpose and in all forms and all media whether now known or hereafter created.
Creator acknowledges and agrees that Previews Network has sole rights to any
revenue and income derived from its use of Creator Content. Notwithstanding the
foregoing, any usage stated in individual Campaign collaboration briefs on the Previews
Network platform will supersede the aforementioned license and usage rights in
the event of a conflict; provided, however, that Previews Network will retain
the right to store, display and modify Creative Content on the Previews Network
platform.
Creator only has the right to use the Services during the Term, and has no
rights of ownership in or to the Service. All right, title and interest,
including without limitation any copyright, patent, trade secret or other
intellectual property right in the Services will remain Previews Network’s sole
property. Any Services provided to Creator under this Agreement, and other data
or materials that are prepared in the performance of such Services hereunder,
and all right, title and interest in the foregoing belong to Previews Network.
The Services contains links to websites owned and/or operated by third parties.
Previews Network is not responsible for any such third-party websites and does
not have control over any materials or content made available therein. Previews
Network’s inclusion of a link to a third-party website in the Services does not
in any way imply our endorsement, advertising, or promotion of such websites or
any materials or content made available therein. By accessing a third-party
website Creator accepts that Previews Network does not exercise any control
over such websites or their content. Previews Network has no responsibility of
the content of any third-party website, and Creator acknowledges and agrees
that Previews Network has no liability to Creator or any third party for any
harm, injuries or losses suffered as a result of Creator’s access to, reliance
on or use of such third-party websites or their content. Creator acknowledges
sole responsibility for and assume all risk arising from Creator’s access to,
use of or reliance upon any third party websites and any materials or content
made available therein.
With respect to the Digital Millennium Copyright Act (the “DMCA”), if Previews Network
is asked to remove material that allegedly violates someone’s copyright and Previews
Network reserves the right to delete or disable any content alleged to be
infringing, and to terminate the accounts of repeat alleged infringers. To
learn more about the DMCA, click
here.
10.5. FTC Endorsement Compliance and Online Publishing Policy.
Promotion on social media (e.g. Facebook, Twitter, Instagram, Pinterest, etc.) and blogs is allowed, subject to Creator’s compliance with all applicable laws, including the Federal Trade
Commission (“FTC”) regulations in Canada, and any comparable regulations on
advertising disclosures in Creator’s applicable geographic region(s), and:
Creator must include a disclosure statement within all pages, blog/posts, or social media posts where Advertiser Content is posted as an endorsement or review, and where it is not clear that the link is a paid advertisement. Creator’s disclosures should be clear, conspicuous and concise (8-point font and above) stating that the relevant Advertiser is compensating Creator for Creator’s review or endorsement. If Creator received the product for free from or on behalf of the Advertiser for review, this also must be clearly stated in Creator’s disclosure. Creator’s disclosures must be made at the beginning of the claims and may not appear solely in a “Terms of Use”, “Legal”, “About Us” or another linked page. Creator’s disclosures should be placed above the fold; scrolling should not be necessary to find the disclosure. (e.g. disclosure should be visible before the jump). The use of pop-up, hover state and button disclosures are prohibited. When using YouTube, Creator’s disclosure must be stated/displayed at the beginning of the video; a listing in the video description is not enough. When using Instagram Creator’s disclosure should be present in the first three (3) lines before a user would have to click “more”. When using Snapchat/Instagram Stories – the disclosure must be superimposed on the image and conspicuous (i.e. font must be on a contrasting background and must be visible for a reasonable amount of time for users to understand the relationship). Reasonable hashtags/disclosures for social media platforms with limited characters include “paid ad,” “sponsored,” “promoted,” “ad", “#ad,” and “#sponsored”. No other alternatives are permitted.
For more information about FTC disclosure requirements,
please review the FTC's "Dot Com Disclosures" Guidelines at
http://www.ftc.gov (example 21) and the FTC's Endorsement Guidelines at
http://business.ftc.gov/advertising-and-marketing/endorsements.
If Creator engage in so-called “native advertising,” Creator further agree to
comply with the FTC’s Enforcement Policy Statement on
Deceptively Formatted Advertisements and the related guidelines.
As a general rule of thumb, when discussing a product or service, be honest to
your readers and consumers. You should never post material in any medium
(including those statements made on social media) that could be viewed as
deceptive advertising. This means, when you post endorsements, these statements
should:
1. Reflect your honest opinions, findings, beliefs and experiences.
2. When representing that you use the endorsed product, you should be a bona fide user of it at the time the endorsement was given.
3. Not include any statements about products or its services that the creator of such products or services could not make directly (because unsubstantiated or otherwise false, misleading, presented out of
context, or distorted); and
4. Clearly and conspicuously disclose, if true, that you have received or will receive compensation (or other benefit) in exchange for your online statements. All disclosures must be FTC compliant.
Examples of benefits that you must disclose include, for example, cash, gift
cards, discounts, free products and/or services, loaner products, special
access or other privileges, and/or employment. Please note that these are only
given as examples and do not cover the range of what may be considered a
benefit. Don’t try to trick the reader—the disclosure should be in easy-to-understand
wording and typeface, prominently visible and placed adjacent to your statement
that triggered the disclosure. Disclosures should also appear as close as
possible to the content to which they relate. Anything different to the above
must be approved by the Advertiser.
Previews Network shall not be liable, under any
circumstances, for any errors, omissions, losses, or damages claimed or
incurred due to any of your online postings.
[end of terms]
EACH PERSON EXECUTING THIS AGREEMENT ON BEHALF OF AN ENTITY
REPRESENTS AND WARRANTS THAT HE OR SHE HAS COMPLETE AND FULL AUTHORITY AND
CAPACITY TO ACT ON BEHALF OF THAT ENTITY. SUCH PERSON AGREES TO INDEMNIFY,
DEFEND AND HOLD PREVIEWS NETWORK AND ITS AFFILIATES HARMLESS IN THE EVENT THAT
THE PERSON WAS NOT AUTHORIZED.
Confidential Information of Previews Network Inc. (dba Previews
Network) updated Feb 1, 2025
Master Campaign Agreement
1. Introduction.
1.1. This” Master Campaign Agreement” together with Schedule 1 and any applicable EIOs (collectively the “Agreement”) is between you, hereinafter referred to as “Advertiser” and/or “Media Partner” (each a “Participant”) to utilize the platform currently located at https://previewsnetwork.com (the “Platform”) owned and operated by Previews Network Inc. (“Previews Network”).
1.2. The Participants shall agree to specific terms of engagement in individual “Electronic Insertion Order(s)” (“EIO”). EIOs contain any supplemental terms and conditions agreed between the Participants and are created using the “Insertion Order” function on the Platform. The EIOs shall specify the actions (“Actions”) and qualifying parameters that entitle Media Partner to compensation from the Advertiser (“Payouts”). Previews Network shall be a facilitator for the relationship between Advertisers and Media Partners and shall not be an active party to the Agreement. Accordingly, the terms of the EIOs are strictly between Media Partner and Advertiser.
2. Entering Electronic Insertion Orders.
2.1. The Participants acknowledge and agree that: either Participant may propose an EIO in the “Insertion Order” section of the Platform interface and that the Platform’s functionality may then be used by either of them to decline, retract or further modify an EIO before acceptance. If the parties utilize other forms of insertion orders, then Schedule 1 must reflect this occurrence, and the Participants are responsible for implementing the appropriate settings on the Platform to conform with such agreed upon terms.
2.2. Media Partner makes no guarantee or representation that it will generate any Action(s). Except as provided for in any EIO, if at all, Advertiser makes no guarantee or representation that the Media Partner will be successful in earning any Payouts.
3. Term and Termination.
3.1. EIOs: Each individual EIO shall continue until the earlier of: (a) the expiration of it; or (b) a Participant terminating the EIO pursuant to the terms of the Agreement.
3.2. Consequences of Termination: On the expiration or earlier termination of each EIO: (a) the Media Partner shall refund the Advertiser any monies, if any, in relation to unfulfilled obligations that the Advertiser has paid the Media Partner in advance in relation to an EIO. (b) the Advertiser shall remain obligated to compensate the Media Partner for Payouts earned prior to the expiration or termination of the EIO. (c) the Media Partner shall immediately discontinue the use of any materials provided by the Advertiser (the “Creative”). (d) license to the Creative shall terminate; and (e)each Participant shall either destroy or promptly return to the other Participant all copies in whatever medium of the other’s Confidential Information.
4. Intellectual Property and Confidential Information.
4.1. License. Pursuant to the terms herein, the Advertiser grants to the Media Partner for the duration of each EIO a revocable, non‑exclusive, non-transferable, world-wide, royalty-free license to use the Creative solely to the extent necessary to perform its obligations herein.
4.2. Promotional Methods. Unless explicitly authorized in an EIO, Media Partner shall not promote a Creative using the following means: (a) provision of leads obtained other than through intended consumer (“End User”) action (e.g. using phone books, or similar such compilations of personal data). (b) use of fake redirects, automated software, or other mechanisms to generate Actions. (c) Actions that are not in good faith, such as those using any automated device, robot, iframes or hidden frames; or (d) the use of incentives to procure Actions from End Users.
4.3. Intellectual Property: “Intellectual Property” means trademarks (whether registered or unregistered together with all goodwill in connection thereto), unregistered and registered designs, copyright, database rights, rights in computer software, domain names, rights in Confidential Information and all other intellectual property rights (whether now subsisting or in the future created). All Intellectual Property existing prior to the commencement date of each EIO shall belong to the Participant that owned such rights immediately prior to such date. Each Participant acknowledges and agrees that it shall not acquire or claim any title to the other Participant’s Intellectual Property.
4.4. Confidential Information. "Confidential Information" means all confidential information and data, whether in tangible or intangible form such as trade secrets, financial, and technical information, customers, prices, discounts, and margins. A Participant receiving Confidential Information ("Receiving Party") from the other Participant ("Disclosing Party") agrees to (a) hold all Confidential Information in confidence and protect it with the same degree of care with which the Receiving Party protects its own Confidential Information; (b) use such Confidential Information only for the purposes of this Agreement and as permitted by this Agreement; (c) not copy or otherwise duplicate such Confidential Information, except for the purpose of this Agreement; and (d) restrict disclosure of such Confidential Information solely to those employees and agents with a need to know such Confidential Information for the purposes of this Agreement and who are bound in writing to protect the same. The foregoing obligations shall not apply to any information designated as confidential if, prior to any release of such information, such Confidential Information: was already known to the Receiving Party, free of any obligation to keep it confidential; is or becomes publicly known through no wrongful act of the Receiving Party; is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; was received from a third party without any restriction on confidentiality; was disclosed to third parties by the Disclosing Party without any obligation of confidentiality; or is approved for release by prior written authorization of the Disclosing Party. If the Receiving Party receives a request pursuant to a court order, governmental body request or other legal process to disclose the Disclosing Party's Confidential Information, the Receiving Party shall promptly notify the Disclosing Party and reasonably assist the Disclosing Participant in obtaining a protective order requiring that any portion of the Confidential Information required to be disclosed be used only for the purpose for which a court issues an order or as otherwise required by law. Each Participant shall bear its own legal expenses in connection therewith
5. Representations, Disclaimers and Indemnification.
5.1. Representations and Warranties: (a) Each Participant warrants, represents and undertakes that: (i) it has the full power and authority to carry out its obligations in the Agreement. (ii) its entry into and performance of its obligations under the Agreement shall not infringe the rights of any third party or cause it to be in breach of any obligations to a third party. (iii) it shall comply fully with all applicable laws, rules and regulations in its performance under the Agreement.
5.2. Indemnification: Each Participant ("Indemnitor") shall defend, indemnify and hold the other Participant and its respective shareholders, directors, officers, employees, subcontractors and agents ("Indemnitee") harmless against all claims, suits, costs, damages liabilities, expenses (including reasonable attorney's fees), settlements and judgments incurred, claimed or sustained by third parties (“Claims”) for the Indemnitor's breach of this Agreement, provided that: (a) Indemnitee notifies Indemnitor in writing within a commercially reasonable time after its receipt of notice of any Claim; (b) Indemnitor has sole control of the defense and all related settlement negotiations (except that the Indemnitor shall not settle any Claim in any manner which would admit fault by the Indemnitee without Indemnitee’s reasonable consent); and (c) Indemnitee provides Indemnitor with reasonable assistance, information and authority necessary to perform its obligations under this Section. Indemnitee may participate in the defense of a Claim at Indemnitee’s expense, and such participation shall not waive or reduce any obligations on the Indemnitor under this Section.
5.3. Limitations of Liability.
(a) Nothing below shall operate to exclude or limit liability for which liability cannot be excluded or
limited under law (together the "Excluded Losses").
(b) Except in respect of the Excluded Losses, the liability of each Party to any other Party in contract, tort (including negligence or breach of statutory duty, misrepresentation or otherwise) or for any other
common law or statutory cause of action or otherwise arising by reason of or in connection with this
Agreement and each EIO shall be limited to the Payouts fees paid by Advertiser to Media Partner
through Previews Network pursuant to EIOs.
(c) Except in respect of the Excluded Losses, neither Party shall be liable to the other in contract, tort
(including negligence) or otherwise for any: any loss of actual or potential profits, contracts or
customers; loss of data and undertaking data or other restoration; loss of reputation; any other indirect,
consequential, special, punitive, exemplary damages whether arising from negligence, breach of
contract or otherwise.
6. General.
6.1. Waiver of Remedies: No forbearance or delay by either Participant in exercising or enforcing the provisions of this Agreement shall prejudice or restrict the rights of that Participant nor shall any waiver of its rights operate as a waiver of any subsequent breach. No right, power or remedy herein conferred upon or reserved for either Participant or available by law is exclusive of any other right, power or remedy available to that Participant and each such right, power or remedy shall be cumulative.
6.2. Assignment: Either Participant may assign any or all its rights under this Agreement, or transfer or sub-contract any or all its obligations under this Agreement, upon notification to the other Participant, subject to the non-assigning Participant’s right to terminate.
6.3. Audit rights: Each Participant agrees to maintain adequate books and records relating to its compliance with the terms of this Agreement during the term of this Agreement and for a period of one (1) year thereafter. Copies of such records shall be made available to the other Participant upon written request.
6.4. Notices: All notices which are required to be given under this Agreement shall be in writing. Notices of termination of an EIO by Advertiser for convenience shall be made via the Platform. All other notices shall be sent to the postal address or facsimile number of the Participant as provided via the Platform, as such address may be updated from time to time. Any such notice may be delivered personally or by first class pre-paid letter (or by airmail if overseas) or by facsimile transmission, and shall be deemed received, when delivered (if by hand); or if by mail five (5) days after deposit in mail, if by facsimile transmission, when successfully dispatched in full.
7. General.
7.1. Force Majeure: "Force Majeure" means circumstances beyond the reasonable control of a Participant, including but not limited to acts of God, war, terrorist action, fire, flood, governmental act Internet or other telecommunications failure. Neither Participant shall be liable to the other Participant for any failure or delay in performing any of its obligations hereunder if such failure or delay is caused by the occurrence of an event of Force Majeure. If a Participant becomes aware of a Force Majeure event, such Participant shall immediately notify the other Participant in writing. If the event of Force Majeure continues period more than three (3) weeks, then either Participant may terminate this Agreement by written notice to the other Participant with immediate effect.
7.2. Entire Agreement: This Agreement represents the entire understanding and constitutes the entire agreement in relation to the subject matter herein, it supersedes any previous agreement as to such subject matter herein and may be amended only in writing and executed by both parties. Each party acknowledges and agrees that it has not relied on any representation or warranty other than those expressly set out herein.
7.3. Electronic Signatures: Each party acknowledges and agrees that by clicking-through acceptance of this Agreement; it is submitting an authorized electronic signature and entering a legally binding contract. Further, each party hereby waive any rights or requirements under any applicable statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
7.4. Severability: If any provision in this Agreement, in whole or in part, held by a court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable under any enactment or rule of law then that provision or part shall be deemed not to form part of this Agreement and the enforceability and validity of the remainder of this Agreement shall not be affected. The parties shall in good faith attempt to modify any invalidated provision or part to carry out the parties' stated intentions.
7.5. Survival: All provisions that by their nature should reasonably be interpreted to survive the termination or expiration of this Agreement, shall survive such termination or expiration of this Agreement.
7.6. Relationship of the Parties: The relationship of the Participants is that of independent contractors and this Agreement does not create any association, partnership, joint venture or agency relationship between them. Neither Participant shall have the power to bind the other or to create a liability against the other in any way.
Schedule 1
General Terms and Conditions This Schedule 1 applies as between Advertiser and Media Partner unless superseded in whole or part by written agreement executed between them.
1. Tracking Actions and Calculating Payouts: Unless an EIO states otherwise, all tracking and payment processing facilities in relation to the tracking of Actions and calculation of Payouts shall be provided by Previews Network. Previews Network shall aggregate payments due from Advertisers to the Media Partner and make payments to the Media Partner in accordance with each EIO. If tracking is disabled because of the Advertiser’s acts or omissions and the Advertiser continues to receive traffic from the Media Partner, then the Advertiser shall be obliged to pay Payouts on a fair and reasonable basis taking into account appropriate factors.
2. Chargebacks: Actions can be cancelled or returned by the Advertiser (“Chargeback”) if: (a) an Action is incomplete; (b) if a customer has cancelled or returns an Action; (c) if an Action has been made fraudulently or in an otherwise non-bona fide manner; (d) if an Action is carried out by a person who is outside the area serviced by the Advertiser; or (e) if the Advertiser is unable to ship goods to a customer in relation to an Action. Each EIO shall state the period within which the Advertiser may apply a Chargeback.
3. Governing Law and Venue: Unless the Parties mutually agree otherwise in writing, this Agreement, Schedule 1 and each EIO shall be governed by the laws of the Alberta, Canada and such state shall be the sole and exclusive forum or any disputes under this Agreement. A Participant that primarily prevails in an action brought under this Agreement is entitled to recover from the other Participant its reasonable attorneys' fees and costs.