USER TERMS AND CONDITIONS;
Online Exchange ACTIVELY monitors traffic for Fraud. If we detect Fraud, your account will be made inactive pending further investigation.
All web sites, newsletters, companies or individuals need official approval from Online Exchange; http://www.online-ex-change.com before they can become a User. Only web sites and newsletters that have been reviewed and approved are permitted to use the programs. Online Exchange reserves the right to withhold or refuse approval on any web site, newsletter, company or individual before or after initial approval at any time and for any reason whatsoever.
Subject to the terms and conditions of the Agreement and Online Exchange’s issuance of an Acceptance Email to the User, Online Exchange grants User a revocable, non-transferable, non-exclusive limited license to use the Online Exchange Network and any data, reports, information or analyses arising out of such use solely for the purposes set forth in the Agreement. User may not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective the Website or any tags, source codes, links, pixels, modules or other data provided by or obtained from Online Exchange that allows Online Exchange to measure advertising performance and provide its services. Any alteration of pixels may impact User’s ability to be paid for Actions or to otherwise receive Commissions. User may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Website, any content therein, or any portion thereof. You may not use the Online Exchange Network to find Offers to circumvent Online Exchange and You acknowledge and agree that any circumvention of Online Exchange will constitute a breach of the non-solicitation provisions set forth below and subject You to liquidated damages.
2. Criteria in order to participate as a User;
In order to be eligible to become a participant in the Online Exchange Network and to remain an active participant in the Online Exchange Network the User and all third party Users must meet the following criteria:
- Be content-based and may not consist simply of a list of links or advertisements.
- Receive a minimum of 20,000 unique page views per month.
- Have a legitimate top-level domain name.
- Cannot offer incentives to users to click on ads; incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.
- Be fully functional at all levels and may not contain “under construction” sites or sections.
- Spawning process pop-ups and exit pop-ups or cause more than one pop-up window to appear unless approved in writing.
- You cannot place our advertisements into your framed environment, unless approved by Online Exchange in writing.
- Your web site and/or newsletter cannot be ‘point, lottery, or rewards’ based encouraging users to click on our Advertisers’ banners or use our Advertisers to generate revenue for users to win points, get rewards or other incentives unless expressly approved in writing by Online Exchange.
3. Prohibited Conduct;
The content of the User Website(s) or other materials used to promote the Offers may not promote, advocate, facilitate or otherwise include any of the following (collectively, “Prohibited Conduct”):
- Explicit, vulgar or obscene language;
- The content of the web site and/or newsletter cannot contain any adult content nor link from or to any adult materials;
- Posting or referencing of sexually explicit images or other offensive content;
- Promotion of adult services such as phone sex or escort services;
- The content of the web site and/or newsletter cannot infringe on any personal, intellectual property or copyrights;
- Racial, ethnic, political, hate-mongering or otherwise objectionable content;
- Material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation;
- Investment, money-making opportunities or advice not permitted by law;
- Violence or violent imagery or profanity;
- Any indication that any statements User makes are endorsed by Online Exchange or an Advertiser without Online Exchange’s specific prior written consent;
- Material that defames, abuses or threatens physical harm to others or to You;
- Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.;
- Software Pirating (e.g., Warez, Hotline);
- Any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- Hacking or Phreaking.
- Any questionable or controversial subject matter;
- Any spoofing, redirecting or trafficking from adult-related web sites in an effort to gain traffic;
- Any material that violates the CAN-SPAM Act of 2003 (“CAN-SPAM”), the Federal Trade Commission Act, as amended (“FTC Act”), the Children’s Online Privacy Protection Act (“COPPA”), the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising and the Federal Trade Commission’s Guide Concerning the Use of the Word “Free” and Similar Representations; or
- Any illegal activity whatsoever including any violations of applicable U.S. state or federal law or regulation or the laws of any other jurisdiction in which the User conducts business.
5. Fraudulent Activity;
If you fraudulently add leads or clicks or inflate leads or clicks by fraudulent traffic generation (as determined solely by Online Exchange such as pre-population of forms or mechanisms not approved by Online Exchange) you will forfeit your entire commission for all programs and your account will be terminated. Online Exchange reserves sole judgment in determining fraud and you agree to this clause.
It is the OBLIGATION of the User to prove to Online Exchange that they are NOT committing fraud. Online Exchange will hold your payment in ‘Pending Status’ until you have satisfactorily provided evidence that you are not defrauding the system. We flag accounts that:
- 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 shown fraudulent leads as determined by our clients.
- Use fake redirects, automated software and/or fraud to generate clicks or leads from our programs.
6. Approved Material;
The User agrees not to carry objectionable materials on their web site which would revoke their affiliation as determined by Online Exchange. The User will only run approved banners and text in their advertising of our programs and will NOT create their own banners or advertising text, unless expressly approved in writing from Online Exchange. Violation of this provision forfeits your commissions. The User WILL NOT spam or send unsolicited email mentioning or promoting the User programs. Any violation of this provision will result in the User being liable for damages of $1.00 per email sent and other damages as deemed appropriate by a Court of Law.
Editing of an Advertiser’s program images or copy is strictly prohibited. Users will only use approved banners and text to link to an Advertiser’s sign-up pages. Users will not mislead people to make it appear as though they are signing up for an offer that is offered by the User site. Users can ONLY use banners and approved text; any other use of link and sign-up processes will result in the loss of all sign ups/leads accrued for the User.
Online Exchange gives no warranty, express or implied, for any and all services and products provided; including, but not limited to, warranty of merchantability and warranty of fitness for a particular purpose. This statement expressly includes any reimbursement for losses of income due to disruption of service by Online Exchange or its upstream providers.
8. Provisional Disclosure;
For any legal action taken by an advertiser, agency, client, person or entity against Online Exchange for actions by You that violate these terms and conditions, You accept that Online Exchange will work with the advertiser, agency, client, person or entity to divulge your personal information. You also agree that Online Exchange is not liable for Your actions and You will bear all costs (legal or otherwise) that Online Exchange incurs if Online Exchange if sued by an advertiser, client, agency, person or entity as a result of Your actions and/or subsequent failure to act.
9. Suppression Lists;
To the extent that Online Exchange provides an opt-out or unsubscribe list (“Suppression List”) via the Website in connection with an Offer, User shall scrub its database against the most recent Suppression List prior to promoting the Offer, such that the email addresses that appear in the Suppression List are removed from the list of prospective recipients. User shall not at any time send any emails to a Suppression List. Online Exchange will transmit or display an updated Suppression List for each Offer that involves email marketing on the Website on demand or as updated. Failure to adhere to this requirement may, in addition to all other remedies available to Online Exchange, result in immediate termination of the Agreement and revocation of the commissions otherwise due to User, without penalty, to Online Exchange. User shall not obtain any ownership interest or rights in and to any Suppression List.
10. Confidential Information;
Means any information disclosed to You by Online Exchange, either directly or indirectly, in writing, orally or visually other than information that You can establish: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by Online Exchange to You; (b) becomes publicly known and made generally available after disclosure by Online Exchange to You other than through Your action or inaction; (c) was independently developed or received by You in connection with Your own business activities; or (d) is in Your possession, without confidentiality restrictions, at the time of disclosure by Online Exchange as shown by Your files and records prior to the time of disclosure by Online Exchange. Online Exchange’s nonstandard payout rates on Offers and business information are considered Confidential Information. You shall not at any time: (i) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information; (ii) use any Confidential information; or (iii) reproduce or otherwise copy any Confidential Information except as necessary in connection with the purpose for which such Confidential Information is disclosed to You or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain Online Exchange’s property as well as any and all documents, electronic media and other tangible items containing or relating to any Confidential Information.
User acknowledges and agrees that Online Exchange may use any means of monitoring User’s (including any Third Party Affiliate’s) activities in connection with the promotion of the Offers, including, without limitation, through the use of seed email accounts, third party monitoring services and proprietary monitoring systems.
12. Payment Terms;
Online Exchange will pay User in connection with the occurrence of any completed Action. Unless otherwise stated in the Offer terms and conditions, payment shall be made to User approximately thirty (30) days from the end of the calendar month in which a completed Action occurred, less any returns and charge backs and pursuant solely to Online Exchange’s calculations and reports. All payments to User by Online Exchange are contingent upon Online Exchange receiving payment from the Advertiser(s). In the event Online Exchange fails to receive payment from an Advertiser, Online Exchange shall have no payment obligation to User with respect to that Advertiser and User will have the right to contact the non-paying Advertiser directly. User accepts all risks associated with non-payment by an Advertiser and acknowledges that Online Exchange is not a guarantor of any Advertiser payment obligation. If an Advertiser does not pay on time Online Exchange will notify User and may, in its sole discretion, offer its reasonable assistance in matters related to collections. Online Exchange will not pay for any Actions that occur before an Offer is initiated or after an Offer terminates. Online Exchange will not be obligated to pay any interest or late payment fees in connection with commissions or other payments held or withheld by Online Exchange. Online Exchange is not liable for Actions that are not recorded due to User’s error. All accounts will be paid in U.S. dollars. If the compensation owed to User for any one month period is less than fifty dollars ($50.00), Online Exchange will withhold payment until the total amount due is at least fifty dollars ($50.00) or, if earlier, until the Agreement is terminated. Every User account must have a unique, valid taxpayer identification number or valid social security number. In the event You have failed to provide Online Exchange the necessary paperwork to pay You (whether it be a unique, valid taxpayer identification number or social security number, bank wire information, or otherwise) within sixty (60) days of from the end of the calendar month in which the Commissions were generated, such Commissions shall be deemed abandoned by You and You shall lose all rights in and to the Commissions. If User has an outstanding balance due to Online Exchange or any of its related business entities (including, without limitation, its parents, sisters, or subsidiaries) under the Agreement or any other agreement, User agrees that Online Exchange may offset such outstanding balance from amounts payable to User under the Agreement. If, in Online Exchange’s sole discretion, User is deemed to have violated the terms of the Agreement, then Online Exchange may, in addition to all other remedies available to Online Exchange, revoke the Commissions otherwise due User, without liability to Online Exchange. Online Exchange may also apply a debit to Your Commissions at any time (including future payment cycles) or seek a refund for Commissions otherwise paid to You for any completed Actions if Online Exchange does not receive payment from the Advertiser cialis pas cher or if, in Online Exchange’s sole discretion, the Actions were generated in violation of the Agreement.
13. Term and Termination;
The Agreement shall begin upon Online Exchange’s delivery of an Acceptance Email to User and remain in effect until terminated as set forth herein. In addition to any other termination rights contained herein, either party may terminate the Agreement upon three (3) days prior written notice to the other party, for any reason or no reason at all. The Agreement may be terminated at any time by a party, effective immediately upon written notice, if the other party (a) files a voluntary petition in bankruptcy, (b) makes an assignment for the benefit of its creditors, or (c) breaches any of the material terms of the Agreement. Following the applicable notice periods, if any, termination pursuant to this Section shall be automatic and shall not require any action by either party. In addition, Online Exchange reserves the right, in its sole and absolute discretion, to terminate an Offer or User’s participation in an Offer at any time for any reason. Online Exchange also reserves the right to terminate User’s access to the Website at any time, with or without notice to User, for any reason. Upon termination, all legitimate commissions due to User that are actually collected from the applicable Advertiser (including amounts below the payment threshold) will be paid during the next billing cycle. Upon termination of the Agreement for any reason, any and all licenses and rights granted to User in connection with the Agreement shall immediately cease and terminate. Further, User acknowledges and agrees that if instructed to do so by Online Exchange and/or if the Agreement terminates, User will immediately discontinue the use of the Online Exchange Network and shall immediately cease to use and remove from the User Websites any and all advertisements and/or related materials made available to User in connection with User’s participation in the Online Exchange Network and immediately cease transmitting any and all emails in connection with any Offer.
User, on its own behalf and on behalf of its Third Party Affiliates, will defend, indemnify and hold harmless Online Exchange, the Advertisers and their respective affiliates, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs and expenses (including reasonable attorney’s fees and expenses) arising from or related to: (a) any breach of User’s obligations under the Agreement and/or any Offer terms and conditions, (b) any claim that the User Websites or the User Email Lists infringe upon the rights of any third party, (c) any allegation that User violated any foreign or domestic federal, state or local laws, rules or regulations, including but not limited to CAN-SPAM and the regulations promulgated therein, (d) User’s improper or unauthorized use of the Website or any Offer, (e) any third party claim related to the User Websites, User Email Lists, emails, promotional materials, and/or marketing practices, (f) any content, goods or services offered, sold or otherwise made available by User on or through the User Websites, emails or otherwise, or (g) a Third Party Affiliate’s breach of the Agreement. User acknowledges that the Advertisers are intended third party beneficiaries of these indemnities.
15. Limitation of Liability;
Under no circumstances shall Online Exchange be liable to You for indirect, incidental, consequential, special or exemplary damages, including lost profits; even if Online Exchange has been advised of the possibility of such damages, whether in contract, tort, negligence, strict liability, statutory or otherwise arising from or relating to the agreement, the website, the creative materials, the suppression lists, the offers or any other aspect of the relationship contemplated herein. Online Exchange’s maximum aggregate liability to User and any third party Affiliate under any and all circumstances shall be one thousand dollars ($1,000.00). You acknowledge and agree that this limitation of damages is fair and reasonable and no action, suit or proceeding shall be brought against Online Exchange more than one (1) year after accrual of the cause of action.
16. Advertiser Non-Solicitation;
User recognizes that Online Exchange has proprietary relationships with the Advertisers that participate in the Online Exchange Network. User agrees not to circumvent Online Exchange’s relationship with such Advertisers or otherwise solicit or induce, directly or indirectly, any Advertiser for purposes of promoting such Advertiser’s Offers during the term of the Agreement and for the six (6) month period following termination or expiration of the Agreement. User and Online Exchange hereby acknowledge and agree that, in the event of any breach by User, directly or indirectly of the foregoing restriction, it will be difficult to ascertain the precise amount of damages that may be suffered by Online Exchange by reason of such breach; and accordingly, the parties hereby agree that as liquidated damages (and not as a penalty) with respect to any such breach, User shall be required to provide an accounting of any and all benefits received or derived, either directly or indirectly, by User as a result of such breach and User thereafter shall be required to pay to Online Exchange, as damages, a cash amount equal to thirty three percent (33%) of the gross payments made to User in violation of this Section. The parties hereby agree that the foregoing constitutes a fair and reasonable estimate of the actual damages that might be suffered by reason of any breach of this Section by User and the parties hereby agree to such liquidated damages in lieu of any and all other measures of damages that might be asserted with respect to any such breach.
17. Employee Non-Solicitation;
User will not hire or contract with Online Exchange’s personnel during the term of the Agreement and for the twelve (12) month period following termination or expiration of the Agreement. User and Online Exchange hereby acknowledge and agree that, in the event of any breach by User, directly or indirectly, of the foregoing restriction, it will be difficult to ascertain the precise amount of damages that may be suffered by Online Exchange by reason of such breach; and accordingly, the parties hereby agree that, as liquidated damages (and not as a penalty) with respect to any such breach, User shall be required to pay to Online Exchange three hundred percent (300%) of either the new annual compensation payable to such personnel or the fees paid to, or in favor of such personnel for one (1) year after such personnel separates from service with Online Exchange, whichever is applicable. The parties hereby agree that the foregoing constitutes a fair and reasonable estimate of the actual damages that might be suffered by reason of any breach of this Section by User and the parties hereby agree to such liquidated damages in lieu of any and all other measures of damages that might be asserted with respect to any such breach.
a. Entire Agreement; No Reliance;
The Agreement constitutes the entire agreement between You and Online Exchange with respect to the subject matter hereof and supersedes any and all written, prior oral or contemporaneous agreements and understandings between the parties. Neither party has relied on any statement, representation or promise of the other party in executing the Agreement except as expressly stated herein.
User shall not assign the Agreement and any rights or obligations hereunder without the express written approval of Online Exchange, which approval shall not be unreasonably withheld. Online Exchange may assign the Agreement with or without Your consent. Subject to the foregoing, this Agreement shall inure to the benefit of and shall be binding on the parties and their respective successors and permitted assigns.
All notices to You shall be sent via certified mail, overnight or courier service to the address submitted by You when signing up for the Online Exchange Network or at such different address as may be designated by You in writing. Notice will be effective upon receipt. Any notice, communication or statement by You to Online Exchange relating to the Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon delivery via registered or certified mail; or (iii) when delivered by a nationally-recognized overnight courier service to the address set forth below or at such different address as may be designated by Online Exchange from time to time.
Online Exchange, LLC
Attn: Legal Department
302 Clinton Avenue
St. Clair, MI 48079
d. Governing Law; Forum Selection;
The laws of the State of Michigan, without giving effect to its conflicts of law principles, shall govern all matters arising out of or relating to the Agreement and all of the transactions it contemplates including; without limitation, its validity, interpretation, construction, performance and enforcement. Any party bringing a legal action or proceeding against any other party arising out of or relating to the Agreement or the transactions it contemplates shall only bring the legal action or proceeding in the United States District Court for the Eastern District of Michigan or in any Court of the State of Michigan sitting in St. Clair County, Michigan. Each party to the Agreement consents to the exclusive jurisdiction of the United States District Court for the Eastern District of Michigan and any Court of the State of Michigan sitting in St. Clair County, Michigan for the purpose of all legal actions and proceedings arising out of or relating to the Agreement or the transactions it contemplates. Each party hereto irrevocably waives any objection to the venue of such Courts. You agree that the exclusive choice of forum set forth in this Section does not prohibit the enforcement of any judgment obtained by Online Exchange against You in any other forum.
No waiver by Online Exchange of any breach hereunder shall be deemed a waiver of any subsequent breach. No waiver by Online Exchange shall be effective unless in writing and signed by an authorized representative of Online Exchange. No delay in the serving of any right or remedy shall constitute a waiver of any right or remedy.
f. Independent Contractor;
The parties to the Agreement are independent contractors. Neither party is an agent, representative, partner, employee or joint venture of the other party. Neither party will have any right, power or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other party.
Online Exchange reserves the right to make changes to the Agreement at any time. Your continued use of the Website and the Online Exchange Network after any such modification shall constitute Your express consent to such modification. No modifications, amendments or changes proposed or submitted by You shall modify the Agreement unless set forth in a written instrument signed by both parties hereto.
In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a Court with jurisdiction over the parties to the Agreement such provision will be restated to reflect as nearly as possible Online Exchange’s original intention in accordance with applicable law and the remaining terms, provisions, covenants and restrictions of the Agreement will remain in full force and effect.
i. Force Majeure;
Neither party shall be deemed in default of the Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies or any other cause beyond the reasonable control of such party.
In the event of termination of the Agreement: Sections 7, 8, 10, 12, 13, 14, 15, 16, 17 and 18 shall survive.
k. Section Headings;
The titles to the paragraphs in these Terms and Conditions are solely for the convenience of the parties and shall not be used to explain, modify, simplify or aid in the interpretation of said covenants or provisions set forth therein.
l. Attorneys’ fees;
In the event of a dispute regarding, arising out of or in connection with the breach, enforcement or interpretation of the Agreement, including, without limitation, any action seeking declaratory relief, equitable relief, injunctive relief or damages or any litigation or cause of action, including, without limitation, any appeals, federal bankruptcy proceedings, receivership or insolvency proceedings, reorganization or other proceedings, the prevailing party shall recover all costs and actual attorneys’ fees incurred in connection therewith, including any costs of collection including paralegals’ fees and other associated costs and fees.
By entering Your signature below, You affirm and acknowledge that You are over the age of eighteen (18) and You have read the Agreement in its entirety and agree to be bound by all of its terms and conditions. If You are accessing the Agreement on behalf of a business entity, by doing so, You represent that You have the legal capacity and authority to bind such business entity to the Agreement.
Last Updated: 10-28-10