MySavings, Inc. Affiliate Partner Terms and Conditions ("Agreement")
Term of the Agreement: The term of this Agreement ("Term") will begin upon approval by MySavings of the application of the company or individual accepting this Affiliate Agreement ("Applicant") and will end when terminated by either party to this Agreement. An Applicant, once approved by MySavings, will become an Affiliate.
Either Affiliate or MySavings may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination (such notice may be in the form of electronic notification). Cancellation notice should be sent via email and/or fax and receipt should be confirmed via an acknowledgement response.
Affiliate Application and Eligibility: MySavings carefully evaluates Applicants. MySavings reserves the right to withhold or refuse approval of any Applicant for any reason, whatsoever. All Affiliate Publications in which Affiliate includes Campaigns must meet minimum requirements, including without limitation the following:
Insertion Orders: If an Insertion Order ("IO") is signed between MySavings and Affiliate for a particular Campaign, then any terms set forth in the IO shall override any similar or conflicting terms of this Agreement. It is the Affiliate's responsibility to ensure that the Campaign terms stated in the IO are met by their websites, partners, network, and/or publishers. If the included terms are not met, then MySavings has the right to withhold payment. IO terms may be updated by MySavings using e-mail correspondence with Affiliate. An IO may be terminated by either party at any time, for any reason, unless otherwise stated in the IO.
Advertising Material: MySavings shall provide Affiliate with all advertising material ("Creatives") required for a particular campaign, including but not limited to image, text, html, and email creative. The Creatives are not to be altered by Affiliate unless changes are approved by MySavings. If Affiliate modifies Creatives without explicit approval from MySavings, or uses Creatives other than those provided by MySavings, then MySavings has the right to withhold payment.
Email Campaigns: Affiliate will deliver Campaign emails as set forth in the Campaign description and/or an IO. ALL EMAILS MUST BE APPROVED BY MYSAVINGS PRIOR TO MAILING, UNLESS OTHERWISE STATED IN THE IO. FAILURE TO GET EMAILS APPROVED WILL RESULT IN NON-PAYMENT. All tests must be sent to email@example.com. Upon completion of email delivery, Affiliate will provide a delivery report, via email, to MySavings for the email delivery.
Media and Reporting: Publisher will deliver media and/or Actions as set forth in the Campaign description or IO. All reporting and payment to Affiliate will be based solely upon the reporting provided by MySavings unless otherwise stated in the IO.
Termination of Campaigns: MySavings shall make best effort to give Affiliate advanced notice of two (2) business days of the inactivation of a Campaign. From time to time, due to reasons out of the control of MySavings, Campaigns may become inactive, experience interruptions, technical problems, and/or tracking issues with no advanced notice. MySavings shall not be liable, in any form, to Affiliate for early termination, interruptions, technical problems, or tracking issues of a Campaign.
Scrub, Invalid, and Fraudulent Actions: Campaigns generally have a low scrub, if any. Affiliate herein acknowledges the highest standards of data quality are required, and agrees to the merge-purge, de-dup, and scrub of their data performed by MySavings and Client. If the percentage of Actions provided by Affiliate that are deemed by MySavings as invalid or fraudulent is significantly higher than normal, then MySavings may withhold Affiliate payment. It is the Affiliate's responsibility to ensure the quality of the Actions they deliver for any Campaign.
Affiliate Payment Terms: MySavings shall pay Affiliate any amounts due approximately thirty (30) days after the end of each month (net 30 terms), provided that MySavings may, in its discretion, withhold payments until such time as the Client has paid MySavings for any Campaign. MySavings reserves the right to reduce any payments owed to Affiliate as a consequence of any offsets taken by Clients for invalid Actions, technical errors, Campaign inactivation, tracking discrepancies and the like. All amounts will be paid in US dollars via a mailed check. If an Affiliate earns less than fifty dollars ($50) total in a calendar month, those earnings are carried over to the following month. MySavings will not pay for any Actions that occur before a Campaign is initiated, or after a Campaign is inactivated. MySavings may require an Affiliate to provide a W-9, and similar such information, as a condition to payment.
Anti Spam Policy: In an effort to protect Affiliates and Clients, MySavings has setup the following policies pertaining to SPAM and the sending of unsolicited commercial emails.
Non-circumvention and Non-competition: MySavings has proprietary business relationships with other companies, including, but not limited to advertisers, agencies, networks, partners, websites, and media publishers ("Partners"). During the Term of this Agreement and for a period of three (3) months after termination or expiration of the Term, Affiliate agrees not to solicit, induce, recruit, encourage, or do business with any Partners that Affiliate knows, or has reason to know, is currently working with or has worked with MySavings during the prior three (3) months, or has come to know of exclusively through MySavings or any MySavings services or the Affiliate's relationship with MySavings, for the purpose of offering to such Affiliate products or services that compete with those of MySavings, including, without limitation, the placement or publishing of advertising or advertising services similar to the services provided by MySavings to Affiliate, nor take any action to circumvent the relationship described in this Agreement or an IO signed between MySavings and Affiliate. This shall exclude any preexisting active relationships that the Affiliate has at the date of the signing of this Agreement. In the event that Affiliate finds out that they are in violation of this terms outlined in this section, then Affiliate agrees to notify MySavings immediately and to promptly halt that relationship that is in violation of these terms.
Confidentiality and Non-disclosure: As used herein, "Confidential Information" shall mean: (a) MySavings's proprietary information; (b) information marked or designated by MySavings as confidential; (c) information otherwise disclosed in a manner consistent with its confidential nature; (d) the terms and conditions of any Insertion Orders and this Agreement; and (e) information of MySavings conveyed to Affiliate, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by Affiliate to be treated as confidential. Affiliate acknowledges that, as a result of the provision of services pursuant to an Insertion Order and this Agreement, MySavings may disclose Confidential Information to Affiliate. Therefore, Affiliate agrees that it will make no disclosure of Confidential Information without obtaining MySavings's prior written consent. Additionally, Affiliate will restrict disclosure of Confidential Information to its employee(s), authorized agent(s), or independent contractors to whom disclosure is reasonably required, and such employee(s), authorized agent(s) and/or independent contractor(s) will use reasonable care, but not less care than they use with respect to their own information of like character, to prevent disclosure of any Confidential Information. Nothing contained in any Insertion Order and this Agreement shall be construed as granting or conferring rights by license or otherwise in any Confidential Information disclosed under any Insertion Order or this Agreement. This section "Confidentiality and Non-disclosure" shall survive any termination of this Agreement for a period of three (3) years thereafter. Affiliate agrees that monetary damages for breach of confidentiality under this section may not be adequate and that the non-breaching party shall be further entitled to seek injunctive relief. Notwithstanding anything contained herein to the contrary, confidentiality provisions shall not apply where Affiliate can demonstrate with clear evidence that the information: (a) was previously known to Affiliate at the time of disclosure, free of any obligation to keep it confidential; (b) became publicly known through no wrongful act of Affiliate; (c) was rightfully received by Affiliate from a third party who was not bound under any confidentiality provisions; or (d) was disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.
Violation of this Agreement: If MySavings in its sole and absolute discretion, finds that an Affiliate that has violated this Agreement or an IO signed between MySavings and Affiliate, committed fraud or any another illegal activity (whether or not related to this Agreement), Affiliate's account will be terminated and any and all fees payable or owed to Affiliate by MySavings will be forfeited. If Affiliate fraudulently adds leads or clicks or inflates leads or clicks by any fraudulent traffic generation, Affiliate will forfeit its entire commission for all programs and services and Affiliate's account will be terminated. MySavings reserves the exclusive right in its sole and absolute discretion to determine if and when such fraud exists.
Possible fraud instances include but are not limited to:
Limitation of Liability: MYSAVINGS WILL NOT BE LIABLE FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF REVENUE, PROFITS OR DATA ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAMS AND SERVICES OF MYSAVINGS, EVEN IF MYSAVINGS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE AGGREGATE LIABILITY OF MYSAVINGS ARISING OUT OF OR WITH RESPECT TO THIS AGREEMENT AND ALL SUCH PROGRAMS AND SERVICES WILL NOT EXCEED THE TOTAL FEES PAID TO AFFILIATE UNDER, OR IN CONNECTION WITH, THIS AGREEMENT.
Disclaimer and Limitations of Warranties: ALL GOODS AND SERVICES PROVIDED BY MYSAVINGS ARE PROVIDED ON AS "AS IS", "AS AVAILABLE" BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, INCLUDING ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, ARE HEREBY DISCLAIMED; THIS INCLUDES, WITHOUT LIMITATION, THE WARRANTY FOR FITNESS FOR A PARTICULAR PURPOSE AND THE WARRANTY OF MERCHANTABILITY. WITHOUT LIMITING THE FOREGOING, MYSAVINGS DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES CONTAINED HEREIN OR THE OPERATION THEREOF WILL BE UNINTERRUPTED OR WILL MEET WITH AFFILIATE'S APPROVAL AND SPECIFICATIONS.
Force Majeure: Affiliate agrees that MySavings will not be liable for, or be considered to be in breach of this Agreement or an Insertion Order on account of, MySavings's delay or failure to perform as required under the terms of this Agreement or an Insertion Order as a result of any causes or conditions that are beyond MySavings's reasonable control and that MySavings is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fire, explosion, vandalism, storm or other natural occurrences, national emergencies, insurrections, riots, wars, strikes, lockouts, work stoppages or other such labor difficulties, or any act or omission of any other person or entity, MySavings will make best effort to give Affiliate notice and will use commercially reasonable efforts to minimize the impact of such event.
Indemnification: Affiliate agrees to indemnify, defend and hold harmless MySavings and its officers, directors, agents, affiliates, employees, and third party advertisers from and against all claims, actions, liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorney's fees and costs) that may at any time be incurred by any of them by reason of any claims, suits or proceedings arising out of any material breach by Affiliate of any duty, representation or warranty under this Agreement. This indemnification provision shall survive completion, cancellation or termination of the Agreement.
Independent Contractors: The parties to this Agreement are independent contractors. Neither party may enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind the other party. This agreement is not interpreted or construed to create an association, agency, joint venture or partnership between the parties, or to impose any liability attributable to such a relationship upon either party.
Remedies: Affiliate hereby acknowledges that its breach of this Agreement shall cause irreparable and significant injury to MySavings that may be difficult to ascertain and that a remedy at law would be inadequate. Accordingly, Affiliate agrees that MySavings will have the right to seek and obtain immediate injunctive relief to enforce the restrictions under this Agreement in addition to any other rights and remedies it may have.
Governing Law: Affiliate agrees that all actions or proceedings arising directly or indirectly out this Agreement or Affiliate participation in MySavings Services shall be brought in the state or federal courts located in Broward County, Florida and Affiliate hereby expressly submits and consents in advance to the exclusive jurisdiction and venue thereof and are waiving any claim that this is an inconvenient forum or improper forum based on lack of venue. Affiliate agrees to comply with the laws of Florida and the United States that apply to the use of this Service. MySavings is created and controlled by MySavings, Inc. in the State of Florida, USA. As such, the laws of Florida will govern the terms and conditions contained in this Agreement. If the law of Affiliate's country, state, or province of residence prohibits or limits Affiliate participation in MySavings Services, then Affiliate is responsible for complying with such laws and Affiliate agrees to indemnify MySavings against any breach by Affiliate.
Modification: MySavings reserves the right to change, modify, add or remove portions of this Agreement at any time and may add to, change, suspend or discontinue any aspect of the Service at any time, by posting a change notice or a new Agreement on this page or otherwise notifying Affiliate. If any modification is unacceptable to Affiliate, Affiliate's sole recourse is to terminate this agreement by notifying MySavings in writing. Affiliate's continued participation in the Services of MySavings following the posting of a change notice or new agreement constitutes binding acceptance of such change.
Last Updated 20 January 2009