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Terms and Conditions

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Transparent Affiliate Terms *
1.	Delivery, Creative Control and Reporting.  
Publisher shall deliver third-party advertising clients’ (“Advertisers”) advertising collateral that promotes Advertiser’s products/services (“Advertisements” or “Ads”) to members of the Publisher’s network, affiliate network and/or email database. TransparentAffiliate will make available to you Advertisements such as display ads, text ads, links, URLs, logos, ad tags, HTML, “Subject” and “From” lines, email marketing disclosures, graphic ads, video ads, and any copy associated with the Advertiser’s product/service offerings, which you may display on web sites owned or controlled by you, in emails sent by you and in online advertisements.  All Advertisements are subject to TransparentAffiliate’s review and approval.  Publisher shall only promote Advertisements that have been provided or approved by TransparentAffiliate.  Publisher shall use and distribute Advertisements exactly as provided to Publisher and shall not alter in any manner such Advertisements.  Should Publisher wish to utilize advertising materials not provided by Advertiser, Publisher shall obtain the express written permission of TransparentAffiliate to use such advertising materials created or provided by Publisher or its Third-Party Publishers.

In the event that Publisher distributes Advertisements that have not been provided or approved by ___TransparentAffiliate______, without limitation, TransparentAffiliate reserves the right to terminate this Agreement (including all current IOs) without liability to Publisher, refuse/withhold all payments to Publisher related to such violation and to pursue any and all other remedies available at law and in equity, without regard for any provision of this Agreement or other written instrument that purports to limit Publisher’s liability or TransparentAffiliate’s rights.

TransparentAffiliate shall have the right, at its sole discretion, to terminate the delivery of any Advertisement at any time without notice or liability if Publisher or its affiliates go live with an Advertisement that has not been provided or approved.  Publisher shall discontinue use and dissemination of Advertisements within two (2) business days of TransparentAffiliate’s request.     

TransparentAffiliate’s tracking shall be the sole and definitive tool used to measure the delivery of Advertisements pursuant to this Agreement.  No other measurement or usage statistics (including those of Publisher or an approved third-party server) shall be accepted by TransparentAffiliate.  TransparentAffiliate will use commercially reasonable efforts to ensure that the tracking methods it uses are in place and functioning at all times, except for scheduled downtime of which it notifies the Publisher at least one (1) business day in advance.  TransparentAffiliate reserves the right to remove fraudulent, deceptive, illegitimate and/or invalid leads, actions, conversion events, impressions and/or click-throughs from final payment calculation (“Invalid Actions”).  Invalid Actions shall include, without limitation, those produced by use of deceptive or misleading practice, method and/or technology including, but not limited to, the use of spyware, device, program, robot, hidden frames, redirects, spiders, computer script or other automated computerized or machine driven process, including, but not limited to, artificial or fraudulent methods designed to appear like an individual, real live person; those completed by individuals located outside of the United States; those taken by individuals under eighteen (18) years of age; those delivered in excess of the quantity/cap amount(s) as described in the applicable Insertion Order(s); and/or those delivered with incomplete or invalid contact information (e.g. email address).  
In the event of a reporting error, the Parties agree to make a good faith effort to calculate the actual number of valid leads, actions, conversion events, impressions and/or click-throughs from final payment calculation delivered (“Valid Actions”).  However and without limiting the terms set forth elsewhere in this Agreement, TransparentAffiliate’s determination regarding what constitutes a Valid Action and/or an Invalid Action is final, binding  and conclusive, and may be determined in its sole discretion.  TransparentAffiliate reserves the right to offset the number of Valid Actions delivered by the number of Invalid Actions delivered under this Agreement.  

If Publisher or one of the Publisher’s Third-Party Publishers violates this Agreement, violates Applicable Laws and/or operates in a fraudulent, deceptive or illegitimate manner, it shall constitute a material breach of this Agreement and entitle TransparentAffiliate to terminate this Agreement without notice or liability to Publisher.

TransparentAffiliate reserves the right to pause or cancel a campaign with the Publisher or the Publisher’s Third-Party Publishers, and withhold any/all payments with regard to the improper marketing methods.  Publisher will pause or cancel any of its campaigns or the campaigns of its Third-Party Publishers immediately upon TransparentAffiliate’s request.

If Publisher suspects that one of its Third-Party Publishers is operating in a fraudulent or illegitimate manner, Publisher will notify TransparentAffiliate and, upon TransparentAffiliate’s request, deactivate all TransparentAffiliate campaigns with that Third-Party Publisher.  Publisher shall place, deliver and/or otherwise use campaigns and Advertisements only with the intention of delivering Valid Actions as determined by TransparentAffiliate and the applicable Advertiser, and for the benefit of the applicable Advertisers, who are express third-party beneficiaries of this Agreement, including without limitation, of the limitations of liability provisions set forth herein.

2.	Payment and Billing.  
TransparentAffiliate agrees to pay Publisher for all Valid Actions delivered in accordance with the terms of this Agreement.  Publisher shall not receive payment for any Invalid Actions.  Publisher must send invoices to accounting@TransparentAffiliate.com.  TransparentAffiliate shall remit payment to Publisher for non-disputed, Valid Actions on each invoice within 30 days of receiving the invoice, unless otherwise specified in the applicable Insertion Order(s).  Date of payment, as set forth in the Insertion Order, shall be calculated by the date TransparentAffiliate receives Publisher's invoice.  

If Publisher disputes TransparentAffiliate’s calculations, Publisher must submit the dispute to TransparentAffiliate in writing, including commercially reasonable evidence supporting same, within 15days from the end of the month within which the relevant traffic generated.  

For the sake of clarity, in addition to any other rights and remedies available to us under this Agreement and at law and in equity, TransparentAffiliate reserves the right to withhold any unpaid payments or charge back payments related to Publisher’s breach(es), if TransparentAffiliate determines that Publisher or a Third-Party Publisher has violated this Agreement; TransparentAffiliate receives any complaints about Publisher’s or Third-Party Publisher’s conduct; or any Valid Action is later determined to have not met the requirements set forth in this Agreement (i.e., an Invalid Action), in TransparentAffiliate’s sole discretion.

If TransparentAffiliate has an outstanding balance due to Publisher under this Agreement or any other agreement, TransparentAffiliate may offset any such amounts due to Publisher from amounts payable to Publisher under this Agreement.  

3.	Fraud.  

TransparentAffiliate may monitor Publisher’s performance of this Agreement for fraud.  Publisher is expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any Applicable Law (as defined in Section 5 herein below), or falsify information in connection with the Advertisements or service.  Such acts include, but are not limited to, using automated means to increase the number of Valid Actions, using
spyware, click-through or conversion rates that are much higher than industry averages or TransparentAffiliate’s averages; generation of multiple leads from the same IP address; placement of the Advertisements on incentivized websites or using surveys without TransparentAffiliate’s prior written consent; click programs generating clicks with no indication by website traffic that it can sustain the clicks reported; fraudulent leads, actions, conversion events, impressions and/or click-throughs as determined by TransparentAffiliate; using proxy servers; causing any referring URL to be suppressed or blank; paying consumers to complete leads, actions, conversion events, impressions and/or click-throughs; generation of traffic in a manner other than as set forth in the applicable campaign; use of any spawning process pop-ups or exit pop-ups; using fake redirects, automated software, or fraud to generate 
leads, actions, conversion events, impressions and/or click-throughs from final payment calculation; spoofing, redirecting, or using third-parties to relay traffic from other websites to generate leads, actions, conversion events, impressions and/or click-throughs from final payment calculation; or cookie-stuffing and other deceptive acts.  

TransparentAffiliate reserves the right to withhold payment related to a material breach, suspend Publisher, and investigate Publisher and/or Third-Party Publishers, at its sole discretion, until Publisher has provided clear and convincing evidence to TransparentAffiliate’s satisfaction that Publisher and/or Third-Party Publisher has not engaged in fraud.  TransparentAffiliate shall make all determinations about fraudulent activity in its sole discretion.

4.	Term and Termination.  

The term of this Agreement shall be governed by the dates set forth in the Insertion Order.  Any extension must be made in writing and approved by both Parties.  Either Party may terminate this Agreement and or any IO without cause upon two (2) business days’ prior written notice.  Upon termination, Publisher agrees to promptly remove all Advertisements.  

Unless otherwise set forth herein, TransparentAffiliate may pause or cancel any campaign, and/or terminate this Agreement and/or any IO immediately, without notice or liability to Publisher, in the event that TransparentAffiliate suspects that Publisher and/or Third-Party Publishers have engaged or attempted to engage in fraudulent or unlawful advertising practices, or have otherwise violated or attempted to violate the terms of this Agreement.  Publisher may terminate this Agreement and/or any IO for cause upon ________ days written notice.

Upon termination, TransparentAffiliate shall be responsible for payment of Valid Actions that were delivered up through the date and time of termination.  Any and all licenses granted to Publisher in connection with this Agreement shall immediately cease upon termination, for any reason.  Upon termination for any reason, Publisher shall immediately cease using Ads and immediately ________ all applicable Advertisements and Confidential Information.

5.	Representations and Warranties.  

5.1	Mutual Warranties. Each Party represents and warrants that: (i) it has the full corporate or organizational right, power and authority to enter into the Agreement and to perform the acts required of it; (ii) the execution of the Agreement by such Party, and the performance by such Party of its obligations and duties, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; (iii) it shall render all services to the other Party in a professional and commercially reasonable manner, in accordance with generally accepted industry standards; and (iv) it owns or has the authority and valid license to use all intellectual property and content on its website(s).  
5.2	Publisher Warranties. Publisher represents and warrants that: (i) it shall  fulfill the obligations under this Agreement in compliance with local, state, federal and international laws, regulations, statutes, guidelines, standards and best practices, including, without limitation the CAN-SPAM Act of 2003 and California Business & Professions Code Section 17529.5 and other applicable anti-SPAM legislation, California Civil Code Section 1798.83, Federal Trade Commission Act, Federal Trade Commission Endorsement Guides the California Online Privacy Protection Act the Children’s Online Privacy Protection Act, the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act, FTC Advertising Disclosure Guidelines, FTC Marketing Principles for Online Negative Option Marketing and the Restore Online Shoppers’ Confidence Act (and other state laws relating to automatic renewal programs), the Federal Reserve Board’s Regulation E, FTC Guides Against Deceptive Pricing, FTC Guide Concerning Use of the Word “Free” and Similar Representations, and any other applicable federal, state, and local privacy, data security and consumer protection laws, regulations, statutes, guidelines, standards and best practices (“Applicable Laws”); (ii) it has disclosed in writing to TransparentAffiliate, prior to executing this Agreement, the existence of any past federal or state decrees, orders, or consent agreements, and any pending formal or informal government investigations or prosecutions by the Federal Trade Commission, any other federal or state governmental or regulatory body or agency, or any industry regulatory authority against Publisher or any third-party publisher that Publisher engages to provide services under this Agreement; (iii) it owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on all materials that Publisher uses that TransparentAffiliate does not provide to Publisher; (iv) it shall not use unfair, deceitful or abusive tactics when marketing or distributing Advertisements, and has implemented all reasonable and necessary protocols to prevent unfair, deceptive and abusive advertising/marketing practices; (v) it shall display Advertisements exactly as provided by TransparentAffiliate, and Publisher shall not alter any Advertisements in any way, including, without limitation, resizing of Advertisements or in a manner that would affect TransparentAffiliate’s ability to track Publisher’s actions without TransparentAffiliate’s prior written approval; (vi) all materials, including Advertisements, on Publisher’s media or otherwise used in connection with performance of this Agreement (a) shall not infringe upon the personal, patents, trademark, trade name, logo, publicity right, copyright, intellectual property, privacy rights, or any other right of any third-party; (b) shall not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that TransparentAffiliate informs you that it considers objectionable; (c) shall not include content that is deceptive or misleading or otherwise fails to comply with Applicable Laws; (d) shall not offer incentives, including but not limited to points, rewards, cash, contest entries, and prizes, to consumers in return for their response to the Advertisement (unless approved by TransparentAffiliate in writing); (e) shall not spawn malicious, false, or deceptive pop-ups or exit pop-ups; (f) shall not generate proxy server traffic; (f) shall not use offer walls of any kind unless authorized by TransparentAffiliate; (g) shall not use malware; (h) shall not serve Advertisements  or drive traffic to Advertisements using any adware, spyware, plug-ins, pop-up, pop-under technologies or similar downloadable application; (i) shall not use any methods to generate leads, actions, conversion events, impressions and/or click-throughs that are not initiated by the affirmative action of a consumer; (j) shall not utilize any advertising or marketing methods that include facsimile or telemarketing (including, without limitation, by use of prerecorded or artificial voice messages); (k) shall not utilize any advertising or marketing methods that involve use of wireless devices or portable electronic devices by text messaging in any form (including, without limitation, SMS, Smart Messaging, and MMS); (l) shall not promote any illegal activity including without limitation the promotion of gambling, illegal substances, weapons, counterfeit money, software piracy, phreaking, or hacking; and (m) shall not spoof, or redirect, traffic to or from any adult-oriented web sites, material appealing to the prurient interests, or any other websites not specifically designated by TransparentAffiliate; (vii) it shall not use or disseminate its own campaign materials without prior written consent and approval from TransparentAffiliate; (viii) it shall not attempt to or fraudulently and/or wrongfully add leads, actions, conversion events, impressions and/or click-throughs; (ix) it shall not make unlawful, unsupported or untruthful product performance, efficacy or attribution claims concerning products/services sold by Advertisers, or any claims about Publisher’s experience with products/services sold by Advertiser; (x) it shall not make any representations, warranties or other statements concerning TransparentAffiliate or Advertiser, or any of their respective products or services, except as expressly authorized herein; (xi) it shall not collect any information from persons or entities located outside of the United States; (xii) it shall develop, implement and maintain reasonable data hygiene protocol for, without limitation, ensuring that no data is processed relating/no commercial electronic messages are sent to persons located in the European Union; (xiii) it shall neither send or cause or permit to be sent any commercial electronic messages, as such term is defined under Canada’s Anti-Spam Legislation (Statutes of Canada 2010, c 23) and its associated regulations (collectively, “CASL”), to or from persons where it is reasonable to believe that such persons are located in Canada, nor install or cause to be installed a computer program on another person’s device that is reasonably believed to be located in Canada, on behalf of TransparentAffiliate or otherwise in connection with the Agreement without the express prior written consent of TransparentAffiliate.  TransparentAffiliate will only provide such consent after Publisher and TransparentAffiliate mutually agree on written protocols and additional terms governing the sending of such commercial electronic messages or installation of computer programs; (xiv) it shall implement such administrative, physical, and technical security measures, policies and procedures as required by Applicable Laws and as appropriate to the nature and size of the business and its operations, to ensure the secure handling, transmission, storage, and disposal of any/all information which it holds or handles; protect against any threats or hazards to the security and integrity of information; and protect against any unauthorized access to or use of such information (Publisher shall also prominently post and make available to end-users any terms and conditions in connection with Advertiser’s products/services, or as  required by Applicable Laws; (xv) it shall not generate any leads, actions, conversion events, impressions and/or click-throughs in bad faith, wrongfully, illegitimately or through fraudulent mechanisms, including, without limitation, via manual or automated processes); (xvi) it shall notify TransparentAffiliate of any complaint received by Publisher regarding any Advertisement used in conjunction with this Agreement within twenty-four (24) hours or receiving such complaint; (xvii) it shall actively monitor its Third-Party Publishers and other applicable third-parties for wrongful, deceptive, unfair, abusive and fraudulent activity, including, without limitation, unsubstantiated representations; (xviii) Ads will be sent or displayed only to those that have consented to receive third party advertising solicitations and that Publisher shall possess written confirmation thereof, prior to dissemination; and (xix) it shall indemnify, defend and hold TransparentAffiliate harmless from and against any/all actions arising from or related to Publisher’s breach of this Agreement and such obligations shall not be limited by any other provision of this Agreement (e.g., no liability cap or other limitations).
5.3	Publisher’s CCPA Warranties. Publisher represents, warrants, covenants and agrees that it (i) is, and will maintain its status as, a “service provider” as defined by the California Consumer Privacy Act, as well as in the California Attorney General implementing regulations (collectively “CCPA”) and will comply with all of its obligations related thereto under the CCPA, and its obligations under other Applicable Laws and this Agreement; (ii) will not “sell” end user “personal information” of California residents (as those terms are defined under the CCPA) (“PI”), which includes any personal information processed by Publisher in performing the services for TransparentAffiliate hereunder; (iii) will maintain reasonable security of PI consistent with the standards of reasonableness applicable to the CCPA and all other applicable laws; and (iv) will respond to consumer rights requests in full conformance with the CCPA, including the identification, retrieval, copying and/or deletion of specific PI of specific data subjects.

It is understood and agreed that other state legislatures and the U.S. Congress are considering enacting similar laws to the CCPA (“New Privacy Laws”).  Accordingly, Publisher shall implement such additional policies and commitments as TransparentAffiliate may reasonably request to ensure compliance with New Privacy Laws, (including, without limitation, providing CCPA-required commitments and certification), and undertaking reasonable commitments to otherwise address New Privacy Laws.  TransparentAffiliate and Publisher will work together in good faith to amend this Agreement as TransparentAffiliate deems appropriate to comply with the CCPA and applicable New Privacy Laws.  If the parties cannot agree to reach an amendment regarding additional compliance commitments within thirty (30) days, TransparentAffiliate may terminate this Agreement without liability to Publisher.

Publisher shall not assign, delegate, of subcontract any of its rights or obligations concerning PI processed, stored, or accessed on behalf of TransparentAffiliate, or otherwise disclose PI processed on behalf of TransparentAffiliate, to any other party, without TransparentAffiliate’s written approval, and then only (a) for the purpose of performing the services for TransparentAffiliate and (b) as permitted by Applicable Laws.  If any such disclosure is approved, Publisher shall obtain contractual commitments with the subcontractor or other recipient of PI that are substantially similar to those imposed on Publisher hereunder.
5.4	Email Marketing Campaigns. In the event that Advertisements are distributed via email campaigns, Publisher represents and warrants that the recipients of all email addresses used in connection with this Agreement have manifested affirmative, direct consent to receive commercial emails (and none of the email addresses were obtained through email harvesting, scraping or dictionary attacks.  “Consent” shall mean affirmative consent or consent granted through a posted privacy policy and conspicuous disclosures notifying the recipient of the use of his/her email address for commercial marketing and the recipient has not withdrawn permission to send commercial email marketing.  Publisher represents and warrants that it shall maintain records evidencing such consent, including, but not limited to, the Internet address of the registration source, the date of the user’s action, the privacy policy of the registration source at the time consumer data was collected, and appropriate disclosures and all other information collected.  Publisher agrees to provide TransparentAffiliate with records verifying consent by users to receive email transmissions from third-parties, within forty-eight (48) hours of request.

In the event that Advertisements are distributed via email campaigns, Publisher further represents and warrants that: (i) it shall provide clear and conspicuous notice of the recipient’s right to opt-out of receiving future emails from Advertisers; and (ii) it shall provide a functioning return email address or other Internet-based mechanism that a recipient may use to make such an “opt-out request.”  In addition, Publisher shall provide the ability to click on a link to opt-out from receiving future emails from Publisher, in addition to the link provided by TransparentAffiliate to opt-out of receiving future emails from Advertisers.  Publisher must honor all unsubscribe requests within ten (10) days from their receipt and may not sell, lease or transfer an email address once someone has opted-out of receiving future communications.  Publisher shall maintain electronic or tangible records confirming the removal of each such email address from any applicable email lists for verification by TransparentAffiliate.  All emails must include a valid physical address of the sender, as provided by TransparentAffiliate with the Advertisements, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after email delivery or the life of the offer, whichever is longer).  TransparentAffiliate may request, prior to Publisher sending emails, that Publisher submit the final version for prior approval.  

“Subject” and “From” lines used in any email communications must be truthful and non-misleading.  Emails shall use only content provided or pre-approved by TransparentAffiliate.  Publisher shall not remove or alter Advertisements, including, but not limited to, Subject lines or From lines provided by TransparentAffiliate or approved by TransparentAffiliate in writing.  Publisher may not include falsification of header information, false registrations for domain accounts, email accounts, or IP addresses used in connection with email marketing nor retransmissions of an email advertisements for the purpose of concealing its origin.  Proxy server traffic is strictly prohibited.  “To” lines must contain the consumer’s email address.  Publisher shall not send email messages to email addresses that have been improperly obtained, including addressees harvested from the Internet without consent, through scripts or other automated means of registering for multiple email accounts, “scraping” of websites, or by harvesting addresses from the Internet.  Publisher is responsible for knowing the source of its email list and obtaining written verification of affirmative, direct consent to receive commercial emails.  Publisher shall not send email messages from accounts obtained using scripts or other automated means of registering for multiple email accounts.  Publisher shall not use email accounts or domain names that were created using information that falsifies the identity of the registrant.  Emails shall include a clear and conspicuous identification that the message is an advertisement or solicitation.  Publisher shall not send emails to European Union email addresses or email addresses corresponding to European users.  It is solely Publisher’s obligation to ensure that the email complies with all Applicable Laws and this Agreement.  Publisher agrees not to rely upon TransparentAffiliate’s approval of any email or portion thereof for compliance with Applicable Laws, or assert any claim that you are in compliance with the law based upon TransparentAffiliate’s approval or non-objection.  

TransparentAffiliate will provide a regularly updated suppression list (“Suppression List/s”) to Publisher containing current unsubscribe requests in conformance with Applicable Laws.  Publisher agrees to implement the most recent Suppression List that TransparentAffiliate has delivered prior to distributing any and all email campaigns, which shall also include those that have submitted personal information deletion requests pursuant to CCPA.  With respect to any Suppression List generated in connection with Publisher’s performance of this Agreement, Publisher represents and warrants that it shall: (i) download Suppression Lists from TransparentAffiliate’s tracking platform not less than every seven (7) days; (ii) suppress all email addresses within its database that are in the Suppression List; (iii) for any campaign that includes a domain suppression list, download the most recent domain suppression list prior to mailing the campaign (and in full compliance with Applicable Laws, as well as in accordance with all  obligations set forth in this Agreement) and will suppress and refrain from sending emails to all domains found on such list; (iv) use any such Suppression List and associated data solely for suppression purposes; (v) not use any such Suppression Lists for purposes of email marketing; (vi) hold Suppression Lists in confidence; (vii) not retain a copy of any such Suppression List following the expiration or termination of this Agreement; and (viii) not disclose any such Suppression List to any third-party for improper purposes, including Third-Party Publishers, unless it ensures such third-party is verifiably and in writing, bound by terms no less restrictive than those set forth herein, in writing.  All Suppression Lists provided by TransparentAffiliate are deemed to be Confidential Information of TransparentAffiliate.  

Publisher further represents and warrants that it shall download and remove domains located on the Federal Communications Commission’s (“FCC’s”) wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all new and current mailings - prior to emailing - used in connection with its performance of this Agreement.  Publisher represents and warrants that domain names contained therein will be removed before disseminating any emails in connection with its performance of this Agreement.  Publisher further represents and warrants that any new data that it acquires, regardless of its source, will be run against the FCC’s wireless domain names list and that domain names contained therein will be removed before sending any mailings.  TransparentAffiliate retains the right to “seed” any/all suppression lists to ensure Publisher’s compliance with this sub-Section 5.4.

Publisher further represents and warrants that it shall independently create and maintain its own suppression list (“Publisher Suppression List”) to ensure that offers are not emailed to persons that have unsubscribed or opted-out from receiving such offers.  Publisher shall remove all entries appearing on same.  No emails shall be sent to any email address associated with any person on the Publisher Suppression List.  

Failure to adhere to the terms and obligations set forth herein, including, but not limited to, downloading the TransparentAffiliate suppression list, removing all emails from the database before mailing and other suppression-related obligations may result in payment withholdings related to such breach(es), removal or suspension from all or part of TransparentAffiliate network, possible legal action and any other rights or remedies available to TransparentAffiliate in law and equity, pursuant to this Agreement or otherwise.  

All representations and warranties contained in this Section 11 shall survive termination of this Agreement.

6.	Indemnification.  
Publisher shall indemnify, defend and hold harmless TransparentAffiliate, Advertisers and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, shareholders, managers, successors, owners, agents, and assigns against any and all third-party claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) (collectively “Claims”) based on: (i) any failure or breach of this Agreement by Publisher and/or Third-Party Publishers, including any representation, warranty, covenant, restriction or obligation made by Publisher herein; (ii) any misuse by Publisher, Third-Party Publisher, and/or a party under the reasonable control of Publisher or obtaining access through Publisher of the Advertisements, offers, or TransparentAffiliate or Advertiser’s intellectual property or Confidential Information; (iii) any claim related to Publisher’s and/or Third-Party Publisher’s websites/media, including but not limited to, the content contained thereof; (iv) improper operation of an offer by Publisher and/or Third-Party Publisher; (v) any unauthorized use of Third-Party Publishers; (vi) the negligence or willful misconduct of Publisher and/or Third-Party Publisher; (vii) a violation of any Applicable Laws in the performance of Publisher’s and/or Third-Party Publisher’s obligations under this Agreement; and (viii) fraud.  The foregoing shall not limit any other indemnification and defense obligations of Publisher that may be set forth elsewhere in this Agreement.   
TransparentAffiliate shall indemnify, defend and hold harmless Publisher and their respective subsidiaries, partners and licensors, directors, officers, employees, shareholders, managers, successors, owners, contractors, agents and assigns against any and all Claims based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by us, (ii) provided and/or approved and unaltered Advertisements; and (iii) a violation of  any Applicable Laws in the performance of our obligations under this Agreement.  TransparentAffiliate’s indemnity and defense obligations shall not include Claims relating to  Publisher’s unauthorized use of Ads and/or failure to obtain required approval.  THE FOREGOING CONSTITUTES PUBLISHER’S SOLE REMEDY AND TransparentAffiliate’S SOLE LIABILITY IN THE EVENT OF ANY CLAIM(S) REGARDING ADS.
If any Claim is or shall be brought against the indemnified party in respect to any allegation for which indemnity may be sought from the indemnifying party, the indemnified party shall promptly notify the indemnifying party of any such Claim of which it becomes aware (failure to provide prompt notice shall not relieve either Party from its indemnification obligation with the exception of resulting prejudice to the indemnifying Party) and shall: (a) provide reasonable cooperation the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of any such claim; and (b) be entitled to participate, including in the selection of legal counsel, in the defense of any such Claim.  The indemnifying party shall not agree to any judgment or enter into any settlement that adversely affects the indemnified party’s rights or interests without the prior written consent of the indemnified party.
7.	Third-Party Publishers.  

If Publisher utilizes distributors and/or maintains its own affiliate networks to disseminate Ads, and makes Ads accessible for use thereby (each a “Third-Party Publisher”), then Publisher  shall contractually bind, to all terms of this Agreement, all of its Third-Party Publishers that perform services under this Agreement.  Publisher shall require and confirm that such Third-Party Publishers affirmatively accept, through verifiable means, terms at least as restrictive as those set forth here prior to obtaining access to Advertisements.  If a Third-Party Publisher fails to adhere to the requirements set forth herein, in addition to other remedies available to TransparentAffiliate, Publisher may be terminated at TransparentAffiliate’s sole discretion, and Publisher shall indemnify, defend and hold harmless TransparentAffiliate for any resulting third-party claims against it as a result of a violation of this provision.  Publisher shall not permit any party to be a Third-Party Publisher whose website or business model involves content containing objectionable content.  Publisher agrees that for the purposes of this Agreement, the acts and omissions of its Third-Party Publishers shall be deemed Publisher’s acts and omissions regardless of whether such Third-Party Publishers is bound to this Agreement or any other agreement.  If either Party suspects any wrongdoing by a Third-Party Publisher with respect to Advertisements, Publisher shall promptly disclose to TransparentAffiliate the truthful and complete identity and contact information for such Third-Party Publisher.  Publisher shall periodically audit Third-Party Publishers in its network, including, but not limited to, ensuring that Third-Party Publishers are in compliance with Applicable Laws and this Agreement.  Publisher shall promptly terminate any Third-Party Publisher who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement.  Publisher shall promptly remove any Third- Party Publisher and terminate their access to future Advertisements upon written notice from TransparentAffiliate.  If Publisher or Third-Party Publishers become(s) involved or named in any action, investigation, complaint or other proceeding by or before any governmental or regulatory authority, or any private party, Publisher will immediately provide written notice to TransparentAffiliate of such action, investigation, complaint or other proceeding, in which event TransparentAffiliate may terminate this Agreement immediately, without notice or liability to Publisher.  A violation of this Section 7 shall constitute a material breach of this Agreement and shall entitle TransparentAffiliate to terminate this Agreement and/or any IO without notice or liability to Publisher, withhold any and all payments related to such breach(es), and to pursue any and all remedies available at law and in equity, without regard for any provision of any IO or other written instrument that purports to limit Publisher’s liability or TransparentAffiliate’s rights.

8.	Confidentiality.  
Except as otherwise provided in this Agreement, each Party agrees that all information, including, without limitation, the existence and terms of this Agreement, business and financial information, identities of Advertiser-clientele, data (including, without limitation, campaign data), reports, research, product plans, products, services, business and financial information, mailing lists, marketing plans, opportunities, trade secrets, markets, software, developments, inventions, processes, designs, drawings, engineering, technical data, know-how, hardware configuration information, marketing or financial data customer and vendor lists, data developed pursuant to this Agreement, and pricing and sales information, concerning the disclosing Party or any of its corporate parents, subsidiaries and/or affiliates provided by or on behalf of any of them shall constitute the disclosing Party’s “Confidential Information” and shall remain strictly confidential and secret and shall not be used, directly or indirectly, by the receiving Party for any purpose other than your performance of this Agreement, except and solely to the extent that any such information is generally known or available to the public through a source other than the receiving Party, information is acquired by the receiving Party from another source without violation of any confidentiality obligation, and/or information developed by a Party independently of information received from the disclosing Party.
The receiving Party shall not disclose to any third-party, or permit any other person or entity access to, the Confidential Information except as required by an employee, agent, officer, director, partner, or representative of the receiving Party in order to perform the obligations or exercise rights under this Agreement.  The receiving Party shall use at least the same degree of care, but not less than reasonable care, to prevent disclosure of Confidential Information to third-parties.  The Confidential Information shall be used for the sole purpose of performing the Parties’ respective obligations or exercising its rights under this Agreement.  The receiving Party shall immediately notify the disclosing Party in writing of all circumstances surrounding any unauthorized possession, use, knowledge, or sharing of Confidential Information.  If Confidential Information is required to be disclosed by operation of law via a third-party or court request such as a subpoena requesting the receiving Party to disclose such information, the receiving Party shall immediately inform the disclosing Party in writing sufficiently in advance of disclosure to allow the disclosing Party to challenge disclosure, prior to the time commanded to produce or disclose such Confidential Information, and the receiving Party agrees to cooperate in whatever way the disclosing Party requests to attempt to protect that information from disclosure by operation of law.  The receiving Party agrees that its obligations in this Section 8 are necessary and reasonable in order to protect the disclosing Party and its business, and the receiving Party agrees that the remedy of damages would be inadequate to compensate the disclosing Party for any breach by the receiving Party of its obligations set out under this Section 8.  Accordingly, in addition to any other remedies that might be available, the disclosing Party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving Party, without the necessity of filing a bond or undertaking and without proof of damages, and without limiting any other legal and/or equitable rights and remedies to which the disclosing Party may be entitled.
9.	Limited License & Intellectual Property.
TransparentAffiliate hereby grants Publisher a non-transferable, non-exclusive, royalty-free limited license to copy and distribute the Advertisements pursuant to and solely in accordance with this Agreement.  Publisher shall not sublicense, resell, assign or transfer any of its rights under this Section 9, without the prior written approval of TransparentAffiliate.  Publisher acknowledges and agrees that it does not have, nor will it claim any right, title or interest in, the Advertiser’s intellectual property.  No part of Advertisers intellectual property may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical except as set forth herein.  Publisher represents and warrants to TransparentAffiliate and Advertiser that it will not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Advertiser’s intellectual property or any portion thereof except as set forth herein.  The Parties reserve any rights not explicitly granted in this Agreement.  Each Party represents and warrants to the other Party that it will not use any device, software or routine to intentionally interfere or attempt to interfere with the proper working of the other party’s intellectual property or the other party’s website infrastructure.  In addition, website integration tags included in the Advertisements, or otherwise, may not be altered under any circumstances.  Upon termination of this Agreement for any reason, Publisher shall immediately destroy and discontinue the use of any Confidential Information and Advertisements.  
10.	Disclaimers and Limitation of Liability.
THE ADVERTISEMENTS, CAMPAIGNS, SERVICES AND PRODUCTS PROVIDED/MADE AVAILABLE BY TransparentAffiliate AND ADVERTISERS IN CONNECTION THEREWITH, ARE PROVIDED TO PUBLISHER ”AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH HEREIN, TransparentAffiliate EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT), INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  TransparentAffiliate DOES NOT WARRANT THAT THE ADVERTISEMENTS, CAMPAIGNS OR SERVICES WILL MEET PUBLISHER’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED.  TransparentAffiliate EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF AN ADVERTISER CLIENT OR THEIR PRODUCTS OR SERVICES.  WITHOUT LIMITING THE FOREGOING, TransparentAffiliate DOES NOT GUARANTEE THAT PUBLISHER WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS, AND TransparentAffiliate EXPRESSLY DISCLAIMS BENEFITS THE PARTIES MIGHT OBTAIN FROM THE ADVERTISEMENTS, CAMPAIGNS AND SERVICES, AND THIS AGREEMENT.  TransparentAffiliate DOES NOT GUARANTEE CONTINUOUS OR UNINTERRUPTED SERVICE, OR THAT THE INFORMATION PROVIDED BY TransparentAffiliate IS ACCURATE, COMPLETE, OR CURRENT.
IN NO EVENT SHALL TransparentAffiliate BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE SERVICE, CAMPAIGNS OR ADVERTISEMENTS, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF TransparentAffiliate.  IN NO EVENT WILL TransparentAffiliate BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT TransparentAffiliate HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.  
TransparentAffiliate’S CUMULATIVE LIABILITY TO PUBLISHER UNDER THIS AGREEMENT AND/OR ANY IO, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO PUBLISHER BY TransparentAffiliate IN COMMISSIONS UNDER THE APPLICABLE IO.
11.	Non-Circumvent and Non-Solicit.

During the term of a campaign and for one year thereafter, Publisher agrees not to circumvent TransparentAffiliate’s relationships with applicable Advertisers, or otherwise solicit, purchase, contract for or obtain services similar to the services performed by TransparentAffiliate hereunder from any applicable Advertiser that is known, or should reasonably be known, by Publisher to have such a relationship with TransparentAffiliate.  To the extent that Publisher can show that it already provided services to any applicable Advertiser prior to the date of the first IO executed pursuant to this Agreement, then Publisher shall not be prohibited from continuing such relationship.  Publisher agrees that monetary damages for its breach, or threatened breach, of this Section 11 will not be adequate and that TransparentAffiliate shall be entitled to: (i) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (ii) liquidated damages from Publisher in the amount equal to one hundred percent (100%) of the net profits resulting from fees paid to Publisher by the applicable Advertiser for corresponding advertising or marketing efforts; and/or (iii) any and all other remedies available to TransparentAffiliate at law and in equity.  In the event an Advertiser of TransparentAffiliate does contact Publisher, Publisher shall notify such Advertiser and TransparentAffiliate immediately that it must work directly with TransparentAffiliate. 

Publisher agrees that during the term of this Agreement and for a period of one (1) year thereafter, it will not directly or indirectly solicit the employment of TransparentAffiliate employees, officers or directors, provided, that employment solicitations directed to the general public shall not be prohibited pursuant to this Section 11.  The parties agree and understand that a material breach of this Section 11 will cause TransparentAffiliate to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage.  Accordingly, the parties agree that in such event, TransparentAffiliate will, in addition to all other remedies, may be entitled to preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond.  The foregoing remedy is a material, bargained for basis of this Agreement and has been taken into account in each party’s decision to enter into this Agreement.  

12.	Additional Publisher Obligations.

Publisher shall provide a meaningful opportunity for internet users to opt-out from data collection and targeting by Publisher and its affiliates, including without limitation, through the Network Advertising Initiatives’ Compliance Program. Provider shall further ensure that it will clearly and conspicuously include in its public privacy notice and related disclosures, pursuant to CCPA and other Applicable Law, that Publisher will share, without limitation, real names, aliases, postal addresses, unique personal identifiers, online identifiers, Internet Protocol addresses, or email addresses collected from TransparentAffiliate to service providers such as fraud prevention companies; and third party partners, such as Advertisers.

13. Affiliate Referral Program.
Publisher's may be eligible to receive additional commissions from affiliate referrals. If a publisher is in good standing with TransparentAffiliate then they can disperse their affiliate referral link, that is located in Everflow, and can disperse the link to affiliate friends/colleagues that have interest in TransparentAffiliate. Please see below for the referral program breakdown, commissions and more.

- 2% of referred affiliate revenue 
- Payouts for 6 months upon acceptance
- No limit to referrals
- Referral commissions will be paid out net30 and via Tipalti

Please note that just because the publisher refers over a new affiliate does not guarantee access to TransparentAffiliate's network. They will still be heavily vetted by TransparentAffiliate and their acceptance is based on the discretion and determination of TransparentAffiliate if they accept any affiliate referrals. 

14.	Miscellaneous.
Publisher acknowledges that it has read this Agreement, and that it has consulted or had the ability to consult with legal counsel before entering into this Agreement.   Publisher has independently evaluated the desirability of entering into this Agreement, and is not relying on any representation, guarantee or statement other than as set forth in this Agreement, or otherwise.
This Agreement shall be governed by the law of the State of Washington, without regard to its conflict of law provisions.  If any dispute arises under this Agreement, the parties agree to submit the dispute to binding arbitration in the State of Washington, conducted under the rules of the American Arbitration Association.  Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction.  Notwithstanding the foregoing, TransparentAffiliate may initiate a dispute either by submitting it to binding arbitration or by filing in a state or federal court located in the State of Washington, or any other state where personal jurisdiction exists over Publisher, at TransparentAffiliate’ sole discretion.  In the event of a dispute arising out of performance of this Agreement, the substantially prevailing party shall be entitled to the payment of reasonable l attorney’s fees and expenses incurred by the substantially prevailing party to enforce the terms of this Agreement. 
This Agreement contains the entire agreement between TransparentAffiliate and Publisher with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or verbal.  Publisher agrees that TransparentAffiliate shall not be subject to or bound by any Publisher insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether TransparentAffiliate “"clicks through” or otherwise indicates its acceptance thereof.
Neither Party my assign this Agreement without express written permission.  This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto.  Any and all provisions of this Agreement which are reasonably intended to survive termination of this Agreement, including, without limitation, any accrued payment obligations, shall survive the termination of this Agreement, including, but not limited to, Sections 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 13 and provisions specifically set forth herein.
This Agreement may not be modified without the prior written consent of both Parties.  If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the Parties. 
Each Party to this Agreement is an independent contractor in relation to the other Party with respect to all matters arising under this Agreement.  Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the Parties. 
Unless otherwise set forth herein, nothing in the Agreement is intended or shall be construed to give any person other than the Parties hereto, their respective successors and assigns, any legal or equitable right, remedy or claim under or in respect of the Agreement or any provision contained herein.  
Neither course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights.  No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.
By seeking to utilize the TransparentAffiliate services, Publisher agrees to be bound by all of the terms and conditions this Agreement.  If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement. 
No failure or omission by either Party in the performance of any obligation under this Agreement shall be deemed a breach of the Agreement nor create any liability if the same shall arise from any cause or causes beyond the reasonable control of such Party, including but not limited to the following: acts of G-d, acts or omissions of any government or any officer, department, agency or instrument thereof; fire, storm, flood, earthquake, accident, acts of the public enemy, war, rebellion, failure of telecommunication services, public utilities, or an internet brown out, insurrection, riot, invasion, strikes, or lockouts.
All notices, demands and other communications provided for or permitted under this Agreement shall be made in writing to the Parties at the addresses on the applicable Insertion Order, or at such different address as may be designated by such Party by written notice to the other Party from time to time, and shall be sent by overnight mail delivery, nationally-recognized overnight courier, or telecopier or other confirmed electronic transmission and shall be deemed received upon delivery.  Any notices to a Party shall be addressed the Chief Executive Officer or President.
This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together shall constitute one and the same agreement.  A facsimile or other copy of this Agreement shall have the full force and effect of the original.
By signing below each Party acknowledges that it has read and agrees to be bound by and to honor the above terms and conditions of this Agreement.  By signing below the signor attests that it has authority to bind the Party on whose behalf it is signing.
I agree to Transparent Affiliate's Terms of Service