ClickWerx Affiliate Agreement
IMPORTANT:
Only sites that are contextually relevant are accepted to join our affiliate network. To be contextually relevant, a website must have a primary theme that falls into one of the following categories: 1) consumer debt, 2) student loans, 3) loan refinance or consolidation, 4) personal finance, 5) family and family planning, 6) small business resources, 7) student resources, 8) credit, 9) education 10) insurance, 11) loans. Not all sites that meet these relevancy requirements will be approved for inclusion in our network. Acceptance into the ClickWerx affiliate networks shall be determined at ClickWerx’s sole discretion and ClickWerx’s decision shall be final.
BEFORE REGISTERING TO BECOME A CLICKWERX AFFILIATE, PLEASE MAKE SURE YOU READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THE CLICKWERX AFFILIATE AGREEMENT AND THE AFFILIATE FAQ. BY COMPLETING THE CLICKWERX AFFILIATE REGISTRATION PROCESS OR OTHERWISE ENROLLING IN THE CLICKWERX AFFILIATE PROGRAM, YOU ARE INDICATING THAT YOU ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS IN THE CLICKWERX AFFILIATE AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT ENROLL OR PARTICIPATE IN THE CLICKWERX AFFILIATE PROGRAM.
Last updated: June 01, 2018
This Affiliate Agreement (this “Agreement”) is, by, and between LeadWerx, Inc., a Utah corporation which owns and operates the ClickWerx System ("ClickWerx") and You ("Affiliate").
WHEREAS, ClickWerx operates the ClickWerx program, which (1) sells Internet advertising according to various marketing programs, including without limitation, ClickWerx’s bid program (the “Bid Program”), and (2) distributes Pay per Click Advertisements (defined below) in part through third-party websites owned by certain of ClickWerx’s customers (such customers are referred to herein as “Affiliates”); and
WHEREAS, Affiliate owns and/or operates the Affiliate Website (defined below) and desires to engage certain of the ClickWerx Internet advertising services provided by ClickWerx.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows:
1. Definitions.
(a) “Advertiser” refers to a buyer of PPC Advertising (defined below) on the ClickWerx advertising platform.
(b) “Affiliate Profit Sharing Program” refers to a proprietary business model that allows Affiliates to share in the revenue generated from Advertisers.
(c) “Affiliate Website” refers to a website owned or operated by Affiliate that is designated by Affiliate and approved by ClickWerx to be used in part to (i) host a hyperlink that refers Visitors to the applicable ClickWerx Site (defined below) or (ii) to display third-party advertisements, hyperlinks or text links provided by ClickWerx or (iii) collect consumer data that can be used to market third-party advertisements, hyperlinks or text links by ClickWerx.
(d) “ClickWerx.net” refers to the website where Affiliates and Advertisers alike will access the management of their PPC Advertising or Affiliate Profit Sharing Program accounts through a password protected secured server.
(e) “ClickWerx Sites” refers to any websites that ClickWerx owns and operates pertaining to one or more particular Product Type(s) (as defined below). In this Agreement, where the term “applicable ClickWerx Site” appears, it means the specific ClickWerx Site to which the Affiliate Website sends Visitor traffic.
(f) “Integrated Ad Listing” refers to the placement of PPC Advertising on the Affiliate Website through the use of code generated by the System (defined below) and only as provided by ClickWerx to the Affiliate.
(g) “Invalid Clicks” refers to clicks (a) generated via automated crawler, robots or click-generating scripts or other software, (b) that occur as a result of auto-spawning of browsers, automated redirects, or clicks that are required for users to navigate, (c) that occur as a result of any incentive such as cash, credits, gifts, giveaways or loyalty points, (d) generated as a result of conduct intended to artificially increase or inflate the number of clicks generated that are related to this Agreement, (e) that occur in connection with testing by or on behalf of ClickWerx, Affiliate or any other entity, (f) that occur in a manner not permitted (or not compensable to ClickWerx) under the terms of ClickWerx’s PPC Advertising agreement with its Advertisers, or (g) that are otherwise invalid or fraudulent or which do not constitute Valid Clicks (defined below), as determined in ClickWerx’s reasonable discretion. For the avoidance of doubt, Invalid Clicks will not be included in any revenue share calculation.
(h) “Pay per Click Advertisement(s)” or “PPC Advertising” shall mean advertisements for which ClickWerx charges the Advertiser an amount equal to the pay-per-click bid amount for each Valid Click; and such other performance based advertising products as ClickWerx may include in its Bid Program from time to time, and elect to provide to Affiliate hereunder.
(i) “PPC Net Revenue” means the revenue actually received by ClickWerx attributable to PPC Advertisements hosted or displayed on the Affiliate Website and/or the applicable ClickWerx Site. “PPC Net Revenue” specifically excludes amounts attributable to third-party sales commissions, taxes, refunds, bad debts, chargebacks, credit card charges, fraud (including click fraud), third-party ad agency fees or commissions, and substantially similar third-party charges or credits.
(j) “Product Type” refers to the various products or services for which Advertisers elect to advertise, including but not limited to the following categories: (i) student loan document preparation products and any other type of student loan product or category supported by ClickWerx; and (ii) financial products and services such as credit counseling or debt consolidation or consumer finance-related products or services including loan consolidation or financial services, and credit cards, deposit accounts and other consumer-focused financial products or services.
(k) “System” refers to the proprietary technology and process developed by ClickWerx to operate the Affiliate Profit Sharing Program, which include providing codes, tracking clicks, blocking fraudulent clicks, providing reporting and calculating PPC Net Revenue.
(l) “Valid Click” means a Visitor’s click-through of a PPC Advertisement on the Affiliate Website or the applicable ClickWerx Site in accordance with the terms and conditions of this Agreement, to the express exclusion of any and all Invalid Clicks.
(m) “Visitor” refers to any third-party who visits an Affiliate Website.
(n) “Written Approval” refers to any approval granted to Affiliate by ClickWerx and sent by email, fax or letter from any staff member of ClickWerx and produced from a ClickWerx or ClickWerx email address, fax cover letter or letterhead.
2. ClickWerx Obligations.
(a) Maintenance & Support. ClickWerx will use commercially reasonable efforts to maintain and operate the System, including hosting the ClickWerx Sites. Any changes or improvements to the System will be made at the sole discretion of ClickWerx. In addition, ClickWerx will provide technical assistance to Affiliates for the installation, modification and maintenance of the System on the Affiliate Website.
(b) Marketing for New Advertisers. ClickWerx will use commercially reasonable efforts to conduct marketing campaigns aimed at bringing new Advertisers to the network. However, ClickWerx makes no express or implied guarantees as to the number of current or new Advertisers actively participating in the PPC Advertising network, the average “cost-per-click” generated by Visitors, or the average “click-through-rate” of such Visitors. Any estimates provided by ClickWerx are purely speculative or based on historical data and do not constitute a guarantee.
(c) Payment. ClickWerx will pay Affiliate a revenue sharing payment (the “Revenue Share Payment”) based on a percentage of the total Valid Click charges incurred by Advertisers through Visitors to the Affiliate Website. The amount of Revenue Share Payment due to Affiliate shall be determined by ClickWerx in its sole discretion based on internal algorithms designed to produce a competitive revenue sharing arrangement with ClickWerx affiliates. All Revenue Share Payments shall be processed no later than 30 calendar days from the end of each month for revenue generated from that calendar month and will be sent to Affiliate by check mailed to Affiliate’s address or automatic bank draft into Affiliate’s bank account. The minimum payment amount processed by ClickWerx will be $50. If Affiliate has an earned payment balance of less than $50 at the end of the month, then Affiliate will not receive payment until the next month when its earned payment balance exceeds the $50 minimum, at which point all earned but unpaid fees will be paid by ClickWerx to Affiliate. Payment due to Affiliate will be calculated by the System, which will provide up-to-date payment totals visible to Affiliate at all times. Payment will not be made to Affiliate for any revenue generated by Invalid Clicks, as determined solely by ClickWerx. If refunds or chargebacks occur on amounts with respect to which ClickWerx has already paid Affiliate its revenue share, any corresponding downward adjustments shall be made to the following month’s Revenue Share Payment.
(d) Click Fraud Prevention. ClickWerx has developed and maintains proprietary technologies and processes through the System for monitoring and reducing click fraud. ClickWerx’s technology and process for monitoring and reducing click fraud will remain confidential and the variables and methods used will not be provided to Affiliates or Advertisers. ClickWerx will also conduct daily reviews of all traffic to search for and identify suspicious activity that may have bypassed the System. Advertisers are provided with conversion tracking tools that will allow ClickWerx to further analyze the quality of traffic received from Affiliate. Revenue and traffic reports available to Affiliates on the System will only reflect Valid Clicks and will not reflect activity that has been deemed fraudulent by the System, as determined in ClickWerx’s sole and reasonable discretion.
3. Affiliate Obligations.
(a) Display of Advertisers through Integrated Ad Listings. If Affiliate chooses to use any Integrated Ad Listings, then Affiliate may only display PPC Advertisements within Integrated Ad Listings on websites that have been reviewed and approved by ClickWerx. Revenue generated from non-approved websites will not be tracked or reported and no compensation for such traffic will be paid to Affiliate. Codes for displaying PPC Advertisements on Affiliate Websites will be provided by ClickWerx and Affiliate agrees to not modify such code without Written Approval from ClickWerx. ClickWerx reserves the right to reject any navigation method in its sole discretion that it feels will affect the quality of traffic to Advertisers. Generally, at a minimum, any navigation method will need to require the Visitor to provide demographic information such as selection of their state or entry of their zip code. The codes provided to Affiliate by the System to display any Integrated Ad Listings displaying PPC Advertisements may not be altered by Affiliate without Written Approval of ClickWerx.
(b) Display of Banner Ad or Text Link. If Affiliate chooses to use banner ads or text links, Affiliate may only display banner ads and text links that have been provided by or with written approval by ClickWerx. Any approved text link or banner ad must redirect any requesting site Visitor to the specific page of the applicable ClickWerx Site as outlined herein: 1) A text link or banner ad that is non-product or non-state specific may only be directed to the applicable ClickWerx Site home page, and 2) a banner ad that promotes a specific Product Type may only direct Visitor to the state map on the applicable ClickWerx Site or product page that coincides with that Product Type. No approved text link or banner ad may direct Visitor directly to a page on the applicable ClickWerx Site that displays Advertisers. The codes provided to Affiliate by the System for displaying text links or banners may not be altered by Affiliate without Written Approval of ClickWerx. Affiliate may not link to the applicable ClickWerx Site from newsgroups, message boards, unsolicited email or other types of SPAM, banner networks, counters or chat rooms. Links to the applicable ClickWerx Site may only be placed by Affiliate on the Affiliate Website. Links from any other unauthorized source will not be recognized.
(c) Affiliate Website Content & Maintenance. Affiliate is solely responsible for the maintenance, operation and content displayed on any Affiliate Website that has been approved by ClickWerx to participate in the Affiliate Profit Sharing Program. This does not include the content displayed within Integrated Ad Listings, text links or banner ads provided by ClickWerx. ClickWerx will bear no responsibility for content on Affiliate Website that is offensive or misleading and will terminate Affiliate Website from participating in the Affiliate Profit Sharing Program if ClickWerx, upon its sole discretion, does not approve of such content. Affiliate Website may not contain any incentives to Visitor to click on displayed ads without advance Written Approval by ClickWerx.
(d) Affiliate Click Fraud. ClickWerx will vigorously defend against click fraud generated by Affiliates, either manually or automated or through the assistance of a third party. Any Affiliate suspected of click fraud will be immediately removed from participating in the Affiliate Profit Sharing Program. This includes Affiliates that generate clicks that result in unusually poor conversions for Advertisers. Any Affiliate removed from participation will be notified by email within 1 hour of such action. ClickWerx has developed and maintains proprietary click fraud technology and algorithms that will remain confidential from all Affiliates and third parties. In addition, ClickWerx will conduct daily analysis of all traffic to Advertisers from Affiliate Websites in search of click fraud that is intended to bypass the click fraud technology. Revenue and traffic reports and payments to Affiliate will only reflect Valid Clicks. ClickWerx has the sole discretion in determining which clicks are counted as Valid Clicks. Advertisers are provided with conversion tracking tools that will allow ClickWerx to further analyze the quality of traffic received from Affiliate.
(e) Contact Information. Affiliate will provide current contact information and payment information to ClickWerx at all times. Changes to contact information or payment information may be made on ClickWerx.com, or by contacting ClickWerx via phone, email, fax or letter. In addition, Affiliates based in the United States shall submit a valid W-9 to ClickWerx.
(f) No Communication and Solicitation of Advertisers. Affiliate agrees to not communicate directly with Advertisers regarding any of their advertisements or links published on any of the Affiliate Websites. Affiliate agrees to direct all communication to Advertisers through ClickWerx. ClickWerx will not provide Affiliate with the contact information for Advertiser, regardless of the reason why this confidential information is requested.
(g) TCPA Compliance. Affiliate agrees to notify ClickWerx, in writing, at least 5 business days in advance of any changes to Affiliate Website language regarding a consumer's consent to be contacted or language relating to the Telephone Consumer Protection Act.
4. Rights and Duties Regarding Information.
(a) ClickWerx Intellectual Property. ClickWerx owns and will retain all of its rights in its intellectual property associated with the System, Affiliate Profit Sharing Program and Bid Program, which includes without limitation, programming codes, ClickWerx, the ClickWerx Sites and ClickWerx.net website content, business practices, documents, trade names, trademarks, and all other intellectual property rights. Affiliate agrees to not reverse engineer, recreate, reproduce, or otherwise copy ClickWerx intellectual property in any way. Affiliate agrees and acknowledges that no right, interest, title or license in or to any of the intellectual property of ClickWerx or any of its Advertisers will be conveyed to Affiliate. Affiliate may not duplicate the content of any website owned or operated by ClickWerx or any of its Advertisers. Affiliate represents and warrants that it will not infringe the intellectual property rights of ClickWerx or any ClickWerx Advertiser and agrees that any clicks generated by Affiliate in connection with any such infringement shall be deemed Invalid Clicks.
(b) Non-Disclosure. Affiliate agrees that the System, including information related to the Affiliate Profit Sharing Program and Bid Program, contains proprietary information and may include trade secrets that ClickWerx wishes to remain confidential. Affiliate agrees not to disclose to any third party any details about the System, the Affiliate Profit Sharing System or any other confidential information that has been disclosed to Affiliate, or to which the Affiliate has access in connection with the Agreement. Affiliate’s participation in the ClickWerx Affiliate Profit Sharing Program is not confidential and may be disclosed to third parties by either Affiliate or ClickWerx. Each party's proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, the parties acknowledge and agree that their obligations of confidentiality with respect to proprietary or confidential Information shall continue in effect for a total period of three (3) years from the date this Agreement is terminated.
(c) Exceptions. Nothing in this Agreement will in any way restrict the right of Affiliate to use, disclose, or otherwise deal with any information that (i) was already known to Affiliate at the time of disclosure as evidenced by written documents in Affiliate’s possession prior to disclosure; or (ii) was generally available to the public or becomes publicly known through no wrongful act of Affiliate; or (iii) was received by Affiliate from a third party who had a legal right to provide it; or (iv) was developed independently of knowledge of confidential information received by Affiliate from ClickWerx.
5. Warranties, Limitations and Indemnification.
(a) No Warranties. The services and technologies provided to Affiliates by ClickWerx and the System are deemed “as is” and ClickWerx makes no warranty, express or implied, including without limitation with respect to the operation of the System, links, and other services. The Affiliate represents and warrants that it has agreed to participation in the Affiliate Profit Sharing Program solely on its own accord and has not been influenced by implied warranties, marketing materials or from communications with any ClickWerx representative.
(b) Loss or Damages. ClickWerx shall not be liable to Affiliate for any damages or losses suffered by Affiliate, including lost profits that are caused by the System being unable to connect to any Affiliate Website. The System may occasionally suffer interruptions and ClickWerx does not guarantee that the System will be functional at all times. ClickWerx will not be liable for any losses incurred by Affiliate during this “down time”, including the loss of any data.
(c) Affiliate Indemnification. Affiliate will defend, indemnify, and hold harmless ClickWerx from and against any and all Damages (i) due to any claim by a third party relating to or arising from any breach or violation by Affiliate of its representations or warranties under this Agreement, (ii) due to any claim by a third party of infringement of any patent, trademark, copyright, or other intellectual property right of any third party by any information or materials provided by Affiliate for use by ClickWerx, or (iii) relating to the development, operation, maintenance or contents of Affiliate Website.
(d) Limitations. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN, EACH PARTY HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COLLECTIVE LIABILITY OF CLICKWERX AND ITS THIRD PARTY VENDORS UNDER THIS AGREEMENT WILL NOT EXCEED $5,000. CLICKWERX SHALL NOT HAVE ANY OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY) OR OTHERWISE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, DIRECT OR INDIRECT DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(e) No Endorsement. Affiliate hereby acknowledges that the implementation of this Agreement does not constitute an express or implied endorsement by ClickWerx of Affiliate or of any product or services offered by Affiliate.
(f) Legal Capacity and Third Party Rights. Each party warrants that each has the legal right and capacity to enter into this Agreement and that entering into this Agreement does not violate the rights of any third party. Affiliate further represents and warrants that the execution or performance of this Agreement by Affiliate neither conflicts with any agreement, instrument, or understanding, oral or written, to which it is a party or by which it may be bound, nor violates any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it. Affiliate agrees to hold ClickWerx harmless for any claims made by third parties that relate to the Affiliate’s execution or performance of this Agreement.
6. Term and Termination.
(a) Term. The initial term of this Agreement (“Term”) is for three (3) years. The Term will be automatically renewed for one (1) year periods, unless sooner terminated by a party pursuant to Section 6(b).
(b) Termination. Either party may terminate this Agreement upon thirty (30) days’ prior written notice for any reason or no reason. Upon termination of this Agreement, the rights granted herein will terminate and any implementation of the ClickWerx program shall be removed from Affiliate Website. All payments due to Affiliate hereunder that have accrued but not been paid through the date of termination shall be paid within thirty (30) days of the date of termination. If at termination, Affiliate has a negative balance due to refunds, chargebacks or similar, Affiliate will likewise pay ClickWerx such amount within thirty (30) days of the date of termination.
(c) Survival. Sections 4(a), 4(b), 4(c), 5(c), 5(d), 5(e), 6(b) and 7 shall survive the termination of this Agreement.
7. Miscellaneous.
(a) This Agreement contains the entire agreement and understanding of the parties with respect to its subject matter and supersedes any prior or contemporaneous written or oral representations, discussions, proposals, understandings and the like respecting the subject matter hereof. ClickWerx reserves the right to modify the terms of this Agreement at any time in its sole discretion, without notice to Affiliate; however, ClickWerx will endeavor to update the date set forth at the top of this Agreement to denote that changes have been made. It is Affiliate’s responsibility to check and be aware of the current terms of this Agreement. If Affiliate does not wish to accept any such modifications to the Agreement, it may terminate this Agreement pursuant to Section 6(b).
(b) The headings and captions of this Agreement are provided for convenience only and are intended to have no effect in construing or interpreting this Agreement. The language in all parts of this Agreement shall in all cases be construed according to its fair meaning and not strictly for or against any party, and any rule that ambiguities shall be construed against the drafter of a document shall not be applicable with respect to this Agreement.
(c) This Agreement shall be governed by the laws of the State of Utah, without reference to conflict of laws principles. The United Nations Convention on the Sale of Goods does not apply to this Agreement. In the event of any dispute arising out of or relating to this Agreement, the parties shall seek to settle the dispute via direct discussions. If a dispute cannot be settled through direct discussions, the parties agree to first endeavor to settle the dispute via voluntary non-binding mediation, before resorting to arbitration. A mediator will be selected by voluntary agreement of both parties, or in the event both parties cannot agree on a mediator, a mediator will be selected in accordance with the rules of the American Arbitration Association. The mediation shall be held in Summit County, Utah. Each party shall bear its own costs and expenses and an equal share of the administrative and other fees associated with the mediation. Any dispute that remains unresolved following mediation shall be settled by arbitration in accordance with the JAMS International Arbitration Rules. The tribunal will consist of a sole arbitrator. The place of arbitration will be Summit County, Utah. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof. In rendering the award, the arbitrator(s) shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of Utah. If for any reason any provision or portion of this Agreement is found to be unenforceable, that provision or portion of the Agreement will be enforced to the maximum extent possible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
(d) Failure of either party to insist on strict performance of any of the terms and conditions herein shall not be deemed a waiver of any rights or remedies that either party shall have and shall not be deemed a waiver of any subsequent default of the terms and conditions hereof.
(e) You agree and represent that you are duly authorized to sign this Agreement on behalf of your company and to bind it to the terms of this Agreement.
(f) In the event that either party is unable to perform any of its obligations under this Agreement because of natural disaster, actions or decrees of governmental bodies or communications line failure not the fault of the affected party (hereinafter referred to as a “Force Majeure Event”), the party who has been so affected shall give notice immediately to the other party and shall use its commercially reasonable efforts to resume performance. Failure to meet due dates or response intervals resulting from a Force Majeure Event shall extend the due dates or response interval for a reasonable period.
(g) Any reasonable costs incurred by either party to obtain legal counsel to enforce the terms of this Agreement may be expended upon the other party that is found in violation of Agreement.
(h) The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party.
(i) Neither party is responsible for the failures of performance of the other party that are due to causes beyond their control, including accidents, acts of God, failure by telecommunications providers, internet service providers and other regulatory entities.
(j) Affiliate may not transfer or assign this Agreement, in whole or in part, without the written consent of ClickWerx. Any attempt by Affiliate to transfer or assign this Agreement without consent will be null and void.