365 Ad Solutions Pty Ltd

Standard Advertising Terms and Conditions

Introduction:

This following terms and conditions (the “Agreement”) are made as of your original sign up date to this site between 365 Ad Solutions Pty Ltd , an Australia company,  with its principal place of business located at N 347, Grosvenor Place, NSW 1220,  Australia (hereinafter "Company") ,and you (hereinafter “ you” or “affiliate”) being the user of the 365 Ad Solutions website (the "Site") and advertiser and publisher of 365 Ad Solutions and others offers (the “offers”). You and Company may also be individually referred to herein as a "Party" and collectively as "Parties". You agree to the terms and conditions outlined in this agreement with respect to the "Site" and “offers” and any additional services and offers offered by Company currently and in the future.

1. Background and Use of the Site.

The Site allows Company to post offers of advertising programs sponsored by Company or its affiliates on the system ("Program(s)"). The Programs will specify the amount and terms under which You will receive payment ("Bounty") when the Program's requirements are fulfilled. Bounties are generated from a specified event ("Event") identified in a Program, such as clicks, click-throughs, sales, registrations, impressions and leads. The definition of the Event associated with a Program is set forth in the Program's specifications, and such definition shall govern this Agreement. If You accept a Program, You agree to place that Program's advertising creative on Your media properties, such as Your website, affiliated websites or email distribution lists ("Media"), in accordance with the terms of the accepted Program. Company may change a Program at any time unless otherwise specified upon reasonable notice to You. Similarly, You may drop previously accepted Programs at any time unless otherwise specified. Company is responsible for displaying and administrating all active Programs and tracking the payments owed. Company shall compile, calculate and electronically deliver data required to determine Your billing and compensation. Company's figures and calculations shall be final and binding. Any questions regarding the data provided by Company need to be submitted in writing within 30 days of receipt, otherwise the information will be deemed accurate and accepted as such by You.

2. License.

All websites, newsletters, companies, or individuals need official approval from Company before they can become an Affiliate Partner ("Affiliate"). Only websites, affiliated websites and email distribution lists that have been reviewed and approved are permitted to use the Site. Company reserves the right to withhold or refuse approval for any reason, whatsoever.

A. In order to be eligible to become a Company Affiliate, all websites, affiliated websites and email distribution lists must meet the following criteria: Be content-based, not simply a list of links or advertisements, nor can the site be centered around making money off of our Advertisers; Have a top-level domain name; Cannot offer incentives to users to click on ads; incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.; Be fully functional at all levels; no "under construction" sites or sections; Spawning process pop-ups and exit pop-ups are prohibited

B. The content of the websites, affiliated websites and email distribution lists cannot infringe on any personal, civil, intellectual property or copyrights including but not limited to:

• Racial, ethnic, political, hate-mongering or otherwise objectionable content
• Investment, money-making opportunities or advice not permitted under law
• Gratuitous violence or profanity
• Material that defames, abuses, or threatens physical harm to others
• Promotion of any and all illegal activities such as illegal online gambling, building bombs, counterfeiting etc.
• Promotes the use of alcohol, tobacco or illegal substances, nudity, sex, pornography, adult-oriented content such as phone sex or escort services, expletives or inappropriate language;
• Software Pirating (e.g., Warez, Hotline) and Hacking or Phreaking
• Any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic it must also comply with all applicable laws, including privacy laws.

Company grants You a non-transferable, non-exclusive limited license, if approved, to use the Site and any data, reports, information or analyses arising out of such use, subject to the terms and conditions set forth herein. You acknowledge and agree that You do not have, nor will claim any right, title or interest in the Site software, applications, data, methods of doing business or any elements thereof. You may only access the Site via web browser, email or in a manner approved by Company.

The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to the Site are protected under applicable copyrights, trademarks and other proprietary (including but not limited to intellectual property) rights. The copying, redistribution, use or publication by you of any such matters or any part of the Site, except as allowed under "Limited Right to Use" below, is strictly prohibited. You do not acquire ownership rights to any content, document or other materials viewed through the Site. The posting by 365 Ad Solutions of information or materials on the Site does not constitute a waiver of any right in such information and materials.

3. Representations and Warranties.

You represent and warrant that:

• You have the full corporate or organizational right, power, and authority to enter into this agreement and to perform the acts required of it;
• The execution of this agreement and the performance by you of your obligations and duties, do not and will not violate any agreement to which you are a party or by which you are otherwise bound, or any applicable federal, state or municipal law or regulation to which you are subject,
• You shall render all services to the other party in a professional and commercially reasonable manner, in accordance with generally accepted industry standards, and remain in compliance with all laws and regulations including but not limited to CANSPAM and adware opt-in compliance and privacy laws; and you own or have the authority and valid license to use all intellectual property and content on your website(s).
• You will not use deceptive or misleading practices such as the use of spyware, adware, devices, programs, robots, iframes, hidden pictures, redirects, spiders, computer scripts or other automated, artificial or fraudulent methods designed to appear as if a consumer/user is generating a Lead nor will you engage in any deceptive form of advertising including, but not limited to, phishing, sending an email to an individual falsely claiming to be an established legitimate enterprise in an attempt to scam or defraud the user into surrendering private and personal information that can be used for identity theft, or any other such activity.
• You agree not to modify or alter any offer or creative in any manner. You also agree to run only approved banners and text in your advertising of offers and will not create your own banners or advertising text based on the creative or offer, unless expressly approved in writing by the Company. Any other use of offers or creative will result in the loss of payment.

You cannot post any specific messages to newsgroups, chat rooms, bulletin boards or any other places unless expressly approved in writing from Company. You can post messages which are generic in nature and do not mention any specific client or offer, which are expressly approved in writing from Company;

You will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service;

4. Fraud.

Company actively monitors traffic for Fraud. If we detect fraud, your account will be made inactive pending further investigation.

If you fraudulently add leads or clicks or inflate leads or clicks by fraudulent traffic generation (as determined solely by Company, such as pre-population of forms or mechanisms not approved by Company), you may forfeit your entire commission for all programs and your account may be terminated. Company reserves sole judgment in determining fraud, and you agree to this clause.

It is the obligation of the Affiliate to prove to Company that they are not committing fraud. Company will hold your payment in 'Pending Status' until you have satisfactorily provided evidence that you are not defrauding the system. We flag accounts that:

• Have click-through rates that are higher than industry averages where solid justification is not evident.
• Have ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks.
• Have shown fraudulent leads as determined by our clients, or by the Company.
• Use fake redirects, automated software, and/or fraud to generate clicks or leads from our programs.
• Have early cancel rates higher than industry average.

Company has the right to remove leads from the affiliate's account should it at its sole discretion consider them fraudulent or non-valid. Any audits, refunds and or penalties we receive as a result of your unacceptable practices or breaches will result in us holding payment and claiming damages against you. 

If You are notified that fraudulent activities may be occurring on your Media, and You do not take any actions to stop the fraudulent activities, then You are responsible for all associated costs and legal fees resulting in these fraudulent activities. Company can pass-through to affiliate the amount of penalties (including payments withheld) levied on Company or its partners by or on behalf of Carriers (meaning any wireless carrier, aggregator, or vendor working on behalf of such entity) or other losses incurred by Company as a result of Carrier actions arising from violations of the Guidelines (a) by Affiliate Ad Materials that (i) Affiliate did not submit to Company for approval or that were used in any manner other than the form approved, (ii) Company expressly disapproved, or (iii) Company instructed Affiliate to remove more than two (2) business days prior to such audit but Affiliate did not remove; or (b) by Company Ad Materials which Affiliate has used in any manner other than the form provided by Company.

5. Payment.

You will be paid per the occurrence of an Event. Parties understand and agree that payment will be owed to Affiliate from Merchant on terms of NET 30 EOM. All accounts will be paid in US dollars ($US). No payments will be issued for any amounts less than $100 US Dollars, but aggregated until at least this level is reached. Every Affiliate account must have a unique, valid taxpayer identification number (TIN) or valid Social Security number. All payments are based on actual figures as defined, accounted and audited by Merchant. Company will facilitate payment by disbursing the earned portion of lump sum aggregate payments to individual Affiliates upon receipt of payment from Merchant.

1. Billing Period
2. Total Acquisitions by Campaign
3. Total amount due by Campaign

6. Customer and Confidential Information; Non-Disclosure.

Each party agrees to use the other party's Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party's Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing party. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, Advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services as well as all and any information submitted by end-user customers. Notwithstanding the foregoing, you agree that Company may divulge its personal and/or otherwise Confidential Information to an Advertiser, agency, legal or regulatory authority, person or entity relating to investigations, claims or actions that Affiliate has violated this Agreement or any applicable law or regulation.

You acknowledge that all non-public information, data and reports received from Company hereunder or as part of the services hereunder is proprietary to and owned by Company. All proprietary information is protected by copyright, trademark and other intellectual property law. You agree not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary information in any manner. These non-disclosure obligations shall survive the termination of this Agreement.

7. Limitation of Liability; Disclaimer of Warranty.

IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE SITE, OPERATION OF A PROGRAM, OR YOUR DISPLAY OF ANY PROGRAM CREATIVE ON YOUR MEDIA, INCLUDING BUT NOT LIMITED TO BROKEN IMAGES, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES OR NATURE WHATSOEVER (INCLUDING LOST PROFITS OR REVENUES, OR HARM TO BUSINESS), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT COMPANY’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO $1,000. YOU ACKNOWLEDGE THAT COMPANY DOES NOT REPRESENT, WARRANT, OR MAKE ANY SPECIFIC OR IMPLIED PROMISES AS TO THE SUCCESSFUL OUTCOME OF ANY PROGRAMS;

THE INFORMATION, CONTENT AND SERVICES AND OFFERS ARE PROVIDED ON AN "AS IS" BASIS WITH NO WARRANTY. YOU USE THE SITE AND RUN PROGRAMS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE OPERATION OF THE SITE, THE INFORMATION, SERVICES, OFFERS AND CONTENT INCLUDED ON THE SITE AND PROVIDED BY COMPANY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ON THIS SITE OR PROVIDED BY COMPANY IS ACCURATE, COMPLETE OR CURRENT. IF ANY ERRORS OR UNDESIRABLE RESULTS OCCUR DUE TO NO FAULT OF COMPANY, COMPANY SHALL NOT BE RESPONSIBLE FOR LOSSES AND YOU MAY NOT BE COMPENSATED.

8. Indemnity.

You shall indemnify, defend and hold Company and respective subsidiaries, affiliates, agents, partners, officers, directors and employee harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys' fees) by third parties arising out of Your: (a) improper use of the Site and or offers; (b) improper operation of a Program; or (c) breach or violation of this Agreement. Company shall indemnify, defend and hold You harmless from and against any and all claims allegations, liabilities, costs and expenses (including reasonable attorneys' fees) by third parties arising out of any actual infringement of intellectual property rights resulting from Your display of Company’s advertising creative provided in connection with operating a Program. Company shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding arising out of this Agreement.

9. Miscellaneous.

This Agreement constitutes the entire and only agreement between us and you, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Site and offers, the content and computer programs provided by or through the Site and offers, and the subject matter of this Agreement. Company reserves the right to make changes to the Site and the terms and conditions of this Agreement at any time. Your continued use and promotion of the Site and “offers” after any such modification and notification thereof shall constitute your consent to such modification.
Each Party is an independent contractor and not a partner, joint venturer or employee of the other. All notices shall be sent to the addresses submitted by You when signing up for the service by certified mail, fax, email or courier. 

10. Severability.

If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.

11. Force Majeure.

Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters, interruption in internet service or any other cause which is beyond the reasonable control of such Party.

12. Termination.

This Agreement shall commence upon Your acceptance and remain in effect until terminated. This Agreement may be terminated by either Party upon one (1) days' notice. This Agreement shall terminate immediately upon the dissolution or insolvency of either Party. Company reserves the right, in its sole and absolute discretion, to terminate a Program and remove any advertisements at any time for any reason. Company also reserves the right to terminate Your access to the Site at any time without notice. Reasons for termination or suspension can include but are not limited to fraudulent, inaccurate or expired contact information and fraudulent lead data or transactions. If instructed to do so by Company and/or if this Agreement terminates, You agree to immediately remove and discontinue the use of the Site, Services and Offers; Termination notice may be provided via e-mail and will be effective immediately. All legitimate moneys due to Affiliate will be paid during the next billing cycle. If you defraud the system, then payment is revoked as determined solely by Company. The representations, warranties and obligations contained in paragraphs 3, 6, 7, 8, 9 and 13 shall remain in full force and effect after termination of this Agreement. All payment obligations accruing prior to the termination date shall survive until fully performed.

13. Assignment and Jurisdiction.

Company may assign this Agreement to a subsidiary or business successor. You may not assign this Agreement without the prior written consent of Company, which shall not be unreasonably withheld. You expressly consent to the exclusive venue and personal jurisdiction of the state and federal courts located in New South Wales, Australia for any actions arising from or relating to this Agreement.

14. IMPORTANT NOTICE: The Can Spam Law

Affiliates must comply with The CAN SPAM Act which regulates the form (what information must be included and the required format) commercial email must take.

The CAN SPAM Act requires that all commercial email contain - Clear and conspicuous identification that the message is an advertisement or solicitation, if the email is unsolicited; Clear and conspicuous notice of the opportunity to opt-out; A truthful subject line; A functioning mechanism to opt-out; A valid postal address for the sender; Labeling of unsolicited sexually explicit material. More specifically :

1. You and any party delivering emails on your behalf shall:
   • not falsify email header information (including, without limitation, source, destination & routing info),
   • not seek or obtain unauthorized access to computers for the purposes of sending out commercial email, including without limitation use of an unauthorized open relay to facilitate distribution of emails;
   • not alter any “subject” line provided by the Company, or use any "subject" or "from" line that is false or misleading;
   • send emails only to those individuals who have opted-in to receive such emails; and promptly provide the Company with confirmation of the date and time of the opt-in upon the Company’s reasonable request.
   • utilize a clear, conspicuous functioning unsubscribe mechanism for opt-out requests from an email recipient, such unsubscribe or opt-out link must be active for 30 days from date the email was sent and all opt-out requests honoured within five (5) days from date of receipt of such opt-out request;
   • not sell or transfer email addresses of those individuals whom it knows opted-out of receiving future email solicitations;
   • update all mailing lists using current suppression lists not more than five (5) calendar days prior to each mailing or as otherwise required by law; and
   • not send any unsolicited commercial email or other unsolicited online communication.
2. Any email from you and any party delivering emails on your behalf) shall: 
   • Contain only advertising provided by the Company;
   • Have valid and traceable e-mail header information identifying the sending party that received the opt-in from the consumer;
   • Within the body of the e-mail, include a valid physical street address associated with the sending party that received the opt-in;
   • Include a clear and conspicuous identification that such email message is an advertisement or solicitation when the email is sent to an address in which there is no prior business relationship;
   • Include a “subject line” which accurately represents the product or service depicted within the email;
   • Include a “from line” which accurately identifies the list name and sending party, that received the opt-in from the consumer;
   • use only email addresses with the name of the sending party that received the opt-in, and not use the non-sending party’s name in any mail-from or reply-to email addresses (e.g. “from” lines need to accurately identify the sender of the email); and
   • reply-to address must be a functioning email address where sender can be contacted.
3. The email addresses to be used in connection with any of the Company email programs/campaigns shall be:
   • Collected and maintained in compliance with all federal and state laws, regulations and rules;
   • Collected from websites and other online venues in compliance with the applicable websites’ and or other online venues’ privacy policies, and such privacy policies specifically allow for you to use such email addresses as contemplated hereunder; and
   • Obtained and collected without employing email address harvesting, dictionary attacks and/or any other deceptive or illegal act and/or practice.

You agree that prior to mailing any campaign available in any Company programs you will download the most recent suppression file(s) for any particular campaign and, for that campaign, will suppress all email addresses within your database that are found on such list. In addition, for any Company campaigns that include a domain suppression list, you agree that prior to mailing the campaign you will download the most recent domain suppression list for any particular campaign and, for that campaign, will suppress all domains within its database found on such list.

You agree that you will download and remove the domains located on the FCC's wireless domain names list http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from all current data used in all mailings. You further warrant that any new data that you acquire, 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.

15. IMPORTANT NOTICE: Carrier / Compliance

Compliance requirements are mandated by a number of different parties including carriers. It is vital you attend to and implement any such requests from the company within 24 hours. Failure to do so within the specified timeframe may lead to suspension of the tracking URL or your account.

For UK Compliance, banner advertisements must include in the main body of the advertisement:

• Instructions on how to stop the service (example: ‘txt stop 2 stop’)
• The total cost for the service in the format ‘joining cost plus ongoing cost and appropriate frequency’ (example: ‘£9 joining, £9 per week’)
• A statement that the service is subscription (example: subscription service)

16. IMPORTANT TERMS

You must also adhere to the following special terms:

• Offers cannot be incentivized. No freebie or sweepstakes sites allowed.
• All leads obtained from mobile related up sells will be deemed invalid and the affiliate will not be credited. (example: once a subscriber has joined a mobile offer ie ringtones / love horoscopes etc they can not be driven to our offer to sign up)
• Affiliates cannot use jump pages on US offers, If found guilty legal action would be taken against the affiliate and commissions will be withheld.
• No I-Framing allowed, unless given prior approval by company.
• Daily Cap of 1000 Conversions/offer.

By clicking on the SUBMIT APPLICATION button and or continuing to the next page, you signify your acceptance of the above 365 Ad Solultions terms and conditions