Terms and Conditions
EFFECTIVE 4/29/2019
This Publisher Agreement (the “Agreement”), together with any amendments, are entered into by and between Endeavour Media, INC (“Endeavour Media”), and the applying Party submitting the Application For Publisher Status (the “Publisher”), also referred to herein jointly as the Parties (“Parties”, each a “Party”). This Publisher Agreement supplements all other Campaign Terms subsequently agreed to by the Publisher.
WHEREAS, Endeavour Media and Publisher desire to provide for the terms and conditions of this Publisher Agreement as more specifically set forth herein;
THEREFORE, the Parties agree to be legally bound as follows:
1. Definitions.
1.1. “Opt-in” or “Opted-in” means that the consumer has made an active, affirmative choice to receive Ads from the Publisher.
1.2. “User” means any person using the Internet.
1.3. “Action” means a User’s completion of an action (such as a click, sale, lead, or call) defined by the Advertiser or Endeavour Media.
1.4. “Agency” means the advertising Agency operated by Endeavour Media, which is made up of Publishers and Advertisers.
1.5. “Advertiser” means the advertiser, Advertiser or advertising agency providing advertisements to Endeavour Media for use by the Publisher.
1.6. “Ad” means the advertisement in the form of graphics and/or text supplied to Endeavour Media for inclusion in the Endeavour Media Agency and to be made available for Publisher use.
1.7. “Spam” means unsolicited bulk email where recipients have not agreed in advance to receive Ads.
1.8. “Campaign Terms” means the specific guidelines for each Advertiser campaign as listed in the Endeavour Media Agency.
2. Amendments.
2.1. From time to time, Endeavour Media may amend, replace or supplement the Agreement, including but not limited to changing Advertiser payouts, by posting an updated Agreement or Campaign Terms on the Endeavour Media website, and it shall be deemed effective immediately unless otherwise noted, and Publisher will be deemed to have consented to, and agreed to be bound by, the updated Agreement or Campaign Terms. It is the responsibility of the Publisher to read and keep up to date with the Agreement and Campaign Terms with or without notice of change from Endeavour Media.
3. Publisher Requirements.
3.1. Publisher is subject to review and may be rejected for any reason, and at any time, by Endeavour Media.
3.2. Publisher must submit valid and correct contact information, including but not limited to name, e-mail address, street address, and telephone number. Publisher must ensure this information remains up-to-date at all times within the Endeavour Media Agency. Publisher must accurately, clearly and completely describe all promotional methods in their descriptions and provide additional information when necessary.
3.3. Publisher websites must not be associated with or contain any illegal activity, or pornographic, obscene, racist, or hateful content, or deceptive advertising, piracy, libelous or defamatory statements.
3.4. Publisher websites must not contain any mechanisms that could be downloaded on to a User’s computer without the User’s explicit knowledge and consent.
3.5. In its sole discretion, if at any time Endeavour Media deems the Publisher’s website or advertising activities are contrary to the terms set out in the Agreement, the Publisher shall be terminated from the Agency and shall forfeit any and all commissions and earnings.
4. Publisher Rules.
4.1. Failure to adhere to the following rules is a violation of the Agreement and will result in immediate termination of the Publisher from the Endeavour Media Agency with forfeiture of all monies due to Publisher.
4.2. Publisher must not load Advertiser’s website within a frameset or iframe unless prior written approval is obtained from Endeavour Media.
4.3. Publisher must not modify the Ads supplied by Endeavour Media in any way unless prior written approval is obtained from Endeavour Media.
4.4. Publisher must indicate whether he uses incentive traffic, and only offer incentives to Users to respond to Ads with permission from Endeavour Media and the Advertiser as indicated on the Agency and Campaign Terms, or in writing. Endeavour Media reserves the right to define the term incentive.
4.5. Publisher must not make misleading or disparaging statements, oral or written, about any Ad, Advertiser or Endeavour Media.
4.6. Publisher must agree to receive periodic communications from Endeavour Media. This communication could be in the form of e-mail, instant message, postal mail, telephone or fax.
4.7. Publisher must not display any Ad in third Party newsgroups, social networks, message boards, blogs, link farms, counters, chatrooms or guestbooks without the consent of such third-Party entity.
4.8. Publisher must comply with all Campaign Terms as outlined in Ads.
4.9. Publishers must not use SMS/text messages to deliver Ads to Users.
4.10. Publisher must not generate any Actions in bad faith or through fraudulent mechanisms. This includes, but is not limited to, generating own Actions using manual or automated processes, misrepresenting product or service offered by Advertisers, deceiving Users into obtaining product or service offered by Advertisers, and encouraging or educating Surfers to cancel any product purchase or service provided by Advertisers.
4.11. Publisher must not share, lend, lease, sell or transfer their account to any third Party unless prior written approval is obtained from Endeavour Media.
4.12. Any Publisher engaged in the distribution of Ads via email must comply with all of the following rules:
4.12.1. Publisher must distribute Ads only to those recipients who have Opted-in to receive such email from the Publisher. Endeavour Media prohibits the use of Spam. Any use of Spam whatsoever by Publisher will result in the forfeiture of Publisher’s entire commission for all campaigns, and the termination of the Publisher’s account. Publisher will also be held liable for any and all damages resulting from a violation of this provision including reasonable court costs.
4.12.2. If requested by Endeavour Media, Publisher must be able within 24 hours of such request, to supply the name, date, time, IP address and URL where the User gave permission to the Publisher to receive such Ads through e-mail.
4.12.3. Publisher must ensure each email recipient is provided with a valid opt-out mechanism within each email delivered in order for the recipients to “opt-out” of future mailings from Publisher.
4.12.4. Publisher must not use the Advertiser or Endeavour Media name (including any abbreviation thereof) in the originating email address line (“From” line) or subject line of any email transmission, unless specific permission is given otherwise.
4.12.5. Publisher must not use falsified sender information or falsified IP Addresses.
4.12.6. Publisher must use only pre-approved Advertiser subject lines and from lines as set out in Campaign Terms.
4.12.7. Publisher must use only legitimate routing information.
4.12.8. Publisher must use their own tracking links that redirect to the tracking links supplied by Endeavour Media.
4.12.9. Publisher must have a proper privacy policy on their website, and it must be in compliance with all FTC guidelines, rules and regulations in respect to online privacy and shall warrant that email campaigns are conducted in accordance with that privacy policy, and in accordance with any applicable local or international laws.
4.12.10. Publisher must ensure each email contains Advertiser’s unsubscribe mechanism as set out in Campaign Terms.
4.12.11. Publisher must not send email to any email address or domain contained in an Advertiser’s suppression list as set out in Campaign Terms.
4.12.12. Publisher must ensure each email clearly contains the Publisher’s physical address, which cannot be a PO BOX.
4.12.13. Publisher must comply with all campaign instructions from Endeavour Media and Advertiser as set out in Campaign Terms.
4.12.14. Publisher must be compliant with all relevant laws, including but not limited to the Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003 15 U.S.C. ch. 103 and an Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act S.C. 2010, c. 23 (CASL).
4.13. European Privacy Laws. “EU Privacy Laws” means the European Union General Data Protection Regulation (“GDPR”), the European Union Directive on Privacy and Electronic Communications (the ePrivacy directive) and any local implementing laws, including any subsequent legislation replacing or amending any such laws from time to time. Note that European Privacy Laws may apply to you if (i) you operate from an EEA member state or Switzerland; or (ii) you market to or target individuals in an EEA member state or Switzerland; or; (iii) you collect or otherwise process any personal data (as such term is defined under GDPR) from users in EEA member states or Switzerland. If any of the foregoing apply or you are otherwise subject to EU Privacy Laws then you hereby represent, warrant, covenant and agree that you will (a) comply with EU Privacy Laws (b) inform end users in a prominent manner of their rights under EU Privacy Laws and that you use tracking devices and cookies for advertising purposes, including Interest-Based Advertising; and (c) obtain end user consent to place tracking devices, such as cookies (including those enabled by Endeavour Media at your request on your behalf) on such end users’ computers and internet enabled devices and provide information regarding the removal of such tracking devices.
5. If you determine that EU Privacy Laws do not apply to you, then you shall provide Endeavour Media with your analysis concluding the same or, provide detailed information regarding the specific steps you take to ensure that individuals located in the EU do not visit your Site via our services and technology.
6. Advertising Services and Warranties.
6.1. Provided that Publisher complies with all provisions of this Agreement and Campaign Terms, Endeavour Media hereby grants to Publisher a non-exclusive, limited, revocable license to market, display, perform, copy, transmit, and promote the Ad in connection with its obligations hereunder; and market display, perform, copy, transmit, and promote the Ad to third Parties in connection with its obligations hereunder. Publisher’s use of Ads or copyrighted materials in violation of this Agreement is strictly forbidden and will result in this limited license being immediately withdrawn and may further result in the termination of the Publisher’s account and being held liable under applicable law.
6.2. Endeavour Media’s sole obligation to the Publisher under this Agreement with respect to Ads shall be to provide such Ads for use in their advertising efforts. The advertising services provided by Endeavour Media are provided “as is”. Endeavour Media makes no warranties, guaranties, promises, or estimates, expressed or implied, oral, written or otherwise except as specifically set forth herein, AND does not guarantee, including but not limited to, demographic profiling of Users, click to Action conversion rates, response rates or conversion rates from Action to sale.
6.3. No additional warranties are provided.
7. Commission Earnings and Payments.
7.1. Endeavour Media shall send Publisher’s commission payment approximately fifteen (15) days from the last business day of each month in which earnings are accrued if the amount due to Publisher exceeds either one hundred (100) dollars USD or the minimum payment amount requested by the Publisher, whichever is higher. Payment thresholds may vary based payment type chosen by Publisher. Policies regarding payment type thresholds can change without notice to Publisher. Commissions will only be earned on Actions reported by the Advertiser, and only after Endeavour Media receives full payment from the Advertiser. Endeavour Media is under no obligation to pay Publishers for Actions which are not paid by the Advertiser.
7.2. Endeavour Media shall increase the payment frequency for Publisher to weekly, provided Publisher has received one previous payment from Endeavour Media and is setup to receive payments electronically. All other conditions and restrictions for payment as outlined in item 6.1 remain in force for weekly payments. Endeavour Media in its sole discretion may disqualify any Publisher from being eligible for weekly payments.
7.3. In the event of non-payment by an Advertiser, and If Endeavour Media elects in its own discretion not to make payment to Publisher, an Publisher’s recourse for any earned commissions not paid shall be to make a claim against the relevant Advertiser(s), and Endeavour Media disclaims any and all liability for such payment.
7.4. Endeavour Media or the Advertiser may reverse any Action generated by the Publisher. Circumstances for Action reversals include but are not limited to duplicate Actions, fraudulently generated Actions, non-payment, Publisher’s failure to comply with the Agreement, invalid or incomplete data, or product returns. Reversals may be applied at any time, including for Actions during a period where payment has already been issued to the Publisher.
7.5. In the event reversals are applied to Actions for which an Publisher has already been paid, Publisher is required to return payment for these Actions to Endeavour Media.
8. Referral Program.
8.1. Publisher shall earn a 5% referral fee on the commission payments made to any other new Publishers (excluding bonuses, rewards, additional payouts, Publisher earnings where the Publisher is an advertising Agency, and referral income) who have been referred to Endeavour Media using the specified link code. Publisher shall earn this fee on the commission payments of a referred Publisher for a period of twelve (12) months after the referred Publisher joins the Endeavour Media Agency. Secondary accounts held by Publisher are excluded from the referral program. Endeavour Media reserves the right to terminate an Publisher referral program, in whole or in part, at any time for any reason, including but not limited to, fraud, questionable activity or breach of the terms set out in the Agreement or Campaign Terms.
9. Representations and Warranties.
9.1. Each Party represents and warrants they have full corporate right, power, and authority to enter into this Agreement, to grant the rights and licenses granted and to perform the acts required of it.
9.2. Each Party acknowledges that the other Party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.
10. Non-Circumvention.
10.1. Publisher shall not solicit or recruit, directly or indirectly, any Advertiser that is known to Publisher to be an Advertiser of Endeavour Media, for purposes of offering products or services that are competitive with Endeavour Media, nor contact such Advertisers for any purpose, during the term of Publisher’s membership in the Endeavour Media Agency and for the twelve (12) month period following termination of Publisher’s membership in the Endeavour Media Agency.
11. Limitation of Liability.
11.1. EXCEPT FOR THE INDEMNIFICATION PROVISIONS AT CLAUSE 12, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR COSTS, DIRECT OR INDIRECT, (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM PUBLISHER PARTICIPATION IN ENDEAVOUR MEDIA’S AGENCY. ENDEAVOUR MEDIA SHALL NOT IN ANY EVENT BE LIABLE TO PUBLISHER FOR MORE THAN THE AMOUNT PAID TO PUBLISHER HEREUNDER. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST ENDEAVOUR MEDIA MORE THAN ONE YEAR AFTER THE DATE OF SERVICE.
11.2. Publisher agrees not to hold Endeavour Media or Advertisers liable for any of the consequences of interruption or service.
12. Indemnification.
12.1. Publisher hereto agrees to indemnify and hold harmless Endeavour Media, Advertiser, and each if its agents, officers, directors and employees against all liability to third Parties resulting from the acts or failure to act of such indemnifying Party, or any act of its customers or users. Publisher is solely responsible for any legal liability arising out of or relating to the Publisher’s website(s), any material to which Users can link through the Publisher’s website(s) and/or any consumer and/or governmental/regulatory complaint arising out of any privacy breach, regulatory compliance issue, e-mail campaign or other advertising campaign conducted by Publisher, including but not limited to any Spam or fraud complaint and/or any complaint relating to failure to have proper permission to conduct such campaign to the consumer.
13. Confidentiality.
13.1. Publisher agrees to refrain from disclosing Endeavour Media’s confidential information or the Advertiser’s confidential information (including but not limited to commission rates, conversion rates, email addresses, fees, identities of Advertisers) to any third-Party without prior written permission from Endeavour Media.
14. Force Majeure.
14.1. Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such Party; provided, that the Party whose performance is affected by any such event gives the other Party written notice thereof within three (3) business days of such event or occurrence.
15. Relationship.
15.1. The Parties to the Agreement are independent non-exclusive contractors. Neither Party will have any right, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other Party, nor is either Party an agent, representative, partner, employee, or joint venture of the other Party.
16. Remedies.
16.1. Endeavour Media reserves the right to withhold payment and take appropriate legal action to cover its damages against any Publisher that violates the terms of this Agreement or breaches the representations and warranties set forth in this Agreement, or commits fraudulent activity against Endeavour Media. Except as otherwise specified, the rights and remedies granted to a Party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity.
17. Entire Agreement.
17.1. This Agreement constitutes the entire and only agreement and supersedes any and all prior agreements, whether written, oral, express, or implied, of the Parties with respect to the transactions set forth herein.
18. Governing Law.
18.1. The rights and obligations of the Parties under this Agreement shall be governed by and construed under the laws of the Province of Ontario, Canada.
18.2. The Parties irrevocably submit and attorn to the exclusive jurisdiction of the courts of the Province of Ontario.
19. Termination.
19.1. This Agreement may be terminated by either Party. This Agreement may be terminated immediately upon notice for your breach of this Agreement.
19.2. An Advertiser may terminate Publisher from the Advertiser’s program for any or no reason.
19.3. Upon termination of this Agreement, any permissions granted under this Agreement will terminate, and Publisher must immediately remove all Ads and link to Advertiser(s)
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and binding upon Publisher’s submission and Endeavour Media’s acceptance of Publisher’s properly completed Publisher Agency application without need for further action by Endeavour Media.