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LEADFLASH Affiliate Agreement

Last updated: 4/11/2011

This Affiliate Agreement ("Agreement") contains the terms and conditions that govern your participation in the LEADFLASH Affiliate Program (the "Program"). All references herein to "we" or "LEADFLASH" mean LEADFLASH.com, with headquarters at 6700 Broken Sound Parkway, Boca Raton, FL 33487. All references herein to "you" or "Affiliate" means the person or business entity whose name appears on the application ("Application") to participate as an Affiliate in our Program.

BY COMPLETING AND SUBMITTING AN APPLICATION TO PARTICIPATE IN THE LEADFLASH AFFILIATE PROGRAM, YOU (1) AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND (2) REPRESENT AND WARRANT THAT YOU ARE AT LEAST AGE 18 (OR THE AGE OF MAJORITY IN YOUR STATE OF RESIDENCE) AND ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS. IF YOU ARE SIGNING THIS AFFILIATES AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS AFFILIATES AGREEMENT. Additional terms and conditions may apply to your participation in the Program, which LEADFLASH may publish on the administrative website used by LEADFLASH to manage and track the Affiliate Program ("Affiliate Admin Site") and which shall be made a part of this Agreement by this reference upon publication.

1. Application to Participate; Ongoing Responsibilities.

  • This Agreement is effective as of the date that you electronically submit your Application to participate in the Program, provided that this Agreement shall become null and void if LEADFLASH denies your Application for any reason. You may re-apply at any time if we reject your Application. Participation in the Program is subject to LEADFLASH's prior approval. LEADFLASH reserves the right to refuse acceptance of your Application, in its sole discretion, with or without cause. If we accept your Application and later determine that acceptance was granted in error for any reason at our discretion, we may immediately terminate your participation in the Program upon notice to you.
  • Upon LEADFLASH's approval of your Application, you will receive an account and password ("Account") to access the Affiliate Admin Site and/or other applications to participate in the Program. Upon termination of this Agreement for any reason, LEADFLASH will disable your Account. You are solely responsible for all activities that occur under your Account.
  • You will ensure the accuracy of the information describing your online publishing and promotional activities as it exists in the Affiliate Admin Site and otherwise associated with your Account, including your email address and other contact information and identification of your web sites. We may, from time-to-time, send necessary communications relating to the Affiliates Program and this Agreement to the email address then-currently associated with your Account. You will be deemed to have successfully received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your account is no longer current.

2. Terms of Payment

  • Subject to the terms and conditions of this Agreement, LEADFLASH will compensate you for generating "Qualified Leads" for financial and other offers ("Offers") promoted by advertisers and other marketing partners in LEADFLASH's network. A "Qualified Lead" means information about a consumer that meets lead criteria specified by LEADFLASH in the Affiliate Admin Site. Leads shall not include leads that are generated by fraudulent means or leads for consumers who subsequently cancel or return any paid orders. The final determination of whether a lead is a "Qualified Lead" is at LEADFLASH's sole discretion. Lead criteria may change without notice to you other than by being posted on the Affiliate Admin Site.
  • LEADFLASH shall pay you a certain amount per lead as specified in an insertion order separately agreed to by you and LEADFLASH for the specific campaign ("Insertion Order") or as published on LEADFLASH's Affiliate Admin Site. Your must earn a minimum of $100 each month in order to receive payment for leads generated that month. In the event that you do not reach this minimum monthly threshold, the earnings for that month will be held over for payment to you following the end of the next month. Commission fees will be calculated every month and payment will be issued within ten (10) days after calculation of the commission fees.
  • LEADFLASH will compile, calculate, and deliver to you data required to determine your billing and compensation ("Data"). In the event you dispute the number of Qualified Leads stated in the Data for which you may be paid, you must notify LEADFLASH of such dispute within ten (10) days of receiving the Data with a detailed explanation of the rationale for the dispute, otherwise the Data will be deemed accurate and accepted as such by you without further right to dispute the accuracy of the Data. LEADFLASH shall, in good faith, consider such documentation, but shall have final authority in determining the correct number of Qualified Leads. LEADFLASH's determination concerning the number of Qualified Leads shall be deemed final and binding on the parties.
  • There will be a $30.00 bank fee applied to International Wire payments under $5,000.00. This $30.00 is deducted from your account balance.
  • There will be a $30.00 bank fee applied with any request to stop payment on a check and issue a replacement check. This $30.00 is deducted from your account balance or replacement check.
  • In the event this Agreement is terminated for any reason, you will be entitled only to commission fees earned through the effective date of termination. LEADFLASH may withhold final payment for a reasonable time to ensure that the commission fees paid exclude any fraudulent, canceled, or returned Qualifying Leads.

3. Marketing

  • You may use various creatives, emails, banner advertisements, hyperlinks, search terms, web pages, newsletters, and other advertising material made and approved by LEADFLASH, except as prohibited herein, to promote the Offers (collectively, "Advertising"). Affiliate shall not modify any Advertising provided to you by LEADFLASH except with LEADFLASH prior written approval. In the event you develop, design, and/or create any Advertising, you must submit said Advertising to LEADFLASH and receive written and signed consent for same by an officer/manager of LEADFLASH.
  • Your Advertising and your web sites, email, and other media properties containing Advertising shall:
    • Not infringe upon the personal rights, intellectual property rights, or copyrights of any person or entity;
    • Not contain racially discriminatory or hate-mongering content;
    • Not contain gratuitous violence, obscenity, or profanity;
    • Not contain material that is defamatory or libelous;
    • Not promote any illegal activity including but not limited to the promotion of gambling, illegal substances, software piracy, or hacking;
    • Not spoof, or redirect, traffic to or from any adult-oriented web sites;
    • be content-based, and not simply a list of links or advertisements, nor will the primary purpose of any web site be to generate revenue from advertisers;
    • be written in English and contain only English language content;
    • have a top-level domain name;
    • not offer incentives to users to click on advertisements, with incentives including without limitation awards or gifts of cash, points, prizes, "free" items, or contest entries;
    • be fully functional at all levels with no "under construction" sites or sections; and \
    • not spawn pop-ups or exit pop-ups.
  • You will not transmit Advertising or engage in any other marketing conduct under this Agreement via text messaging, facsimile, or telemarketing (including, without limitation, by use of prerecorded or artificial voice messages).
  • If you use any endorsements, testimonials, blogs, verbal statement, demonstrations, depictions, or other advertising message (collectively, "Testimonials") that consumers are likely to believe reflects the opinions, beliefs, findings, or experience of you or any third party with respect to any Offer, the Testimonials must, in addition to any other requirements specified in the FTC's Guide Concerning the Use of Endorsements and Testimonials in Advertising (16 CFR Part 255 of the Code of Federal Regulations), disclose that you may be paid by LEADFLASH for your Testimonial. You will not take any action that could reasonably cause any customer confusion as to your relationship with LEADFLASH or any advertiser whose Offer you are promoting.
  • LEADFLASH will provide initial tracking links for use with all Advertising. Affiliate is responsible for hosting all email creative and redirecting from hosted creative to LEADFLASH's tracking links. This is necessary to ensure that LEADFLASH does not become blacklisted with any internet service provider for any perceived violations of any anti-spam laws due to Affiliate's negligence. In the event this occurs, Affiliate will protect, indemnify, defend, and hold harmless LEADFLASH and all third parties from and against any and all losses, costs, claims demand, damages, and liabilities, including attorney's fees arising from Affiliate's failure to redirect email creative from hosted creative.
  • You agree that you will not attempt in any way to alter, modify, eliminate, conceal, cookie stuff, traffic steal or otherwise render inoperable or ineffective LEADFLASH's site tags, source codes, links, pixels, modules or other data provided by or obtained from LEADFLASH that allow LEADFLASH to measure advertisement performance and provide its services. LEADFLASH reserves the right to withhold commission payments from Affiliate's accounts if fraudulent activity is suspected.

4. Intellectual Property License.

  • LEADFLASH hereby grants to you a personal, non-exclusive, revocable, non-transferable limited license to all intellectual property rights, owned and controlled by LEADFLASH (including, but not limited to, copyrights, trademarks, and service marks) (collectively, "LEADFLASH Marks") only to the extent that such license is required for Affiliate to perform its obligations under this Agreement. Nothing in this Agreement shall transfer ownership of any intellectual property owned and controlled by LEADFLASH to you, nor grant any right or license other than the limited license stated above. Such license shall terminate upon termination, for any reason, of this Agreement.

5. Limitation of Liability; Disclaimer of Warranties.

THE PROGRAM, LEADFLASH WEB SITE, AFFILIATE ADMIN SITE, ANY PRODUCTS AND SERVICES OFFERED THROUGH LEADFLASH, THE OFFERS, LEADFLASH.COM DOMAIN NAME, OUR TRADEMARKS AND LOGOS (INCLUDING THE LEADFLASH MARKS), AND ALL TECHNOLOGY, SOFTWARE, MATERIALS, DATA, OR IMAGES PROVIDED OR USED BY OR ON BEHALF OF US OR OUR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE "PROGRAM OFFERINGS") ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE PROGRAM OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THE PROGRAM OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE WILL NOT BE HELD RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. WE MAY DISCONTINUE THE PROGRAM OR PROGRAM OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF THE PROGRAM OR OTHER OFFERINGS, AT ANY TIME AND FROM TIME TO TIME. WE DO NOT WARRANT IN ANY WAY THAT THE PROGRAM OR OTHER OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS. LEADFLASH SHALL NOT BE LIABLE FOR ANY ACTS OF ADVERTISERS OR CONTENT PROVIDERS WHOSE CONTENT OR OFFERS APPEARS ON LEADFLASH'S WEB SITES AND/OR IS MADE AVAILABLE TO YOU THROUGH OUR SERVICES, NOR THE CONTENTS OF ANY OTHER ADVERTISEMENTS, WEB SITES OR WEB PAGES. IN NO EVENT SHALL LEADFLASH BE RESPONSIBLE FOR ANY LOST PROFITS OR LOST REVENUE, OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, OR OTHER DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, LEADFLASH SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM CONDITIONS BEYOND LEADFLASH'S CONTROL.

6. Fraudulent or Unlawful Activity in Connection with Lead Generation.

  • LEADFLASH reserves the right to monitor your use of activities with respect to your participation in the Affiliate Program, including but not limited to web sites or other media properties displaying Advertising, including monitoring for false leads and for marketing practices that violate the terms and conditions of this Agreement. If LEADFLASH suspects fraud or unlawful conduct on your part, you acknowledge that it is your responsibility to prove to the satisfaction of LEADFLASH that no fraudulent or unlawful activity has occurred.
  • You acknowledge and agree that LEADFLASH's determination as to whether you have engaged in fraudulent or unlawful conduct is final.
  • If LEADFLASH detects fraud or unlawful conduct, your account will be made inactive pending further investigation and all commission payments will be held until such time as LEADFLASH determines that no fraudulent activity has occurred.
  • If you fraudulently or unlawfully create leads as determined by LEADFLASH in our sole discretion, you will forfeit your entire commission for all leads and this Agreement will be terminated.
  • You acknowledge that if you receive notice that fraudulent or unlawful activity may be occurring on your web sites or emails displaying Advertising, or any other marketing activity, and you do not take any actions to stop such fraudulent or unlawful activity, then you shall be solely responsible for all associated costs and legal fees resulting from the fraudulent activity.
  • LEADFLASH reserves the right to report all known and/or suspected fraudulent or unlawful conduct by any Affiliate to interested parties and to make such conduct public. You agree not to hold LEADFLASH liable for the consequences of such reports. You acknowledge that it shall be in LEADFLASH's sole discretion to determine whether or not fraudulent conduct has occurred or is suspected and to whom the conduct may be reported.
  • LEADFLASH has the right to audit leads submitted by you, at your expense, if LEADFLASH suspects that you are submitting fraudulent or unlawful leads.

7. General Representations and Warranties; Indemnification.

You represent and warrant that:

  • You are now and will continue throughout the term of this Agreement to be in full compliance with all local, state, and federal laws, rules, and regulations applicable to your business and your participation in the Affiliate Program. You must conduct all marketing and other activities related to this Agreement in compliance with all applicable laws, regulations, and guidelines, including but not limited to the Federal Trade Commission Act ("FTC Act"), the CAN-SPAM Act, Federal Trade Commission ("FTC") regulations and guidelines implementing the FTC Act and the CAN-SPAM Act, FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, the Telephone Consumer Protection Act, and other federal and state laws, regulations, and guidelines. If any such laws, regulations, or guidelines are amended or modified, in whole or in part, then you shall comply fully with all applicable requirements thereof, on and after the effective date of any such amendment or modification.
  • You have obtained any and all necessary permits, licenses, or other authorizations required by any law, regulations, or government or regulatory authority for your business as presently conducted or as may be conducted during the term of this Agreement.
  • Unless otherwise disclosed to LEADFLASH, you are not presently the subject of any investigation or prosecution by the Federal Trade Commission or any other federal or state governmental or regulatory body or agency in connection with its products or services and, to the best of your knowledge, no such investigation or prosecution is threatened.
  • You have disclosed the existence of any past federal or state decrees, orders, or consent agreements, and any pending formal or informal government or private investigations or lawsuits involving you and/or the officers, directors, or principals of your company.
  • If you become involved or named in any action, investigation, complaint, or other proceeding by or before any governmental or regulatory authority, or any private party, you will immediately provide notice to LEADFLASH of such action, investigation, complaint or other proceeding, in which event LEADFLASH may terminate this Agreement immediately and without notice to you.

You agree to indemnify, defend, and hold LEADFLASH harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to (i) breach of the foregoing representations and warranties, and/or (ii) any breach of any other provision of this agreement.

8. Electronic Mail Solicitations.

You are required to comply with the requirements of the federal CAN-SPAM Act as well was Federal Trade Commission regulations implementing the CAN-SPAM Act and any applicable state or local laws or regulations governing electronic mail. You are responsible for obtaining legal advice concerning the CAN-SPAM Act and other applicable laws and regulations. Consistent with the CAN-SPAM Act, LEADFLASH requires you to abide by the following policies concerning electronic mail messages:

  • The "FROM" line on all email transmissions must clearly and accurately identify the party whose products or services are being promoted by the email. LEADFLASH prohibits placing any false or misleading information in the FROM line;
  • All "SUBJECT" lines must be reasonably related to the subject matter;
  • You shall ensure that all email disseminated to consumers pursuant to this Agreement contains a clear and conspicuous, functioning link or other web-based mechanism that allows the email recipient to unsubscribe from future emails from the party whose products or services are being promoted by the email. You shall provide LEADFLASH the email address of any person who has unsubscribed from such emails within seventy-two (72) hours of such unsubscribe request; Click here to review our Unsubscribe Process
  • You shall include a clear and conspicuous statement in all emails that identifies the email as a commercial solicitation. This may be in the subject line, header, body or footer of the email; and
  • You shall ensure that all emails that you send to consumers pursuant to this Agreement contain a valid postal address for the party whose products or services are being promoted by the email. This postal address should be listed at the top or bottom of each email.

You shall also comply with the following additional policies regarding commercial emails:

  • You may only deliver emails to individuals who have directly provided you with permission to receive email offers; as used in this document, permission means that the individual expressly agreed to receive commercial email solicitations sent on behalf of the party whose products or services are promoted in the email. You must keep records of such permission during the term of this Agreement and at least three (3) years after this Agreement terminates.
  • In the event you receive a complaint regarding an email that it sent pursuant to this Agreement from a consumer, regulatory authority, or any other source, you must notify LEADFLASH of the complaint within 24 hours after receipt and include a copy of the complaint and the following information:
    • The web site or other means by which the recipient of email in question expressly agreed to receive such email messages;
    • The date the recipient provided such consent (and the time if available); and
    • The I.P. address from which the recipient signed up.

An Affiliate who violates LEADFLASH's CAN-SPAM Act compliance policy as set forth in this Agreement will be terminated at the sole discretion of LEADFLASH without notice, and any commission fees pending will be forfeited. All decisions by LEADFLASH are final. You acknowledge that it is LEADFLASH's policy to comply with investigations under the CAN-SPAM Act and other applicable laws.

9. Confidentiality

As used herein, "Confidential Information" shall mean: (a) either party's proprietary information; (b) information marked or designated by either party as confidential; (c) information otherwise disclosed by either party in a manner consistent with its confidential nature; (d) the terms and conditions of this Agreement; and (e) either party's information that is conveyed to the other party, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by the other party to be treated as confidential. The parties acknowledge that, as a result of the provision of services pursuant to this Agreement, one party ("Disclosing Party") may disclose Confidential Information to the other party ("Receiving Party"). Therefore, the Receiving Party agrees that it will make no disclosure of the Disclosing Party's Confidential Information without obtaining the Disclosing Party's prior written consent. Additionally, the Receiving Party will restrict disclosure of Confidential Information to its employee(s), authorized agent(s) and/or independent contractors to whom disclosure is reasonably required, and such employee(s), authorized agent(s) and/or independent contractor(s) shall be explicitly bound by these confidentiality obligations and will use reasonable care, but not less care than they use with respect to their own information of like character, to prevent disclosure of any Confidential Information. Except as specified in Section 3 of this Agreement, nothing contained in this Agreement shall be construed as granting or conferring rights by license or otherwise in any Confidential Information disclosed under this Agreement. This Section 9 shall survive any termination of this Agreement for a period of three (3) years thereafter. The Receiving Party agrees that monetary damages for breach of confidentiality under this Section 9 may not be adequate and that the Disclosing Party shall be further entitled to injunctive relief. Notwithstanding anything contained herein to the contrary, confidentiality provisions shall not apply where the Receiving Party can demonstrate with clear evidence that the information: (a) was previously known to the Receiving Party at the time of disclosure, free of any obligation to keep it confidential; (b) became publicly known through no wrongful act of the Receiving Party; (c) was rightfully received by the Receiving Party from a third party who was not bound under any confidentiality provisions; or (d) was disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.

10. Dispute Resolution

  • Should a dispute arise between the parties (the "Dispute"), the Dispute shall be referred by each party to an officer/manager of their respective companies with authority to settle the Dispute and shall meet in an attempt to settle the Dispute.
  • If the officers/managers cannot resolve the Dispute, the Dispute shall be settled by arbitration as hereinafter provided.
  • Any Dispute must be arbitrated on an individual basis, and must not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted by a single arbitrator under the then-current commercial arbitration rules of the American Arbitration Association, provided that the arbitrator shall be chosen from a panel of arbitrators knowledgeable in the relevant law. The decision and award of the arbitrator shall be final and binding, and the award so rendered may be entered in any court having jurisdiction thereof. The arbitration shall be held in Palm Beach County, Florida or in a mutually convenient place, and the award shall be deemed to be made in Florida. The arbitration must be conducted in Florida and judgment on the arbitration award may be entered into any court having jurisdiction thereof. In the event of arbitration of a Dispute, each party will pay its own attorney's fees and other costs associated with arbitrating the Dispute.

11. General Provisions

  • Term: The term of this Agreement will end when terminated by either you or us. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon any termination of this Affiliates Agreement, any and all licenses you have with respect to this Agreement will automatically terminate and you will stop using the Program and LEADFLASH Marks without delay, and you will promptly remove and/or delete any materials provided or made available by or on behalf of us to you under this Agreement or otherwise in connection with the Program.
  • Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, Palm Beach County without giving effect to principles of conflicts law.
  • Amendments: This Agreement may be amended or updated by LEADFLASH by providing a revised copy of this Agreement to you, which you must sign in order to continue participating in the Program.
  • Relationship of Parties: The parties shall at all times be independent contractors with respect to each other in carrying out this Agreement, and nothing herein renders them partners, joint venturers or employer and employee. Each of the parties shall be solely responsible for its own employees in connection with performance under this Agreement, and all salary, wages, and benefits owed thereto.
  • Assignment: Neither party may assign or transfer this Agreement without the prior written consent of the other, which shall not be unreasonably withheld.
  • Headings: Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.
  • Notices: All notices required by this Agreement shall be in writing and deemed to have been effectively given and received: (a) five (5) business days after the date of mailing; (b) when transmitted, if sent by email or facsimile, provided a confirmation of transmission is produced by the sending machine; or (c) when delivered personally or sent by express courier service. Notices shall be addressed to LEADFLASH as follows: LEADFLASH, Attn: Affiliate Marketing, Facsimile: 561-892-7773, Address: 6700 Broken Sound Parkway, Boca Raton FL 33487. Notices shall be sent to you using the address or email address provided on your Application.
  • Force Majeure: Neither party shall be liable for delay or failure to perform any of its obligations hereunder to the extent that such delay or failure arises from any cause beyond that party's reasonable control. Performance times shall be considered extended for a period of time equal to the time lost because of such delay or failure. A party affected by force majeure shall promptly advise the other of the circumstances and shall seek to mitigate the impact of the force majeure as promptly as possible.
  • Entire Agreement: This Agreement constitutes the complete and entire expression of the agreement between you and LEADFLASH, and shall supersede any and all other agreements, whether written or oral, between the parties.
  • Severability: If any provision of this Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
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