Terms & Conditions

1. Insertion Order:
   These Standard Terms and Conditions govern the Insertion Order ("IO") executed by the parties, and any future IOs executed by the parties whether or not the Standard Terms and Conditions are attached. These Standard Terms and Conditions and the IO(s) are sometimes collectively referred to as the "Agreement."
   
   
2. Distribution:
   Muse Media, LLC ("MM") has engaged the publisher listed on the IO ("Publisher") to distribute advertisements and offers (each an "Advertisement") made available by MM for the products and services of third parties (each an "Advertiser") or to solicit and generate leads that meet certain qualifications (each a "Lead") through one or more means of distribution listed on the IO. Publisher may only distribute and display Advertisements and/or generate Leads only in strict compliance with this Agreement. Publisher may not take any actions unless specifically authorized by this Agreement.
   
   
   1. To the extent specified on an IO, Publisher may distribute Advertisements and generate Leads via: (1) email campaigns distributed to Publisher's opt-in email lists and (2) online advertisements created or purchased by Publisher such as web pages, banner ads, pop-up ads, search engine marketing or similar interactive advertising methods.
      
      
   2. Publisher may not subcontract, using affiliates, affiliate networks or other third parties in connection with this Agreement unless set forth on the IO. In any event, Publisher shall remain liable for the acts and omissions of all third parties used by Publisher in connection with this Agreement.
      
      
   3. Publisher shall comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003, as amended ("CAN-SPAM") and any and all laws, rules or regulations set forth by the Federal Trade Commission
      
      
   4. Publisher will not infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity.
      
      
   5. Publisher may not establish or cause to be established any promotion that provides any incentive including, but not limited to, sweepstakes entries, rewards, points or other compensation to be earned in connection with generating transactions, or otherwise attempt to induce users to click on any of the Advertisements through use of any other incentives, without obtaining the prior written approval of MM and the applicable Advertiser.
      
      
   6. Publisher may not use any fraudulent or deceptive means, device, acts or practices in connection with this Agreement.
   
   
   
3. Lead Generation Guidelines:
   In connection with all Lead generation campaigns, the following terms shall apply:
   
   
   1. Publisher agrees that it will advertise for, solicit, collect and submit Qualified Leads (defined below) as principal in its own name and will not brand any offer, solicitation, advertisement or application form with the names or trademarks of MM. Publisher shall develop an application or otherwise design a system approved by MM to collect Qualified Leads according to the specifications set forth in the IO, which application shall be subject to MM's prior written approval.
      
      
   2. Publisher agrees that it will not identify MM by name to any Qualified Lead, except as required by applicable law, or represent to any third party that it is an authorized agent of MM, without prior written approval from MM.
      
      
   3. A "Qualified Lead" means an individual person who:
      
      
      1. reviewed the information and materials provided by Publisher and clicked through to a Publisher (if Leads are collected by Publisher) or MM (if Leads are collected by MM) web site,
         
         
      2. is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person,
         
         
      3. is not using pre-populated fields to automatically complete all or substantially of the application form,
         
         
      4. completes the information set forth on the IO and
         
         
      5. is not later determined by MM to be a fraudulent application, incomplete application, unqualified application or duplicate application.
      
      
      
   4. All determinations of Qualified Leads shall be made by MM. MM reserves the right to charge back to Publisher Qualified Leads that are later determined to have not met the requirements set forth above after delivery of the Leads to MM. MM will not use any Leads after they have been determined by MM to be unqualified.
      
      
   5. Publisher agrees that Qualified Leads shall be exclusive to MM, will not be used for the benefit of a competitor of MM or Advertiser and that Publisher shall not resell, distribute, market to or otherwise use the Qualified Leads, unless they have been independently collected a second time through a separate Publisher program not connected to the IO.
   
   
   
4. Reports:
   Except as otherwise set forth on the IO, all reports for purposes of calculating payments due in connection with the IO shall be generated by MM. Unless Publisher notifies MM in writing within five (5) business days of Publisher's receipt of such report, stating with specificity any errors in the report, Publisher waives any disputes in connection with such reports. If, due to any impairment of the Transaction Tracking Codes or any other reason, MM is unable or fails to provide Publisher with accurate and/or complete reports, MM shall calculate payments due based upon:
   
   
   1. the average monthly compensable transactions of Publisher as recorded by MM for the applicable campaign, prorated for any shorter or longer period of time, where data is available to calculate a monthly average; or
      
      
   2. such amount that MM reasonably determines is due and owing, in its sole discretion, where data needed to calculate Publisher's average monthly compensable transactions is unavailable. Publisher shall promptly deliver to MM any reports requested by MM from time to time.
   
   
   
5. Compensation:
   MM will pay Publisher fees for each transaction where payment is due according to the IO ("IO Fees") or purchase media according to the IO ("Media Buys", and together with the IO Fees hereinafter referred to as the "Publisher Fees") in the amounts, and at the times, as set forth in the IO. Publisher Fees shall be paid to Publisher out of the funds collected from the applicable Advertiser approximately thirty (30) days after the last day of a given calendar month, for IO Fees realized in that month.
   
   
   1. Publisher Fees will be payable only when "earned." Publisher Fees will not be considered "earned" until MM receives the corresponding payment from the applicable Advertiser. MM reserves the right to reduce any and all Publisher Fees owed to Publisher where MM has been unable to collect the associated payments from the applicable Advertiser(s). MM shall not be responsible to Publisher where Advertiser(s) has/have not remitted sufficient payments to cover the Publisher Fees otherwise due and owing Publisher. Notwithstanding the foregoing, MM may elect to advance Publisher Fees prior to those Publisher Fees having been earned. Publisher acknowledges and agrees that its receipt of Publisher Fees payments prior to those Publisher Fees having been earned is conditional and subject to MM's right to demand return of unearned Publisher Fees for any failure by Publisher to comply with any term or requirement under this Agreement.
      
      
   2. Advertiser may request that MM, or MM may on its own initiative, debit from the IO Fees or Media Buys, as applicable, otherwise due and owing Publisher an amount equal to an IO Fee or Media Buy previously credited to Publisher's account where:
      
      
      1. a return or cancellation has been made with respect to the applicable product and/or service that comprised the subject transaction;
         
         
      2. there is an instance of a duplicate, fraudulent or incomplete entry or other similar error with respect to a customer order where such order was the subject transaction;
         
         
      3. there are transactions that do not comply fully with the terms of this Agreement, including where the applicable non-complying transaction is not the result of Publisher's action, omission and/or failure to comply with such terms;
         
         
      4. there is non-receipt of payment from, or refund of payment to, the user that entered into the subject transaction; or
         
         
      5. there is any failure on the part of Publisher to comply with this Agreement (collectively referred to as a "Chargeback"). Chargebacks requested by an Advertiser in accordance with this Section 5 may be applied up to sixty (60) days after the end of the month in which the applicable Publisher Fees were earned ("Chargeback Period").
      
      
      An Advertiser may request that the payment of an IO Fee be postponed for one (1) payment cycle where:
      
      
      1. Advertiser is verifying a Lead (for Lead generation campaigns);
         
         
      2. Advertiser has a product return policy that allows the underlying purchaser to return the product during the Chargeback Period; or
         
         
      3. the terms and conditions of a given campaign provide for such a postponement.
      
      
      In the event Publisher's account has a negative balance due to Chargebacks, Publisher shall immediately pay to MM the amount of such negative balance. MM may offset against fees due to Publisher, freeze funds or apply Chargebacks to Publisher's accounts, for any amounts owned to MM under any agreement between the parties.
      
      
   3. Publisher is solely responsible for any and all tax obligations, if any, due to taxing authorities arising from or in connection with Publisher's participation in any campaign.
   
   
   
6. Term and Termination:
   Each IO shall commence when signed by both parties and will terminate upon five (5) business days prior written notice by either party or when all services therein have been completed. Either may terminate an IO at any time if the other party has breached any terms of the Agreement and does not cure such breach within three (3) business days of receipt of written notice. Notwithstanding anything to the contrary, MM may temporarily suspend any IO immediately upon notice to Publisher, and Publisher shall make best efforts to suspend the performance of such IO as soon as possible and shall not resume such IO until receipt of further notice from MM.
   
   
7. Representations:
   Each party represents and warrants to the other party that: (i) such party has the 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; (ii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties, do not and will not violate: any agreement to which such party is a party or by which it is otherwise bound, any applicable governmental law or regulation to which it is subject, or any trademark, copyright, intellectual property, or other third party right; (iii) when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party in accordance with its terms; and (iv) such party shall render all services to the other party in a professional and workmanlike manner, in accordance with generally accepted industry standards; (v) such party will abide by this Agreement. Publisher further represents and warrants that: (a) it owns and/or has any and all rights to use of the Publisher web sites, email lists or other devices used in connection with an IO; (b) the operation and use of the Publisher web sites, email lists or other devices used in connection with an IO will not violate any applicable laws, rules, regulations or ordinances or any rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right; (c) all web sites used by Publisher contain prominent links to a privacy policy, which policy provides, at a minimum, adequate notice, disclosure and choices to consumers regarding Publisher's use, collection and disclosure of the personal information of users including, but not limited to, the use and disclosure of such user information as contemplated hereunder and/or by any applicable campaign(s); and (d) any pop-ups or pop-unders used for the campaign shall be clearly identified as Publisher-served in the title bar of the window and any client-side ad serving software used by Publisher shall only have been installed on a user's computer pursuant to an affirmatively accepted and plain-english end user license agreement and be easily removable.
   
   
8. Confidentiality:
   During this Agreement, each party may disclose, or may learn of or have access to, certain non-public confidential or proprietary information owned or held by the other party, including but not limited to, business plans, methods, pricing, other financial data and other materials or intellectual property (collectively, "Confidential Information"). Except as provided herein, each party shall maintain in strict confidence, and shall not disclose, publish or copy any part of, the Confidential Information of the other party. The terms of this Agreement shall be considered Confidential Information. Notwithstanding the foregoing, MM may use Publisher's name and logo to promote the existence of an IO. All data generated or collected by either party in connection with the IO shall be owned exclusively by MM.
   
   
9. Non-Competition:
   Publisher recognizes that MM has proprietary relationships with the Advertisers. Publisher agrees not to circumvent MM's relationship with Advertisers, or otherwise solicit, induce, recruit or encourage, directly or indirectly, any Advertiser for purposes of providing or, where applicable, obtaining, advertising, marketing or promotional services similar to either party's services herein during the term of any IO and for the six (6) month period following termination or expiration of the last IO then in effect. Notwithstanding the foregoing, to the extent that Publisher can show that any such Advertiser already obtained or, where applicable, provided, such services from/to Publisher prior to the date of any IO, then Publisher shall not be prohibited from continuing such relationship, provided that in doing so Publisher does not circumvent MM's relationship with the Advertiser or attempt to induce the Advertiser to reduce the amount of business it conducts with MM. Without limiting any other right or remedy of MM under this Agreement or applicable law, if Publisher should violate this Section 9, then as liquidated damages for the reasonable estimation of the loss of such business and not as a penalty, Publisher agrees to forfeit all Publisher Fee earned but not yet paid by MM and to return to MM all Publisher Fees received by Publisher from MM under this Agreement.
   
   
10. Indemnification:
    Each party shall defend, indemnify, and hold the other party and its officers, directors, members, agents, affiliates, distributors, franchisees and employees (collectively, "Indemnified Affiliates") harmless from and against any and all third party claims, losses, damages, actions, liabilities, expenses and/or costs (including, without limitation, reasonable attorney's fees) arising out of any claim, demand, action, suit, investigation, arbitration or other proceeding brought by a third-party relating to the indemnifying party's material breach of any obligation, representation or warranty arising under this Agreement. Publisher shall further defend, indemnify and hold MM, its Advertisers, and each of their respective Indemnified Affiliates harmless from and against any and all liability, loss, damage and/or expense (including, without limitation, reasonable attorneys' fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving: (i) any third-party claim related to the Publisher web sites, email lists (including any products, services or other material linked to or from the Publisher web sites and/or the underlying email messages delivered to the Publisher email lists) and/or Publisher's marketing practices; (ii) any non-campaign related content, goods or services offered, sold or otherwise made available by Publisher on and through the Publisher web sites, Publisher email lists or otherwise; or (iii) any claim that MM is obligated to pay any taxes in connection with Publisher's activities under an IO. If the party entitled to indemnification ("Indemnified Party") becomes aware of any matter that it believes is indemnifiable hereunder involving any claim, action, suit, investigation, arbitration or other proceeding brought against the Indemnified Party by any third-party (each an "Action"), the Indemnified Party shall give the other party ("Indemnifying Party") prompt written notice of such Action. Such notice shall: (i) provide the basis on which indemnification is being asserted; and (ii) be accompanied by copies of all relevant pleadings, demands and other papers related to the Action and in the possession of the Indemnified Party. The Indemnified Party, with the Indemnifying Party and its counsel in the defense, shall have the right to participate fully, at its own expense, in the defense of such Action. If a dispute arises over whether the party requesting indemnification hereunder is so entitled, the party requesting indemnification shall be free, without prejudice to any of such party's rights hereunder, to settle or defend (and control the defense of) such Action. Any compromise or settlement of an Action shall require the prior written consent of both Parties hereunder; such consent will not be unreasonably withheld, conditioned or delayed.
    
    
11. Warranty/Limitation of Liability:
    THE INFORMATION AND MATERIALS PROVIDED BY MM UNDER THIS AGREEMENT, INCLUDING THE TRANSACTION TRACKING CODES, REPORTS AND ADVERTISEMENTS ARE SUPPLIED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT OF THE LAW, MM MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE, OTHER THAN AS ARE EXPRESSLY SET FORTH HEREIN. MM HAS NO LIABILITY FOR PUBLISHER'S USE OF, OR INABILITY TO USE, THE MM NETWORK, ADVERTISEMENTS, REPORTS AND/OR TRANSACTION TRACKING CODES AND MM DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT PUBLISHER'S USE WILL BE UNINTERRUPTED OR ERROR-FREE. IN NO EVENT SHALL MM BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF MM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MM WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THIS AGREEMENT, ON ACCOUNT OF ANY DELAY OR FAILURE TO PERFORM UNDER THIS AGREEMENT AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND MM'S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, MM'S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO PUBLISHER BY MM PURSUANT TO THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. MM SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF ADVERTISERS.
    
    
12. General:
    If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. The failure of either party to partially or fully exercise any rights or the waiver of either party of any breach, shall not prevent a subsequent exercise of such right. Neither party hereto shall be deemed to be the drafter of this Agreement and, if this Agreement is construed in any court or arbitration proceeding, said court or arbitrator shall not construe this Agreement or any provision hereof against either party as the drafter hereof. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. Publisher may not assign any of its rights or obligations under this Agreement to any other entity without the prior written consent of MM, which shall not be unreasonably withheld. This Agreement shall inure to the benefit of the parties' permitted successors and assigns. The provisions of Sections 5, 8-13, any accrued payment obligations plus any other provisions which by their nature are intended to survive, shall survive the expiration or termination of this Agreement regardless of the reason or reasons therefore. Neither party shall be in breach of this Agreement or responsible for damages caused by delay or failure to perform due to circumstances substantially beyond the reasonable control of the party to be charged. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute one and the same document. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. This Agreement shall be governed by the laws of the State of New York and each party submits to exclusive jurisdiction and venue in the courts located in New York County, New York. The prevailing party shall be entitled to recover its attorneys fees and expenses in connection with any action to enforce the terms of this Agreement.
    
    
13. Entire Agreement:
    This Agreement sets forth the entire agreement between the parties and supersedes all prior or oral negotiations, understandings and agreements between the parties concerning this subject matter. No amendment or modification of this Agreement shall be made except by a writing signed by both parties. Publisher agrees that MM shall not be subject to or bound by any Publisher insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether MM "clicks through" or otherwise indicates its acceptance thereof. In the event of any direct conflicts between the terms of an IO and these Standard Terms and Conditions, these Standard Terms and Conditions shall prevail, but solely to the extent of such conflict.
    
    

1. Publisher is responsible for knowing the source of all addresses contained in email lists used by the Publisher. Publisher must have full Consent Verification (as that term is defined below) data for all email addresses used by Publisher.
2. Publisher shall cause a valid physical postal address for Publisher and/or the applicable Advertiser, as required by applicable law, to appear in each email Advertisement, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after email delivery). Publisher must process all unsubscribe requests within ten (10) business days of receipt of same.
3. Publisher may not use MM's or an Advertiser's name (including any abbreviation thereof) in the originating email address line or subject line of any email transmission without the prior written consent of MM.
4. No emails transmitted by Publisher hereunder may include falsified header information, false registrations for email accounts or false IP addresses used in connection with such email transmissions or re-transmissions of emails for the purpose of concealing such email's origin. Publisher is further prohibited from relaying or retransmitting emails from a computer or computer network that was accessed without authorization.
5. Subject lines may not contain any false or misleading information such that it could mislead a reasonable recipient as to the content or subject matter of the underlying email message. Publisher may only use approved Subject Lines made available for use in connection with the applicable Campaign or other Subject Lines for which it has received written approval from MM.
6. Each email must identify itself as an advertisement or solicitation by "clear and conspicuous" means.
7. In the event that MM or an Advertiser receives a complaint from any recipient of an email Advertisement transmitted by Publisher, upon MM and/or Advertiser's request, as applicable, Publisher will immediately provide the requesting party with appropriate records verifying such recipient's consent to receive email transmissions from the Publisher. Such records shall include, but may not necessarily be limited to, the URL of the underlying web site where the recipient consented to receive email transmissions from the Publisher, the date and time stamp of such recipient's consent, the IP address of the computer used by the recipient at the time consent was provided and the privacy policy of such underlying web site (collectively, "Consent Verification").
8. MM may make available, at a MM-designated FTP site ("FTP Site"), a suppression list (and associated login information), updated on a regular basis, generated from email campaigns transmitted by and/or through MM for Publisher's use in connection with applicable campaigns. No later than ten (10) business days prior to the transmission of any emails, Publisher shall upload its own list of email addresses to the FTP Site and remove from its list any email addresses that appear on MM's suppression list. Publisher shall also scrub its email lists against its own internal suppression list and remove any addresses which appear on such Publisher list no later than ten (10) business days prior to the transmission of any emails. The suppression list and login provided by MM are deemed to be Confidential Information of MM, as defined herein. Suppression lists may not be used by Publisher for any purpose other than to comply with applicable laws regulating email transmissions. Publisher agrees to process any unsubscribe requests within five (5) days of being posted at the FTP site.

1. Publisher shall not alter, modify or otherwise change the Advertisements, or any other Advertisement-related feature, that it obtains access to in connection with any campaign in any manner whatsoever without MM's prior express written consent. Unless otherwise stated in writing by MM, each of the Advertisements made available to Publisher in relation to any campaign must include, in unaltered form, the MM special transaction tracking codes as embedded in all Advertisements (the "Transaction Tracking Codes").
2. Publisher will not knowingly, modify, circumvent, impair, disable or otherwise interfere with any Transaction Tracking Codes and/or other technology and/or methodology required or made available by MM to be used in connection with any and all Advertisements.
3. No images, graphics, links, co-registration paths, pop-ups, pop-unders, copy or process for generating actions other than the Advertisements may be used by Publisher without first obtaining the prior express written consent of both MM and the applicable Advertiser. Publisher must place or use the Advertisements only with the intention of delivering valid transactions as determined by, and for the benefit of, the applicable Advertiser. Publisher may not, nor knowingly permit any person to, activate an Advertisement or inflate the amount of fees through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, Iframes, hidden frames, redirects, automatic page-spawning, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person.
4. Publisher may not, nor knowingly permit any person to, use third-party trademarks without the express permission of the trademark holder in any fashion that would direct traffic to any Publisher web site, Advertiser web site or other online destination including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name, or any derivative of any such trademark, service mark or brand name, of any of the Advertisers, MM and/or any of their respective affiliates or clients.
5. Publisher may not allow the Advertisements to be placed on any non-Publisher web site without the prior express written consent of both MM and the applicable Advertiser. If such consent is provided, then Publisher shall ensure that such non-Publisher web site complies with all of the terms and conditions of this Agreement and shall be liable for the acts and omissions of such third parties.
6. MM and/or the applicable Advertiser may alter, modify and/or terminate, at any time, any Advertisements associated with any campaign. Publisher must remove such Advertisements after any such termination and/or after any termination or expiration of the applicable campaign within forty-eight (48) hours.
7. Subject to the terms and conditions of this Agreement, the positioning, placement, frequency and other editorial decisions related to Advertisements shall be made by Publisher; provided, however, that Publisher must comply, immediately, with any and all requests by MM and/or the applicable Advertiser to modify, alter or otherwise change the positioning, placement, frequency and other editorial decisions as they relate to Advertisements. In addition, Publisher shall not place any Advertisements in a location which would make the Advertisement misleading given the context of the location, is in close proximity to controversial or reasonably objectionable content or implies any endorsement by the Advertiser of a third party, product or service.