We reserve the right to change these Terms at any time and at our sole discretion. Any changes to the Terms will be effective immediately upon posting and you agree to the newly posted Terms by continuing your use of the Service. It is your responsibility to check periodically for any changes we may make to these Terms.
THESE TERMS AFFECT YOUR LEGAL RIGHTS, RESPONSIBILITIES, AND OBLIGATIONS, GOVERN YOUR USE OF THE SERVICE, ARE LEGALLY BINDING, LIMIT OUR LIABILITY TO YOU, REQUIRE YOU TO INDEMNIFY US, AND SETTLE CERTAIN DISPUTES THROUGH ARBITRATION. YOUR CONTINUED USE OF THE SERVICES AFFIRMS YOUR AGREEMENT TO THESE TERMS. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS OR ANY FUTURE MODIFICATIONS OR AMENDMENTS TO THESE TERMS, DO NOT USE OUR SERVICE.
You may enter into additional agreements or contracts with SCR for services, products, or otherwise in which case these Terms will supplement the additional agreement. In the event of any direct conflict between these Terms and your additional agreement, the terms of the additional agreement shall control unless specified otherwise in the Additional agreement.
“Client” means the Company who has engaged with SCR as either a Publisher or Advertiser or both.
“Advertiser” means a Client that provides Offers on SCR.
“Publisher” means a Client that has a website and provides leads to SCR.
“Agreement” means the signature page, these Terms, and the Lead Generation Network, all of which are incorporated herein by reference.
“I/O” means insertion order and can constitute an email communication between the Client and SCR where order details and amounts are discussed and agreed to. Both Client and SCR agree that email communication serves as written communication.
“Consumer” means a user/visitor on Publisher’s site(s).
“Hosted Page” means a webpage developed, or hosted, and maintained by SCR through which Registered Users may select Offers from SCR Advertisers.
“Lead Generation Network” means the SCR service which permits Registered Users from Publishers’ Webpages to have access to the Offers from Advertisers.
“Offer Page” means the first Hosted Page that Publisher will direct Consumers to under this Agreement.
“Live Date” means the first date that Publisher offers Registered Users to Advertisers’ Offers.
“Offer” means the offers, coupons, or other promotional incentives that are offered by a Client/Advertiser and selected by a Registered User through the Lead Generation Network.
“Offer Request Form” means the second Hosted Page that requests confirmation of the Valid Registration Fields for Offers selected by Registered Users and may require additional information.
“Registered User” means a Consumer who has provided the Valid Registration Fields on any of the Publisher’s Site(s) and has been directed by the Publisher to the Offer Page.
“Registered User Actions” means all Offers selected by Registered Users on the Hosted Page.
“Site” means the Publishers Web site(s).
“Valid Registration Fields” means the first name, last name, physical address (street, city, state, and zip code), e-mail address, gender, and age of a Consumer.
Trademark Licenses and Restrictions.
Use Restrictions. Except as otherwise provided herein, neither party shall use the other party’s trademarks or logos (and a Publisher shall not use any Advertiser trademark or logo), nor any adaptation or variation thereof, in any manner whatsoever, without the other party’s prior written consent in each instance. All such uses shall be in accordance with the licensor’s guidelines.
Client Grant. Subject to the terms and conditions of this Agreement, the Client hereby grants to SCR a nonexclusive, nontransferable, worldwide, limited license, during the term of this Agreement, to reproduce and display the Client’s trademarks and logos for the sole purpose of enabling SCR to perform its obligations under this Agreement. Client grants SCR the right to use its name in SCR’s resumes, client list, case studies, and other promotional information, including but not limited to, press releases, brochures, reports, letters, white papers, and electronic media such as e-mail or web pages.
SCR Grant. Subject to the terms and conditions of this Agreement, SCR hereby grants to Publisher a nonexclusive, nontransferable, limited license, during the term of this Agreement, to reproduce and display on the Site the SCR trademarks and logos specified by SCR for the sole and exclusive purpose of creating a hypertext link(s) from the Site to the Hosted Page as specified by SCR. SCR represents to Publisher that it has the right to reproduce and display any and all Advertiser trademarks and logos that appear on the Offers on the Lead Generation Network.
No Solicitation. Client hereby agrees not to solicit, induce, recruit, or encourage, directly or indirectly, any Advertisers or Publishers for purposes of offering products or services that are competitive with SCR’s Lead Generation Network during the term of this Agreement and for a period of three (3) months following termination of any such relationship.
Advertisers. Except as otherwise provided in this Agreement, SCR and Client agree that SCR shall have sole responsibility and authority for (i) obtaining Advertiser participation in the Lead Generation Network and for providing and updating Offers in the Lead Generation Network, and (ii) obtaining from Advertisers all Offer information and other Advertiser specific information for display on Offer Page or on the Lead Generation Network.
Confidential Information. Each party understands and acknowledges that any data (including, without limitation, personally identifiable consumer data) or information, oral, electronic, or written, that relates to the other party’s research, development or business activities, and the financial and other terms of this Agreement (collectively, “Confidential Information”), represent valuable confidential information of the other party. Each party agrees not to (i) disclose any Confidential Information of the other party to any third party, except as authorized in this Agreement, and (ii) not disclose, and protect from unauthorized disclosure by its directors, officers, employees, consultants or agents, all Confidential Information of the other party. Each party’s confidentiality obligations with respect to any portion of the Confidential Information as set forth above shall terminate when such Confidential Information (a) enters the public domain through no fault of the receiving party, (b) was lawfully in the receiving party’s possession prior to receipt from the other party, (c) was or is independently developed by the receiving party without the benefit of the Confidential Information, or (d) was or is received from a third party without any obligation of confidentiality. A party may disclose Confidential Information if required by operation of law or by government order; provided, however, that such party shall notify the other party and assist the other party in seeking a protective order or otherwise limiting the extent of the disclosure.
Warranties and Disclaimers.
Warranties. Each party represents and warrants to the other party that (i) it has the full power and authority to enter into this Agreement and to carry out its obligations as set forth in this Agreement, (ii) it owns or has sufficient licenses to its intellectual property to fulfill its obligations hereunder, (iii) it will comply with all applicable laws, codes, ordinances, rules, and regulations of the federal and state governments, and of any political subdivisions and regulatory authorities thereof, and (iv) the use, reproduction, distribution, or transmission of the Offers will not violate any civil or criminal laws, rules or regulations (the “Warranties”).
DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, SCR (I) MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE LEAD GENERATION NETWORK, AND (II) DISCLAIMS ALL OTHER WARRANTIES, WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
Indemnification. Except to the extent prohibited under applicable law, you agree to indemnify, defend, and hold harmless SCR and its affiliates and their respective officers, directors, employees, and agents from and against any and all claims, losses, liability, damages, costs, or expenses, including reasonable attorneys’ fees and costs, that may arise from or in connection with (a) your use of, or activities in connection with, the Service, including use of any service, good or product purchased through the Service, (b) violation of these Terms by you, or (c) your infringement of any intellectual property or other rights of any person or entity. If you fail to promptly indemnify and defend a covered claim, SCR shall have the right to defend itself, and in such case, you shall promptly reimburse SCR for all of its associated costs and expenses.
LIMITATION OF LIABILITY. WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH THE SERVICE, NOR FOR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SERVICE, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, WHETHER BASED IN CONTRACT, TORT, STATUTE, OR OTHER LEGAL THEORY, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. FURTHER, WE WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF THE SERVICE OR FROM ANY INFORMATION OR MATERIALS ON THE SERVICE. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICE IS TO STOP USING THE SERVICE. OUR MAXIMUM LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE SHALL NOT EXCEED THE FEES PAID TO THE PUBLISHER BY SCR OR FEES PAID TO SCR BY ADVERTISER, AS APPLICABLE, IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM FOR DAMAGES.
NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT BY REASON OF ANY FAILURE OR DELAY IN THE PERFORMANCE OF ITS OBLIGATIONS ON ACCOUNT OF STRIKES, SHORTAGES, RIOTS, INSURRECTION, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, TERRORISM, WAR, GOVERNMENTAL ACTION, LABOR CONDITIONS, EARTHQUAKES, OR ANY OTHER CAUSE WHICH IS BEYOND THE REASONABLE CONTROL OF SUCH PARTY.
Term. These Terms apply from the time you sign up for the Service and at all times you use the Service. Upon termination of your use of the Service all licenses granted to you under these Terms (including all trademark licenses) shall terminate. In no event will SCR be responsible or liable to a Client for any cancellation fees accrued by Client, its partners, customers, affiliates, or subcontractors due to any termination of this Agreement.
Relationship of the Parties. Each party acknowledges and agrees that their relationship is that of an independent contractor. Neither Client nor SCR shall in any way represent itself as a joint venture, agent, employee, or general representative of the other party.
Notices. Any notices relating to this Agreement shall be given in writing and shall be deemed sufficiently given, served, and received for all purposes upon the first to occur of three (3) days following sending of notice via email transmission, or actual receipt of such email transmission.
Arbitration. Any dispute, claim, or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Florida before one arbitrator. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties a party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
Class Action Waiver. You and SCR agree that each party may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Notwithstanding any provision in the applicable arbitration rules and procedures to the contrary, the arbitrator shall not have the authority to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine any dispute, claim or controversy of different persons into one proceeding. Notwithstanding the arbitration provision set forth above, if the provision regarding waiver of class, collective, representative, and private attorney general claims is found to be void or otherwise unenforceable, any such class, collective, representative, or private attorney general claims must be heard and determined through an appropriate court proceeding in any court of competent jurisdiction in Florida, and not in arbitration.
Survival. The “Definitions, No Solicitation, Confidential Information, Arbitration, Class Action Waiver, and General” Sections of these Terms will survive the termination of this Agreement.
No Incentives. The publisher is prohibited from offering any kind of incentive, including but not limited to cash, credits, loyalty points, or any such rewards in an attempt to generate results or in securing leads for any particular Offer.
Miscellaneous. These Terms (and any documents incorporated herein by reference) constitute the entire agreement between the parties hereto and contain all of the agreements between said parties with respect to the subject matter hereof. These Terms supersede any and all prior agreements, either oral or in writing, between the parties with respect to the subject matter hereof. Neither this Agreement nor any benefits hereunder may be assigned by you without the express prior written consent of SCR. This Agreement shall be governed and construed in accordance with the laws of the State of Florida. The parties hereto irrevocably agree to the jurisdiction of the federal and state courts in Orange County, Florida. If any section, provision, term, or clause of these Terms shall be found to be invalid or unenforceable, such section, provision, term, or clause may be modified or severed from these Terms to the extent necessary to make such provision enforceable and consistent with the remainder of these Terms. The failure of SCR to insist upon strict performance of any of the provisions contained in these Terms shall in no way constitute a waiver of its rights as set forth herein, at law or in equity, or a waiver of any other provision(s) or subsequent default in the performance of or compliance with any of the terms and conditions set forth in these Terms.
The following provisions, in addition to the Terms and Conditions, shall govern a Publisher’s participation:
SCR agrees to provide Publisher access to the Lead Generation Network according to these Terms.
Registration Page. The publisher shall host its own registration page, where it collects the Valid Registration Fields. Publisher shall pass the Valid Registration Fields, as well as a unique consumer identifier, to SCR for the purposes of offer limiting, targeting, pre-population, and de-duplication.
Offers. Subject to any provision contained herein to the contrary, SCR shall determine, in its sole discretion, which Offers are displayed to Registered Users based on SCR’s proprietary segmentation predictive models.
Offers may have additional Advertiser-specific questions on the Offer Request Form Page. Such additional question input types may include, but shall not be limited to, text box, text area, dropdown list, checkboxes, and radio buttons.
Some additional Advertiser questions may be required for Offer submission. The Valid Registration Field data will be pre-populated into the applicable fields on the Offer Request Forms.
- Process. Registered Users shall be directed immediately from the Publisher’s registration page to the Offer page, where the Registered User may select the Offers. The Hosted Pages and Offers may be presented “in process” on the Publisher’s Web Site. This means that a Registered User shall be shown the Hosted Pages directly after the Publisher’s registration process without any gating feature or other opportunity to decline to view the Offer page. Alternatively, SCR may redirect a Registered User to a new web browser tab or window if the Registered User selects an Offer for which an Advertiser has agreed to pay for such traffic.
- Features. SCR reserves the right to use certain marketing features to optimize the program performance, including, but not limited to, pre-checked offers and “starburst icons”: The features highlight certain Offers to Registered Users but do not, in any way, force a selection of an Offer, as the Registered User will always be required to make an affirmative action in order to select an Offer.
- Publisher’s Web Site. SCR may provide Hosted Pages for any client requesting one. Publisher may add additional Web site(s) to the Lead Generation Network pursuant to the terms contained herein at a later date, subject to SCR’s approval of such Web site(s), which approval shall be at SCR’s sole discretion.
Publisher Commissions. SCR shall pay Publisher an amount equal to eighty (80%) of the gross revenues, less any merchant fees and commissions (where applicable), generated, collected, and retained from Advertisers with respect to the Publisher’s site(s) in any given calendar month according to the SCR reports made available to Publisher.
The gross revenues amount for calculating the applicable percentage shall begin anew on the first day of each calendar month. SCR shall pay the applicable amounts owed to the Publisher within thirty (30) days after the end of each calendar month unless otherwise agreed to in writing. For international payments, a minimum of $100 (one hundred dollars) must be met before any payment is sent due to applicable fees.
Standard Reports. SCR will provide reporting that is refreshed at least daily. Reporting will include the aggregate number of leads generated from the Publisher site(s), per day. Reporting will not include advertiser-level lead data.
Proprietary Rights to Information.
· SCR Ownership of Data. SCR shall own any and all rights, titles, and interests in and to (i) the Lead Generation Network, (ii) all Registered User transaction data related to Registered User Actions and behavior occurring on the Hosted Page(s) collected by SCR, including without limitation, analyses, compilations, overlays, summaries, service performance evaluation, public reporting requirements, marketing activities, abstracts, or other manipulations of such data, and (iii) all intellectual property rights (including without limitation copyrights and patent rights) in each of the foregoing.
· Consumer Information. The Publisher owns all Valid Registration Fields data that it obtains on the Publisher-hosted registration page portion of the Publisher Site. Publisher hereby grants to SCR, its employees, and agents a perpetual license to access and use the Valid Registration Fields data for the purposes of fulfilling SCR’s obligations and for the operation of the Lead Generation Network including, but not limited to, limiting, targeting, pre-population of Valid Registration Fields and de-duplicating across the Lead Generation Network. All uses and disclosures of such information will comply with SCR’s privacy policies and all applicable laws and regulations.
Objectionable Content. Offers containing content from categories relating to alcohol, tobacco, political, religious, sexually related materials, and gambling shall be excluded from appearing on the Hosted Pages on the Publisher’s Sites. In addition, the Publisher may exclude Offers from certain Advertisers upon written notice to SCR. Publisher shall review the aforementioned Offer exclusions once per calendar quarter and Publisher shall be entitled to revise its exclusions list at such time. Notwithstanding the foregoing restrictions, the Publisher shall accept all other Offers and Advertisers on its Hosted Pages.
E-mail. Publisher hereby represents and warrants to SCR that (a) each e-mail address to which Publisher sends any promotions or offers and which directs Consumers to, has been obtained through Affirmative Consent as such term is defined in the CAN-SPAM Act of 2003, and acts amendatory thereto (the “CAN-SPAM Act”); (b) it does not and has not engaged in any conduct prohibited by the CAN-SPAM Act, including without limitation e-mail harvesting, dictionary attacks or other deceptive practices; and (c) no e-mail sent by Publisher violates any laws or regulations, including without limitation, the CAN-SPAM Act.
In addition to any indemnification obligations of Publisher contained in Section “Indemnification” of the Terms and Conditions, Publisher also hereby agrees to indemnify and hold harmless SCR, its officers, directors, employees, and agents against all Damages which SCR may suffer as a result of any breach of the representations and warranties contained in this Section.
The following provisions, in addition to the Terms and Conditions and above, shall govern an Advertiser’s participation:
· Payment Obligations. Advertiser is obligated to pay SCR in accordance with the pricing specified in each I/O. If not specified otherwise, payment shall be paid weekly. Payments will be run through provided credit card; a receipt will be sent to Advertiser. SCR may invoice Advertiser, but payment by Advertiser is not contingent upon receiving SCR invoice. In the event Advertiser fails to pay within five (5) days after payment is due, all outstanding charges shall bear interest at the rate of one and a half percent (1.5%) per month or the maximum interest rate permitted under applicable law, whichever is less. Advertiser agrees that if Advertiser does not pay within five (5) days after payment is due either SCR or Publisher may seek to satisfy Advertiser’s payment obligations and to collect such payment. Advertiser further agrees to pay all costs of collection (including court costs and reasonable attorney’s fees) incurred by SCR or Publisher in connection with its enforcement of any order. Unless Advertiser objects to SCR’s invoice within seventy-two (72) hours, the amount invoiced shall be final and binding. Advertisers may only dispute invoices if it has a reasonable basis for such dispute, which can be proven by written documentation. To the extent Advertiser intends to dispute an invoice, Advertiser shall provide a written report to SCR, within three (3) business days identifying, in detail, the discrepancies, between the invoiced amount and Advertiser’s evidence. SCR may consider such a report but shall have final authority in determining the correct amount.
· CPA Tracking. With respect to any cost-per-acquisition (“CPA”) campaigns, Advertiser will provide SCR with unique tracking links (URLs) that will record the origin of each user action including clicks and sales by unique tracking link. Advertisers will allow SCR online access to the statistics regarding such user actions by a unique tracking link. Advertisers will ensure SCR’s tracking methods are in place and functioning at all times. Advertisers will provide access to records as they become available which will allow SCR to monitor the volume of user actions it has generated. In the event that no online tracking is available for Company’s use then Advertiser agrees to provide SCR with statistics regarding user actions generated by it each day.
· Non-Viable Leads. Unless otherwise provided in the I/O, no offsets or chargebacks may be taken for any non-viable or duplicate leads. SCR shall determine in its sole discretion what constitutes a non-viable lead.
SCR complies with the copyright notice-and-takedown procedures set out in the United States Digital Millennium Copyright Act (DMCA), which applies to content reported and removed for violating U.S. copyrights. Please note that any notice or counter-notice you submit must be truthful and must be submitted under penalty of perjury. A false notice or counter-notice may give rise to personal liability. You may therefore want to seek the advice of legal counsel before submitting a notice or a counter-notice. We may share any notices and counter-notices submitted to us with others including your contact information, and by submitting any notices, you agree you have no expectation of privacy in your submission.
Content owners of copyrighted material or their representing agents may submit a DMCA notice to our registered Copyright Agent if they believe that infringing activity has taken place on our Service. The abuse team will only consider valid reports of infringement, and you may submit a complete DMCA notice that features all of the points described below only if the representing party sending the request is the content owner or the authorized agent acting on behalf of the copyright owner. If you are not sure if SCR has control over the allegedly infringed content, please obtain legal representation before contacting us. To be effective under the DMCA, any notification of claimed infringement must be in written communication that includes substantially the following which must include a certification made under penalty of perjury:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, as well as information sufficient for SCR to determine the legitimacy of the signature and the identity of the signatory;
2. Identification of the copyrighted work claimed to have been infringed, or, if a single notification covers multiple copyrighted works at a single online site, a representative list of such works at that site, including citation to the applicable copyright registrations where available;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit SCR to locate the material, including a timestamp and visible identification of the material in a screenshot or comparable medium, with all metadata intact, as well as a hyperlink or URL to the website or online content at issue;
4. Information reasonably sufficient to permit SCR to contact the complaining party, including an email address, telephone number, and, if available, physical mail address;
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Any such notifications of claimed infringement must be sent to the below contact with the subject line “DMCA NOTICE:”
SCR Copyright Agent
20 North Orange Avenue, Unit 1100 Orlando, Florida 32801
Please note if any notification of claimed infringement does not meet the above requirements, SCR has no responsibility to respond to or act on any such defective notification of claimed infringement.
If you receive a notification of claimed infringement, you may submit a counter-notification to us under the DMCA. It must include the following, which includes a certification made under penalty of perjury:
1. Your physical or electronic signature, as well as information sufficient for SCR to determine the legitimacy of the signature and the identity of the signatory;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
4. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court (i) in the judicial district where your address is located if the address is in the United States, or (ii) located in the Middle District of Florida, if your address is located outside the United States, and that you will accept service of process from the Complainant submitting the notice or the Complainant’s authorized agent.
Any such counter-notification must be sent to:
SCR Copyright Agent
20 North Orange Avenue, Unit 1100 Orlando, Florida 32801
If you have any questions about these Terms, please write to us at:
Smart CoReg LLC
Although SCR will in most circumstances be able to receive your communications, SCR does not guarantee that it will receive such communications timely and accurately and shall not be legally obligated to read, act on, or respond to any such email or other information. Be aware that your email communications to SCR may not be secure and will not be treated as confidential.