These terms and conditions (the “Agreement”), together with the schedules attached, and any amendments to those schedules, governs your participation as a member (the “Affiliate”) of the AdPreference Affiliate Network (the “Program”). The Affiliate covenants and agrees to be bound by this Agreement, and the schedules attached, as amended by AdPreference Company (“AdPreference”) from time to time.

1. DEFINITIONS

1.1 “Client” means a client of AdPreference.

1.2 “Offer” means a promotional offer published by AdPreference on the Campaign area in CPXcenter system, in an electronic mail or both, setting out an advertising offer on behalf of a Client and containing such additional terms and conditions as the Client and AdPreference, in their discretion, consider necessary from time to time.

1.3 “CPX System” means the website for the Program operated by AdPreference and situated at http://www.AdPreference.com.

1.4 “Sub-Affiliate” means an independent third party contracted by the Affiliate.

2. THE PROGRAM

2.1 AdPreference will permit the Affiliate to participate in the Program, subject to compliance with the terms and conditions in this Agreement and in any policies established by AdPreference, from time to time, and incorporated by reference in this Agreement.

2.2 The Affiliate will be issued a unique username and password to access the CPXCenter System, neither of which may be used by any person other than the Affiliate.

2.3 The Affiliate may engage Sub-Affiliates to distribute Offers in accordance with the Program, provided that:

a. a verifiable name, address and telephone number for each Sub-Affiliate is delivered to AdPreference immediately upon request;

b. the proposed Sub-Affiliate agrees, in form satisfactory to AdPreference, to abide by paragraph 3.3, Sections 6, 7, 8, 9 and 10 of this Agreement and the AdPreference Policies (collectively, the “Sub-Affiliate Provisions”), as amended from time to time; and

c. at no time will the Affiliate engage a Sub-Affiliate who, in the opinion of AdPreference, acting reasonably, is likely to bring the reputation or standing of AdPreference into disrepute or is otherwise unsuitable.

2.4 Any breach by a Sub-Affiliate of the Sub-Affiliate Provisions will be deemed to be a breach of this Agreement by the Affiliate.

2.5 It is expressly agreed that the parties intend by this Agreement to establish a relationship between AdPreference and the Affiliate, but that it is not the intention of either party to undertake a joint venture or to make the Affiliate in any sense an agent, employee, or partner of AdPreference. The parties expressly agree that they are independent contractors, and that this Agreement does not in any way create a partnership as contemplated by the Partnership Act, R.S.B.C. 1996, c.348, nor have the parties granted to each other any right or authority to assume or create any obligation of responsibility, express or implied, on behalf of or in the name of the other, or to bind the other in any manner whatsoever.

2.6 It is further agreed that the Affiliate has no authority to create or assume in AdPreference’s name or on its behalf any obligation, express or implied, or to act or purport to act as its agent or representative for any purpose whatsoever and the Affiliate shall not hold itself out as having any such authority.

3. OFFER

3.1 Offers will be posted to the CPXcenter system.

3.2 AdPreference grants the Affiliate a limited, non-exclusive, non-transferable right to download Offers from the CPXCenter System and to publish the same on the Affiliate’s websites and in electronic mail correspondence sent by the Affiliate, all of which must be done in accordance with this Agreement, the AdPreference Policies, as amended from time to time, and the additional terms and conditions affixed to each of the said Offers.

3.3 The Affiliate agrees not to modify, alter, misrepresent or embellish the Offer or any part of the Offer including without limitation any text or images provided by or on behalf of AdPreference or the Client in any way, directly or indirectly, without the express prior written consent of AdPreference.

4. COMPENSATION

4.1 AdPreference will pay to the Affiliate a commission (the “Commission”), calculated in accordance with the payment terms outlined in each Offer posted by AdPreference on the CPXCenter System.

4.2 Commissions will be paid to the Affiliate only following receipt by AdPreference of payment from the Client in respect of such Offer published in the Program online reporting system. AdPreference may, in its sole discretion and from time to time, elect to advance to the Affiliate part or all of the Commissions prior to receipt of payment from the Client, but in no event will AdPreference be obligated to do so.

4.3 The Affiliate acknowledges and agrees that payment of Commissions may be delayed where the Affiliate has not provided AdPreference with current particulars in accordance with paragraph 6.2(m) of this Agreement and that in no case will AdPreference be liable to the Affiliate for any loss, costs or expenses directly or indirectly incurred by the Affiliate as the result of such delay.

4.4 In no circumstance will AdPreference be obligated to pay Commissions to an Affiliate unless and until the aggregate amount of the Commissions due and payable to that Affiliate exceeds $50.00, or such greater amount established by the Affiliate, from time to time.

4.5 Commissions due and payable by AdPreference to an Affiliate will not accrue interest.

4.6 No payments will be made to an Affiliate unless and until, where AdPreference has determined in its discretion, that such disclosure of information is required, that Affiliate has provided to AdPreference a Goods and Services Tax registration number, if the Affiliate is a Canadian Resident and a registrant for the purposes of a Goods and Services Tax.

4.7 Payments to an Affiliate in accordance with this Section will be based upon the records kept by AdPreference and reported in AdPreference’s online reporting system and audited by the Clients, from time to time.

5. FRAUD

5.1 If AdPreference determines, in its sole discretion, that the Affiliate’s account in the Program has been used in a manner which AdPreference considers to be fraudulent or which might bring the reputation or standing of AdPreference into disrepute either with the general public or with the Clients or potential Clients of AdPreference, or otherwise that the Affiliate has engaged in activities which might be considered fraudulent, AdPreference may but will not be obligated to (a) suspend or terminate the Affiliate’s membership in the Program, without notice and (b) release to any third party, information relating to the identity and location of the Affiliate if required to do so in order to enforce these terms and conditions.

5.2 In the event of a suspension or termination in accordance with paragraph 5.1 above, any Commission due and payable to the Affiliate in accordance with Section 4 at the time of suspension or termination will be deemed to be forfeited.

5.3 For the purposes of this Agreement, fraudulent activity includes but is in no way limited to:

a. activity by the Affiliate or anyone for whom in law the Affiliate is responsible which is directly or indirectly intended to inflate the Commissions payable to the Affiliate;

b. the generation of leads other than by a mechanism approved by AdPreference; and

c. activity which is determined by the Client, in its discretion, to be fraudulent.

6. COVENANTS, REPRESENTATIONS AND WARRANTIES

6.1 The Affiliate represents and warrants that:

a. it has the authority and capacity to enter into and to be bound by this Agreement;

b. to the best of its knowledge, there are no existing, pending or threatened claims or actions pending against the Affiliate;

c. none of the Affiliate’s websites contain false or deceptive advertising or any machine readable code including without limitation any virus, Trojan horse, work or other self-executing program;

d. it owns or have the legal right to use and distribute all content, copyrighted material, products, and services displayed on or through its website or websites and in its electronic mail; and

e. it is not now a party to any agreement or business relationship which may conflict with this Agreement.

f. affiliate cannot post adult-oriented content on any page on which the Advertising appears. Company considers content to be “adult” if it contains nudity, is sexually explicit, pornographic, lewd, obscene, primarily intended for sexual gratification or is otherwise inappropriate for minors, as determined in Company’s sole discretion.

g. affiliate may not post any offensive or incorporate images or content that is in any way harmful, threatening, obscene, harassing or racially, ethnically or otherwise objectionable, or promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, as determined in Company’s sole discretion.

6.2 The Affiliate covenants and agrees that:

a. it will, at all times, comply with all laws applicable in the jurisdiction where the Affiliate is situated or where the Affiliate directly or indirectly conducts its business;

b. it will not enter into any agreement or business relationship or otherwise incur any obligation which might, in the opinion of AdPreference, conflict with this Agreement;

c. it will, at all times, comply with the terms of this Agreement, and the AdPreference Policies, as updated, amended and replaced by AdPreference, from time to time, in its sole discretion;

d. it will not, without the express written consent of AdPreference, use or permit any person for who it is in law responsible to use any third-party trade-names or trade-marks;

e. it will not publish on any website or send in any electronic mail a universal resource locator or other link to any content or otherwise engage in or condone any practice, which, in the opinion of AdPreference is deceitful, defamatory, libelous, abusive, violent, prejudicial, obscene, pornographic, likely to bring the reputation or standing of AdPreference into disrepute, or which otherwise would be illegal;

f. it will at all times comply with the terms and conditions of any agreement or policy established by an Offer in which the Affiliate elects to participate;

g. it will at all times comply with the provisions of the CAN-SPAM Act of 2003, as amended or replaced, from time to time;

h. it will not post any content relating to the Offer to any Usenet newsgroup, chat room, bulletin board or “blog” (save and excepting a chat room, bulletin board or blog which is operated or primarily owned by the Affiliate) without the express written consent of AdPreference;

i. it will be responsible for the development, operation and maintenance of its website or websites and electronic mail, including without limitation the technical operation thereof, the creation, publication and accuracy of any content published on any such website or websites or in any electronic mail;

j. it will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective any tags, source codes, links, pixels, modules or other data provided by or obtained from AdPreference;

k. it will not “frame” or “mirror” any part of any pages hosted by the Client unless expressly permitted by AdPreference and the Client;

l. it will not alter any website or electronic mail content provided by AdPreference; and

m. it will, at all times and from time to time provide AdPreference with written confirmation of a valid address, telephone number, electronic mail address and such other identifying or financial information as AdPreference may reasonably require.

7. INDEMNIFICATION

7.1 The Affiliate covenants and agrees to indemnify and save harmless AdPreference, its parent company and their respective directors, officers, and employees (collectively, the “Indemnified Group”) from and against any and all claims or judgments, including all associated legal fees, expenses and disbursements actually incurred, arising out of any breach of this Agreement or the exercise by the Affiliate of any right under this Agreement or any act or omission of the Affiliate, a Sub-Affiliate or anyone for whom the Affiliate is in law responsible, including without limitation any damages, losses, consequential or otherwise, arising in any manner (including those arising from or incidental to any liability or other lawsuit, claim, demand or other action brought) as a consequence of any act or omission of the Affiliate or any person for whom the Affiliate is in law responsible, whether or not the Indemnified Group or any of them are named as a party defendant in any such proceedings and whether or not the Indemnified Group or any of them are alleged to be negligent or otherwise responsible for any damage or injury to persons or property. The obligation of the Affiliate to defend and indemnify as set out in this paragraph will survive termination of this Agreement for any reason and will not be otherwise limited by any other term or condition of this or any Agreement.

8. Registration

To use the service, you must submit a complete AdPreference.com. registration form, which is available at Registration Form. As part of the registration process for the service, you agree to:

  • Provide certain limited information about you as prompted to do so by the service (such information to be current, complete and accurate)
  • Maintain and update this information as required to keep it current, complete and accurate. The information requested on original signup shall be referred to as registration data (“Registration Data”).

If AdPreference.com. discovers that any of your Registration Data is inaccurate, incomplete or not current, AdPreference.com. may terminate your right to access and receive the service immediately with or without notice. AdPreference.com. will evaluate the Registration Data in good faith and will notify you in a timely manner regarding acceptance or rejection. AdPreference.com. may reject a registration application if it determines, in its sole discretion that the user is not an appropriate subscriber or user of the service. Upon acceptance of this agreement and completion of the registration process you will have opened an account with AdPreference.com. and will become a subscriber to the Yesup Ecommerce Solutions Inc. service

9. DISCLOSURE OF INFORMATION

9.1 AdPreference or its directors, may, from time to time, disclose to the Affiliate certain information relating to AdPreference’s business or to AdPreference’s customers, affiliates, subsidiaries, Affiliates, agents, or employees; business and marketing plans, strategies and methods which may not be standard industry practice or which are not generally known in the industry; or studies, charts, plans, tales or compilations of business and industrial information acquired or prepared by or on behalf of AdPreference (all collectively referred to as the “Confidential Information”). The Affiliate acknowledges that Confidential Information will be provided at the sole discretion of AdPreference, and nothing in this Agreement obligates AdPreference, its directors, agents or employees to disclose or grant to the Affiliate access to any Confidential Information.

9.2 Unless expressly authorized in writing by AdPreference, the Affiliate covenants and agrees:

a. to use the Confidential Information only for the purposes expressly contemplated in this Agreement; and

b. that no Confidential Information will be disclosed to any third party, affiliate, subsidiary, Sub-Affiliate, agent, or employee of the Affiliate without the prior written consent of AdPreference, which may be unreasonably and arbitrarily withheld.

9.3 The Affiliate acknowledges that AdPreference remains the sole and exclusive owner of all right, title and interest in and to the Confidential Information. The Affiliate agrees that the Confidential Information will not be copied or otherwise reproduced without the express prior written consent of AdPreference.

9.4 Upon termination of this Agreement, or otherwise on demand by AdPreference, the Affiliate agrees that it will promptly deliver to AdPreference all notes, data, tapes, reference items, sketches, drawings, memoranda, records, diskettes, electronic communications in any form and any other materials in any way relating to any of the Confidential Information in the possession of the Affiliate or any affiliate, subsidiary, Sub-Affiliate, agent, or employee of the Affiliate.

9.5 The Affiliate acknowledges and agrees that:

a. the provisions of this Section and the Affiliate’s agreement with the same are of the essence and constitute a material inducement to AdPreference to enter into this Agreement;

b. the provisions of this Section shall be construed independently of any other provision of this Agreement, and the existence of any claim or cause of action the Affiliate may have against AdPreference, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by AdPreference of the provisions of this Section;

c. that any breach of this Section would cause irreparable harm to AdPreference for which damages might not be an adequate remedy, and the Affiliate therefore agrees that in the event of any such breach AdPreference will be entitled to seek, in addition to any other right accruing to AdPreference under this Agreement or otherwise in law or equity, injunctive relief against the Affiliate without the necessity of proving actual damages; and

d. notwithstanding any other provision of this Agreement, this Section shall survive the termination of this Agreement, however caused.

9.6 The Affiliate agrees to indemnify and save harmless AdPreference against any and all loss, costs or expenses, inclusive of court costs and legal fees on a solicitor and own client basis, which AdPreference may incur as the direct or indirect result of any unauthorized disclosure of the Confidential Information by the Affiliate or any person for whom the Affiliate is responsible, in law.

10. NON-COMPETITION

10.1 During the term of this Agreement and for a period of six (6) months thereafter, the Affiliate will not seek, in any way, to undermine the goodwill of AdPreference, and in particular, the Affiliate will not, directly or indirectly: (1) solicit or entice or attempt to solicit or entice, work away from AdPreference; (2) solicit or entice or attempt to solicit or entice any of the employees of AdPreference to enter into employment service with the Affiliate or a competitor of AdPreference; or (3) directly or indirectly enter into any agreement or contract, written or otherwise, with any Client or otherwise provide services to any third party for the ultimate benefit of a Client which might, in the opinion of AdPreference, compete with any services provided by AdPreference to that Client.

11. DISCLAIMER AND LIMITATION OF LIABILITY

11.1 AdPreference disclaims all warranties, conditions, representations, indemnities and guarantees with respect to any matter, whether express or implied (including without limitation any warranty of profitability, satisfactory quality, merchantability, fitness for any particular purpose, title and non-infringement).

11.2 Notwithstanding any other provision of this Agreement, AdPreference additionally disclaims all obligations and liabilities on the part of AdPreference and those for whom it is in law responsible for any damages, including, but not limited to, indirect, special, and consequential damages, attorneys’ and experts’ fees, and court costs (even if AdPreference has been advised of the possibility of such damages, fees or costs), arising out of or in connection with this Agreement.

11.3 In no circumstance will AdPreference be liable to the Affiliate for any consequential, indirect, special, punitive or incidental damages or lost profits of the Affiliate or the Affiliate’s successors or assigns (including without limitation claims for loss of goodwill, use of or reliance on the services provided hereunder, stoppage of other work or impairment of other assets) arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise. Without limiting the foregoing, AdPreference will not be liable for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown, actions or inaction of Affiliate or third parties, Affiliate’s equipment or software and/or any third party equipment or any other condition affecting production or delivery in any manner beyond the control of AdPreference.

12. TERMINATION

12.1 AdPreference may terminate this Agreement, at any time, on six (6) hours Notice to the Affiliate. The Affiliate may terminate this Agreement, at any time, on forty-eight (48) hours Notice to AdPreference.

12.2 Notwithstanding termination of this Agreement for any reason, the Affiliate covenants and agrees that it will continue to be bound by the terms and conditions set out in Sections 5, 7 and 8 of this Agreement.

13. GENERAL

13.1 The Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the Province of Ontario, Canada, excluding its conflict of law rules. The Affiliate agrees to the exclusive jurisdiction of the Supreme Court of Ontario with respect to any dispute arising as a direct or indirect consequence of this Agreement.

13.2 AdPreference may assign this Agreement without the Affiliate’s prior consent. The Affiliate may not assign this Agreement without the express written consent of AdPreference, which consent may be unreasonably and arbitrarily withheld.

13.3 From time to time, AdPreference may amend, supplement or replace this Agreement or the AdPreference Policies in part or in whole, on Notice to the Affiliate of not less than five (5) business days. If within five (5) days following Notice of such amendment, supplement or replacement the Affiliate has not terminated this Agreement, the Affiliate will be deemed to have consented to the same.

13.4 Any notice or other communication (“Notice”) permitted or required by this Agreement will be in writing and given by personal delivery or transmitted by facsimile or electronic mail to the receiving party at the address noted on the first page of this Agreement. Any such Notice will be deemed to have been received on the date on which it was transmitted by facsimile or delivered.

13.5 No term or condition of this Agreement will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is in writing and signed by both parties.

13.6 In the event that any term, covenant or condition of this Agreement is declared indefinite, invalid, illegal or unenforceable by a court having jurisdiction then this Agreement with respect to the remaining terms, covenants or conditions will continue in force.

13.7 This Agreement will inure to the benefit of and be binding upon the respective successors, heirs and assigns of both AdPreference and the Affiliate.

13.8 This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this agreement, supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written.