Terms And Conditions - Advertiser

his Rainmaker Affiliate Network Advertiser Agreement (“Advertiser Agreement”), shall govern the relationship between Rainmaker Network LTD (“Rainmaker Affiliate Network” or “we”) and the Advertiser (“Advertiser”), whereby Advertiser may obtain access to the Affiliate Network (“Rainmaker Affiliate Network”) of registered third party affiliates (“Affiliates”) and publishers (“Publishers”), and related technology and software (“Rainmaker Affiliate Network Ad Server”), to market customized advertisements and links provided by Advertiser and/or Rainmaker Affiliate Network (“Ads,” as further defined below). The Rainmaker Affiliate Network, as well as the services provided by Rainmaker Affiliate Network in connection therewith (“Services”), are further described in the Insertion Order (“IO”) attached hereto and incorporated herein by reference (the IO, together with this Advertiser Agreement, the “Agreement”). It is hereby acknowledged and approved between the Parties that both IO and the Advertiser Agreement constitute a single document and jointly governthe relationship of the Parties.

1. Preamble

1.1. To accept these Terms and Conditions and create an account with Rainmaker Affiliate Network LTD, an individual must be an adult of legal age of majority in the country in which the account is registered, or a legal entity. The individual or the legal entity, who provides information and accepts this Agreement has full lawful power and authority to enter into and carry out the terms of this Agreement (including full legal capacity to act on behalf of a legal entity in case advertiser is a legal entity) and is legally and financially responsible for all actions on the account, including the actions of children and anyone else with access to it.

1.2. These Terms and Conditions (the “Agreement”) shall govern the relationship between Rainmaker Affiliate Network LTD and any and all Advertisers (the “Advertiser”) who registered with the Website to enjoy Rainmaker’s services. This Agreement governs the relationship between Rainmaker and the Advertiser as this is identified in all Insertion Orders, in respect to the placing of such Insertion Orders (hereinafter referred to as the “IO”). It is hereby acknowledged between both parties that both this Agreement and the IO form and constitute a single document.

2. Definitions And Interpretations

“Rainmaker”: is an advertising service company named Rainmaker that has developed a general expertise in advertising and marketing and more particularly in internet affiliates or any other business unit which belongs to Rainmaker;

“Advertiser”: any professional in any field of activity, or his/her agent or representative, for which Rainmaker provides Services; individual which benefits from the ordered services provided by the Rainmaker;

“Affiliate”: each of Rainmaker’s sub-publishers; a claimant or his/her representative within the meaning of Article 2 b) of Directive 2000/31/EC of the 8th of June 2000, who does not work in one of the fields of activity covered by the Exclusions and wishing to broadcast and / or promote Campaigns against remuneration.

“Campaign and Offer”: Advertiser’s / Advertiser’s commercial or promotional communication medium (hypertext links, banners, forms, emailing kits etc.) used to propose the Advertiser’s Products and / or access to the Advertiser’s Website directly and / or indirectly. Campaign is only made available to Affiliates participating to the Affiliate Program; The Campaign contains the full list of services requested by the Advertiser (the Offer) and shall be reflected in Insertion Order;

“Insertion Order”: list of services selected by the Advertiser to be performed by Rainmaker selected among public services published and proposed on Website of Rainmaker, or proposed to the Advertiser in direct in writing; summarizing written document which contains all information on the Advertiser’s order; is an integral part of this agreement, hereinafter referred to as “IO”.

“Rainmaker’s Terms and Conditions”: these full and prevailed terms and conditions published in this document;

3. Rainmaker Affiliate Network/Services

3.1. Advertiser agrees to accept and pay for, and Rainmaker Affiliate Network agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, Rainmaker Affiliate Network shall render advertising / marketing services to the Advertiser through the Internet; advertising services including but not limited to driving traffic to the Advertiser’s Website(s), and other points of marketing on discretion of Advertiser, by the means of allowing third parties called Affiliates, which Advertiser incurs with through Rainmaker, to promote such on the Affiliates Websites; brand promotion; advertising through different media channels including but not limited to the Desktop Web, Mobile Web, Mobile Apps, Native and contextual Ads, Emailing campaigns / kits, Video (overlay and in-vid), Social Networks, Search Engines etc.; for any purposes, based on the cumulatively conditions and limits of the Insertion Order, hereinafter referred to as “Services”.

Rainmaker Affiliate Network shall undertake marketing campaigns with Advertiser (each an “Ad Campaign”) whereby Rainmaker Affiliate Network will distribute Advertiser’s proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and similar online media (collectively, “Advertiser Ads”) and/or, where applicable, Rainmaker Affiliate Network Ads (as defined below) through the Rainmaker Affiliate Network either:

  1. on Publisher websites via the Rainmaker Affiliate Network Ad Server for impressions-based Ad Campaigns (“CPM”); or
  2. by Affiliates via e-mail based marketing, search engine marketing, website based marketing and/or other online marketing means. In connection with such Ad Campaigns, Advertiser shall pay Rainmaker Affiliate Network commissions depending on the number of valid clicks, impressions, sales/actions (“CPA”), applications and leads (“Leads”), and/or such other compensable activities generated on behalf of Advertiser as set forth in the subject IO (collectively, “Actions”). The applicable Actions, the fees due to Rainmaker Affiliate Network for each Action and other applicable terms and conditions of the Ad Campaigns entered into hereunder shall be specified in each IO. Rainmaker Affiliate Network shall not be held liable or responsible for any actions or inactions of its Publishers or Affiliates.

3.2. The scope of work and the plot of Campaign shall be defined in Insertion Order, which is an integral part of this agreement.

3.3. Services shall be deemed to be accepted by the Advertiser as if he/she has no objections or opposition about the received Services and, in its turn, provided Services shall be deemed as if they were supplied with full accordance to the Advertiser’s expectations and in full compliance with Insertion Order unless the Advertiser has addressed his/her motivated opposition within two (2) days after the Rainmaker has notified the Advertiser about thecompletion of Campaign(s).

PARTIES RIGHTS AND DUTIES

4.1. Rainmaker’s obligations:

4.1.a. Rainmaker is obligated to perform all the Services listed in Insertion Order if they are not contradicting current Agreement, the Advertisers Terms and Conditions and applicable Law.

4.1.b. Rainmaker is obliged to perform all Services in the due time defined in clause 4.1. of this Agreement.

4.1.c. Rainmaker holds an obligation not to modify the Advertiser’s materials (Ad Materials) in Campaign(s) without Advertiser’s approval.

4.1.d. Rainmaker shall report to the Advertiser on the provided Services through the independent tracking system if such specified in the IO, on the written request from Advertiser, but no more than two (2) times through the period of each Campaign.

4.2. Rainmaker’s rights:

4.2.a. All advertisements and Campaigns are subject to Rainmaker’s approval. Rainmaker reserves the right to reject any advertisement, Insertion Order, or URL link, at any time, for any reason whatsoever, in its sole discretion, (including, but not limited to, belief by Rainmaker that any placement thereof may subject Rainmaker to criminal or civil liability). In such a case, Rainmaker will provide the Advertiser with a written explanation of its decision and the basis therefore. Notwithstanding the foregoing, Rainmaker will not cancel placement of an advertisement, Insertion Order, or URL link due to inventory demand from another customer or advertiser.

4.2.b. Rainmaker has the discretion to request KYC documents from Advertiser at any time.

4.3. Advertiser’s rights:

4.3.a. Advertiser has the possibility to modify and adapt the content of his/her Campaign by contacting Rainmaker by email at any time during the broadcast period of the Campaign. Rainmaker will do its best to enforce such change(s) / adaptation(s) within two (2) working days following the receipt of the Advertiser’s request.

4.3.b. Advertiser has a right to request a report on provided Services, using the independent third-party tracking system if such specified in the IO.

4.3.c. Advertiser has a right to request a printed version of Advertiser’s Terms and Conditions on the date of signing this Agreement in order to keep the revised edition on the date of signing of this Agreement.

4.4. Advertiser’s obligations:

4.4.a. Advertiser is obligated to provide all necessary information, documentation, details and Ad materials for provision of Services within (2) working days as of the date of signing this Agreement and the IO if other is not specified in the IO.

4.4.b. Advertiser is obligated to notify the Rainmaker immediately, no longer then on the next working day, in case of any changes in his/her personal contact information.

4.4.c. Throughout the duration of the Agreement and in order to complete it, the Advertiser grants, free of charge, to Rainmaker and the Affiliates, who accept it, a non-exclusive worldwide, fully paid license to use, perform, reproduce, display, transmit and distribute the advertisement and all contents therein in accordance with this Agreement for the provision of Services.

4.4.d. Advertiser has an obligation to provide KYC documents both upon Rainmaker’s request and for the purposes of receiving payments. Payments will only be made once KYC documents have been fully provided by the Advertiser.

5. Account

Upon the execution of the Agreement, Advertiser must register on the Rainmaker Affiliate Network website and create a unique, password-protected account (“Account”). Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsibility for any and all actions taken under Advertiser’s Account, whether authorized by Advertiser or not. Advertiser must immediately notify Rainmaker Affiliate Network of any unauthorized use of Advertiser’s Account. Advertiser is responsible for keeping its Account information current, complete and accurate, and Advertiser acknowledges and agrees that Rainmaker Affiliate Network will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.

6. Ads

Advertiser shall develop all aspects of the Advertiser Ads, other than where the parties agree that Rainmaker Affiliate Network shall assist in the development of Ads. The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Ads; other than those portions that Rainmaker Affiliate Network prepares on Advertiser’s behalf (such portions hereinafter referred to as, the “Rainmaker Affiliate Network Ads” and together with the Advertiser Ads, the “Ads”). The parties understand and agree that Rainmaker Affiliate Network is the sole owner of any and all intellectual property rights associated with the Rainmaker Affiliate Network Ads, other than Advertiser’s trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the Rainmaker Affiliate Network Ads. Under no circumstances shall Rainmaker Affiliate Network be authorized to use the Ads other than in connection with Advertiser’s Ad Campaigns as set forth in the IO(s). Advertiser shall submit all Advertiser Ads to Rainmaker Affiliate Network for approval prior to the commencement of the subject Ad Campaign set forth in the applicable IO. Advertiser shall not alter, modify or otherwise change the Ads, or any other Ads-related feature, in any manner whatsoever, without obtaining Rainmaker Affiliate Network’s prior express written consent, after the applicable Ad has been approved by Rainmaker Affiliate Network. Notwithstanding the foregoing, Rainmaker Affiliate Network shall have sole discretion with respect to the creation of the “subject” and “from” lines used in its e-mailing of any Ads. Rainmaker Affiliate Network reserves the right, in its sole discretion and without liability, to: change any of its Ad Guidelines at any time; and to reject, omit, exclude or terminate any Ad for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad was previously acknowledged, accepted or published by Rainmaker Affiliate Network. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where Rainmaker Affiliate Network deems, in its sole discretion, that the Ads, including the applicable products and/or services promoted by such Ads (“Advertiser Products”), and any website linked to from such Ads, are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon Rainmaker Affiliate Network or any of its Publishers and/or Affiliates. Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and Rainmaker Affiliate Network shall, subject to the provisions set forth herein, comply with such request as soon as practical but in no event later than three (3) business days after its receipt thereof. Advertiser may cancel or suspend a CPM-based Ad Campaign, or an Ad associated with such a CPM-based Ad Campaign, effective within approximately twenty-four (24) business hours of Rainmaker Affiliate Network’s receipt of Advertiser’s cancellation notice, which Advertiser can deliver by logging into its Account and following the instructions on the applicable menu.

7. Placement

The positioning, placement, frequency and other editorial decisions related to Ads shall be made by Rainmaker Affiliate Network and/or its Affiliates and Publishers, as applicable, in their respective sole discretion. The applicable IO may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable IO or, in cases where “Run of Affiliate Network” or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distribution that Rainmaker Affiliate Network and/or its Affiliates and Publishers may determine, in their respective sole discretion.

8. Ad Codes

Unless otherwise stated in writing by Rainmaker Affiliate Network, each Ad provided by Advertiser and used by Rainmaker Affiliate Network in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by Advertiser (“Ad Codes”). Advertiser understands that should immediately notify Rainmaker Affiliate Network for any modifications, impairments or other interferences with an Ad Code and/or other technology and/or methodology required or made available by Rainmaker Affiliate Network to be used in connection with any and all Ads. In connection with CPA-based Ad Campaigns, Advertiser agrees to pay Rainmaker Affiliate Network a default payment of Fifty Cents ($0.50) CPM on a net thirty (30) day basis in instances where conversion data cannot be supplied due to a failure of the Ad Codes and Advertiser’s inability to provide such information, in the alternative. All determinations made by Rainmaker Affiliate Network in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, Rainmaker Affiliate Network’s Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Affiliate or other third party.

9. E-mail Marketing

The following terms apply to all Ad Campaigns transmitted via e-mail by Rainmaker Affiliate Network’s Affiliates on behalf of Advertiser. Any and all e-mail based Ads:

  1. must 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; and
  2. must not result in any consumer fraud, product liability or breach of contract to which Advertiser is a party or cause injury to any third party. Advertiser shall cause a valid physical postal address for Advertiser to appear in each e-mail Ad, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery). Rainmaker Affiliate Network may make available, at a Rainmaker Affiliate Network-designated FTP site (“FTP Site”), a suppression list (and associated login information), updated on a regular basis, generated from e-mail Ad Campaigns transmitted by Rainmaker Affiliate Network’s Affiliates for Advertiser under applicable IO(s). Advertiser shall upload its own list of suppressed e-mail addresses to the FTP Site, if one is provided by Rainmaker Affiliate Network, or send its suppressed e-mail addresses to Rainmaker Affiliate Network via e-mail no less than daily. If no such suppressed e-mail addresses are supplied by Advertiser, then Rainmaker Affiliate Network may conclude that no such addresses exist. The suppression list and login provided by Rainmaker Affiliate Network are deemed to be Confidential Information of Rainmaker Affiliate Network, as defined hereinbelow. Suppression lists may not be used by Advertiser for any purpose other than to comply with applicable laws regulating e-mail transmissions. Advertiser agrees to process any unsubscribe requests within seven (7) days of being posted at the FTP Site.

10. Payments

The rates for Actions shall be set forth in the applicable IO(s). Rainmaker Affiliate Network will invoice Advertiser twice monthly. Unless otherwise set forth in the applicable IO, payment will be due to Rainmaker Affiliate Network within thirty (30) days of the date appearing on each invoice. If payment is not made in a timely manner, Rainmaker Affiliate Network may, at its option, immediately terminate the Agreement and/or any applicable IO(s). Interest will accrue on any past due amounts at the rate equal to the lesser of one and one half percent (1.5 per month or the maximum amount permitted by law. In addition, Advertiser shall be liable to Rainmaker Affiliate Network for all attorneys’ fees and other costs of collection incurred in collecting such unpaid amounts. Advertiser agrees and acknowledges that it shall be solely responsible for any and all taxes (whether federal, state, or local) that are applicable to Advertiser in connection with this Agreement. Advertiser shall also be responsible for any fees, costs, or penalties incurred by Rainmaker Affiliate Network and/or any of its Publishers or Affiliates that arise from the Advertiser’s actions, omissions, or misrepresentations.

11. Leads/CPA/Unaccepted Actions

In connection with Leads and CPA-based Ad Campaigns, Advertiser will pay Rainmaker Affiliate Network for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that:

  1. it rejects within five (5) days of its receipt thereof; and
  2. both parties determine is not a Valid Action (as defined below). Where Rainmaker Affiliate Network determines that such Action is a Valid Action, Advertiser must pay for same. A “Valid Action” means an individual person that:
  3. is not a computer-generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person;
  4. in the case of CPA-based Campaign, is a valid sale that is not fraudulent, cancelled, charged back or otherwise nullified; and
  5. in the case of Leads-based Campaigns, has submitted information that meets all of Advertiser’s criteria as set forth in the applicable IO. The data associated with any and all Lead/CPA-based Actions (“Action Data”) that are not both accepted and paid for by Advertiser shall be deemed the Confidential Information of Rainmaker Affiliate Network, subject to any and all restrictions set forth herein (“Unaccepted Action Data”). Upon Advertiser’s acceptance of a Lead/CPA-based Action (and payment to Rainmaker Affiliate Network therefor in accordance with payment terms set forth herein and in the applicable IO), Rainmaker Affiliate Network shall grant to Advertiser joint ownership and the full right to use such Action Data. Where Advertiser does not accept Leads/CPA-based Actions, where Advertiser fails to make payments for same in accordance with the payment terms herein and in the applicable IO and/or where such Leads/CPA-based Actions are later determined not to be Valid Actions, Advertiser shall have no rights in and to such Action Data, and such Action Data shall be considered and treated as Unaccepted Action Data. Without limiting the generality of the confidentiality obligations set forth herein, Advertiser agrees that it:
    • will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Action Data to/with any third party;
    • will not use the information contained in the Unaccepted Action Data on its own behalf in any manner not expressly authorized by Rainmaker Affiliate Network;
    • will not use the information contained in the Unaccepted Action Data to create any interactive on-line, CD-ROM or other derivative product;
    • will not publicly display the information contained in the Unaccepted Action Data on the Internet; and
    • will notify Rainmaker Affiliate Network as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Action Data and provide reasonable assistance to Rainmaker Affiliate Network in the investigation and prosecution of any such unauthorized use or disclosure.

12. Term/Termination

The Agreement shall continue for the term set forth in any underlying IO, provided that either party may terminate the Agreement and/or any IO at any time, upon five (5) business days’ prior written notice. Upon termination or expiration of the Agreement for any reason:

  1. Advertiser will pay Rainmaker Affiliate Network all amounts then due and owing as of the termination date within thirty (30) days as set forth in Section 7 hereinabove;
  2. any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate; and
  3. any and all Confidential Information or proprietary information of either party that is in the other party’s possession or control must be immediately returned or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.

13. Warranty/Limitation of Liability

THE RAINMAKER Affiliate Network, SERVICES, RAINMAKER Affiliate Network ADS, AD GUIDELINES, ACTIONS AND AD CODES PROVIDED BY RAINMAKER Affiliate Network UNDER THE AGREEMENT AND/OR ANY APPLICABLE IO ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT OF THE LAW, RAINMAKER Affiliate Network MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, RAINMAKER Affiliate Network DOES NOT WARRANT OR GUARANTY ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. THE RAINMAKER Affiliate Network, SERVICES, RAINMAKER Affiliate Network ADS, AD GUIDELINES, ACTIONS AND/OR AD CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. RAINMAKER Affiliate Network HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER OR ANY THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND RAINMAKER Affiliate Network DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. RAINMAKER Affiliate Network HAS NO LIABILITY FOR ADVERTISER’S USE OF, OR INABILITY TO USE, THE AD GUIDELINES OR APPLICABLE ACTIONS AND RAINMAKER Affiliate Network DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, THAT ADVERTISER’S USE OF THE RAINMAKER Affiliate Network, SERVICES, RAINMAKER Affiliate Network ADS, AD GUIDELINES AND/OR ACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE. RAINMAKER Affiliate Network MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY
DATES. IN NO EVENT SHALL RAINMAKER Affiliate Network BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF RAINMAKER Affiliate Network HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RAINMAKER Affiliate Network WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY IO AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND RAINMAKER Affiliate NETWORK’S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, RAINMAKER Affiliate NETWORK’S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO RAINMAKER Affiliate Network BY ADVERTISER DURING THE PRIOR SIX (6) MONTH PERIOD PURSUANT TO THE AGREEMENT. RAINMAKER Affiliate Network SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF PUBLISHERS AND/OR AFFILIATES.

In no event shall Rainmaker be liable for any act or omission, or any event directly or indirectly resulting from any act or omission, of Advertiser or any third parties (if any).

IN NO EVENT SHALL RAINMAKER BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOST PROFITS, LOSS OF BUSINESS, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF RAINMAKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. RAINMAKER’S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT RECEIVED BY RAINMAKER FROM THE ADVERTISER FOR THE INSERTION ORDER GIVING RISE TO THE CLAIM.

14. Representation and Warranties

Advertiser represents and warrants that:

  1. it has the power and authority to enter into and perform its obligations under the Agreement;
  2. at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will comply with all applicable laws, rules, regulations and ordinances.
  3. it owns and/or has any and all rights to permit the use of the Advertiser Ads and, where approved, Rainmaker Affiliate Network Ads, by Rainmaker Affiliate Network, its Publishers and Affiliates, as contemplated by the Agreement;
  4. at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will not violate any applicable 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;
  5. it will not disable “back” browser functionality to prohibit end-users from returning to the website from which the Ad was selected, if applicable;
  6. Advertiser has a reasonable basis for any and all claims made within the Ads and possesses appropriate documentation to substantiate such claims;
  7. for CPA and Leads Campaigns, the Ads, and/or the landing page from each Ad where an Action is completed (for example, Advertiser’s website page where an end-user is directed when such end-user clicks on the Ad, fills in a registration form or takes a similar action in connection with the Ad) contains a prominent link to Advertiser’s privacy policy, which policy provides, at a minimum, adequate notice, disclosure and choices to end users regarding Advertiser’s use, collection and disclosure of their personal information;
  8. Advertiser shall fulfill all commitments made in the Ads;
  9. no Ad is targeted to end-users under the age of eighteen (18);
  10. prior to loading any computer program onto an individual’s computer including, without limitation, programs commonly referred to as adware and/or spyware, but excluding cookies (provided that cookies are disclosed in Advertiser’s privacy policy and end-users are instructed on how to disable such cookies), Advertiser shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such computer program;
  11. the Ads, Advertiser Products, any Advertiser website linked to from the Ads do not:
    • contain any misrepresentations or content that is defamatory;
    • contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive;
    • contain any “worm,” “virus” or other device that could impair or injure any person or entity;

15. Indemnification

Advertiser shall irrevocably defend, indemnify and hold Rainmaker Affiliate Network, its Publishers, Affiliates and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage 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:

  1. Advertiser’s breach of the Agreement, any and all applicable IO(s) or any representation or warranty contained therein;
  2. the Ads, Advertiser Products and/or Advertiser websites; and/or
  3. any claim that Rainmaker Affiliate Network is obligated to pay any taxes in connection with Advertiser’s participation hereunder.
  4. negligence or willful misconduct any actual or alleged infringement by You of any Intellectual Property Rights or other rights of any person

16. Advertiser’s Representations

Advertiser represents and warrants to Rainmaker and third parties (if any), (a) that Advertiser holds all necessary rights to permit the use of the advertisement by Rainmaker for the purpose of this Agreement; and (b) that the use, reproduction, distribution, transmission or display of advertisement, keywords selected by Advertiser, any data regarding users, and any material to which users can link, or any products or services made available to users, through the advertisement will not (i) violate any criminal laws or any rights of any third parties; (ii) contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law. Advertiser agrees to defend Rainmaker and third parties (if any) from and against any third party claim (including damage awards, settlement amounts, and reasonable legal fees and expenses incurred by Advertiser in such defense), arising out of or related to (1) breach of any of the foregoing representations and warranties, (2) any third party claim arising from the content or targeting of an advertisements provided by Advertiser, or any material to which users can link, or any products or services made available to users, through the advertisement under this Agreement.

17. Confidentiality

For purposes of the Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party (“Disclosing Party”) to the other party (“Receiving Party”), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:

  1. a party’s business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format;
  2. the material terms of the Agreement and/or any associated IO(s);
  3. with respect to Rainmaker Affiliate Network, the Unaccepted Action Data and suppression lists; and
  4. any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers:
  5. who need to know such information in order for the Receiving Party to perform its obligations hereunder; and
  6. who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof that:
  7. is generally available to or known to the public through no wrongful act of the receiving party;
  8. was independently developed by the Receiving Party without the use of Confidential Information; or
  9. was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.

18. Non-Circumvention

Advertiser recognizes that Rainmaker Affiliate Network has proprietary relationships with its Publishers and Affiliates. Advertiser agrees not to circumvent Rainmaker Affiliate Network’s relationship with such Publishers and Affiliates, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by Rainmaker Affiliate Network hereunder from any Publisher and/or Affiliate that is known, or should reasonably be known, by Advertiser to have such a relationship with Rainmaker Affiliate Network, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers and Affiliates already provided such services to Advertiser prior to the date of the first IO executed by the parties, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that Rainmaker Affiliate Network shall be entitled to:

  1. injunctive relief (including temporary and preliminary relief) without the requirement to post a bond;
  2. liquidated damages from Advertiser in the amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Publisher and/or Affiliate, as applicable, for the prior twelve (12) month period; and
  3. any and all other remedies available to Rainmaker Affiliate Network at law or in equity.

19. Force Majeure

Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or Affiliate Network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.

20. Miscellaneous

Assignment. Neither party may assign, transfer or delegate any of its rights or obligations under the Agreement or any IO without the prior written consent of the other party, and any attempts to do so shall be null and void; provided, however, that either party may assign the Agreement, any IO or any portion hereof/thereof, to:

  1. an acquirer of all or substantially all of such party’s equity, business or assets;
  2. a successor in interest whether by merger, reorganization or otherwise; or
  3. any entity controlling or under common control with such party.
  4. Choice of Law/Venue. The Agreement shall be construed in accordance with and governed by the laws of theRepublic of Cyprus. In the event that any suit, action or other legal proceeding shall be instituted against either party in connection with the Agreement, each hereby submits to the jurisdictionof the Republic of Cyprus
  5. Modification. The Agreement, any exhibits attached hereto and any and all applicable IO(s) represent the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The Agreement, any exhibits attached hereto and any and all applicable IO(s) may be amended only by a written agreement executed by an authorized representative of each party. To the extent that anything in or associated with any IO is in conflict or inconsistent with the Agreement, the IO shall take precedence.
  6. Non-Waiver/Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
  7. Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that Rainmaker Affiliate Network acts as a limited agent of Advertiser for the sole purpose of performing the Services set forth in applicable IO(s).

IN WITNESS WHEREOF, Rainmaker Affiliate Network and Advertiser have caused this Advertiser Agreement to be executed by their duly authorized representatives.

This Agreement was last updated on April 15, 2024