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Terms and Conditions

This Affiliate Terms and Conditions (the "Agreement") sets forth the terms and conditions which shall govern the relationship between ClickSpark, LLC ("ClickSpark") and you as an affiliate ("Affiliate") for advertising and marketing services offered through the ClickSpark network ("ClickSpark Network") located at www.ClickSpark.com (the "ClickSpark Website").

1. Definitions.

"Advertisements" mean, without limitation, all banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mails, tests, graphic files and similar online media.

 

"Confidential Information" shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of this 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: (a) a party’s business plans, strategies, know‑how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable customer 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; (b) the material terms of this Agreement and/or any associated Campaigns; and (b) any information marked or designated by the Disclosing Party as confidential.

2. ClickSpark Network. ClickSpark grants to Affiliate a non-exclusive, non-transferable, revocable and limited license to use the ClickSpark Network in accordance with the terms, and during the term, of this Agreement. The ClickSpark Network enables Affiliates to apply for and, upon approval by the applicable advertising customer of ClickSpark authorized to use the ClickSpark Network ("Customer"), earn Commissions (as that term is defined hereinbelow) through participation in Customer marketing campaigns featuring the Customer’s product and/or service offerings in accordance with the terms and conditions of this Agreement and any other agreement between Affiliate and the applicable Customer (the "Campaigns"). The terms and conditions of any and all Customer Campaigns (each, the "Campaign Terms") shall be posted in the Customer account area on the ClickSpark Website ("Customer Account Area"). ClickSpark and/or any Customer may, in their respective discretion, reject Affiliate’s application for any Campaign for any reason and no reason. Upon approval of Affiliate by any Customer, and pursuant to the applicable Campaign Terms, Affiliate may download certain Customer Advertisements provided by Customer on the ClickSpark Network: (i) for publication on Affiliate’s website and/or any other website affiliated with, owned, operated and/or controlled by such Affiliate ("Affiliate Website"); or (ii) for distribution to those e-mail addresses listed in Affiliate’s database and/or any other database affiliated with, owned, operated and/or controlled by such Affiliate ("Affiliate E-mails"). Customer shall set forth in the Campaign Terms the valid sales, leads, applications, accounts, clicks or other compensable activities, that will apply for each Campaign (the "Compensable Transactions"). Compensable Transactions achieved by the display and/or placement of such Advertisements on Affiliate’s Website or in Affiliate E-mails will be calculated by ClickSpark and the applicable Customer through the use of industry standard tracking technology. Affiliate will ensure that any and all Affiliate Websites employed in connection with any and all Campaigns feature a privacy policy, linked, at a minimum, conspicuously from such Affiliate Website’s home page, with a link that contains explicit language indicating its presence. Such privacy policy shall, in addition to the disclosures about Affiliate’s privacy practices, identify the collection and use of any information Affiliate collects, provides or may provide to ClickSpark and to any Customer or other websites or persons with which Affiliate has any other arrangement relating thereto.

 

3. Use of Advertisements. Affiliate shall not alter, modify or otherwise change the Advertisements, or any other Advertisement-related feature, that it obtains access to in connection with any Campaign in any manner whatsoever without ClickSpark’s prior express written consent. Unless otherwise stated in writing by ClickSpark, each of the Advertisements made available to Affiliate in relation to any Campaign must include, in unaltered form, the ClickSpark special transaction tracking codes as embedded in all Advertisements (the "Transaction Tracking Codes"). Affiliate will not knowingly, modify, circumvent, impair, disable or otherwise interfere with any Transaction Tracking Codes and/or other technology and/or methodology required or made available by ClickSpark to be used in connection with any and all Advertisements. No images, graphics, links, co-registration paths, pop-ups, pop-unders, copy or process for generating actions other than the Advertisements may be used by Affiliate without first obtaining the prior express written consent of both ClickSpark and the applicable Customer. Affiliate must place or use the Advertisements only with the intention of delivering valid Compensable Transactions as determined by, and for the benefit of, the applicable Customer. Affiliate may not, nor knowingly permit any person to, activate an Advertisement or inflate the amount of Compensable Transactions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, device, program, robot, Iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing a Compensable Transaction. Affiliate may not establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Compensable Transactions, or otherwise attempt to induce Internet users to click on any of the Advertisements through use of any other incentives, without obtaining the prior written approval of ClickSpark and the applicable Customer. Affiliate may not, nor knowingly permit any person to, use third-party trademarks in any way to direct traffic to any Affiliate Website or Customer website including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name, or any derivative of any such trademark, service mark or brand name, of any of the Customers, ClickSpark and/or any of their respective affiliates or clients. Affiliate may not allow the Advertisements to be placed on any non-Affiliate Website without the prior express written consent of both ClickSpark and the applicable Customer. ClickSpark and/or the applicable Customer may alter, modify and/or terminate, at any time, any Advertisements associated with any Campaign. Affiliate must remove such Advertisements after any such termination and/or after any termination or expiration of the applicable Campaign. All determinations made by ClickSpark in connection with the Advertisements, Compensable Transactions and any associated Commissions due to Affiliate shall be final and binding on Affiliate. Notwithstanding the foregoing, ClickSpark's services do not involve investigating or resolving any claim or dispute involving Affiliate and any Customer or other third party. Affiliate may not use any Advertisements or any other ClickSpark Network Campaign information, terms and/or content in connection with aggregating, soliciting or recruiting other Affiliates, Customers, other websites or other persons to form or join an affiliate marketing, advertising or similar network for the purpose of engaging in business of the type conducted by ClickSpark.

4. Placements. Unless otherwise specified in the applicable Campaign Terms or by ClickSpark at any time, and subject to the restrictions herein, the positioning, placement, frequency and other editorial decisions related to Advertisements shall be made by Affiliate. Affiliate must comply, immediately, with any and all requests by ClickSpark and/or the applicable Customer to modify, alter or otherwise change the positioning, placement, frequency and other editorial decisions related to Advertisements.

5. E-mail Campaigns. Where authorized by both ClickSpark and the applicable Customer, the following terms apply to all e-mail campaigns transmitted by Affiliate on behalf of Customer(s). Any and all e-mail based Advertisements transmitted, as well as any and all e-mail addresses supplied by Affiliate (i) shall comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003, as amended ("CAN-SPAM") and any and all Federal Trade Commission enabling regulations; (ii) 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 (c) must not result in any consumer fraud, product liability or breach of contract to which Affiliate is a party or cause injury to any third party. Affiliate shall cause a valid physical postal address for Affiliate and/or Customer, as required by applicable law, to appear in each e-mail Advertisement, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery). ClickSpark reserves the right to add such address(es) should Affiliate fail to include same, but ClickSpark is in no way responsible for including such address(es) where Affiliate fails to do so. In addition, ClickSpark may make available, at an ClickSpark-designated FTP site ("FTP Site"), a suppression list (and associated login information), updated on a regular basis, generated from e-mail campaigns transmitted by and/or through the ClickSpark Network for Affiliate’s use in connection with applicable Campaigns. Affiliate shall upload its own list of suppressed e-mail addresses to the FTP Site, if one is provided by ClickSpark. If the FTP Site is provided by ClickSpark, and no such e-mail addresses are supplied by Affiliate, ClickSpark may conclude that no such addresses exist. The suppression list and login provided by ClickSpark are deemed to be Confidential Information of ClickSpark, as defined herein. Suppression lists may not be used by Affiliate for any purpose other than to comply with applicable laws regulating the e-mail transmissions. Affiliate agrees to process any unsubscribe requests within five (5) days of being posted at the FTP site.

 

6. Reporting. ClickSpark will provide Affiliate with accurate, verifiable reporting on the Compensable Transactions for each Campaign, which shall include, without limitation, the number and amount of Compensable Transactions, and the date, time and location of such Compensable Transactions ("Affiliate Reports"). The data in such Affiliate Reports shall be used, in part, by ClickSpark to calculate the payments due to Affiliate. Where Affiliate believes that any of the Affiliate Reports, or the calculation of the associated Compensable Transactions for such month, contain errors, Affiliate must notify ClickSpark and the applicable Customer, in writing, within ten (10) business days of Affiliate’s receipt of such Affiliate Report. ClickSpark will review the records in dispute and will decide whether to issue a credit to Affiliate equal to any invalid reporting, in its sole discretion. Any Commissions-related dispute between Affiliate and any Customer must be resolved by Affiliate and that Customer. In the event that ClickSpark is in receipt of funds from a Customer for the purpose of paying Commissions to Affiliate, and a dispute arises between Affiliate and the applicable Customer regarding the amount of the funds that are due to Affiliate, ClickSpark shall be entitled to return such funds to the Customer, and to decline to offer further processing services until such dispute is resolved and ClickSpark is notified, in writing, by both parties that payments should resume. Affiliate agrees that ClickSpark shall have no obligations and incur no liabilities to Affiliate in connection with any such dispute. Unless disputed within the applicable period, the Affiliate Reports will be deemed accepted by Affiliate. If, due to any impairment of the Transaction Tracking Codes or any other reason, ClickSpark is unable or fails to provide Affiliate with accurate and/or complete Affiliate Reports, ClickSpark shall calculate Compensable Transactions ("Projected Compensable Transactions"), based upon (i) the average monthly Compensable Transactions recorded by ClickSpark for the applicable Campaign, prorated for any shorter or longer period of time, where data is available to calculate a monthly average; or (ii) such amount that ClickSpark reasonably determines is due and owing, in its sole discretion, where data needed to calculate Affiliate’s average monthly Compensable Transactions is unavailable.

7. Payments. The rates for Compensable Transactions shall be set forth in the applicable Campaign Terms ("Commissions"). Notwithstanding anything contained herein to the contrary, no Commission payments will be issued to Affiliate for any amounts otherwise due Affiliate that total less than $25.00 US Dollars (the "Payment Threshold"). Commissions shall be paid to Affiliate out of the funds collected from the applicable Customer approximately fifteen (15) days after the last day of a given calendar month, for Commissions realized in that month. ClickSpark reserves the right to reduce any and all Commissions owed to Affiliate where ClickSpark has been unable to collect the associate payments from the applicable Customers. ClickSpark shall not be responsible to Affiliate where Customer has not remitted sufficient payments to cover the Commissions otherwise due and owing Affiliate. Instead, Affiliate shall have the right to pursue any and all legal remedies directly against any Customer that has not made funds available to pay sums due and owing to Affiliate for Commissions earned in connection with a particular Campaign. A Customer may request that ClickSpark, or ClickSpark may on its own initiative, debit from the Commissions otherwise due and owing Affiliate with an amount equal to a Commission previously credited to Affiliate’s account where: (i) a return or cancellation has been made with respect to the applicable product and/or service; (ii) there is an instance of a duplicate, fraudulent or incomplete entry or other similar error with respect to a customer order; (iii) there are Compensable Transactions that do not comply fully with the terms of this Agreement, including where the applicable non-complying Compensable Transaction is not the result of Affiliate’s action, omission and/or failure to comply with the terms and conditions of this Agreement; (iv) there is non-receipt of payment from, or refund of payment to, the customer that entered into the subject Compensable Transaction; or (v) there is any failure on the part of an Affiliate to comply with the terms and conditions of this Agreement and/or the applicable Campaign (collectively referred to as a "Chargeback"). Chargebacks requested by a Customer in accordance with this Section 7 may be applied up to sixty (60) days after the end of the month in which the applicable Commission was earned ("Chargeback Period"). A Customer may request that the payment of a Commission be postponed for one (1) payment cycle where: (i) Customer is verifying a lead (for Campaigns in which lead generation is a component of the Compensable Transaction); (ii) Customer has a product return policy that allows the underlying purchaser to return the product during the Chargeback Period; or (iii) the terms and conditions of a given Campaign provide for such a postponement. The number or amount of Compensable Transactions, credits for payments and debits for Chargebacks, as calculated by ClickSpark, shall be final and binding on Affiliate. In the event Affiliate owes ClickSpark monies pursuant to any Campaign where Affiliate participates in the ClickSpark Network as a Customer, or any other agreement between the parties, ClickSpark may offset any amounts due to Affiliate under such Campaign or any other agreement against any amounts outstanding under this Agreement or such other agreements, and provide Affiliate notification after completion of such offset. ClickSpark will not pay any Commissions to an Affiliate unless ClickSpark has documentation to support such Commissions within its database. ClickSpark may require an Affiliate to provide a W-9, or similar information, as a condition to receiving any Commission payments. ClickSpark reserves the right to withhold and/or cancel Commission payments otherwise due and owing to an Affiliate at any time when ClickSpark believes, in ClickSpark’s sole discretion, that the Affiliate is in breach of this Agreement.

8. Data Collection. ClickSpark does not collect information about Compensable Transactions, other than what it receives through the installed Transaction Tracking Codes. ClickSpark reserves the right to utilize this data, which may include information about Affiliate’s Profile Statistics (as defined hereinbelow), to analyze the performance of the ClickSpark Network, monitor the use of the Transaction Tracking Codes, promote ClickSpark Network performance and functionality and promote Affiliate to Customers. ClickSpark may also disclose data regarding a consumer’s Compensable Transactions to Affiliate and/or any applicable Customer as needed in connection with the transactions contemplated hereunder. Affiliate represents and warrants that Affiliate shall not alter the Transaction Tracking Codes to collect personally identifiable information of consumers and/or Internet users. ClickSpark collects certain personally identifiable information about Affiliate (the "Profile Statistics"). The Profile Statistics shall include, but not be limited to, the geographical location of Affiliate, the types of websites operated by Affiliate, the volume of traffic for such websites and any and all other statistics and data related to the Customer Campaigns that Affiliate participates in. All personally identifiable information that ClickSpark collects from Affiliate is only intended for administrative needs (e.g., accounting and pay-out and performance reporting), for which purpose such data is required.

9. Proprietary Rights. Subject to the terms and conditions of this Agreement and any underlying Campaign Terms, ClickSpark grants to Affiliate a revocable, non-transferable, royalty free, international license to display on, and distribute through, the Affiliate Website and/or Affiliate E-mails, Advertisements for Customer’s Campaigns, and any and all associated trademarks, service marks, tradenames and/or copyrighted material ("Intellectual Property Content") that ClickSpark provides to Affiliate through the ClickSpark Network for the limited purposes of promoting Campaigns to end users. Affiliate may not remove or alter any copyright or trademark notices. Affiliate agrees that its use of the ClickSpark Website, Advertisements, any ClickSpark logos, trademarks or Transaction Tracking Codes is subject to the license granted hereunder and the ClickSpark Website Terms and Conditions. The Intellectual Property Content and other matters related to the ClickSpark Network, Advertisements the ClickSpark Website are protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights. The use, copying, redistribution and/or publication by Affiliate of any part of the ClickSpark Network, Advertisements and the ClickSpark Website, other than as contemplated hereunder, is strictly prohibited. Affiliate does not acquire any ownership rights to the ClickSpark Network, Advertisements and/or the ClickSpark Website. The availability of the ClickSpark Network, Advertisements and the ClickSpark Website does not constitute a waiver of any rights related thereto.

10. Term and Termination. This Agreement shall continue for the term set forth in any underlying Campaign Terms, provided that ClickSpark may, in its sole discretion, terminate this Agreement and/or any Campaign at any time, with or without cause. Affiliate may, in its sole discretion, terminate this Agreement and/or any Campaign upon fifteen (15) days’ prior written notice to ClickSpark. In order for any termination by Affiliate to be effective and binding on ClickSpark, such termination must be acknowledged in writing by an authorized individual at ClickSpark. If Affiliate's participation in the ClickSpark Network expires, terminates or is suspended for any reason, ClickSpark may, with or without notice, terminate or suspend all Campaign Advertisements then in use by Affiliate immediately or, in ClickSpark's discretion, at any time thereafter. Upon any expiration, termination or suspension of this Agreement and/or Affiliate’s participation in the ClickSpark Network: (i) Affiliate shall immediately cease to use and remove from the Affiliate Website any and all Advertisements, other content and/or other materials made available to Affiliate in connection with Affiliate’s participation in the ClickSpark Network; (ii) Affiliate shall immediately cease transmitting any and all emails in connection with any Campaign; (iii) any and all licenses and rights granted to Affiliate in connection with this Agreement shall immediately cease and terminate; and (iv) any and all Confidential Information, Intellectual Property Content or proprietary information of ClickSpark (including, as applicable, any confidential or proprietary information of any Customer made available to Affiliate in the ClickSpark Network) that is in Affiliate’s possession or control must be immediately returned or destroyed. If requested, Affiliate will certify in a writing signed by Affiliate or an authorized officer of Affiliate that all such confidential and/or proprietary information has been returned or destroyed. Notwithstanding any termination of this Agreement or any underlying Campaign, the parties' respective rights and obligations under Sections 7, 9, 10, 11, 12, 13, 14 and 16 and any other provisions of this Agreement that may reasonably be expected to survive termination of this Agreement, shall survive and remain in effect in accordance with their terms.

11. Warranty/Limitation of Liability. THE SERVICES PROVIDED BY ClickSpark UNDER THIS AGREEMENT AND/OR ANY APPLICABLE CAMPAIGN, AS WELL AS THE ADVERTISEMENTS AND THE UNDERLYING PRODUCTS AND SERVICES ARE SUPPLIED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT OF THE LAW, ClickSpark MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE, THAN EXPRESSLY SET FORTH HEREIN. THE ClickSpark NETWORK, ClickSpark WEBSITE, ADVERTISEMENTS, UNDERLYING PRODUCTS AND SERVICES, AFFILIATE REPORTS AND/OR TRANSACTION TRACKING CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. ClickSpark HAS NO LIABILITY, WHATSOEVER, TO AFFILIATE OR ANY THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND/OR AFFILIATE’S USE OF, OR INABILITY TO USE, THE ClickSpark NETWORK, ClickSpark WEBSITE, ADVERTISEMENTS, UNDERLYING PRODUCTS AND SERVICES, AFFILIATE REPORTS AND/OR TRANSACTION TRACKING CODES AND ClickSpark DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND/OR AFFILIATE’S USE OF THE ClickSpark NETWORK, ClickSpark WEBSITE, ADVERTISEMENTS, UNDERLYING PRODUCTS AND SERVICES, AFFILIATE REPORTS AND/OR TRANSACTION TRACKING CODES WILL BE UNINTERRUPTED OR ERROR-FREE. ClickSpark MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES. IN NO EVENT SHALL ClickSpark BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF ClickSpark HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ClickSpark WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THIS AGREEMENT, ON ACCOUNT OF AN DELAY OR FAILURE TO PERFORM UNDER THIS AGREEMENT AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND ClickSpark'S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, ClickSpark'S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO AFFILIATE BY ClickSpark PURSUANT TO THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. ClickSpark SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF CUSTOMERS.

12. Representation and Warranties. Affiliate represents and warrants that: (i) it has power and authority to enter into and perform its obligations under this Agreement; (ii) at all times, it will comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances, including without limitation, CAN-SPAM, federal and/or state laws regulating spyware/adware, all as they relate to this Agreement and any Campaign; (iii) it owns and/or has any and all rights to use of the Affiliate Website in connection with this Agreement and/or any Campaign; (iv) the operation and use of Affiliate Website and any Affiliate E-mails sent in connection with a Campaign will not violate any applicable laws, rules, regulations or ordinances or any rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right; (v) (vi) the Affiliate Websites contain prominent links to Affiliate's privacy policy, which policy provides, at a minimum, adequate notice, disclosure and choices to consumers regarding Affiliate’s use, collection and disclosure of their personal information; (vii) 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 Affiliate's privacy policy and end-users are instructed on how to disable such cookies), Affiliate shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such computer program.

13. Indemnification. Affiliate shall irrevocably defend, indemnify and hold ClickSpark, its Customers, and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from 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: (i) Affiliate's breach of this Agreement, any and all applicable Campaign Terms or any representation or warranty contained therein; (ii) any third party claim related to the Affiliate Website, Affiliate E-mails and/or Affiliate’s marketing practices; (iii) any allegation that Affiliate has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; (iv) any third party allegation or claim against ClickSpark and/or its Customer(s) relating to a violation of any and all state and federal laws regarding online marketing including, but not limited to, CAN-SPAM and/or any and all state and federal laws regarding privacy and deceptive trade practices; (v) any non-Campaign related content, goods or services offered, sold or otherwise made available by Affiliate on and through the Affiliate Website, Affiliate E-mails or otherwise; (vi) any claim that ClickSpark is obligated to pay any taxes in connection with Affiliate’s participation in the ClickSpark Network; and/or (vii) Affiliate’s participation in the ClickSpark Network, in any manner whatsoever.

14. Confidentiality. 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 this Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers: (i) who need to know such information in order for the Receiving Party to perform its obligation hereunder; and (ii) 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: (i) is generally available to or known to the public through no wrongful act of the receiving party; (ii) was independently developed by the Receiving Party without the use of Confidential Information; or (iii) 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.

15. Publicity. Neither party will issue public statements concerning this Agreement without the prior, written consent of the other party; provided, however that ClickSpark shall be permitted to identify Affiliate as an ClickSpark affiliate, and may use Affiliate’s name as part of its marketing materials.

16. Other Provisions.

(a) Assignment. Affiliate may not assign, transfer or delegate any of its rights or obligations under this Agreement and any attempts to do so shall be null and void. ClickSpark may assign this Agreement or any portion herein at its sole discretion.

(b) Choice of Law and Venue. This Agreement shall be governed by and construed in accordance with, the laws of the State of New York, without giving effect to principles of conflicts of law and with the same force and effect as if fully executed and performed therein. Both parties consent to the sole jurisdiction of the state and federal courts of New York County, New York. The parties agree that service by a major overnight courier (such as FedEx or UPS) shall constitute valid and effective service of process in any action arising from this Agreement.

(c) No Oral Modification. This Agreement represents 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. Other than as set forth herein, this Agreement 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 the ClickSpark Network or any Campaign Terms is in conflict or inconsistent with this Agreement, this Agreement shall take precedence.

(d) Non-Waiver; Severability. No waiver of any breach of any provision of this 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 of this Agreement is held to be invalid, the remainder shall remain in full force and effect.

(e) Status 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.