TERMS AND CONDITIONS
Affiliate Terms of Use Agreement
This AFFILIATE TERMS OF USE AGREEMENT (“Agreement”) is a legal agreement between ZenWell Labs / Neurro Essance (“ZenWell Labs / Neurro Essance” or “we”) and the person or entity (“Affiliate” or “you”) that has submitted an application to participate as an affiliate in ZenWell Labs / Neurro Essance’s online advertising offers (“Offers”). You and ZenWell Labs / Neurro Essance may also be individually referred to herein as a “Party” and collectively as “Parties”. This Agreement governs your participation in the offers and provides the terms and conditions under which you may earn payment for promoting offers for goods or services made available by ZenWell Labs / Neurro Essance.
Mailing Address: 5900 Balcones Drive #16597
Austin, TX 78731
Phone: 512-222-5945
In connection with an Advertiser program, you agree to place creative advertising images and data promoting Advertisers’ products or services through your media properties such as by posting on your web site(s) or distributing to your email distribution lists (“Affiliate Services”). Except as otherwise provided herein, you may receive a commission when you have provided Affiliate Services in compliance with the Advertiser’s terms and this Agreement and have thereby caused a specified event (“Event”), such as clicks, click-throughs, sales, registrations, impressions and/or leads. ZenWell Labs / Neurro Essance may change the offer’s terms at any time upon notice to you. ZenWell Labs / Neurro Essance will track all offer programs and compile, calculate and electronically deliver data required to determine the compensation that may be owed to you as a commission under this Agreement. Upon delivery of any such report to you, you must submit any questions or disputes regarding ZenWell Labs / Neurro Essance’s data and calculations to ZenWell Labs / Neurro Essance in writing, including a detailed explanation for any such dispute, within 15 days of the report delivery date; otherwise, ZenWell Labs / Neurro Essance's figures and calculations shall be deemed accurate and accepted as such by you.
Your participation in ZenWell Labs / Neurro Essance’s offers is subject to our prior and ongoing approval. We may immediately terminate this Agreement with or without cause. You have an ongoing responsibility to update any information provided to us in your application, including your contact information and media properties. You agree we may communicate with you regarding your participation in the offers via email, telephone, mail, or any other means. We may, from time to time, send necessary communications relating to the offers and this Agreement to the email address associated with you. You will be deemed to have successfully received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your account is no longer current. Upon our approval of your application, you will receive an account and password to access the offers. Upon termination of this Agreement for any reason, we will disable your account and password. You are solely responsible for all activities that occur under your account and password and may not disclose your password to any third party for any reason (other than third parties authorized by you to use your account in accordance with this Agreement). If your password is compromised you must immediately notify us.
Affiliate responsibilities are outlined in Exhibit A to this Agreement (“Affiliate Responsibilities”). If Affiliate uses Sub-Affiliates (as defined in Section 4), Affiliate is responsible for ensuring Sub-Affiliate’s compliance with the Affiliate Responsibilities.
If Affiliate contracts with or otherwise engages or arranges for other parties (“Sub-Affiliates”) to provide Affiliate Services, Affiliate (a) must require each Sub-Affiliate to agree in writing to terms and conditions substantially similar to the terms and conditions stated in Exhibit A, and (b) remain solely responsible and liable to ZenWell Labs / Neurro Essance, as applicable, for all of the actions (or failure to act) of any such Sub-Affiliates or any other parties working with, for, or under such Sub-Affiliates. Affiliate must keep records of all Affiliate Services provided by Sub-Affiliates during the term that this Agreement remains effective and for a period of one (1) year thereafter. Affiliate must immediately comply with any demand made by ZenWell Labs / Neurro Essance to terminate any Sub-Affiliate from providing Affiliate Services. Notwithstanding the above, ZenWell Labs / Neurro Essance may elect to prohibit the use of Sub-Affiliates by you and you shall be obligated to comply with said prohibition.
ZenWell Labs / Neurro Essance grants you, if approved, a non-transferable, non-exclusive limited license to use the Network(s) and any data, reports, information or analyses arising out of such use, subject to the terms and conditions set forth herein. You acknowledge and agree that you do not have, nor will claim any right, title or interest in ZenWell Labs / Neurro Essance’s software, applications, data, methods of doing business or any elements thereof. You may only access the offers via web browser, email or in a manner approved by ZenWell Labs / Neurro Essance. Offer integration tags must NOT be altered. Altering tags may jeopardize your ability to be paid for Events as ZenWell Labs / Neurro Essance may determine.
ZenWell Labs / Neurro Essance takes diligent measures to protect its reputation and that of its Advertisers.
ZenWell Labs / Neurro Essance strictly prohibits fraud and actively monitors traffic to detect potential fraud. If we suspect fraud by you or any of your Sub-Affiliates, your account will be made inactive pending further investigation. If ZenWell Labs / Neurro Essance determines that you or any Sub-Affiliate fraudulently added leads, clicks or conversions or inflated leads, clicks or conversions by fraudulent traffic generation (as determined solely by ZenWell Labs / Neurro Essance, such as pre-population of forms or any mechanism not approved by ZenWell Labs / Neurro Essance), ZenWell Labs / Neurro Essance’s remedies include, without limitation, forfeit up to your entire commission for all programs and termination of your account. ZenWell Labs / Neurro Essance reserves sole judgment in determining fraud, provided however after making such a determination it must issue a written report to Affiliate setting forth the basis for such determination and the portion of commission which it deems has stemmed from such fraud and which will be forfeited by Affiliate. Potential evidence of fraud that triggers ZenWell Labs / Neurro Essance’s recourse includes without limitation the following activities:
ZenWell Labs / Neurro Essance reserves the right to pursue legal action against you in the event of any breach of this Agreement, including fraud, and to seek all available remedies including actual, consequential, and punitive damages.
You will be paid per the occurrence of an Event. Except as provided herein, the Parties understand and agree that payment will be owed to the Affiliate from ZenWell Labs / Neurro Essance on terms net 5 days after the end of the pay period unless otherwise mutually agreed to. The pay period runs weekly from Monday to Sunday. Unless otherwise specified, all accounts will be paid in US dollars ($USD). No checks or wires will be issued for any amounts less than $1,000.00 US Dollars, provided any amounts not paid out will roll forward to the following period and would in any event be paid at the termination of the Agreement. Every Affiliate account must have a unique, valid taxpayer identification number (TIN) or valid Social Security number on file with ZenWell Labs / Neurro Essance. All payments are based on actual figures as defined, accounted and audited by ZenWell Labs / Neurro Essance. In the event that after payment has been issued, ZenWell Labs / Neurro Essance discovers errors in the actual figures which has resulted in overpayment to you, ZenWell Labs / Neurro Essance reserves the right at any time to set-off a sum equal to the overpayment from subsequent payments issued to you.
Invoices submitted to ZenWell Labs / Neurro Essance and payments made to you shall be based on the Events and corresponding commission as reported and determined by ZenWell Labs / Neurro Essance. ZenWell Labs / Neurro Essance will not be responsible to compensate you for Events that are not recorded due to your error. Past due invoices shall accrue interest at the lesser of 1.5% per month or the maximum amount permitted under law, compounded monthly.
This Agreement is effective as of the date that you electronically submit your application to participate in the offers owned by ZenWell Labs / Neurro Essance, provided that this Agreement shall become null and void if ZenWell Labs / Neurro Essance denies your application for any reason. This Agreement may be terminated by you upon three (3) days' notice or without notice by either party in its discretion. This Agreement shall terminate immediately upon the dissolution or insolvency of either Party. ZenWell Labs / Neurro Essance reserves the right, in its sole and absolute discretion, to terminate a Program and remove any advertisements at any time for any reason. ZenWell Labs / Neurro Essance also reserves the right to suspend or terminate your access to the offers at any time without notice. Termination notice may be provided via e-mail and will be effective immediately. Except as otherwise provided herein, all commission due to Affiliate, subject to the terms of this Agreement, will be paid during the next billing cycle.
A. Affiliate represents and warrants that it will at all times comply with the materials obligations imposed on it under this Agreement, including but not limited to the requirements listed in Exhibit A of this Agreement. The failure to comply with any material obligation of this Agreement may result in the loss of commission if the material breach was related to Affiliate receiving improper commission, in addition to any other remedy available to ZenWell Labs / Neurro Essance at law or in equity, provided in making such a determination ZenWell Labs / Neurro Essance shall issue a written report to Affiliate setting forth its basis for determination that Affiliate failed to comply with a material obligation of this Agreement and, if applicable, the basis for such failure to comply with a material obligation leading to a loss of commission hereunder. Affiliate acknowledges that ZenWell Labs / Neurro Essance makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.
B. Each Party represents and warrants to the other Party that:
(i) the information provided by each Party to the other Party is accurate, truthful and complete;
(ii) each Party has the full corporate right, power, and authority to enter into this Agreement, to grant the rights and licenses granted and to perform the acts required of it;
(iii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound, any applicable governmental law or regulation to which it is subject, or any trademark, copyright, intellectual property, or other third party right;
(iv) when executed and delivered by such Party, this Agreement will constitute the legal, valid, and binding obligation of such Party in accordance with its terms;
(v) such Party will abide by the terms and conditions set forth in this Agreement; and
(vi) such Party has obtained all licenses, authorizations, approvals, consents or permits required to perform its obligations under this Agreement and to conduct its business.
As applicable, all information about consumers (“Customer Information”) submitted to the Affiliate by reason of Affiliate’s participation in distributing a Program through the Network is proprietary to and owned by ZenWell Labs / Neurro Essance. Such Customer Information is confidential and may not be disclosed by you or used for any purpose by you except as may be permitted by this Agreement or the Program Terms for any particular Program. Each party agrees to use the other party's Confidential Information (defined below) solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party's Confidential Information or ZenWell Labs / Neurro Essance’s Advertisers' Confidential Information (including Customer Information) to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party's performance of its obligations or exercise of its rights under this Agreement; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing party. As used in this Agreement, “Confidential Information” means any and all oral or written information that is identified as confidential and is provided by one Party to the other, or information which, under the circumstances surrounding the disclosure, reasonably ought to be treated as confidential. Notwithstanding the above, ZenWell Labs / Neurro Essance retains discretion to disclose your Confidential Information without notice in response to any inquiry or investigation by a government agency.
IN NO EVENT SHALL ZenWell Labs / Neurro Essance BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE NETWORK, THE AFFILIATE SERVICES, THE PRODUCTS OR SERVICE YOU PROMOTE, OR YOUR DISPLAY OF ANY PROGRAM CREATIVE ON YOUR MEDIA, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOST REVENUE, OR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR OTHER DAMAGES, EVEN IF ZenWell Labs / Neurro Essance HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PROGRAMS, NETWORK, AND THE INFORMATION, CONTENT AND SERVICES AVAILABLE ON AND THROUGH THE NETWORK AND ALL TECHNOLOGY, SOFTWARE, MATERIALS, DATA, OR IMAGES PROVIDED OR USED BY OR ON BEHALF OF US OR OUR LICENSORS IN CONNECTION WITH THE NETWORK (COLLECTIVELY, THE “NETWORK OFFERINGS”) ARE PROVIDED ON AN 'AS IS, WHERE IS' AND ‘AS AVAILABLE’ BASIS. YOU USE THE NETWORK AND RUN PROGRAMS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS SET FORTH IN THIS AGREEMENT, ZenWell Labs / Neurro Essance DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE NETWORK OFFERINGS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENTS, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. ZenWell Labs / Neurro Essance DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ON NETWORK OR PROVIDED BY ZenWell Labs / Neurro Essance IS ACCURATE, COMPLETE OR CURRENT. WE WILL NOT BE HELD RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTIONS, DAMAGE OR LOSS OF, ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. WE MAY DISCONTINUE THE NETWORK OR NETWORK OFFERINGS, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE OR OPERATION OF THE NETWORK OR NETWORK OFFERINGS, AT ANY TIME AND FROM TIME TO TIME. IN NO EVENT SHALL AFFILIATE’S LIABILITY TO ZenWell Labs / Neurro Essance ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED $1,000,000.00.
You shall indemnify, defend and hold ZenWell Labs / Neurro Essance harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys' fees) by third parties arising out of your: (a) improper use of the Network; (b) improper operation of a Program; or (c) breach or violation of this Agreement. You further agree to cooperate and comply promptly with any and all ZenWell Labs / Neurro Essance demands for information and materials or ZenWell Labs / Neurro Essance demands for preservation of information and materials arising from any potential or pending legal proceeding, including without limitation any investigation or inquiry initiated by a government agency. ZenWell Labs / Neurro Essance shall indemnify, defend and hold you harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys' fees) by third parties arising out of: (a) any actual infringement of intellectual property rights resulting from your display of ZenWell Labs / Neurro Essance’s advertising creative provided by ZenWell Labs / Neurro Essance in connection with distributing a Program; and (b) any breach or violation by ZenWell Labs / Neurro Essance of this Agreement or of applicable laws and regulations.
You expressly consent that the exclusive venue and forum for any claim by you against ZenWell Labs / Neurro Essance (other than a counterclaim) shall be in Austin, Texas by mandatory, confidential, final and binding arbitration. If your claim against ZenWell Labs / Neurro Essance is $75,000 or less, then such arbitration shall be conducted virtually unless otherwise agreed by the parties. As to any claim by ZenWell Labs / Neurro Essance against you, you expressly consent that you are subject to personal jurisdiction and that venue is appropriate in Austin, Texas and/or any other forum in which you are subject to personal jurisdiction and that ZenWell Labs / Neurro Essance may elect in its discretion to bring its claim in mandatory, confidential, final and binding arbitration or otherwise in a federal or state court in such forum. Any arbitration will be administered by the American Arbitration Association (“AAA”) according to the Commercial Rules, except as modified herein. The arbitration shall be conducted by a single arbitrator chosen from a list of attorneys who are members of the AAA’s large complex case panel. If the Parties cannot agree on an arbitrator within thirty (30) days from the filing of a demand for arbitration with the AAA, the arbitrator shall be chosen pursuant to Rule 13 of the Commercial Rules. The prevailing party in any claim between the parties shall be entitled to an award of its costs and attorney’s fees.
If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.
Affiliate provides its consent to ZenWell Labs / Neurro Essance delivering from time to time electronic communications about ZenWell Labs / Neurro Essance’s business, offerings and information via newsletters, blogs, emails or other electronic means. Affiliate acknowledges and agrees that it may opt out of this consent at any time and it is not a condition of entering into this Agreement to provide consent to receiving electronic communications from ZenWell Labs / Neurro Essance.
Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters, interruption in internet service or any other cause which is beyond the reasonable control of such Party.
The prevailing party shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding arising out of this Agreement.
ZenWell Labs / Neurro Essance may assign this Agreement to a subsidiary, affiliate or business successor. You may not assign this Agreement without the prior written consent of ZenWell Labs / Neurro Essance, which shall not be unreasonably withheld. This Agreement contains the sole and entire agreement and understanding between the Parties relating to the subject matter herein, and merges all prior discussions, whether through officers, directors, salespersons, employees or consultants. This Agreement is non-exclusive to ZenWell Labs / Neurro Essance, and we shall have the right to enter into similar agreements with other third parties. Each Party is an independent contractor and not a partner, joint venture or employee of the other. All notices shall be sent to you to the addresses submitted by you on your application to participate in the offers by certified mail, overnight service (e.g., Federal Express), fax, email or courier. ZenWell Labs / Neurro Essance reserves the right to change any conditions of this contract at any time, with or without notice. Your continued participation in the offers after any change has been posted on the Admin Site constitutes your agreement to such change. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document, and delivered to the other by means of electronic transmission.
Affiliate Responsibilities
The following responsibilities apply to all affiliates (“Affiliates”) participating in ZenWell Labs / Neurro Essance (“ZenWell Labs / Neurro Essance” or “we”) online advertising network (“Network”) as well as any sub-affiliates (“Sub-Affiliates”) that have entered into a contractual or other arrangement with an Affiliate to distribute advertiser (“Advertiser”) advertising through the Network. References below to “you” or “Affiliate” refers to any Affiliate or Sub-Affiliate described in this paragraph.
A. Upon request by ZenWell Labs / Neurro Essance, you are required to provide the following identifying information about you that you represent to be true and correct: first and last name, physical address, country, telephone number, email address, and complete bank account information for payment of any Commission.
B. You are solely responsible for all aspects of any websites, banner ads, other online ads, email, messaging, social media, and any other media property or tools (“Media”) used by you to display or distribute advertising, including but not limited to the development, operation, and maintenance of your Media and all content that appears on or within your Media. You must conduct all marketing and other activities related to your participation in the Network in full compliance with all then-current applicable laws, regulations, and guidelines, including but not limited to the Federal Trade Commission Act (“FTC Act”), the CAN-SPAM Act, Federal Trade Commission (“FTC”) regulations and guidelines implementing the FTC Act and the CAN-SPAM Act, and FTC Guides Concerning the Use of Endorsements. If the Affiliate is domiciled in Canada, in addition to the foregoing (where applicable), the Advertiser’s sole responsibility and liability shall also include but not be limited to fully complying with Canada’s Anti-Spam Legislation (“CASL”), Personal Information Protection and Electronic Documents Act (“PIPEDA”), regulations and guidelines implementing CASL and PIPEDA, and other federal and provincial laws, regulations, and guidelines.
Upon Request by ZenWell Labs / Neurro Essance, you shall furnish to ZenWell Labs / Neurro Essance (a) copies of Media to be or already used by, including text, graphics, video, audio, and photographs; (b) each location you maintain, or directly or indirectly control, where the Media will appear, including the URL of any website; (c) for hyperlinks contained within the Media, each location to which a consumer will be transferred by clicking on the hyperlink, including the URL of any website; and (d) records of the dates when the Media are publicly used or disseminated to consumers.
C. Without limiting the foregoing, your Media must meet the following requirements:
(i) Not include content that is deceptive, misleading, false, untruthful, unsubstantiated, or otherwise fails to comply with applicable federal, provincial and state consumer protection laws, regulations, and guidelines (without limitation, this includes fake “before and after” photos, fake celebrity endorsements, and false claims of a “free” or “risk-free” trial).
(ii) Not include any express or implied claims about the efficacy of, or generally expected results of using, any product, service or program unless you possess competent and reliable scientific evidence to substantiate the claim, which shall mean tests, analyses, research, or studies, conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.
(iii) Where the Media includes a message that consumers are likely to believe reflects the unbiased opinions, beliefs, findings, or experiences of you or any other person or party (“Endorser”) other than the Advertiser (including but not limited to consumer testimonials or celebrity or expert endorsements, blogs, and other statements), the message:
(iv) Not infringe on the personal rights, trademark, service mark, trade dress, trade name, logo, publicity right, copyright, patent rights, or any other intellectual property right of any third party;
(v) Not constitute any advertising via facsimile or telemarketing (including without limitation by use of pre-recorded or artificial voice messages);
(vi) Not constitute any advertising to wireless devices or portable electronic devices by text messaging in any form (including without limitation SMS, Smart Messaging, EMS, and MMS);
(vii) Not use any methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of a consumer;
(viii) Not serve advertising, or drive traffic to advertising or Media, using spyware, adware, parasiteware, or any downloadable application;
(ix) Not constitute deceptive software download or computer setting practices, including but not limited to, installing software without the user’s knowledge, changing a user’s home page without securing the user’s permission, or offering downloadable software that does not include an uninstaller or that cannot be uninstalled by add/remove programs;
(x) Be content-based, not simply a list of links or advertisements, nor can the site be marketed towards earning money from ZenWell Labs / Neurro Essance’s Advertisers;
(xi) Have a top-level domain name;
(xii) Not offer incentives to users to click on ads or to sign-up for advertiser offers, including; incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.;
(xiii) Not promise gifts or anything else of value as a reward or incentive for participating in an online quiz or survey;
(xiv) Be fully functional at all levels; no 'under construction' sites or sections;
(xv) Not include racial, ethnic, political, hate-mongering or otherwise objectionable content;
(xvi) Not include investment advice, money-making opportunities or other advice not permitted under law;
(xvii) Not include gratuitous violence or profanity, and not include material that defames, abuses, or threatens physical harm to others;
(xviii) Not include or promote any illegal activity including, without limitation, the promotion of illegal substances or activities such as illegal online gambling, how to build a bomb or commit any other criminal act, counterfeiting money, etc.;
(xix) Not constitute Software Pirating (e.g., Warez, Hotline), Hacking or Phreaking;
(xx) Not spoof, redirect, or traffic from adult-related websites in an effort to gain traffic.
D. Consistent with the CAN-SPAM Act and analogous federal, state and/or provincial laws, regulations and rules, Affiliate must ensure that all email transmitted by Affiliate to promote an Advertiser’s product, service, or brand must include identification of the message as an advertisement or solicitation, a physical postal address for the “sender” of the message (as that term is defined in the CAN-SPAM Act, 15 U.S.C. § 7701 et seq.), and a functioning electronic mechanism by which the recipient of the message can request not to receive future commercial messages from the “sender.” Without limiting any of the foregoing responsibilities and requirements, Affiliate shall:
(i) not falsify any email “Header” information, as that term is defined in the CAN-SPAM Act.
(ii) not seek or obtain unauthorized access to computers for the purposes of sending out commercial email; including without limitation use of an unauthorized open relay to facilitate distribution of emails.
(iii) not alter any “subject” line provided in the Program Terms (as defined below), or otherwise use any “subject” line that is false or misleading. All subject lines not specified in the Program Terms must be pre-approved for use by ZenWell Labs / Neurro Essance in writing.
(iv) ensure that the “from” line used in transmitting message is not materially false or misleading. As provided in the CAN-SPAM Act, a “from” line will not be deemed materially false or misleading if it accurately identifies a person who “initiated” the message (as the term “initiate” is defined in the CAN-SPAM Act).
(v) ensure that each unsubscribe or opt-out link is active for 30 days from date the Affiliate sends the email.
(vi) update all mailing lists using current Advertiser suppression lists (as made available by ZenWell Labs / Neurro Essance or the Advertiser) not more than five (5) calendar days prior to each mailing, or as otherwise required by law; and
(vii) not send any unsolicited commercial email or other unsolicited online communication.
If the Affiliate is domiciled in Canada or emails are transmitted to persons domiciled in Canada, the Affiliate must ensure that it has received consent to send any “commercial electronic messages” pursuant to CASL or any of its rules and regulations.
E. Lists of email addresses used by Affiliate to transmit Programs shall be:
(i) Collected and maintained in compliance with all federal, state and provincial laws, regulations and rules;
(ii) Collected from websites and other online venues only in compliance with the applicable websites’ and or other online venues’ privacy policies, provided that such privacy policies specifically allow for Affiliate to use such email addresses as contemplated hereunder; and
(iii) Obtained and collected without employing email address harvesting, dictionary attacks and/or any other deceptive or illegal act and/or practice.
F. Affiliate agrees that prior to emailing any campaign available in the offers, it will download the most recent suppression file(s) for any particular campaign as made available by ZenWell Labs / Neurro Essance through the Program Terms or otherwise, and, for that campaign, will suppress all email addresses within its database that are found on such list. In addition, for any campaigns that include a domain suppression list, Affiliate agrees that prior to emailing the campaign it will download the most recent domain suppression list for any particular campaign and, for that campaign, will suppress all domains within its database found on such list.
G. Affiliate further agrees that it will download and remove from its email distribution lists the domains located on the FCC's wireless domain names list (http://www.fcc.gov/cgb/policy/DomainName
Download.html) from all current data used in all mailings. Affiliate further warrants that any new data that it acquires, regardless of its source, will be run against the FCC's wireless domain names list and that domain names contained therein will be removed before sending any mailings. ZenWell Labs / Neurro Essance retains the right to “seed” suppression lists to ensure Affiliate’s compliance with this section.
H. You shall not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Network tags, source codes, links, pixels, modules or other data provided by or obtained from ZenWell Labs / Neurro Essance that allows ZenWell Labs / Neurro Essance to measure ad performance and provide its service. If instructed to do so by ZenWell Labs / Neurro Essance and/or if this Agreement terminates, you will immediately remove and discontinue the use of any offer data. You acknowledge that ZenWell Labs / Neurro Essance does not represent, warrant, or make any specific or implied promises as to the successful outcome of any Programs. You agree to display the creative exactly as it appears on the Program and will not alter any creative that has been submitted to the Network. If any errors or undesirable results occur from your participation in the offers, ZenWell Labs / Neurro Essance shall not be responsible for losses and you may not be compensated.
I. Affiliate agrees that it shall not use or disseminate Media that ZenWell Labs / Neurro Essance has rejected or informed the Affiliate cannot be used or disseminated. Affiliate agrees that it shall comply with all terms applicable to distribution of a specific offer program as made available by ZenWell Labs / Neurro Essance.
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