Properly Publisher Agreement
This Publisher Agreement (the “Agreement”) is between the “Publisher” and Properly (the “Merchant”). This Agreement contains the terms and conditions that apply to the Publisher’s participation as a member of the Merchant Publisher Program (the “Program”) at https://www.properly.ca/ (the “Merchant Web Site”). This Agreement is effective on the date the Publisher accepts the terms and conditions set forth herein (the “Effective Date”).
GENERAL TERMS AND CONDITIONS
BY APPLYING TO THE PROGRAM AND RECEIVING AND USING LINKS TO THE MERCHANT WEB SITE, PUBLISHER IS CONFIRMING THAT IT HAS READ THIS AGREEMENT AND THAT PUBLISHER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF PUBLISHER DOES NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS SET FORTH HEREIN, DO NOT JOIN THIS PROGRAM.
True and Complete Information.
Publisher represents and warrants that all information provided by Publisher in connection with becoming a Publisher of Merchant is true and complete. If Merchant determines that any information provided by Publisher is not true and complete, Merchant may immediately terminate Publisher’s participation in the Program and immediately terminate this Agreement. Merchant represents and warrants that the details and information in connection with the commission rate to be paid to Publisher by Merchant and the break down of the amount so paid, including but not limited to the taxes that are being charged to Merchant by Publisher, if any, and any other relevant payment information, will be supplied to Fintel Connect (“Publisher Network“) and Publisher.
Suitability of Publisher Web Site(s).
Publisher represents and warrants that neither its web site(s) (“Publisher Web Site“) nor any content or technology thereon (a) infringes any third party’s intellectual property rights, publicity rights, or privacy rights; (b) violates any applicable law or regulation; (c) is threatening, defamatory, obscene, harmful to minors, or contains nudity or pornography; (d) contains any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines or code that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information; (e) is materially false, inaccurate, or misleading; (f) promotes violence; (g) promotes discrimination based upon race, creed, gender, religion, nationality, disability, sexual orientation or age; (h) promotes the use of bulk email or spam; (i) promotes the use of pyramid schemes; or (j) promotes illegal gambling, sports betting or touting.
Right to Use Merchant Content.
For purposes of this Agreement “Merchant Content” means any and all trademarks, service marks, trade names, logos, trade dress and other content that Merchant makes available to Publisher in connection with this Program. Such Merchant Content may be, directly or indirectly, owned by Merchant or licensed to Merchant. Subject to the terms and conditions herein, Merchant hereby grants to Publisher, during the term hereof, a non-exclusive, non-transferable, revocable, non-sub licensable right to use and display the Merchant Content that Merchant may make available to Publisher from time to time in connection with this Program.
Content Usage Restrictions.
Publisher and its sub affiliates represents and warrants that it shall not, except as specifically provided for in this Agreement (i) copy or display any Merchant Content; (ii) modify, adapt, translate or create derivative works based on the Merchant Content; (iii) remove, erase, or tamper with any copyright or other proprietary notices in any of the Merchant Content; (iv) sell, market, license, sublicense, distribute, disclose or otherwise grant to any person any right or interest in the Merchant Content; or (v) take any action that may deceive, confuse or otherwise dilute the quality of the Merchant Content or the goodwill associated therewith. Upon termination of this Agreement, for any reason, Publisher shall immediately cease using, displaying or otherwise maintaining any interest in the Merchant Content. For the first three months (three months starting from the publisher approval date to the Program in the Fintel Connect Platform), with the exception of Merchant Content which has been pre-approved by Merchant for use by the Publisher according to the Terms of this Agreement, the Publisher will not, on any public forum, reference the Merchant, or any of the Merchant’s products or services, without the prior approval of Merchant.
Property Ownership Rights.
Publisher agrees and acknowledges that Merchant retain all rights, title and interest in and to all intellectual property rights embodied in or associated with the Merchant Content. Publisher represents and warrants that Publisher will not take any action challenging or otherwise inconsistent with Merchant’s ownership of the Merchant Content and any benefits accruing from the use of such Merchant Content will automatically vest in the Merchant.
Operation and Maintenance of the Merchant Web Site.
Publisher acknowledges and agrees that Merchant will accept or reject, in its sole discretion, any request by customers or potential customers for products and/or services placed on or through the Merchant Web Site. Publisher further acknowledges and agrees that (i) Publisher does not have any authority to make or accept any offer or commitment on behalf of Merchant, (ii) Merchant can not, and will not, guarantee the availability of any products and/or services offered for sale on the Merchant Web Site, and (iii) Merchant is solely responsible for all pricing, merchandising, order processing, order fulfillment, delivery, returns and all other aspects of the Merchant Web Site and the offering of products and/or services thereunder. All personal information obtained through users’ use of the Merchant Web Site shall be, as between Merchant and Publisher, the exclusive property of Merchant.
- Publisher agrees that it will at all times comply will all local, provincial, territorial and federal advertising and marketing laws, including, but not limited to, Canada’s Anti-Spam Legislation (CASL). Without limiting the foregoing, Publisher agrees that it will not send, transmit, re-transmit, deliver and/or otherwise distribute, to an electronic address, a commercial electronic message for products and/or services of the Merchant, unless such message is compliant with CASL.
- Publisher agrees that it will notify Merchant of any complaint regarding Publisher’s advertising or marketing practices, and to provide Merchant with any information it reasonably requests relating to the complaint.
Interference with Links.
Users who click through to Merchant’s site through a qualifying link shall experience Merchant’s site exactly as presented by Merchant. Without limiting the foregoing, Publisher shall not “frame” users’ access to Merchant’s site in any manner, including without limitation, with advertisements, branding or other material. Additionally, Publisher shall not transmit any so-called “interstitials,” “ParasiteWare,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations/Add ons,” “Shopping Wallets” or “deceptive pop ups/unders” to users from the time the user clicks on a qualifying link until such time as the user has fully exited Merchant’s site (i.e., no page from Merchant’s site or any Merchant content or branding is visible on the user’s screen).
As used herein, “ParasiteWare” and “Parasitic Marketing” shall mean an application that: (a) through accidental or direct intent causes the overwriting of Publisher and non-publisher commission tracking cookies through any other means than a user initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of Merchant site in iFrames, hidden links and automatic pop ups that open the Merchant site; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Publisher banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
Except and only to the extent specifically set forth in this Agreement, Publisher shall not acquire any right under this Agreement to use the name Properly or ProperPrice™ Report (a) in any advertising, publicity, or promotion including pay per click bidding or sponsored links for the “Merchant” trademark; (b) to express or to imply any endorsement of Publisher’s products or services; or (c) in any other way or manner. The Merchant agrees that it shall not use the Publisher’s branded keywords, namely any trademarked name associated with the Publisher, in any advertising, publicity, or promotion, including pay per click bidding or sponsored links for said trademarks.
Merchant will track sales made to users who visit the Merchant Web Site from the Merchant Content displayed on the Publisher Web Site using Fintel Connect Software. Merchant will continue to track the sales made to such users, and to pay Publisher a commission for such sales as long as Merchant’s cookies remain in the user’s computer. Publisher and Merchant each agree to rely on, and not to challenge or dispute, the sales tracking and other information that Merchant compiles in connection with the Program, which will bind both Publisher and Merchant for all purposes under this Agreement. Publisher hereby agrees that when and if the cookies used to track sales to users who visit the Merchant Web Site through the Merchant Content displayed on the Publisher web site are deleted, erased, corrupted or become unworkable for whatever reason reason (including browser updates out of the control of the Merchant), Merchant will no longer be able to track sales to that user and shall not be liable for payment of any additional commissions to Publisher for any additional purchases made by such user from the Merchant’s partners. The Publisher can dispute transactions within 30 days of the transaction date. Should tracking be disrupted, due to a specific action caused by the Merchant, such as removing the tracking parameters, compensation for the Publisher will be discussed on a case by case basis and based on past performance in a similar period.
Independent Contractors and Relationships.
The Publisher and the Merchant will remain at all times independent contractors. In no event will a party’s employees, agents or subcontractors be considered agents or employees of the other party. Publisher is responsible for its own federal, provincial, state, local or other taxes. Nothing in this Publisher Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. The parties agree and understand that Fintel Connect remains an unaffiliated third party to the Merchant and Publisher and that although Fintel Connect may facilitate payments to be made by the Merchant to Publisher, Fintel Connect will in no event actually retain the services of Publisher.
Merchant Guarantees No Specific Income from This Program.
Upon notifying the Publisher in writing, the Merchant may change its policies, operating procedures or commission levels at any time by providing 30 days notice to the Publisher, during which time the Publisher may question the changes. No unsolicited bulk email or other spamming techniques shall be used to market Merchant’s products. Merchant reserves the right to reject orders that do not comply with any requirements that Merchant may periodically establish. For a sale to generate a commission, the user must follow a special link from a web page located on the Publisher Web Site to Merchant’s online selection, choose a product and/or service, be approved by Merchant in its sole discretion.
Responsibility for Publisher URLs and Publisher Participation.
The Publisher will be solely responsible for the development, operation, and maintenance of all Publisher Web Site(s) and material on such Web Sites that include Fintel Connect Tracking Links and direct users to the Merchant Web Site. The Publisher acknowledges and agrees that it shall be responsible for complying with the terms hereof.
Fee disputes, qualifying conditions and fraud notices may only be raised within 30 days from invoice and must be supported by written evidence. Each party, at its own expense, will indemnify, defend and hold harmless, the other party, its respective parents, subsidiaries and publishers, and each of their respective directors, officers, employees, agents, publishers, successors and assigns against any claim, suit, action, judgment, liability, loss, cost, expenses and other damages, including reasonable attorney’s fees, based upon or in connection with: (i) any breach or alleged breach of the indemnifying party’s representations and warranties hereunder, (ii) the failure to comply with or perform any obligation or agreement of the indemnifying party hereunder, (iii) any content, technology or other materials provided by Merchant to Publisher, or displayed or contained on the Publisher Web Site (as the case may be), including but not limited to with respect to claims of infringement, (iv) the indemnifying party’s failure or alleged failure to comply with any applicable law, and/or (v) any actual or alleged wrongful act of the indemnifying party.
Term of the Agreement.
This Agreement shall begin on the Effective Date and shall terminate on the date in which Merchant no longer maintains the Program contemplated hereunder. Either party may terminate this Agreement at any time and for any reason by providing 30 days’ notice to the other party. Merchant may terminate this Agreement immediately, without notice, if Merchant determines, in its sole discretion, that the Publisher has breached this Agreement or that Publisher’s Web Site(s) are unsuitable to participate as a Publisher of Merchant.
Modification of Agreement.
The Merchant reserves the right to modify this Publisher Agreement, at any time in its sole discretion, by posting 30 days’ notice to the Publisher in writing. PUBLISHER’S CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE 30-DAY NOTICE PERIOD SHALL CONSTITUTE ACCEPTANCE OF SUCH MODIFICATION BY PUBLISHER.
MERCHANT MAKES NO WARRANTIES, REPRESENTATIONS, GUARANTEES, OR CONDITIONS WITH REGARD TO THE PRODUCTS SOLD ON THE MERCHANT WEB SITE OR THE OPERATION AND MAINTENANCE OF THE MERCHANT WEB SITE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. IN PARTICULAR, MERCHANT MAKES NO REPRESENTATION THAT THE OPERATION OF THE MERCHANT WEB SITE WILL BE UNINTERRUPTED OR ERROR-FREE.
LIMITATION OF DAMAGES.
EACH PARTY’S LIABILITY FOR ALL CLAIMS IS LIMITED TO DIRECT DAMAGES ONLY AND CAPPED AT FEES PAID DURING THE 12 MONTH PERIOD PRECEDING THE CLAIM. NEITHER PARTY WILL HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR PUNITIVE, OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF REVENUE OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE PUBLISHER PROGRAM, EVEN IF THAT PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH INDIRECT DAMAGES.
The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify, or place any construction upon or on any of the provisions of this Agreement.
The Publisher may not assign any of its rights or delegate any of its obligations under this Agreement, by operation of law or otherwise, without Merchant’s prior written consent. Subject to the restriction in the preceding sentence, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.
Merchant’s failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
Governing Law and Language.
This Agreement shall be governed by and interpreted and enforced in accordance with the laws of the province of Ontario, and the federal laws of Canada applicable thereto.