PointClickTrack Terms & Conditions

Affiliate Terms & Conditions
Pursuant to this Agreement, PointClick, LLC and Publisher shall agree to the following terms and conditions for the receipt of advertising materials ("Creative") from advertising Customers ("Customers"). This includes the serving, tracking and reporting of each Campaign made on the PointClickTrack Affiliate Network (the "Network") to Publisher Websites ("Websites").


USE POLICY:

1. Membership:
Membership in the PointClickTrack Network is subject to prior approval of PointClickTrack.com. PointClickTrack reserves the right to refuse service to any new or existing Publisher, in its sole discretion, with or without cause. Approval of membership in the PointClickTrack Network is limited only to the specific root URLs for which Publisher has applied for approval. PointClickTrack reserves the right to withhold approval of membership in the PointClickTrack Network based on Website primary language. PointClickTrack reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Publisher or Website for any reason at any time, with or without notice to the Publisher and regardless of whether such Publisher or Website was previously accepted.

2. Approval of Publisher:
Registration with PointClickTrack shall not confer any right on Publisher to market or promote any Programs (as defined below) made available by PointClickTrack on the Site on behalf of its clients (the “Advertisers”). All prospective publishers need official approval from PointClickTrack before they can become Publishers. Only approved Publishers are permitted to use the Site. PointClickTrack reserves the right to withhold or refuse approval for any reason, whatsoever.

3. Publishers Eligibility Requirements:

  • In order to be eligible to become a Publisher, all websites, affiliated websites and e-mail distribution lists (collectively the “Media”) must meet the following criteria:
  • All Publishers that wish to send e-mail advertisements must have permission based opt-in databases with functional unsubscribe mechanisms.
  • Publisher websites must be content-based, not simply a list of links or advertisements, nor can the sites be centered around making money off of the Advertisers.
  • Publisher websites must contain only English language content (other than incidental use of a foreign language);
  • Publisher websites must have a top-level domain name.
  • Unless otherwise approved in writing or electronically by PointClickTrack, Publishers may not offer incentives to users as means to enhance the performance of any Program. Incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc..
  • Publisher websites must be fully functional at all levels. no "under construction" sites or sections.
  • Spawning process pop-ups are prohibited.
  • Websites must not contain, promote, have links to profanity, sexually explicit materials, hate material, promote violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, family status, or any other materials deemed unsuitable or harmful to the reputation of PointClickTrack.
  • Websites must not promote or reference software piracy (warez, cracking, etc.), hacking, phreaking, emulators, ROM's, or illegal MP3 activity.
  • Websites must not promote illegal activities or violations of the intellectual property rights of others.
  • Websites must not be personal web pages, non-English language pages, or FREE hosted pages (Geocities, Xoom, Tripod, Talk City, etc.)
  • Websites must not promote activities generally understood as Internet abuse, including but not limited to, the sending of unsolicited bulk electronic mail.
  • Websites must not be advertised or promoted through the use of unsolicited bulk email, or allow website members or customers to engage in similar activities through Publisher's Website, including those activities prohibited by this agreement.

4. Representation: Publisher represents and warrants that:

  • It is the owner or is licensed to use the entire contents and subject matter contained in the Website.
  • The Website is free of any "worm", "virus" or other device that could impair or injure any person or entity.
  • The Website does not violate any law or regulation governing false or deceptive advertising, sweepstakes, gambling, comparative advertising, or trade disparagement
  • The Website does not contain any misrepresentation, or content that is defamatory or violates any rights of privacy or publicity.
  • Publisher is generally familiar with the nature of the Internet and will comply with all laws and regulations that may apply.
  • The Website does not and will not infringe any copyright, trademark, patent or other proprietary right. Publisher grants PointClickTrack and the customer the right and license to transmit the Creative to the Website.

 

5. Payment:
PointClickTrack shall pay any amounts due to the publisher on or about the 25th of every month for the revenue generated between the 1st to 31st of each previous month. PointClickTrack reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by Advertisers for invalid Events, technical errors, tracking discrepancies and the like. PointClickTrack shall compile, calculate and electronically deliver data required to determine Publishers billing and compensation. PointClickTrack will issue to Partner any positive balance in Partner's Account for Transactions reported for the previous relevant period. PointClickTrack shall have no obligation to make payment of any Commissions for which PointClickTrack has not received payment from the relevant Merchant of all monies due to PointClickTrack (including for all Commissions owed by such Merchant to all of such Merchant's Partners) until such payment has been received.
PointClickTrack determines the actual payments to your account.  Any concerns or questions regarding your payout need to be submitted to PointClickTrack in writing within (3) business days of your receiving the payment that is in question.  If no question is raised within (3) business days then your payout will be considered fair and accurate by you the publisher.
All amounts will be paid in US dollars. No checks will be issued for any amounts less than $25 US Dollars (the "Payment Threshold"). All such amounts below the Payment Threshold shall be aggregated and paid when the Payment Threshold has been met. PointClickTrack will not pay for any Events that occur before a Program is initiated, or after a program terminates. Invoices submitted to PointClickTrack and payments made to Publisher shall be based on the Events as reported by PointClickTrack. PointClickTrack will not be responsible to compensate Publisher for Events that are not recorded due to Publisher's error or for nonpayment by the Advertiser. PointClickTrack may require a Publisher to provide a W-9, and similar such information, as a condition to payment.

6. Termination:
PointClickTrack reserves the right to terminate any Publisher's relationship with the PointClickTrack Network at any time, with or without cause. Termination notice may be provided via email or any other public means and will be effective immediately. Upon receipt of such termination notice, Publisher agrees to immediately remove from his/her website PointClickTrack.com’s html code for serving Creative from PointClickTrack.com. Publisher will be paid, in the next scheduled payment cycle, all legitimate earnings due up to the time of termination. Upon termination, and in the event that blatant fraudulent activities have been documented in the PointClickTrack server logs, no past or future payments will be made by PointClickTrack to the publisher

7. Ad and Website Content:
PointClickTrack reserves the absolute right to refuse to affiliate with any Publisher. PointClickTrack does not accept Websites that provide or produce adult content. PointClickTrack does not accept Websites that engage in, promote or facilitate illegal or legally questionable activities such as pirating and hacking. PointClickTrack does not accept Websites that are: under construction, hosted by a free service, personal home pages, or do not own the domain they are under. PointClickTrack ad codes cannot be used on Web pages that contain forums, discussion boards, or chat rooms. This Agreement is voidable by PointClickTrack immediately if Publisher fails to disclose, conceals or misrepresents itself in any way. In addition, PointClickTrack may in its complete discretion refuse to serve any Website that it deems appropriate. To insure compliance with this Agreement, any Publishers that change their content after approval for membership MUST notify PointClickTrack of the changes in writing IMMEDIATELY. We prefer you notify us ahead of time of any major changes in content or design. Notices should be sent to Admin@PointClickTrack.com or your PointClickTrack affiliate manger

In order to be eligible to become a Publisher on our network, your content must not promote, advocate, facilitate or otherwise include any of the following:

  • Your Publisher Website(s) may not incentivize users without written authorization from PointClickTrack to click on ads. Incentives include, but are not limited to, awarding user's cash, points, prizes, contest entries, etc.
  • Your Publisher Website(s) cannot contain pornographic, obscene, sexually explicit or related content.
  • Your Publisher Website(s) cannot promote illegal substance or (e.g., illegal narcotics, how to build a bomb, counterfeiting money, etc.)
  • Your Publisher Website(s) cannot contain racial, ethnic, political, hate-mongering or otherwise objectionable content.

In Addition:
Your Publisher Website(s) must contain distinct and legitimate content, substance and material, not simply a list of links or advertisements. Further, the applicable Publisher Website(s) must serve a purpose substantially or completely separate and distinct from merely being designed to earn money solely from Company's Advertisers or third party advertisers. Your Publisher Website(s) must each be represented by a legitimate second-level domain name (e.g. yoursite.com is acceptable; however, a shared server, e.g., sharedsite.com/your site, is not acceptable). Your Publisher Website(s) must be written in English and contain no other language in its content. Your Publisher Website(s) must be fully functional at all levels; no "under construction" website(s) or sections are permissible.

9. Spam Indemnification:
Publisher agrees to indemnify and hold PointClick, LLC, PointClickTrack , its Advertisers and their respective affiliates, employees, officers, agents, directors and representatives of “PointClickTrack and PointClick, LLC Indemnified Parties” harmless from all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys' fees, costs related to in-house counsel time, court costs and witness fees) (collectively “Losses”) arising out of or in connection with PointClickTrack's use of the email list provided by Publisher (including, but not limited to alleged violations of the Can-Spam Act of 2003).

10. Spamming:
Publisher warrants that it will not send any commercial email to any person who has requested not to receive email from the Publisher and/or Advertiser and that they are in full compliance with the Can-Spam Act. Publisher also understands that upon doing so it automatically forfeits the right and claim to any revenue generated for its account, and Publisher's account will be immediately terminated. Publisher further agrees that all of Publisher's business will be in compliance with all local, State, and Federal anti-spam policies and all other applicable laws.

11. Reselling Data/Campaigns:
Publisher agrees not to broker or resell any campaigns or creative materials from PointClickTrack's Advertisers or Agencies to any other party without express written permission from PointClickTrack. Publisher also understands that upon doing so, it automatically forfeits the right and claim to any revenue generated for its account, and its account will be immediately terminated. Breach of this provision will cause Publisher and its web property to be liable for all damages related to such breach.

12. Fraud and Deception:
PointClickTrack audits every Publisher's traffic on a daily basis. Publishers that produce or commit fraudulent activities, including false clicks, false impressions, and incentivized clicks (that have not been previously authorized in writing), will have their account permanently removed from our network and will not be compensated for fraudulent traffic. If fraud is suspected or detected, Publisher’s account will be made inactive pending further investigation.
Publisher accounts are flagged that:

  • Have click-through rates that are much higher than industry averages and where solid justification is not evident to the reasonable satisfaction of PointClickTrack;
  • Have ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks reported;
  • Have shown fraudulent leads as determined by the Advertisers;
  • Have much higher conversions per click rates than industry averages and where solid justification is not evident to the reasonable satisfaction of PointClickTrack; or
  • Use fake redirects, automated software, and/or fraud to generate Events from the Programs.

If Publisher fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre-population of forms or mechanisms not approved by PointClickTrack or use of sites in co-registration campaigns that have not been approved by PointClickTrack), as determined solely by PointClickTrack, Publisher will forfeit its entire commission for all programs and its account will be terminated. If Publisher is notified that fraudulent activities may be occurring on its Media, and Publisher fails to take prompt action to stop the fraudulent activities, then, in addition to any other remedies available to PointClickTrack, Publisher shall be responsible for all costs and legal fees arising from these fraudulent activities. In addition, in the event that Publisher has already received payment for fraudulent activities, PointClickTrack reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Publisher.

Any Publisher caught running brand name term bidding (including misspellings or variations of brand terms) will lose all commissions earned on that offer with potential to lose access to your PointClickTrack Account. All brand name and trademark terms of our advertisers should be negative matched when any form of Search traffic is being used.

13. Code:
PointClickTrack ad codes must not be modified from original format without consent from PointClickTrack. Publisher agrees to use the ad code provided for displaying Creative not more than ONCE per page view. Ad codes cannot be placed in email messages. PointClickTrack ad codes cannot be used on Webpages that contain forums, discussion boards, or chat rooms. Publisher cannot alter, copy, modify, take, sell, reuse, or divulge any PointClickTrack computer code, except as is necessary to partake in the PointClickTrack Network, provided, however, with the prior approval of PointClickTrack, a Publisher may, in certain instances, modify the PointClickTrack computer code for purposes of inserting certain pre-approved language above or below an advertisement served by PointClickTrack.com. Requests for language approval should be sent to Admin@PointClickTrack.com.

14. Data Reporting (Stats):
PointClickTrack is the sole owner of all website, campaign, and aggregate web user data collected by PointClickTrack.com. Publisher only has access to campaign data that is collected through the use of their inventory. Customers only have access to website and web user data that is collected as part of Customer's campaign.

15. Scrubbing Leads:
Each Program shall have its own criteria for determining the validity of a lead (the “Lead Requirements”), which shall be detailed in the section entitled "Campaign Details" included in the on-site offer summary and the offer-specific instructions emailed by an PointClickTrack Account Executive. PointClickTrack shall only pay for net or billable leads (“Billable Leads”), which are determined by taking the gross leads from a Program and deducting Invalid Leads and Returned Leads. “Invalid Leads” are those leads that do not meet the Lead Requirements. Examples include, but are not limited to, leads that are missing data, do not meet filter requirements, are incorrectly formatted or do not meet certain phone, email and CASS (postal address) validations. “Returned Leads” are those that have met the Lead Requirements, but are rejected due to inaccurate data or the inability to verify user information. Examples include, but are not limited to, leads for which the registrant is not at the phone number or address submitted, "unsubscribes" prior to being contacted, is on the "Do Not Call List", replies with "Did Not Request This Information" or the lead is a duplicate in the Advertiser's database. The PointClickTrack proprietary lead processing system is responsible for detecting and tracking Invalid Leads. The Advertiser is generally responsible for detecting and tracking Returned Leads. Billable Leads will generally be determined by the 15th of the subsequent month and will be displayed on the PointClickTrack site when available. Accordingly, any statistics regarding Billable Leads appearing on the Site during the month in which the Program is running are preliminary and are subject to adjustment as provided herein.

16. Use of Leads:
Publisher hereby acknowledges that the collection of the Leads is being done solely for the benefit of PointClickTrack or its Advertiser. Therefore, other than providing the Leads to PointClickTrack for delivery to the Advertisers, Publisher may not use, sell, transfer or assign or attempt to monetize the Leads for its own purposes. All right, title and interest in the Leads shall vest exclusively in PointClickTrack or its Advertisers.

17. Contact Information:
To insure timely payment, Publishers are responsible for maintaining the correct contact and payment information associated with their account. Payment Profile information must be updated by the last day of the month to be reflected in the next payment. This must be done online using the Publisher's account. Any and all bank/service fees associated with returned or cancelled payments due to any error in the Publisher contact or payment information are Publisher's responsibility, and will be deducted from re-payment.

18.  Third Party Publishers
PointClickTrack may with a (4) hour notice terminate agreement with publisher if a Third Party Publisher is engaging in fraudulent and/or prohibited conduct as is stated in this agreement.  PointClickTrack may withhold all payments to publisher that are associated with the Fraudulent and/or prohibited conduct

19. Relationship of Parties:
For purposes of this Agreement, each party shall be and act as an independent contractor. This Agreement does not constitute, create, or give effect to any employer/employee or franchiser/franchisee relationship, nor any joint venture, partnership, limited partnership, or agency among the parties, and the parties hereby acknowledge that no other facts of relations exist that would constitute, create, or give to effect any such relationship between them. Neither party has any right or authority to assume or create any obligation or responsibility on behalf of the other party except as may from time to time be provided otherwise by written agreement signed by both parties.

20. Assignment:
This Agreement shall be binding upon and inure to the benefit of the parties hereto, their subsidiaries, and their respective successors and assigns, provided that neither party may assign any of its rights or privileges hereunder without the prior written consent of the other party except to a successor in ownership (for example, by merger or acquisition) of all or substantially all of the assets of the assigning party, and which successor shall expressly assume in writing the performance of all the terms and conditions of this Agreement to be performed by the assigning party. Any attempt at assignment in derogation of the foregoing shall be held null and void.

21. Indemnification:
Publishers will at all times indemnify and hold harmless the PointClickTrack Indemnified Parties from and against any and all Losses arising out of any arising out of the Publisher's breach of any representation, warranty or obligation hereunder, or any alleged breach of any representation, warranty or obligation to any other party.

22. Limitation of Liability:
POINTCLICKTRACK SHALL NOT HAVE ANY LIABILITY TO THE PUBLISHER FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, BASED UPON A CLAIM OF ANY TYPE OR NATURE (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, INCLUDING NEGLIGENCE, WARRANTY OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT POINTCLICKTRACK'S TOTAL OBLIGATIONS AND/OR LIABILITY CAN NEVER EXCEED THE VALUE OF THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION.

23. Representations:
Each party represents and warrants that it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereunder, and that any material provided by it to the other party for display on the other party's site will not infringe on any copyright, trademark or other proprietary right of any third party.

24. Severability:
If any provision of this Agreement is held to be ineffective, unenforceable or illegal for any reason, such decision shall not affect the validity of any or all of the remaining portions thereof.

25. Force Majeure:
Neither party shall be held liable or responsible to the other party nor be deemed to have defaulted under or have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from causes beyond the reasonable control of the affected party, including but not limited to fire, floods, failure of communications systems or networks, embargoes, war, acts of war (whether war is declared or not), acts of terrorism, insurrections, riots, civil commotion, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays in acting by any governmental authority or the other party; provided, however, that the party so affected shall use reasonable commercial efforts to avoid or remove such causes of non-performance, and shall continue performance hereunder with reasonable dispatch whenever such causes are removed. Either party shall provide the other party with prompt written notice of any delay or failure to perform that occurs by reason of force majeure. The parties shall mutually seek a resolution of the delay of the failure to perform as noted above.

26. Entire Agreement:
This Agreement constitutes the entire agreement and supersedes all prior agreements of the parties with respect to the transactions set forth herein. PointClickTrack reserves the right to modify these terms and conditions at its sole discretion. Publishers are entitled to review these terms and conditions periodically.

27. Governing Law:
This Agreement will be governed by and construed under the laws of the State of Indiana without regard to the conflicts of law provisions thereof. Any action relating to this Agreement must be brought in the federal or state courts located in the County of Elkhart, Indiana, and Publisher irrevocably consents to the jurisdiction of such courts.

28. Confidentiality:
Except as otherwise provided in this Agreement or with the consent of PointClick, LLC, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Affiliate shall not use any information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same.

29. Applicability:
In This Agreement, including all attachments which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. Applicable sections shall survive expiration or early termination of this Agreement. Nothing in this Agreement shall be deemed to create a partnership or joint venture between the parties and neither PointClickTrack nor Publisher shall hold itself out as the agent of the other, except for that specified in this Agreement. Neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties. Failure by either party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement shall be effective only if in writing and signed by the parties. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement. In addition to terms that are negotiated and documented separately from this Agreement, terms that are automatically generated through the interactive use of the PointClickTrack website Publisher interface are explicitly bound by this Agreement.

30. Public Release:
Publisher shall not release any information regarding Campaigns, Creatives, or Publishers relationship with PointClickTrack or its customers, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of PointClickTrack.com. PointClickTrack shall have the right to reference and refer to its work for, and relationship with, Publisher for marketing and promotional purposes. No press releases or general public announcements shall be made without the mutual consent of PointClickTrack and Publisher.

31. Check Recovery Policy via Fiserv:

What is our check recovery policy?
As a convenience to you, PointClick, LLC recovers its returned checks electronically through Check Recovery from Fiserv. An electronic payment is the fastest and easiest way for you to clear up any misunderstanding that could arise from a returned check because it allows you to avoid the hassle of the collections process.

But my check is good! What does this policy mean for me?
If your check is good, you will not be affected by this policy. If your check is returned unpaid, your account will be debited electronically or via paper for the original check amount plus a service fee as allowed by state law. Your payment by check is your authorization for these transactions. To revoke this authorization, call us at (800)-666-5222.

What if I realize later that I don't have the funds to cover this check?
To protect you from the risk of overpaying, we ask that you not attempt to make payment to PointClick, LLC in person. Please make sure that sufficient funds are available in your checking account as soon as possible, and Fiserv will automatically clear up your misunderstanding with PointClick, LLC.

For inquiries or to revoke authorization, call customer service at (800) 666-5222.

32. Remedy:
If any Publisher violates or refuses to partake in their responsibilities, or commits fraudulent activity against us, PointClickTrack reserves the right to withhold payment and take appropriate legal action to cover its damages.
Audit: PointClickTrack shall have the sole responsibility for calculation of Publisher earnings, including Impressions and click through numbers. In the event Publisher disagrees with any such calculation, a written request should be sent no later then 3 days to PointClickTrack. PointClickTrack will provide Publisher with an explanation or adjustment of the numbers which shall be final and binding.

33. Modifications:
PointClickTrack reserves the right to change any condition of this contract at any time, notification may be provided to Publishers but is not required.
Privacy: Publisher shall support PointClickTrack’s commitment to protect the privacy of the online community; such commitment is set forth in PointClickTrack Privacy Policy located on www.PointClickTrack which is hereby incorporated into this Agreement.

34. Attorneys' Fees:
PointClickTrack under this agreement is entitled to recover all reasonable attorneys’ fees and collection fees associated with this agreement due to any intentional wrong doing or breach of this agreement by you the publisher.

35. Waiver:
No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.
Ability to Enter into Agreement: By executing this Agreement, Publisher warrants that Publisher (or Authorized Representative of Publisher) is at least 18 years of age, and that there is no legal reason that Publisher cannot enter into a binding contract.

All notices to be sent to:
PointClick, LLC
4000 E. Bristol St.
Suite 3-PMB294
Elkhart, IN 46514
Ph 574-821-4036

DEFINITIONS:

Click-throughs (“CPC”) : PointClickTrack's CPC program offers websites the opportunity to generate revenue based on the cost-per-click (“CPC”) advertising model. A click is counted when a unique visitor to a Publisher's website clicks on an advertisement.

Impressions (“CPM”) : PointClickTrack offers websites the ability to receive payment on a cost-per-thousand (“CPM”) structure. The Publisher is paid a fractional amount when a banner is shown to a visitor. Banner views are aggregated on into groups of one thousand impressions and payments are calculated for each one thousand banners shown.

Cost Per Acquisition (“CPA”) : PointClickTrack's CPA program offers websites the opportunity to generate revenue based upon customer interaction with advertisements on their website which lead to an acquisition. An acquisition is deemed complete when a customer clicks through a banner/advertisement or email solicitation and completes an action as defined by the client. The greater the amount of information requested by the client generally dictates a higher payout to the Publisher.

Cost Per lead (“CPL”) : PointClickTrack's CPL program enables Publishers to add promotional features to their websites as approved by PointClickTrack, and to send data to PointClickTrack for which the Publisher will be eligible for compensation in accordance with, and subject to, this Agreement.


PUBLISHER DATA PROTECTION ADDENDUM:

Effective date: May 25, 2018

 

This Data Protection Addendum ("Addendum") forms part of the PointClick, LLC Affiliate Program Operating Agreement ("Agreement") and is entered into as of May 25, 2018 ("Addendum Effective Date") by and between: (i) affiliate ("Publisher") acting on its own behalf and as agent for each Publisher Affiliate; and PointClick, LLC, a Indiana limited liability company ("Company") acting on its own behalf and as agent for each Company Affiliate, to reflect the parties' agreement with regard to the processing of personal data.

The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect. 

In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement. Except where the context requires otherwise, references in this Addendum to the Agreement are to the Agreement as amended by, and including, this Addendum.

Under General Data Protection Regulation (GDPR), Publishers assume the role of the Controller of the data they send through Company’s system. Company assumes the role of a Processor of that online traffic data.

 

Definitions

  1. Applicable Laws - means (a) European Union or Member State laws with respect to any Company Personal Data in respect of which any Company Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Company Personal Data in respect of which any Company Group Member is subject to any other Data Protection Laws;

  2. Controller - means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data;

  3. Processor – means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller;

  4. Data Protection Laws - means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;

  5. Personal Data Breach - is a breach in security which may result in a potential or unlawful loss, modification, eradication or unauthorized disclosure of, or access to, relayed, stored or processed Personal Data;

  6. Process(ing) - refers to the operations performed on the Personal Data, albeit executed in an automated fashion or otherwise, including and not limited to the collection, structuring, storing, altering, retrieving, accessing, using, releasing by transmittal, propagation, constraining, erasing or destroying of data; and

  7. Supervisory Authorities - refers to independent public authorities which were created by a member state of the European Union pursuant to GDPR Article 51.

 

Terms the Publisher Agrees to Comply with are as follows:

  1. Ensuring Compliance
    Publisher shall remain compliant with any obligations specific to all Applicable Laws including the Processing of Personal Data in connection with the Addendum.

  2. Safeguarding
    Publisher is able to confirm and prove that it has necessary security measures in place to protect Personal Data. This includes and is not limited to the enforcement of technical measures against any unauthorized use, potential loss, damage or destruction of the Data Subject’s Personal Data.

  3. Data Handling and Processing
    Publisher has collected valid authorizations, as necessary, to Process Personal Data of the data subjects coming on your site. In the instance where you become cognizant of any errors or lack of compliance being enforced in handling the Personal Data, you shall inform Company.

  4. Personnel Administration of Personal Data
    Publisher shall enforce measures to ensure that all employees, affiliates, subcontractors, or agents (also known as “Personnel”), whom are involved in the Processing of the Personal Data in connection with the Addendum, are reliable and aware of their duties and all laws regarding the GDPR regulations.

  5. Transfer of Personal Data
    In the case Publisher transfers any Personal Data from within the EEA [or Switzerland] to Company, within the United States of America, you will take all required actions to properly ensure the transfer following the GDPR regulations.

  6. Third-Party Inquiries
    Publisher agrees to having a Data Protection Officer, or an employee whom shall remain responsible for ensuring the lawful and appropriate administration of Personal Data along with assisting Company, in a timely manner, with any inquiries surrounding Data Subjects or any competent data protection or privacy authority as they relate to the Processing of Personal Data which you have provided to Company. 

    In an effort to assist Company with remaining compliant with GDPR and in relation to any Personal Data that you provide to Company, you agree with providing Company with assistance and information on an as needed basis in a timely manner.

  7. Exchange of Personal Data
    Per the addendum, in the instance where you receive Personal Data from and provide Personal Data to Company, you and Company consent to doing so in the capacity of Controller, for the process of supplying Personal Data to the other party. In the case you receive Personal Data from Company, you will act in the capacity of a Controller, and:
    A. Uphold the ability to Process such Personal Data for your own business and commercial needs, subject to the Terms of this Addendum (including, without limitation, the scope of the license granted) and per the obligations of Controller laid out in Article 28 of the GDPR; and
    B.Retain the ability to Process Personal Data per the instructions of Company and not for the intent of your own business or commercial purposes; complying with the Applicable Laws and obligations of a Processor as laid out in Article 28 of the GDPR.

  8. Consent for Personal Data
    Publisher validates that as an operator of a digital property, from which you collect Personal Data, you have implemented methods for obtaining appropriate consent for such collection of Personal Data for all intents and purposes specific to those which Company has laid out in the Addendum and have provided a clear link to an easy-to-use mechanism which would allow the Data Subject the ability to opt out. Publisher can validate that it has the necessary proof of consent of any Data Subject whose Personal Data it exposes to Company and in all those cases the Data Subjects are provided with a clear mechanisms to opt-out.

    Publisher verifies that the provision of Company Personal Data via digital properties and operated by third parties, have implemented legally enforceable obligations in place with the third parties - specifically requesting that they obtain explicit consent which you will be able to provide in evidence to Company to satisfy the requirements of Company’s use of such Personal Data, per the Addendum. Similarly, Publisher will be responsible for furnishing third parties with any relevant information laid out in the Addendum and/or made available by Company in writing.

    If Publisher is unsure of the technology Company uses in relation to Personal Data and how Company will use Personal Data provided by Publisher, please see our privacy statement and terms & conditions  at http://www.pointclicktrack.com.

    Generally, Company uses Personal Data for purposes related to its measurement of consumer behavior, audiences, and advertising. At minimum, this spans (i) market research, (ii) advertising and modelling, (ii) user experience, analytics and reporting. In such instances, Company utilizes Personal Data on its own behalf and on behalf of its customers; making the Personal Data subject to the terms of the applicable Addendum.

  9. Disclosures & Privacy Policy
    If you are an operator of a digital property from which Personal Data is collected and provided to Company, Publisher will comply by having a privacy notice that is in order with the Applicable Laws. 

    In the case you uphold a provision to Company of Personal Data from digital properties, that are operated by third parties, you will contractually request that your relevant contracting parties have a privacy notice that complies with Applicable Laws for each digital property.

  10. Personal Data Breach
    In the instance of a Personal Data Breach, where there may be impact to Personal Data Processed per the Addendum, Publisher will: (i) take all necessary and appropriate corrective measures to resolve any related, underlying causes of the Personal Data Breach; (ii) promptly notify Company within twenty-four (24) hours and furnish any reasonable detail regarding the nature of the Personal Data Breach along with any related, potential impact to the Personal Data disclosed to Company; and (iii) assist Company as necessary to ensure compliance with Applicable Laws.

  11. Rights of Data Subjects
    Publisher has the means and will take all necessary measures to remain in compliance with reasonable requests from Data Subjects (in relation their rights under Articles 12-22 of GDPR) as it pertains to Personal Data Processed, per the Addendum.

  12. Disclosure of Sensitive Personal Data
    If you are an operator of a digital property from which Personal Data is collected and provided to Company, you will comply by having a privacy notice that is in order with the Applicable Laws.

  13. Audit and Compliance
    Per the Addendum, you will comply with any reasonable requests for information from Company and/or Company clients as they pertain to your Processing of Personal Data. Per Applicable Laws, you ensure that all affiliated parties are in compliance with their specified obligations and are willing and able to allow Company and/or Company clients to perform an audit of your compliance as per this DPA and Applicable Laws.

  14. Complying with Data Protection Impact Assessments
    As able, you will aid Company with any data protection related impact assessments along with former consultations with Supervisory Authorities or other competent data privacy governing bodies, which Company considers to be necessary by Article 35 and/or 36 of the GDPR or per similar conduct spelled out in Applicable Laws and as they pertain to the Processing of Personal Data associated with the Addendum.

  15. Precedence of Agreements
    Publisher confirms and concurs that the terms and conditions of this DPA shall serve as an add on to the existing Agreement. In the case there is any misalignment between the DPA and an Agreement, the order of precedence remains: (1) DPA; and (2) an Agreement.

  16. Modifications to Applicable Laws
    Company may: (i) by a minimum of at least 30 (thirty) calendar days’ of written notice to you, make any modifications as a result of any updates in, or per determination of a competent authority under the Applicable Law as it relates occurrence of to Controller to Controller disclosures of Personal Data without breach of the associated, Applicable Law; and (ii) suggest any other variations to this DPA which Company deems to be necessary for addressing the requirements of any Applicable Laws.

  17. Indemnification
    The Publisher agrees to indemnify the Company and defend the Company at its own expense against all costs, claims, fines, group actions, damages and expenses incurred by the Company or for which the Company may become liable due to any failure by the Publisher or its employees, agents subcontractors or processors to comply with any of its obligations under this Addendum or any failure to comply with Data Protection Legislation. Nothing in this Agreement shall limit the Publisher’s liability under this DPO Addendum.