FMTC – Service Terms and Conditions
SERVICE TERMS AND CONDITIONS
Last updated: March 24, 2020
FMTC owns and operates a web site and service at www.fmtc.co to provide aggregated affiliate marketing and data processing services (the “Service”). These FMTC Service Terms and Conditions, together with any Insertion Order executed by the parties (collectively, the “Agreement”) are by and between For Me To Coupon LLC d/b/a FMTC (“FMTC”) and the party accessing the Service or the client named on the applicable Insertion Order (“Client”).
YOUR ACCESS AND USE OF THE SERVICE IS SUBJECT TO YOUR COMPLIANCE WITH: (1) THIS AGREEMENT, (2) THIRD PARTY AGREEMENTS TO WHICH YOU ARE SUBJECT (AS DESCRIBED BELOW) AND (3) ALL APPLICABLE LAWS, RULES AND REGULATIONS.
BY ACCESSING OR USING ANY PART OF THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND ACCEPT THIS AGREEMENT
WE RESERVE THE RIGHT TO UPDATE OR CHANGE THIS AGREEMENT AT ANY TIME BY POSTING SUCH CHANGES ON THE WEB SITE. YOUR CONTINUED USE OF THE SERVICE AFTER WE POST ANY CHANGES SIGNIFIES YOUR AGREEMENT TO ANY SUCH CHANGES. IF YOU DO NOT AGREE TO THESE CHANGES, YOU MUST STOP USING OR ACCESSING THE SERVICE.
Section 1. Overview:
- FMTC agrees to provide Client with access to and use of the Service as further described in this Agreement. This Service enables Client to subscribe to a collection of affiliate marketing links (the “Links”) through an electronic feed. FMTC has separately entered into and has a current binding contract with (i) the marketer whose products or services are sold through such Links (the “Marketer”) and the affiliate marketing network through which such Links are promoted (the “Affiliate Network”) and (ii) monetization service providers such as or through a relationship with Fresh Reach, a company registered in Texas, as such providers are modified from time to time by FMTC (“Monetization Service Providers”) for each such Link. The purpose of employing the Service is to earn incentives for referring visitors who complete specified actions like sales, subscriptions, downloads, etc., on the Marketer’s websites. Most aspects of the Service are operated on a self-serve basis under which Client is responsible for its selections and actions in connection with its use of the Service. Client is responsible for implementing the Service on Client’s own site. Notwithstanding the foregoing, Client may not sublicense use of the Service to any third party without FMTC’s prior written consent, in which case Client shall be solely liable for the acts and omissions of such sublicensees and shall ensure their compliance with this Agreement. While FMTC will make reasonable efforts to update the Links and the Service on a regular basis, FMTC reserves the right to remove Links from the Service at any time without prior notice and does not guaranty that any number of Links will be included in the Service or that updates will be made to the Service at any specific time. Client acknowledges that outdated Links or other errors with Client’s content may result in negative impressions of Marketers, Client and FMTC. Therefore, Client agrees that it shall regularly and within a reasonable period of time (but no later than 24 hours) keep all publicly-accessible Links current and up-to-date with the latest information from the Service. FMTC may suspend the Client’s use of the Service, or terminate this Agreement for breach, for a failure to update the Links as set forth herein.
- In addition to Monetization Service Providers, FMTC may integrate with other third party services and platforms in order to enable Clients to read from and write to shopping carts and other services and features (collectively, “Third Party Platforms”). With respect to such Third Party Platforms, Client agrees that: (i) since FMTC is not the provider or operator of such Third Party Platforms, FMTC is not responsible for the acts, omissions or operation of such Third Party Platforms and (ii) Client shall comply with all applicable terms, conditions, rules and guidelines of the Third Party Platforms that are made available to Client by FMTC or that Client chooses to use, including but not limited to, https://www.shopify.com/legal/api-terms and https://www.shareasale.com/merchantagreement.cfm.
Section 2. Permitted Use of the Service:
(a) Client Use. Client may use the Service solely for its own use and in strict compliance with this Agreement. Client may only use the Service in connection with web sites and services set forth on the Insertion Order.
(b) Subaffiliates. If authorized in writing by FMTC, Client may sublicense access to the Links to subaffiliates (“Subaffiliates”) as permitted in this subsection and the parties shall share Gross Revenues from such activities. Client is responsible for ensuring that Subaffiliates comply with all applicable terms and conditions of this Agreement. “Gross Revenues” mean all revenues received by FMTC as a result of authorized activities by Subaffiliates. FMTC shall share Gross Revenues with Client as follows:
Monthly Gross Revenues Client Share / FMTC Share
$0-24,999 75% / 25%
$25,000-$99,999 80% / 20%
$100,000 and above 85% / 15%
FMTC shall may to Client its share of Gross Revenues within sixty (60) days from the end of the applicable month.
Section 3. Registration and Passwords: In order to use many features of the Service, Client must register to become a member. All information about Client must be truthful, and Client may not use any aliases or other means to mask its true identity. Client may not share the password with any other party. Client is responsible for the security of its password and will be solely liable for any use or unauthorized use under such password. FMTC will presume that all activity under a user name and password is being conducted by Client. If Client suspects any unauthorized use of its user name and password, Client must contact FMTC immediately.
Section 4. Financials:
(a) Fees. Client shall pay FMTC all fees set forth on the Insertion Order. All invoices will be due thirty (30) days from the invoice date. Client shall be responsible for interest on all amounts overdue by more than thirty (30) days at a rate of the lesser of one and one-half percent (1.5%) or the maximum rate allowable by applicable law, and all collection costs, including attorney’s fees and expenses. If Client disputes any invoice, Client must notify FMTC in writing regarding the nature of the dispute within thirty (30) days of receipt of the invoice, otherwise the invoice shall be deemed final and accurate.
(b) Taxes. Client shall also be responsible for paying any taxes (such as applicable sales taxes, duties or goods and services taxes) for which it is legally liable arising from this Agreement.
(c) Payment Method. If you have provided FMTC with a credit card or other payment method for recurring, automatic or renewal payments, then you hereby authorize FMTC to charge such fees against such payment method without further notice to you each time a payment is made.
(d) Changes in Fees. Except as otherwise set forth on the Insertion Order, FMTC may change the fees set forth on the Insertion Order at any time by providing Client thirty (30) days prior written notice, provided that, Client may terminate this Agreement without liability on account of such termination during such notice period if Client does not accept such changes. Use of the Service after the expiration of the thirty (30) day notice period shall be deemed acceptance of the revised fee terms.
Section 5. Marketer and Affiliate Network Terms: By using the Links, Client represents and warrants to FMTC that it has entered into a binding contract with the applicable Marketer, Affiliate Network and/or Monetization Service Providers. If Client’s contract with any Marketer or Affiliate Network or Monetization Service Providers ceases, then Client must cease using the Links applicable to such Marketer, Affiliate Network or Monetization Service Providers. Client may only use the Links in strict compliance with, and shall otherwise completely comply with, the terms and conditions of the applicable Marketer, Affiliate Network or Monetization Service Providers. Client acknowledges that FMTC is under no obligation to monitor or confirm Client’s relationship with the Marketers, Affiliate Networks or Monetization Service Providers, that compliance with their terms and Client’s agreements is solely its responsibility and that FMTC makes no representations or warranties regarding Client’s authority to use the Service in connection with such agreements. Upon request from a Marketer, Affiliate Network or Monetization Service Providers, FMTC may remove a Marketer or any Links from the Service without prior notice.
Section 6. Acceptable Use Policy: Client represents and warrants that it shall (i) comply with the terms of the Acceptable Use Policy (“AUP”), set forth on Exhibit 1 and (ii) comply with all applicable laws, rules, regulations, industry self-regulatory principles and guidelines set forth by the Federal Trade Commission, including but not limited to, the Federal Trade Commission’s Enforcement Policy Statement Concerning Deceptively Formatted Advertisements and Native Advertising Guide for Businesses. FMTC may update the AUP at any time upon written notice to Client. If Client becomes aware of any violation of the AUP by any user, Client must immediately contact FMTC at [email protected] and give FMTC as much information as possible regarding such violation. FMTC may refer any information on illegal or fraudulent activities, including Client’s identity, to the proper authorities, to the Marketers, Affiliate Networks, Monetization Service Providers or to other aggrieved parties.
Section 7. No Spam: Client may not use the Service or the Links to transmit any unsolicited messages (whether through email, SMS, social media or any other electronic medium) to any recipient from whom Client has not received prior demonstrable consent or in a manner that violates any law or obligation regarding the transmission of email messages. Further, Client shall ensure compliance with the Can Spam Act of 2003. In addition, Client may not use or develop any automated process to transmit messages through use of the Service or the Links.
Section 8. Unauthorized Use of the Service:
(a) Access. Except as authorized by FMTC, Client may not use spiders, robots, data mining techniques or other automated devices or programs to catalog, download or otherwise reproduce, store or distribute content available on the Service. Further, Client may not use any such automated means to manipulate the Service or attempt to exceed the limited authorization and access granted to Client under this Agreement. Client may not resell use of, or access to, the Service to any third party.
(b) Misappropriation of Content. The information contained within the Service has been collected at great time and expense to FMTC, and Client acknowledges that this information constitutes the valuable property and trade secrets of FMTC. Client agrees not to use access to the Service, or the information contained therein, to compete with FMTC or assist any other party to compete with FMTC or damage FMTC’s business. Client agrees to keep all non-public information, including the unique collection of information available on the Service, strictly confidential and to only use such information in connection with its permitted use of the Service. The parties acknowledge that the restrictions contained herein are reasonable, but agree that if any court of competent jurisdiction shall hold such restrictions unreasonable as to time, activities, or otherwise, such restrictions shall be deemed to be reduced only to the extent necessary in the opinion of such court to make them reasonable. Both parties acknowledge and agree that, in the event of a breach of this Section 8, FMTC will suffer irreparable harm and that FMTC will be entitled to injunctive or other equitable relief without prejudice to any of FMTC’s other rights and remedies.
Section 9. Term and Termination:
(a) Term. Except as otherwise set forth on an Insertion Order, each Insertion Order shall continue for the term set forth therein and shall automatically renew for additional one (1) year terms thereafter, unless either party provides thirty (30) days prior written notice of its intention not to renew the Agreement.
(b) Termination for breach. Either party may terminate this Agreement upon ten (10) days prior written notice if the other party breaches this Agreement and does not cure such breach within such time period. In addition to any right or remedy that may be available to FMTC under this Agreement or applicable law, FMTC may immediately suspend, limit or terminate Client’s account in the event that Client’s continued access to the Service may expose FMTC or third parties to liability or harm.
Section 10. Effect of Termination: Upon termination of Client’s account for any reason, Client must cease using the Service and Links and pay FMTC for any outstanding fees.
Section 12. Use of Name and Logo: Each party agrees that the other may use its logo, company name and web address to disclose the relationship herein. FMTC may place Client’s logo and name in its listing of clients on its website, online communications and print communications.
Section 13. No Control Over Links: Client understands that the Links, all content accessed through the Links and all transactions generated through the Links are controlled by the Marketers, Affiliate Networks and Monetization Service Provider. FMTC makes no representations or warranties regarding the accuracy or proper operation of the Links and assumes no liability for any use of or transactions through the Links. FMTC is not responsible for the practices or the content of such other web sites or services. Client is responsible for all information, content and other materials, plus third party services, that it uses in connection with the Service.
Section 14. Proprietary Rights: FMTC is the exclusive owner or authorized licensor of the FMTC web site and the Service, including all copy, software, graphics, designs and all copyrights, trademarks and other intellectual property or proprietary rights contained therein. Client acknowledges that the unique compilation of the Links is FMTC’s intellectual property. Except as set forth herein, Client agrees not to copy, distribute, modify or make derivative works of any materials without the prior written consent of the owner of such materials. The Service may not be reverse engineered, decompiled or modified, nor may derivative works be created based on the Service, without the prior written consent of FMTC. All rights not granted under this Agreement are reserved by FMTC.
Section 15. Service Warranty: FMTC warrants that the Service shall operate substantially as set forth on the web site by FMTC. However, Client acknowledges that FMTC does not and cannot guaranty that the operation of the Service will be completely uninterrupted, error free or that the Service and the information it stores will be entirely free from viruses, hackers, intrusions, unscheduled downtime or other failures. For any breach of the foregoing warranty, Client’s exclusive remedy, and FMTC’s sole remedy, is to fix the deficiency or terminate this Agreement and refund any pre-paid fees to Client for Services not yet provided by FMTC. Client expressly assumes the risk of such problems by using the Service. except as set forth herein, the service, including all software, content, operations and materials, are provided “as is” FMTC makes no representations or warranties of any kind whatsoever for the operation of the service. Further, FMTC disclaims any express or implied warranties, including, without limitation, non-infringement, title, merchantability, fitness for a particular purpose and any warranties arising out of course of dealing, usage or trade.
Section 16. Limitations of Liability: excluding an obligation of indemnification or breach of confidentiality, (i) in no event will either party be liable under any theory of tort, contract, strict liability or other legal or equitable theory for any lost profits, lost data, lost opportunities, costs of cover, exemplary, punitive, personal injury/wrongful death, special, incidental, indirect or other consequential damages, each of which is hereby excluded by agreement of the parties regardless of whether or not it has been advised of the possibility of such damages and (ii) in no event shall FMTC’s liability for any direct damages exceed the amounts actually paid under this agreement during the most recent six (6) months. Client acknowledges that FMTC has entered into this Agreement relying on the limitations of liability stated herein and that FMTC would not offer Client the Service without those limitations, which are an essential basis of the bargain.
Section 17. Indemnification:
(a) By FMTC. FMTC agrees to indemnify, defend and hold Client and Client’s representatives and agents harmless from and against any and all third party claims, demands, liabilities, costs or expenses, including attorney’s fees and costs, arising from, or related to, a claim that the Service (excluding content provided by Client, Marketers, Affiliate Networks or Monetization Service Providers) infringes upon the intellectual property rights of any third party. Notwithstanding the foregoing, FMTC shall not be obligated under this section if such claim is as a result of (i) use of the Service other than as authorized by this Agreement or (ii) combination or use of the Service with items not provided or approved by FMTC.
(b) By Client. Client agrees to indemnify, defend and hold FMTC and FMTC’s representatives and agents harmless from and against any and all third party claims, demands, liabilities, costs or expenses, including attorney’s fees and costs, arising from, or related to, (i) Client’s use of the Links, including but not limited to, fraudulent or deceptive acts or transactions through Client’s use of the Service (except to the extent that FMTC has breached this Agreement), (ii) Client’s web sites, products or services or (iii) breach of any representations or warranties herein.
(c) Procedure. The indemnifying party’s obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity; (ii) granting complete control of the defense and settlement to the indemnifying party, provided that the indemnifying party will not acquiesce to any judgment or settlement which may have a material adverse effect upon the indemnified party without that party’s consent; and (iii) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in defense and settlement of such claim. The indemnifying party shall provide the indemnified party to the option to engage separate counsel, at the indemnified party’s expense, to participate in any claim giving rise to indemnification hereunder.
Section 18. Governing Law:
(a) The laws of the State of Texas shall govern this Agreement. EACH PARTY HEREBY EXPRESSLY CONSENTS TO EXCLUSIVE JURISDICTION AND VENUE IN THE COURTS LOCATED IN AUSTIN, TEXAS FOR ALL MATTERS ARISING IN CONNECTION WITH THIS AGREEMENT. The prevailing party in any action herein shall be entitled to recover its reasonable attorney’s fees and expenses.
(b) Each party agrees that any and all disputes, controversies and claims relating in any way to the Service or this Agreement (including the arbitration of any claim or dispute and the enforceability of this paragraph) shall be submitted to and resolved by means of a confidential arbitration before a single arbitrator administered by the American Arbitration Association under its then current Commercial Arbitration Rules and conducted in Travis County, Texas. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an action involving any other current or former user of the Service, whether through class action proceedings or otherwise. Notwithstanding the foregoing, FMTC shall not be prohibited from initiating an action in court without proceeding to arbitration to collect unpaid fees, protect its intellectual property rights or for equitable relief.
Section 19. Confidentiality:
(a) Information. In connection with this Agreement, each party may disclose, or may learn of or have access to, certain confidential proprietary information owned by the other party (“Confidential Information”). Confidential Information means any data or information, oral or written, that relates to a party, or any of its business activities, technology, developments, inventions, processes, trade secrets, know how, plans, financial information, forecasts, and projections. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the receiving party; (iii) is rightfully communicated to the receiving party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving party’s possession free of any confidentiality obligations with respect thereto; (v) can be demonstrated was independently developed by a party without use of any Confidential Information of the other party; or (vi) is approved for release or disclosure by the disclosing party without restriction.
(b) Obligations. Each party shall maintain the Confidential Information of the other party in strict confidence and shall not disclose, publish or copy any part of such Confidential Information except as authorized and as necessary in connection with this Agreement. Each party shall use the Confidential Information of the other party solely for the purpose of performing obligations under this Agreement and only disclose the Confidential Information on a need-to-know basis, provided that, such party shall be liable for the acts of any third party who obtains the Confidential Information from such party. Each party shall take all necessary precautions in handling the Confidential Information of the other party and limit disclosures on a strict need-to-know basis. However, a party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that such party gives reasonable prior notice to the other party to contest such order or requirement. Upon the termination or expiration of this Agreement, each party shall return to the other party, or certify the destruction of, all Confidential Information of the other party, provided that, neither party shall be obligated to purge information archived pursuant to their normal document retention procedures if the provisions of this section otherwise continue to be observed.
Section 20. Severability: If any part of this Agreement shall be held or declared to be invalid or unenforceable for any reason by any court of competent jurisdiction, such provision shall be ineffective but shall not affect any other part of this Agreement.
Section 21. Conflicts: In the event of any conflicts between these Standard Terms and Conditions and the Insertion Order, the terms of the Insertion Order shall prevail, but solely to the extent of such conflict.
Section 22. Waiver – Remedies: The failure by either party to partially or fully exercise any rights or the waiver of any breach of this Agreement by the other party, shall not prevent a subsequent exercise of such right by such party or be deemed a waiver by such party of any subsequent breach by the other party of the same or any other term of this Agreement. Each party’s rights and remedies under this Agreement shall be cumulative, and the exercise of any such right or remedy shall not limit its right to exercise any other right or remedy.
Section 23. Assignment: Client may not assign this Agreement, or any rights or remedies hereunder, to any third party without FMTC’s prior written consent. This Agreement shall inure to the benefit of a party’s permitted successors and assigns.
Section 24. Survival: The provisions of Sections 10, 14, 16-26 and any accrued payment obligations shall survive the termination of this Agreement regardless of the reason or reasons therefore.
Section 25. Changes: These Standard Terms and Conditions may be updated at any time by FMTC by posting such changes here.
Section 26. Entire Agreement: This Agreement sets forth the entire agreement between the parties on this subject matter and supersedes all prior negotiations, understandings and agreements between the parties concerning this subject matter. No Client purchase order shall be amend this Agreement.
Acceptable Use Policy
Client may not include the Links in connection with, or one-click away from, any content which is reasonably objectionable or content which is illegal. In addition, Client may not use any means or device to manipulate, modify or interfere with the proper operation of the Links.
Solely by way of example, Client may not:
- generate, manipulate or otherwise produce or induce fraudulent clicks, impressions or transactions, including but not limited to using scripts, spyware, robots or other automated tools and/or computer generated requests;
- use the Service or the Links with any toolbars or downloadable software, unless Client has ensured that all end users of toolbars or downloadable software (i) have expressly opted-in to the installation of such items, (ii) have been provided with clear and unambiguous disclosures regarding the operation of such items prior to installation and (iii) are provided with clear and unambiguous disclosures regarding how to easily and quickly uninstall the items at any time;
- use the Service or the Links in any way in violation of the terms, conditions, policies or guidelines of any third party service or website, such as a social media platform;
- bid on FMTC names or trademarks for search engine marketing or similar purposes;
- use the Service or the Links in any way in connection with content which violates or infringes upon the intellectual property, personal or proprietary rights of any third party, including but not limited to, copyrights, trademarks, patents, trade secrets or confidentiality obligations;
- use the Service or the Links in any way in connection with content which may be threatening, libelous, defamatory, obscene, scandalous or inflammatory or that could otherwise violate any other applicable law;
- use the Service or the Links in any way to modify or overlay a third party website without permission of such website;
- use the Service or the Links in any way in connection with content which may be adult in nature (such as pornography), gambling related, nutraceutical related (i.e., acai berry) or “get rich quick” schemes.
- use the Service or the Links in any way in connection with content which may be false, misleading or deceptive;
- use the Service or the Links in any way in connection with content which promotes goods or services that are illegal in any jurisdiction where the Link is displayed; or
- engage in any other illegal or fraudulent, misleading or deceptive business practice under the laws of any jurisdiction where Client is located or the Link is displayed or any other conduct that FMTC or any Marketer or Affiliate Network or Monetization Service Provider determines may otherwise result in legal liability.