Publisher Terms

The following Terms (“Terms”), together with any Offer Terms, and any applicable Insertion Orders (“IO”), set forth the Agreement (“Agreement”) which shall govern the relationship between Maxed Up Media Ltd t/a Maxx, registered office Metropolitan House, Station Road, Cheadle Hulme, Cheadle, Cheshire, SK8 7AZ, its affiliates and subsidiaries (collectively “Maxx”) and you as a Publisher (“You” or ”Publisher”) using the advertising service (the “Service”) offered through the Maxx Network (“Maxx Network”) located at maxedupmedia.com/maxx-home (the “Site”). You and Maxx may also be individually referred to herein as a “Party” and collectively as “Parties”. This Agreement replaces and supersedes any prior Terms between Maxx and Publisher. You agree to use the Site, the Service and any additional products and/or services offered by Maxx only in accordance with the Agreement. Maxx reserves the right to make changes to the Site, the Service and the Agreement at any time and without prior notification. The latest Agreement will be posted on the Site. Your continued use of the Site and/or the Service after any such modification thereof shall constitute Your consent to such modification. Therefore, You should regularly check the Site for updates and/or changes. For purposes of the Agreement, “Publisher” includes the individual, company or entity and, without limitation, any parent entities, owners, subsidiaries, publishers, predecessor or successor entities, and any agents, officers, directors or employees acting on behalf of same, registering with Maxx to use the Service. If You do not agree to the Terms in its entirety, You are not authorized to: (a) register as a Publisher; (b) use the Service; and/or (c) use the Site, in any manner or form whatsoever.

Definitions.
As used in this Agreement, the following terms shall have the meanings set out below or as defined elsewhere in this Agreement.
1. Action(s): means an act, lead, or other event effectuated by a third party (e.g., consumer) for which Marketer compensates Maxx and Maxx, in turn, compensates Publisher, such as CPA (cost per Action), CPI (cost per install), CPL (cost per lead), CPC (cost per click) or CPM (cost per thousand – e.g., impressions). Specific Action requirements for each Offer will be set forth within the Offer terms or in a separate IO.
2. Agent: means any sub-publisher, affiliate, distribution Publisher or any other similar third-party with a business relationship with Publisher, including any advertising network of Publisher.
3. Earnings: means monies generated from a specified transaction (“Action”) as defined by Maxx.
4. Consumer: An individual to whom an Offer is directed or who responds to an Offer and who effectuates an Action.
5. Creative: means graphic file(s), text, links, or other creative works made available to Publisher for use in conjunction with a specific Offer.
6. Invalid Action: shall mean Actions that were generated in violation of the Terms of this Agreement or applicable laws, Actions that do not meet all of the requirements of the Marketer as set forth in the Offer terms or IO, Actions that contain false information, Actions generated through any misleading or fraudulent means, or Actions that are rejected by the Marketer.
7. Marketer: means a person or entity that submits Offers and Creatives for placement in the Maxx Network for the purpose of marketing products and services and generating Marketer’s desired Action.
8. Offer: An advertisement that contains a promotion or opportunity directed to Consumers that may be made available from time to time by Maxx for use by Publisher on the Internet or via any wireless mobile device.
Maxx Network. The Maxx Network enables Publishers to apply for and, upon approval by Maxx, have an opportunity to earn Earnings through participation in various advertising campaigns (“Offer”) offered by Maxx or its third-party Marketers (“Marketers”) in accordance with the Agreement. The Terms of any and all Offers (for each Offer, the “Offer Terms”) shall be posted on the Site. Maxx may, at its sole discretion, refuse to register You as a Publisher and/or terminate Your participation in any Offer at any time for any reason. Once approved, Publisher’s account is not transferable and may only be used by Publisher. Any attempt by Publisher to let others access its account or sell, trade or otherwise transfer its account is strictly forbidden and will result in an immediate termination and forfeiture of all monies owed.
The Site and Service. Maxx posts Offers and associated Creatives (“Creatives”) on the Site in connection with the Program. Approved Publishers shall be permitted to download the Creatives: (a) for publication on Publisher’s website and/or any other website published with, owned, operated and/or controlled by Publisher (“Publisher Website”); (b) for distribution in email messages sent to those e-mail addresses listed in Publisher’s database and/or any other database affiliated with, owned, operated and/or controlled by Publisher (“Publisher Emails”) and/or (c) other approved marketing channels. Maxx will specify the amount and terms under which You will earn payment (“Earnings”). The applicable Action associated with each Offer shall be set forth in the applicable Offer Terms and, unless otherwise specified, such definition shall only apply with respect to that Offer. If You accept an Offer, You agree to place that Offer’s Creatives on the Publisher Website and/or in the Publisher Emails, in accordance with the Agreement and the accepted Offer Terms. Maxx may, at its sole discretion, change an Offer at any time, upon prior notice to You, unless otherwise specified in the Offer Terms. Similarly, You may cease participation in a previously accepted Offer at any time, unless otherwise specified in the Offer Terms. Maxx is responsible for displaying and administrating all active Offers and tracking associated Earnings and Actions. Offer Results compiled by Maxx including, but not limited to, numbers and calculations regarding Actions and associated Earnings (“Offer Results”), will be calculated by Maxx through the use of industry standard tracking technology and shall be final and binding on You. Any questions regarding the Offer Results must be submitted in writing within fourteen (14) days of initial appearance in the tracking system; otherwise, the Offer Results will be deemed to be accurate and accepted by You. Publisher understands and agrees that on occasion the Service and/or Maxx Network may be inaccessible, unavailable or inoperable for any reason, including, but not limited to, the following: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs; or (iii) causes beyond the control of Maxx or which are not reasonably foreseeable by Maxx including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. Maxx will attempt to provide the Service on a continuous basis. However, Publisher acknowledges and agrees that Maxx has no control over the availability of the Service and Maxx Network on a continuous or uninterrupted basis. Terms of the Agreement are subject to Maxx hardware, software, and bandwidth traffic limitations. Maxx’s failure to deliver because of technical difficulties does not represent a failure to meet the obligations of the Agreement.
Creatives. Only Publisher Websites, Publisher Email distribution lists and other marketing channels that have been reviewed and approved by Maxx may be utilized in connection with the Site and Service. Maxx reserves the right to withhold, refuse or withdraw approval of any websites, email distribution lists and/or marketing channels for any reason, whatsoever, in Maxx’s sole discretion. Notwithstanding the foregoing, Maxx’s policies, specifications and/or recommendations with respect to any websites, email distribution lists and/or marketing channels used by You should not be construed as legal advice, or as sufficient guidelines to ensure that such websites, email distribution lists and/or marketing channels comply with applicable law. Maxx does not represent or warrant that such policies, specifications and/or recommendations are legally compliant or appropriate. Maxx assumes no obligation and hereby disclaims any liability for Your use of and/or reliance upon any such policies, specifications and/or recommendations. You should consult with Your legal counsel and/or other professional advisors before acting on any policies, specifications and/or recommendations as provided by Maxx. Publisher shall not alter, modify or otherwise change the Creatives, or any Creatives-related feature, that it obtains access to in connection with any Offer in any manner whatsoever, without Maxx’s prior express written consent. Unless otherwise specified in the applicable Offer Terms or by Maxx, and subject to the restrictions herein, the positioning, placement, frequency and other editorial decisions related to Creatives shall be made by Publisher. Notwithstanding the foregoing, Publisher must comply, immediately, with any and all requests by Maxx to modify, alter, remove or otherwise change the positioning, placement, frequency and other editorial decisions related to the Creatives. Publisher also shall not run any deactivated Creatives after the Marketer has posted new Creatives to run in lieu of such deactivated Creatives for the applicable Offer. PUBLISHER AGREES TO REVIEW THE AVAILABILITY OF CREATIVES THAT IT HAS PLACED WITHIN ITS MEDIA ON A DAILY BASIS. IT IS THE PUBLISHER’S SOLE RESPONSIBILITY TO CHANGE CREATIVES WITHIN ITS MEDIA WHEN A CREATIVE IS NO LONGER AVAILABLE IN THE MAXX NETWORK. MAXX ASSUMES NO RESPONSIBILITY TO NOTIFY PUBLISHER WHEN A SPECIFIC CREATIVE IS NO LONGER AVAILABLE IN THE MAXX NETWORK. In addition, Site integration tags and tracking pixels (“Tags”) included in the Creatives or otherwise incorporated may not be altered under any circumstances. Maxx employs a testing system to ensure that You have not removed or altered the Tags. Altering, removing or disabling Tags may jeopardize Your ability to be paid for Actions and would be grounds for immediate termination of Your Publisher account, with or without notice.
Working with Third Parties.
1. Approval Required for Use of Agents: Publisher may desire to use its business Publishers and/or associates to fulfill the obligations or exercise the rights under a particular Offer. Any of Publisher’s business Publishers or associates that participate in or perform any activities on behalf of Publisher under the Agreement shall be considered to be an “Agent”. Maxx reserves the right to review and approve or reject any and all Agents and may revoke a prior approval of any Agent at any time and for any reason. Publisher, upon request from Maxx, must provide identifying information of the Agent, which shall include:
  1. in the case of a natural person, the Agent’s first and last name, physical address, country, telephone number, and email address; and
  2. in the case of corporations, Publisherships, proprietorships, limited liability companies, organizations, associations, cooperatives, agencies, or other legal entities, the name and jurisdiction of organization for such entity and the first and last name, physical address, country, telephone number, and email address for the natural person or persons who own, manage, or control the Agent.Publisher will not make any commitments or representations on behalf of Maxx with regard to any relationship it enters into with its Agents in connection with its promotion of any Offers or otherwise. Publisher will provide all Agents with a copy of this Agreement and, upon request by Maxx, provide Maxx with a signed acknowledgement by the Agent of its willingness to be bound by this Agreement.
2. Agent Requirements: Agent must meet the same criteria for approval as the Publisher as set forth in the Agreement and must comply with all the Terms that are applicable to Publisher under the Agreement and the applicable Offer Terms. If Maxx grants approval for Publisher to use Agents, Publisher agrees to comply with the following requirements governing Publisher’s use of Agents (collectively, the “Agent Requirements”):
  1. Maxx’s Offers may only be pulled from Publisher’s network by Agents that are direct publishers and do not have a network of their own. Publisher shall prohibit the Agent from further brokering such Offers to other publishers through a network or by any other means.
  2. Publisher shall not knowingly recruit any Agent that is already promoting a Marketer’s Offer—whether directly, through Maxx, or through any third-party network— to promote that same Offer through Maxx.
  3. Publisher shall provide Maxx with a unique ID number for each Agent on each Action generated for Maxx’s Offers.
  4. Publisher is limited to a single tier of Agent relationships. Publisher will include in its Terms with its Agents a clause prohibiting them from entering into any additional tier of agent relationship with respect to Maxx’s services.
  5. If any Agent running Maxx’s Offers is generating Invalid Actions, Publisher shall provide Maxx with the full name, address and other up-to-date contact information for such Agent immediately upon request by Maxx (and Maxx shall have the right to disclose such information to its Marketers). If necessary, to identify the person(s) responsible for Agent’s misconduct, upon Maxx’s request, Publisher shall also provide all payment details for Agent, such as tax ID and bank account information. Maxx will only use this information to create and maintain a blacklist for its Marketers.
  6. Publisher shall prevent any Agent that is blacklisted by Maxx and/or the Marketer from accessing or promoting any Offers.
  7. Publisher shall not make Offers available generally to all of Publisher’s Agents; rather, Publisher shall screen and select each Agent that is allowed to access and promote Offers to ensure that such Agent meets the requirements set forth herein.
3. Violation of Agent Requirements: Publisher is responsible for and shall fully and unconditionally indemnify Maxx for any and all actions of any of its Agents, including the payment of legal fees and costs, if necessary. Further, Maxx may, at its sole discretion, terminate a Publisher at any time based on the actions of that Publisher’s Agent(s). Once express approval of an Agent has been granted by Maxx, notices to the Publisher shall be deemed notice to that Publisher’s approved Agents(s). Publisher agrees that Maxx is under no obligation to pay an Agent. Maxx further reserves the right to withhold or refuse payment to any Publisher in the event that any of its Agents breach the Agreement.
Email Programs; Suppression Lists.
1. Legal Compliance. Where use of email marketing is authorized by Maxx and/or the applicable Offer Terms, the following terms shall apply. Any and all emails, email based Creatives transmitted, as well as any and all email addresses supplied by Publisher: (a) shall comply with all applicable local laws and regulations, including the General Data Protection Regulation & Data Protection Action 2018, U.S.A. federal and state laws including, but not limited to, the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”), California Business & Professions Code § 17529, the Canadian Anti-Spam Law (“CASL”), Germany’s anti-spam legislation (including the Federal Data Protection Act, the Act against Unfair Competition, and the Telemedia Act), and any and all Federal Trade Commission implementing regulations; (b) must not infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity; (c) must not result in any consumer fraud, product liability or breach of contract to which Publisher is a party or cause injury to any third party; (d) must have accurate email header information (including source, destination, date and time, and routing information) and accurate, non-misleading subject lines and from lines; (e) must use only creatives, from lines and subject lines provided by Marketer, and Publisher and its Agents are prohibited from removing or altering “subject” and “from” lines provided by Marketer; and (f) where required by law, must only be sent to email addresses where the person associated with such email address provided affirmative consent to receive marketing messages, including by opt-in or double opt-in, if required. Without limiting the foregoing, emails must not use a generic from line and a domain name that is privacy protected, unregistered, falsely registered, or which does not enable a recipient to contact the sender by performing a WHOIS look-up. Maxx shall cause a valid company name and physical postal address for Publisher and/or the applicable Marketer, as required by applicable law, to appear in each email creative, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after email delivery). Moreover, Publisher must have active filters in place to prevent communications from being sent to any entity or person outside the geographical audience for the offer, including at a minimum: (a) email filters (i.e., rejection of email addresses with country); (b) sort code / zip code filters; (c) area code filters; and (d) IP filters. Maxx reserves the right to add such address(es) should Publisher fail to include the same, but Maxx is in no way responsible for including such address(es) where Publisher fails to do so.
2. Suppression Lists. In addition, Maxx may make available a suppression list, updated on a regular basis, generated from email Programs transmitted by and/or through the Maxx Network for Publisher’s use in connection with applicable Offers. Publisher shall upload its own list of suppressed email addresses to Maxx. The suppression list provided by Maxx are deemed to be Confidential Information of Maxx, as defined herein. Suppression lists may not be used by Publisher for any purpose other than to comply with applicable laws regulating the email transmissions. Publisher agrees to process any unsubscribe requests within five (5) days prior to making a drop to any Offer.
3. Publisher Email Lists. All Publisher Emails sent under the Agreement shall be delivered to addresses on email lists owned or managed solely by Publisher (“Publisher Email Lists”). Brokering third-party deals to deliver Creatives without disclosing such to Maxx is strictly prohibited and grounds for immediate termination, as well as other legal remedies. Publisher is required and agrees to maintain at all times during the term of the Agreement, and for a period of three years thereafter, complete and accurate subscriber sign-up/registration/consent/opt-in data for every subscriber to Publisher’s Email List(s). Publisher agrees that, within twenty-four (24) hours of Maxx’s request, it shall provide, at a minimum, the following subscriber sign-up/registration data for any email address that Publisher sends a Publisher Email to: (a) subscriber email address used to sign-up/register for Publisher’s Email List; (b) subscriber’s IP address; (c) date and time of subscriber’s sign-up/registration for Publisher’s Email List; and (d) location of subscriber’s sign-up/registration.
Payment. You agree to be paid the applicable Bounty rate for each Action verified by Maxx as specified by Maxx approximately thirty (30) days after the last day of a given calendar month, for Earnings realized in that month. You agree that payment for Earnings will be owed to You from the applicable Marketer, and that corresponding payments shall be made by Maxx to You out of the funds actually collected by Maxx from the applicable Marketer. Maxx shall have no payment obligation to Publisher where Marketer has not remitted sufficient payments to cover the Earnings otherwise due and owing Publisher. Instead, Publisher shall have the right to pursue any and all legal remedies directly against any Marketer that has not made funds available to pay sums due and owing to Publisher for Earnings earned in connection with a particular Offer. All Publisher accounts will be paid in the currency of the offer, either UK Stirling (£GBP) or US dollars ($US) and are exclusive of any applicable taxes. Publisher shall be responsible for all applicable taxes. Notwithstanding anything contained herein to the contrary, no Bounty payments will be issued for any amounts otherwise due Publisher that total less than One Hundred Pounds or Dollars (£100.00 or $100.00) respectively (“Payment Threshold”). If Maxx must send an international wire transfer, as you do not have a US bank account for USD payments or UK bank account for GBP payments, there will be a wire transfer fee of £15 / $15 for each payment. Upon termination of the Agreement, all legitimate monies due to Publisher that are collected from the applicable Marketer, even amounts below the Payment Threshold, will be paid during the next billing cycle. Every Publisher account must have a unique, valid taxpayer identification number (TIN), valid Social Security Number or other applicable unique government identification. A Marketer may request that Maxx, or Maxx may on its own initiative, debit from the Earnings otherwise due and owing Publisher an amount equal to a Bounty previously credited to Publisher’s account where: (a) a return or cancellation has been made with respect to the applicable product and/or service; (b) there is an instance of a duplicate, fraudulent or incomplete entry or other similar error with respect to a customer order; (c) there are Actions that do not comply fully with the terms of the Agreement, including where the applicable non-complying Action is not the result of Publisher‘s action, omission and/or failure to comply with the Terms of the Agreement; (d) there is non-receipt of payment from, or refund of payment to, the customer that entered into the subject Action; or (e) there is any failure on the part of Publisher to comply with the Agreement and/or the applicable Offer Terms (collectively referred to as a “Chargeback”). Chargebacks requested by a Marketer in accordance with this Section 7 may be applied up to sixty (60) days after the end of the month in which the applicable Bounty was earned (“Chargeback Period”). A Marketer may request that the payment of a Bounty be postponed for one (1) payment cycle where: (i) Marketer is verifying a lead (for Offers in which lead generation is a component of the Action); (ii) Marketer has a product return policy that allows the underlying purchaser to return the product during the Chargeback Period; or (iii) the applicable Offer Terms provide for such a postponement. The number or amount of Actions, credits for payments and debits for Chargebacks, as calculated by Maxx, shall be final and binding on Publisher. If Publisher’s account is inactive for a period of sixty (60) consecutive days (meaning Publisher has not generated any Actions during such period), Publisher shall lose its right to continue to receive fees from its referrals, if applicable, of other Publishers to Maxx. If Publisher’s account is inactive for a period of six consecutive months, Publisher’s account shall be closed and Publisher shall forfeit any remaining balance in its account to compensate Maxx for the administrative costs of maintaining and closing an inactive account.
Invalid Actions. Maxx actively monitors traffic, Actions, Earnings and other Offer-related activities for potential Invalid Actions. If Maxx suspects that Your account has been used in a fraudulent manner, Your account will be deactivated effective immediately and with no notice to You pending further investigation. If You add Actions, or inflate Actions, through the use of fraudulent means of traffic generation, as determined solely by Maxx, You will forfeit all of the Earnings related to that Program, and Your Publisher account will be terminated effective immediately. Maxx reserves sole judgment in determining Invalid Actions and You agree to be bound by any and all such determinations. It is the OBLIGATION of Publisher to prove to Maxx that it has NOT engaged in fraud or the generation of Invalid Actions. Maxx will hold Your Bounty-related payments in ‘Pending Status’ until You have satisfactorily provided evidence that demonstrates to Maxx that You have not engaged in the generation of Invalid Actions. If You are unable to provide Maxx with satisfactory evidence that You have not engaged in the generation of Invalid Actions within seven (7) days of Your Earnings being placed in “Pending Status,” then Maxx reserves the right to terminate Your Publisher account and cancel payment on the applicable Earnings, at its sole discretion and without any further obligations to You. Maxx operates a Zero Tolerance to fraud.
Term and Termination. The Agreement shall commence upon Maxx’s acceptance of Your Publisher application and remain in effect until terminated as set forth herein. The Agreement may be terminated by either Party upon two (2) business days’ prior written notice. In addition, Maxx reserves the right, in its sole and absolute discretion, to terminate an Offer and/or remove any Creatives at any time for any reason, upon notice to You. Maxx also reserves the right to terminate Your access to the Site at any time with or without notice to You. Termination notice may be provided via email and will be effective immediately. Upon termination, Publisher agrees to immediately remove from its Publisher Website(s) any and all Creatives, Maxx Code or other intellectual property made available to Publisher in connection with its performance under the Agreement. The representations, warranties and obligations contained within the Agreement shall remain in full force and effect after termination of the Agreement. All payment obligations accruing prior to the date of termination shall survive until fully fulfilled. If Publisher violates applicable law or any term of this Agreement, then in addition to immediate termination, Publisher will be subject to forfeiture of any fees earned but not yet paid, as well as possible legal action to recover fees previously paid to Publisher. Where appropriate, Maxx may report Publisher’s misconduct to the proper authorities.
Compliance. Maxx makes available to its Publishers various policies and guidelines designed to reduce fraud and combat consumer deception. The policies and guidelines cover many topics including, but not limited to general advertising compliance, email marketing, lead generation and data protection. Publisher hereby represents and warrants that it: (a) has read Maxx’s policies and guidelines, as same are made available at https://www.maxedupmedia.com/maxx-policies (“Policy Web Pages”); (b) will regularly check the Policy Web Pages for updates; and (c) shall comply with any and all such policies and guidelines, as well as updates to same.
1. No Inappropriate Content. Publisher shall not promote an Offer on a website, in a mobile application (an “App”) or in any other context with inappropriate content, which includes, but is not limited to, content that (i) contains or promotes the use of alcohol, tobacco or illegal substances, pornography, phone sex or escort services, expletives or other inappropriate language; (ii) promotes gratuitous violence, abuses or threatens physical harm; (iii) promotes illegal or unethical activity, racism, hate, “spam,” mail fraud, gambling, sweepstakes, pyramid schemes, investment and money-making opportunities or illegal advice; (iv) promotes the use of illegal activities, such as how to build a bomb, counterfeiting money and software pirating; (v) is libelous, or defamatory, or false; (vi) is otherwise expressly prohibited by federal or state law; (vii) willfully infringes on the trademark, copyright, or intellectual property rights of a third party; (viii) introduces viruses, worms, harmful code and/or Trojan horses on the Internet; or (ix) is otherwise objectionable to Marketer, in its sole discretion.
2. No Deceptive Advertising; FTC Advertising Compliance. Publisher shall not engage in any deceptive or misleading form of advertising or marketing, which includes, but is not limited to, phishing (the practice of sending an email to an individual, falsely claiming to be an established legitimate enterprise in an attempt to scam or defraud the user into surrendering private and personal information that can be used for identity theft, or for any other purpose), cybersquatting, typosquatting or combosquatting. Publisher shall operate in compliance with all applicable laws, regulations, decisions and industry best practices, including but not limited to Section 5 of the Federal Trade Commission Act and any current or future rules, regulations, orders, guides or other interpretation issued by the Federal Trade Commission (“FTC”) relevant to the Offer or Offer at hand, and (ii) the Direct Marketing Association’s Best Practices for Online Advertising and Publisher Marketing. If Publisher is distributing an Offer outside the United Kingdom or United States, Publisher represents and warrants that (1) it is familiar with the particular laws, regulations and industry customs in those countries in which is distributing the Offer, (2) it has previous experience distributing offers in such countries, and (3) it will comply with all such laws, regulations and industry customs. To be clear, Publisher is responsible for understanding and complying with all advertising laws, regulations and customs in both the jurisdiction where the advertising takes place and the jurisdiction where Publisher is located.
3. Influencer Compliance. Publisher agrees to comply with the FTC’s Endorsement Guides currently located at www.ftc.gov/tips-advice/business-center/guidance/ftcsendorsement-guides-what-people-are-asking, with respect to any endorsements made as part of its services hereunder, including, without limitation, properly disclosing that Publisher receives consideration for reviewing, promoting and/or recommending a product or service or engaging in any type of influence marketing.
4. Additional Provisions by Traffic Type. On behalf of itself and all Agents, Publisher represents, warrants and agrees that it will abide by all of the terms governing specific traffic types available at https://www.maxedupmedia.com/maxx-policies (the “Traffic Type Provisions”), as applicable to Publishers’ and Agents’ advertising methods. The Traffic Type Provisions are part of and incorporated by reference into this Agreement.
5. Compliance Monitoring. Publisher agrees that Maxx and its service providers may monitor or audit Publisher’s sites and activities under this Agreement, as well as those of Publisher’s Agents. Publisher will not block or otherwise interfere with such monitoring, and we may use technical means to overcome any methods that Publisher may use to block or interfere with such monitoring. Audits may include requests for documents and information and visits to Publisher’s facilities and those of its Agents. Publisher’s failure to promptly and reasonably comply with Maxx’s efforts to audit its or its Agent’s compliance with this Agreement shall constitute a material breach of this Agreement
6. Additional Requirements. Publisher further represents and warrants that it has provided full and accurate information in the sign-up process and thereafter with respect to providing to Maxx all websites, email practices and other methods of generating traffic to advertiser offers sourced from the Maxx Network. Specifically, prior to the public use or dissemination to consumers of any marketing material promoting a Marketer offer sourced from Maxx, Publisher will provide Maxx Compliance with all marketing materials to their Account Manager. Publisher will also maintain and provide to Maxx, upon request, records of the dates when the marketing materials are publicly used. Failure to comply with the representations and warranties set forth in this Section 10 will result in disciplinary action including campaign denial, account termination and the forfeiture of all monies owed.
USA Publishers – acknowledgement of FTC and Florida Orders. You acknowledge that you have received, read, and agree to comply with the “Stipulated Final Judgment and Order for Permanent Injunction” entered on November 29, 2012 (the “FTC Order”) and the “Assurance of Voluntary Compliance” entered on November 16, 2012 (the “Florida Order”), warrant that there are no misrepresentations or material omissions in your advertisements, and understand and agree that engaging in acts or practices prohibited by the FTC Order and the Florida Order will result in the immediate termination of this Agreement and a forfeiture of all monies received or owed.
Representations and Warranties. The Parties hereby acknowledge and agree that Publisher is solely responsible for the method by which the Creatives are disseminated. You represent and warrant that:
1. Your Publisher Website contains distinct and legitimate content, substance and material, not simply a list of links or advertisements and that Your Publisher Website serves a purpose substantially or completely separate and distinct from merely being designed to earn money solely from Maxx’s Marketers or other third-party Marketers;
2. Your Publisher Website and/or Publisher Emails are represented by a legitimate second-level domain name (e.g., yoursite.com is acceptable; however, a shared server, e.g., sharedsite.com/yoursite, is not acceptable);
3. Your Publisher Website is not offered as a part of a community-based website personal entry or personal page;
4. Your Publisher Website and Publisher Emails do not incentivize users to click on Creatives (“Incentives”). Incentives include, but are not limited to, awarding users cash, points, prizes, and/or contest or sweepstake entries;
5. Your Publisher Website is not hosted by a free service and is fully functional at all times and at all levels (no “under construction” Publisher Websites or any sections thereof are permissible);
6. You will not use spawning process pop-ups and exit pop-ups in connection with Your Publisher Website and/or Publisher Emails;
7. Your Publisher Website features, at a minimum, a privacy policy (“Privacy Policy”) linked conspicuously from such Publisher Website’s home page, with a link that contains clear, prominent and explicit language indicating its presence. Such Privacy Policy shall, in addition to the disclosures about Publisher’s privacy practices identify the collection and specific use of any information Publisher collects, provides or may provide to Maxx and to any Marketer or other websites or persons with which Publisher has any other arrangement relating thereto. In addition to listing the categories of personally identifiable information that are collected, Publisher must list the categories of third-parties with whom Publisher shares such personally identifiable information, describe the process (if any) by which a consumer can review and request changes to his/her personally identifiable information collected by Publisher, describe the process by which Publisher notifies consumers of material changes to the Privacy Policy, and indicate the effective date thereof. Such Privacy Policy must comply with the General Data Protection Regulation/Data Protection Act 2018 or the California Online Privacy Protect Act (“CalOPPA”) when relevant. Publisher must disclose how it responds to web browser’s Do-Not-Track signals or other mechanisms that provide consumers the ability to exercise choice regarding the collection of personally identifiable information about an individual consumer’s online activities over time and across third-party websites or online services (if Publisher engages in such collection), and disclose whether other parties may collect personally identifiable information about an individual consumer’s online activities over time and across different websites when a consumer uses Publisher’s website. You are obligated to fully comply with the privacy policy posted on the Publisher Website(s) at all times. You shall notify Maxx in writing at least three (3) business days in advance of any changes to any applicable privacy policy and shall provide Maxx with a revised copy of the affected privacy policy prior to the date that the changes take effect;
8. no images, graphics, links, co-registration paths, pop-ups, pop-unders, copy or process for generating Actions other than the Creatives will be used by You in connection with the Offers without first obtaining the prior written consent of Maxx;
9. You will place or use the Creatives only with the intention of delivering valid Actions as determined by, and for the benefit of, the applicable Marketer;
10. You will not, nor knowingly permit any person to, activate Creatives or inflate the amount of Actions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, device, program, robot, Iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing an Action;
11. You will not use, nor knowingly permit any person or entity to use, any third-party trademarks in any way to direct traffic to any Publisher Website or Marketer website including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name, or any derivative of any such trademark, service mark or brand name;
12. You will not allow the Creatives to be placed on any non-Publisher Website without the prior express written consent of Maxx;
13. You will not use any Creatives or any other Offer terms and/or content in connection with aggregating, soliciting or recruiting other Publishers, Marketers, other websites or other persons to form or join an affiliate marketing, advertising or similar network for the purpose of engaging in business of the type conducted by Maxx; and
14. You will not redirect traffic to a website other than the website specifically listed by the applicable Marketer. You further represent and warrant that the content of Your Publisher Website and Publisher Emails does not promote, advocate, facilitate or otherwise include any of the following: (i) hate speech or material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation; (ii) Investment, money-making opportunities or advice not permitted under law; (iii) violence or profanity; (iv) pornographic, obscene, sexually explicit or related content; (v) material that defames, abuses, is libelous, is tortuous or threatens physical harm to others; (vi) material that displays any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third person; (vii) material that impersonates any person or entity; (viii) any indication that any statements You make are endorsed by Maxx and/or an Marketer, without Maxx’s and/or Marketer’s specific prior written consent; (ix) promotion of illegal substances or activities (e.g., illegal narcotics, how to build a bomb, counterfeiting money, etc.); (x); content which is inappropriate or harmful to children; (xi) promotion of terrorism or terrorist-related activities, sedition or similar activities; (xii) software pirating (e.g., warez, hotline); (xiii) hacking or phreaking; (xiv) any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (xv) any software, product or service that is illegal or that violates the rights of a third party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet; (xvi) any software, product or service that harvests or collects the personal information of Internet users, whether or not for commercial purposes, without the express consent of such users; (xvii) any spoofing, redirecting or trafficking from other websites in an effort to gain traffic; (xviii) any content that infringes upon the intellectual property rights of any third party or any other right including, without limitation, false advertising, unfair competition, invasion of rights of publicity or privacy; (xix) gambling, contests, lotteries, raffles, or sweepstakes; (xx) any material that violates CAN-SPAM; or (xxi) any illegal activity whatsoever (including any violations of applicable U.S. state or federal law or regulation, Canadian provincial or federal law or the laws of any other jurisdiction in which You operate).
Data Protection Addendum. Publisher has read and agrees to comply with the Data Protection Agreement, available https://www.maxedupmedia.com/maxx-policies, which is incorporated herein by reference. Before approving any Agent to run an Offer through Maxx, Publisher shall present and secure the written agreement to the Data Protection Addendum from said Agent. Publisher agrees that, where applicable, its marketing and data collection practices shall comply at all times with the California Consumer Privacy Act (CCPA), the United Kingdom Data Protection Act of 2018 (as amended), the General Data Protection Regulation (GDPR) (EU) 2016/679, as amended and adopted by the member states of the EU, and all related directives, acts, or regulations. Publisher represents and warrants that its consumer data collection practices are performed in a manner that obtains the necessary knowing and frequent consent from consumers and that all consumer data is stored using industry-standard or better security protocols. If Publisher is not located in the country of where the offer is to be distributed , Publisher represents and warrants that (1) Publisher is familiar with the particular laws, regulations and industry customs in those countries in which Publisher is located and/or distributing the Offer, (2) Publisher has previous experience distributing Offers in such countries, and (3) Publisher will comply with all laws, regulations and industry customs applicable to the operation of its business, its marketing practices, and the collection and/or transfer of consumer data by Publisher in such countries. To be clear, Publisher is responsible for understanding and complying with all advertising laws, regulations and customs in both the jurisdiction where the advertising takes place and the jurisdiction where Publisher is located. Publisher’s obligations and liabilities under this Paragraph and the Data Protection Addendum shall extend to the conduct of all Agent.
Metric Information; Non-Disclosure. Any and all information, demographics, analytics, metrics, and other data collected by or through Maxx (“Analytics”) in connection with an Offer shall be considered proprietary to and owned by Maxx. Such Metric Information is Confidential Information (as that term is defined below) of Maxx and may not be utilized or otherwise disclosed by You. In addition, You acknowledge that all non-public information, data and reports made available by Maxx hereunder or otherwise as part of the Services is proprietary to and owned by Maxx. All proprietary and Confidential Information is protected by copyright, trademark and other intellectual property laws. You agree not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary or Confidential Information of Maxx in any manner. These non-disclosure obligations shall survive termination or expiration of the Agreement.
Proprietary Rights. Subject to the Agreement and any underlying Offer Terms, Maxx grants to Publisher a revocable, non-transferable, royalty free, international license to display on, and distribute through, the Publisher Website, Publisher Emails and/or other approved marketing channels, the Creatives, and any and all associated trademarks, service marks, trade names and/or copyrighted material (“Intellectual Property Content”) that Maxx provides to Publisher through the Maxx Network for the limited purposes of promoting Offers to end users. Publisher may not remove or alter any copyright or trademark notices. The Intellectual Property Content and other matters related to the Maxx Network, Programs, Creatives and Site are protected under applicable copyright, trademark and other proprietary rights. The use, copying, redistribution and/or publication by Publisher of any part of the Maxx Network, Programs, Creatives and/or Site, other than as expressly permitted hereunder, are strictly prohibited. Publisher does not acquire any ownership rights to the Maxx Network, Programs, Creatives and/or Site. The availability of the Maxx Network, Offers, Creatives and Site does not constitute a waiver of any rights related thereto. No part of the Site may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Site, Site content or any portion thereof.
Limitation of Liability; Disclaimer of Warranty. IN NO EVENT SHALL MAXX BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH YOUR MARKETING EFFORTS) FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE SITE, AN OFFER, MARKETERS’ UNDERLYING PRODUCTS AND/OR SERVICES OR YOUR DISPLAY OF ANY CREATIVES ON OR THROUGH YOUR PUBLISHER WEBSITE AND/OR PUBLISHER EMAILS INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF MAXX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MAXX’S MAXIMUM AGGREGATE LIABILITY TO PUBLISHER AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE THREE HUNDRED DOLLARS ($300). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST MAXX MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE. PUBLISHER RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE. THE SITE, CREATIVES, PROGRAMS, MARKETERS’ UNDERLYING PRODUCTS AND SERVICES, CONTENT AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE SITE, CREATIVES, PROGRAMS AND/OR MARKETERS’ UNDERLYING PRODUCTS AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. MAXX HAS NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD PARTY, FOR PUBLISHER’S USE OF, OR INABILITY TO USE, THE SITE, CREATIVES, OFFERS AND/OR MARKETERS’ UNDERLYING PRODUCTS OR SERVICES AND MAXX DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT PUBLISHER’S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OF THE PROGRAMS WILL BE AVAILABLE TO PUBLISHER. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN MAXX AND PUBLISHER. THE SITE, CREATIVES, OFFERS AND/OR MARKETERS’ UNDERLYING PRODUCTS AND SERVICES WOULD NOT BE PROVIDED TO PUBLISHER WITHOUT SUCH LIMITATIONS. MAXX MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE SITE, CREATIVES AND/OR PROGRAMS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM MAXX AND/OR ANY MARKETER BY AND THROUGH THE SITE, CREATIVES AND/OR PROGRAMS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.
Indemnity. You shall indemnify, defend and hold Maxx, its Marketers and each of their respective parents, affiliates, subsidiaries, officers, Publishers, members, managers, employees, agents and attorneys, harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or related to: (a) Your improper use of the Site, Offer, Services and/or any Creatives; (b) any third party claim related to Your Publisher Website, Publisher Emails and/or Your marketing practices; (c) any third party allegation or claim against Maxx and/or its Marketer(s) relating to a violation by You of any and all laws, rules, or regulations; (d) any content, goods or services offered, sold or otherwise made available by You on or through the Publisher Website, Publisher Emails, other marketing channels or otherwise; (e) any claim that Maxx is obligated to pay any taxes in connection with payment made to You in connection with the Agreement and/or any Offer; (f) breach and/or violation of the Agreement and/or any representation or warranty contained herein; (g) Your use of the Site, Offer, Services and/or any Creatives, in any manner whatsoever; and (h) any action or failure to act by Your Agent. Maxx 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 any actual infringement of intellectual property rights resulting from Your display of the actual Creatives, in unaltered form, as provided in connection with any Offer. If any action is brought against either party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware, except that failure to provide such notice shall not excuse the Indemnifying Party’s indemnification obligations under this Section 17 unless such failure materially prejudices the Indemnifying Party. The Indemnified Party shall permit the Indemnifying Party to assume control over the defense of such claim, with counsel chosen by the Indemnifying Party that is reasonably acceptable to the Indemnified Party, provided however, that the Indemnified Party shall control the defense of any such claim that, in the reasonable opinion of such Indemnified Party, could have a material and adverse effect on the business, operations, assets or prospects of such Indemnified Party, and the reasonable costs and expenses thereof shall be included as part of the indemnification obligations of the Indemnifying Party hereunder. The Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party‘s rights or interests without the prior written consent of the Indemnified Party.
Assignment. Maxx may assign the Agreement, or any portion thereof, at its sole discretion. You may not assign, transfer or delegate any of Your rights under the Agreement without the prior written consent of Maxx, which may be withheld for any reason, and any attempts to do so shall be null and void. Further, any such attempts may result in Maxx, at its sole discretion, immediately terminating the Agreement and/or Your participation in any Offer, without any liability to Maxx. The Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties’ successors and assigns.
Jurisdiction and Venue. The Agreement shall be construed and governed by the laws of England and Wales. Maxx shall be entitled to an award of its reasonable costs and expenses, including attorneys’ fees and arbitration fees, in any action or proceeding in connection to, arising out of, or under the Agreement. Nothing contained in the Agreement shall be construed to limit any legal remedies available to Maxx. To the extent permitted by law, You agree not to bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that You may have against Maxx and its employees, officers, directors, members, representatives and assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove You as a participant in the suit. You agree to pay the attorneys’ fees and court costs that Maxx incurs in seeking such relief. This provision preventing You from bringing, joining or participating in class action lawsuits does not constitute a waiver of any of Your rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided above. This provision preventing You from bringing, joining or participating in class action lawsuits is an independent agreement.
Severability; Non-Waiver. If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of the Agreement, and the Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
Modification. The Agreement represents the complete and entire expression of the agreement between the Parties, and shall supersede any and all other agreements, whether written or oral, between the Parties. Other than as set forth herein, the Agreement may be amended only by a written agreement executed by an authorized representative of each Party. To the extent that anything in or associated with the Maxx Network or any Offer Terms are in conflict or inconsistent with the Agreement, the Agreement shall take precedence.
Confidentiality. “Confidential Information” means any information disclosed to You by Maxx, either directly or indirectly, in writing, orally or by inspection of tangible objects, other than information that You can establish: (a) was publicly known and made generally available in the public domain prior to the time of disclosure to You by Maxx; (b) becomes publicly known and made generally available after disclosure to You by Maxx other than through Your action or inaction; and/or (c) is in Your possession, without confidentiality restrictions, at the time of disclosure by Maxx as shown by Your files and records prior to the time of disclosure. Maxx’s Offer rates are considered “Confidential Information”. You shall not at any time: (i) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information; (ii) use any Confidential information; and/or (iii) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to You or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain Maxx’s personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to Maxx immediately upon Maxx’s request.
Force Majeure. Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of such Party.
Miscellaneous. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site. You may not take any action that imposes an unreasonable or disproportionately large load on the Maxx infrastructure. You agree that any unauthorized and/or unlawful use of the Site, Service, Creatives, and/or Offers would result in irreparable injury to Maxx for which monetary damages would be inadequate. In such event, Maxx shall have the right, in addition to other remedies available to it pursuant to the Agreement, to immediate injunctive relief against You without the need to post a bond.
Ability to Perform. You agree that Maxx may require a financial accounting and inspection of Your books and records including, but not limited to, access to Your computer databases, in order to verify and corroborate financial information regarding the relationship established hereunder. You hereby authorize Maxx to obtain credit reports regarding Your business and to require You to provide it with reasonable information regarding Your financial position.
Relationship. Each Party is an independent contractor and not a Publisher, joint venturer or employee of the other. Neither Party shall have the right to bind the other or to incur any obligation on the other’s behalf.
Notices. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by facsimile or email; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective party as indicated herein. In the event of material changes to this Agreement, notice shall be deemed effective upon posting at www.performcb.com. Notices to Maxx shall be sent to either 401 N. Cattlemen Rd. Suite 200 Sarasota, FL 34232 or 3900 E. Mexico Ave. Suite 400 Denver, CO 80210. Notices to Publisher shall be sent to Publisher at its most recent email address set forth in its account information on www.performcb.com. Publisher agrees to receive electronic communications from Maxx, at the email address provided by Publisher. Publisher further agrees that any notice or other communication that Publisher sends it electronically will satisfy any legal communication requirements, including that such communications be in writing.

Full range of our polices is available here