UPDATED February 21, 2013 Affiliate Terms and Conditions

UPDATED February 21, 2013 Affiliate Terms and Conditions

UPDATED February 21, 2013
Affiliate Terms and Conditions
®
The following are the complete terms and conditions governing the LiveCareer Affiliate Program (the “Affiliate
Program”). Once you have submitted the application form and been accepted by LiveCareer you agree to be bound
to the terms of this agreement ("Agreement") as set forth below, which will constitute a binding and enforceable
agreement between you (hereinafter referred to as “you”, “your” or “Affiliate”) and LiveCareer Limited, (hereinafter
referred to as “we”, "us", "our", or "LiveCareer"). All entities or individuals must obtain official written approval from
LiveCareer before becoming an affiliate ("Affiliate"). Only approved Affiliates are permitted to participate in the
Affiliate Program subject to the terms of this Agreement. An Affiliate is eligible to earn fees generated only during the
Term of this Agreement (as defined herein).
1.
Definitions:
1.1.
Affiliate Site means all web sites owned and/or operated by Affiliate that are identified in the
Affiliate’s application or approved by LiveCareer in writing.
1.2.
API means the proprietary applied programming interface developed by LiveCareer designed to be
accessed by Affiliate to integrate the proprietary LiveCareer Products into the Affiliate Site.
1.3.
End User means an individual who accesses the LiveCareer Site or Affiliate Sites and is located in
the USA or Canada as determined solely by LiveCareer.
1.4.
Hosted File means proprietary programming package of LiveCareer Products in the form of an
Adobe Swf file, or equivalent in another programming language, developed by LiveCareer and provided to the affiliate
to be hosted on the Affiliate’s Site and updated periodically at LiveCareer’s sole discretion.
1.5.
Links mean URLs or graphic and textual tracking codes that serve to identify the Affiliate Site as a
member of one or more of LiveCareer’s marketing initiatives or programs which are provided by LiveCareer. Each
Link will establish a link from the Affiliate Site to (i) the LiveCareer Site which may be co-branded (as described in
section 9.4, below)); (ii) LiveCareer Content which may be co-branded and/or (iii) offers from LiveCareer’s marketing
partners.
1.6.
LiveCareer Content means, collectively, all of the content on the LiveCareer Site, LiveCareer
Hosted Panels which may contain links to third parties ("LHP"), and/or materials provided or made available to
Affiliate by LiveCareer, including any and all audio and audiovisual materials, data, images, files, hypertext links,
image links, naked links, scripts, services (including LiveCareer Products), reports and any and all derivative works,
improvements or modifications made to or created from the LiveCareer Content
1.7.
LiveCareer Products include the proprietary suite of products, services and functionalities available
to End Users on the LiveCareer Site related to the creation, editing, management, downloading, distribution and/or
maintenance of resumes, cover letters and related materials, including, but not limited to, Resume Builder, Cover
Letter Builder and its testing tools.
1.8.
LiveCareer Site means any and all web sites or mobile applications owned and/or operated by
LiveCareer.
1.9.
Net Revenues means revenues LiveCareer receives from End Users net of Permitted Offsets.
1.10. Permitted Offsets means bank fees, credit card processing charges, refunds, charge backs and
other commissions LiveCareer pays related to End User purchases (e.g.: some subscriptions includes bundles of
third party products for which LiveCareer pays a commission to the third party).
1.11. Personally Identifiable Information (“PII”) means any information or data provided by an End User.
1.12. Qualifying Traffic refers to the following actions taken by an End User coming to a LiveCareer Site
from the Affiliate Site through Links, LHPs, APIs or the Hosted Files, paid as set forth in an IO or in the Affiliate
Account:
1.12.1. Click means when an End User presses down (clicks) on a LiveCareer’s designated
advertising space and is redirected to the correct LiveCareer Site as agreed upon by
LiveCareer and Affiliate. Only the first Click from the same IP address or mobile device
will be counted as a Click.
1.12.2. New Click means a Click made by a New End User
1.12.3. Lead means a New Registrant who completes a series of required informational fields as
predetermined by LiveCareer.
1.12.4. Flat Rate Per Sale means a set dollar amount earned from the first purchase of a
LiveCareer Product by a New End User less Permitted Offsets. If the product was
purchased as a Subscription Purchase, Affiliate will receive the Flat Rate from the first
transaction only.
1.12.5. Registration means an End User who came to the LiveCareer Site from the Affiliate Site
through a Link, an LHP, a Hosted File or the API and who provides a valid email and
password.
Affiliate Agreement Updated 2.20.13
1.12.6. Revenue Share means a percentage of the Net Revenue earned from the purchase of a
LiveCareer Product by an End User. If the product was purchased as a Subscription
Purchase, Affiliate will receive a percentage of Net Revenue received by LiveCareer for
one year from the Referral Date.
1.12.7. Test Completer means an End User who came to the LiveCareer Site from the Affiliate
Site through a Link, an LHP, API or the Hosted File and who answers all the questions
and/or completed fields for one of LiveCareer’s tests and clicks the “submit” button on the
last page of the test.
1.12.8. Third Party Lead means an End User who came to the LiveCareer Site from the Affiliate
Site through a Link, an LHP, Hosted File or the API and who completes and submits an
offer form on the LiveCareer Site and for which LiveCareer receives payment from the
advertiser for whom LiveCareer is generating the lead ("Advertiser").
1.12.9. With the exception of Clicks alone, in order to be eligible as Qualifying Paid Traffic, the
End User must always be a “New” to LiveCareer which means (i) the End User must not
already have had any account with LiveCareer using any email address in LiveCareer’s
database which is tied to that End User, as determined by LiveCareer, or (ii) the End User
previously visited a LiveCareer Site and was tracked by LiveCareer with a cookie but as
recorded by LiveCareer has not visited LiveCareer again within the last 45 days days.
1.12.10. Validated End User Traffic means Qualifying Traffic that meets the requirements of this
Agreement and in LiveCareer’s sole discretion is not fraudulently obtained.
1.13. Referral Date means the date on which an End User first registers on LiveCareer creating a new
account from the Affiliate Site through the API, a LHP, Hosted File or Link.
1.14. Subscription Purchase means the purchase of a subscription to a LiveCareer Product where an
End User comes to LiveCareer from the Affiliate Site through Links, LHPs, APIs or Hosted File.
1.15. USA or Canadian residents will be based on the End User’s IP address or mobile device, (as
determined solely by LiveCareer).
2.
®
The LiveCareer Affiliate Program:
2.1.
As an Affiliate, you are a participant in the LiveCareer Affiliate Program and you may receive from
LiveCareer, as specifically set forth in your account located in the password protected Affiliate Section of our
LiveCareer Site (“Affiliate Account”):
2.1.1. A variety of Links, which, subject to the terms and conditions hereof, you may display on
relevant areas of the Affiliate Site.
2.1.2. Information necessary for you to display LHPs on the Affiliate Site.
2.1.3. Information and direction that will allow you to use LiveCareer’s API to drive traffic to
LiveCareer.
2.2.
Subject to approval by LiveCareer you may use your business partners and/or associates (“SubAffiliates") to fulfill the obligations or exercise the rights under this Agreement. If you do so, you are deemed to be a
principal affiliate and to have accepted this Agreement on behalf of any such Sub-Affiliates and for the purposes of
this Agreement You and your Sub-Affiliates are each an "Affiliate." Once a Sub-Affiliate submitted by you is approved
by LiveCareer, you are responsible for the Sub-Affiliate's participation under this Agreement, for making all payments
to the Sub-Affiliate, monitoring the activities of the Sub-Affiliate, including its compliance with the Affiliate
requirements set forth in Section 4 herein, and providing all services and information to LiveCareer as reasonably
necessary or required under this Agreement. You also agree to fully and unconditionally indemnify LiveCareer for
any and all actions of any of your Sub-Affiliates.
2.3.
LiveCareer reserves the right to review and approve or reject any and all Affiliates and may revoke
a prior approval of any Affiliate and/or terminate an Affiliate at any time and for any reason, and to withhold payment if
at its discretion the Affiliate in question has violated the terms of this Agreement, and may assess charges against
such amounts for Affiliate activities in connection with the investigation and/or verification of such information and/or
otherwise in accordance with this Agreement. LiveCareer has the right to enter into an agreement directly with any
Sub-Affiliate.
3.
LiveCareer Responsibilities:
3.1.
LiveCareer will be responsible for providing, as promptly as practicable following the start of the
Term of this Agreement, all information necessary to allow you to (i) make appropriate Links from Affiliate Sites; or (ii)
display LHPs; (iii) use Hosted Files; or (iv) use LiveCareer’s API.
3.2.
In an effort to ensure a smooth integration process, LiveCareer provides consultative and technical
support to Affiliate for initial implementation of the API or Hosted File for thirty (30) days from the execution of this
Agreement subject to payment of an Implementation Fee as set forth in Section 6.4 herein. This support is to
include, but is not limited to the following:
3.2.1. Technical documentation on software requirements, installation procedure, known bugs or
issues and interface details, including mapping of data fields from output file to LiveCareer’s upload format;
AffiliateProgramtermsEff2.21.13
3.2.2.
Consultation on system architecture, including environment, capacity, and integration
design;
3.2.3. Consultation on data flow (including API definition), front-end feature development,
underlying business logic, and End User interaction design;
3.2.4. Telephone and email support as needed during business hours; and
3.2.5. Timely response to discovered bugs or unexpected API behavior.
3.3.
LiveCareer reserves the right to remove, substitute or change LiveCareer Content or Links within
LHPs without notice and at its sole discretion, provided however, that LiveCareer Content may not contain: obscene,
profane or unlawful text or images; or text or images that encourage or promote unlawful conduct.
3.4.
LiveCareer will be solely responsible for processing and tracking the volume and amount of traffic
generated by Affiliate Sites. LiveCareer will from time to time change its Services and LiveCareer Content to cater to
the needs of the marketplace. All LiveCareer enhancements and new offerings will be automatically accepted by
Affiliate by virtue of Affiliate’s continued performance under this Agreement. Any such LiveCareer changes shall not
constitute cause for termination as described herein.
4.
Affiliate Responsibilities:
4.1.
Affiliate Sites must meet certain minimum requirements, unless otherwise approved by LiveCareer,
specifically they should:
4.1.1. have a minimum of 1,000 unique visitors per day (we will consider sites that receive 5001,000 unique visitors per day, provided they have substantially qualified content and appeal to a niche targeted
audience);
4.1.2. in our sole opinion, be professionally designed with substantial content and must not have
broken links or pages under construction;
4.1.3. be located in the USA or Canada;
4.1.4. provide traffic that consists of USA/Canadian End Users regardless of where Affiliate’s
Sites are located;
4.1.5. be written primarily in the English language;
4.1.6. not contain content or links to any material that LiveCareer in its sole and absolute
discretion finds objectionable;
4.1.7. not provide any program or mechanism that provides incentives or rewards their visitors
for clicking on or visiting LiveCareer advertisements, Links or the LiveCareer Sites.
4.2.
In utilizing the API, Hosted File, LHPs or Links, you agree that you will cooperate fully with
LiveCareer to establish and maintain such API, Hosted File, LHPs or Links, including using Links and any code as
provided by LiveCareer without modification. In order to permit accurate tracking and reporting, you will be
responsible for ensuring that the Links between the LiveCareer Site and Affiliate Sites are accurate and properly
formatted. You agree that you will maintain the integrity of the API, Hosted File LHPs or Links, that you will not alter,
circumvent, disable, impair, interfere or modify the Links or technology or methodologies used in connection with the
Links in any way, and that you will only use the API, Hosted File, LHPs or Links as expressly set forth in this
Agreement to participate in our Affiliate Program.
4.3.
Affiliate shall display API, Hosted File,LHPs or Links prominently in relevant areas of Affiliate Sites,
subject to any and all limitations herein and with our consent.
4.4.
LiveCareer has the right, in its sole discretion, to monitor any Affiliate activities at any time and from
time to time to determine compliance with the terms of this Agreement. In addition, you agree that upon LiveCareer's
request from time to time, you will provide LiveCareer a list of your Affiliate Sites and your Sub-Affiliates' Sites
(together with any reasonably requested information about any such Sub-Affiliates), where Links, and associated
LiveCareer Content, have been, or are planned to be distributed and/or used, and agree to provide prompt and
reasonable cooperation to LiveCareer in responding to any requests, complaints, claims or other issues raised by any
Advertiser or End User regarding where and how such Links or LiveCareer Content is distributed and/or used,
including ceasing further distribution of such Links and LiveCareer Content, as appropriate, and you agree to
cooperate with LiveCareer to facilitate such monitoring.
4.5.
Affiliate shall not engage or allow any Sub-Affiliates to engage in any fraudulent conduct with
respect to its relationship with LiveCareer, including, fraudulently adding leads or clicks or inflating leads or clicks by
any fraudulent traffic generation. In the event that LiveCareer determines, in its sole and absolute discretion, that
Affiliate or any of its Sub Affiliates has engaged in fraud, including generating fraudulent traffic, Affiliate agrees to
forfeit any and all fees payable or owed to Affiliate by LiveCareer and to be subject to any other remedies available to
LiveCareer at law or in equity, including termination of the Agreement. LiveCareer reserves the exclusive right, in its
sole and absolute discretion, to determine if and when any such fraud exists.
4.6.
Affiliate agrees that its use of the API, Hosted File, LHPs or Links on Affiliate Sites will in no way
affect or alter the look, feel, or functionality of the LiveCareer Site. Without limiting the generality of the foregoing, you
are expressly prohibited from framing the LiveCareer Site, excluding LHPs, in any manner, including without limitation
causing Affiliate Site’s tool bar(s) to appear on the LiveCareer Site, without LiveCareer’s express prior written
consent. Affiliate shall not alter, modify, or expand the API, Hosted File, LHPs or Links in any way without
LiveCareer’s express prior written consent.
AffiliateProgramtermsEff2.21.13
4.7.
Affiliate agrees not to remove or obscure any proprietary rights or legends (such as copyright or
trademark notices) contained in any LHPs, Links or LiveCareer Content. Affiliate further agrees not to decompile,
reverse engineer, remove links, disassemble or otherwise reduce the API, Hosted File, Links, LHPs or any
LiveCareer Content in any manner, including to a human perceivable form, or permit any other party to do so for any
purpose without our express authorization.
4.8.
Affiliate agrees not to register any domain names, or bid on search engines, with any words,
phrases or keywords that are used by or are trademarks or domain names of LiveCareer or any of its affiliated
companies, subsidiaries or competitors ("Marks"), including but not limited to, any misspellings or variations on those
Marks. Further, Affiliates shall negatively match such Marks and names to ensure that they do not inadvertently bid
on them and should not be used as part of any email addresses, domain names or other online identifiers.
4.9.
Affiliate agrees to cooperate with LiveCareer and make any updates or changes requested by
LiveCareer to the Hosted Files within five (5) business days of receipt of any such requested updates or changes. If
Affiliate fails to make any updates or changes to the Hosted Files in the foregoing time period, Affiliate agrees that
LiveCareer has the right to immediately disable any Hosted File or require that Affiliate will disable the Hosted File so
it is no longer active or viewable by an End User,
4.10. In consideration for LiveCareer granting Affiliate the license to use a Hosted File on its Affiliate Site,
Affiliate agrees that LiveCareer has the right to disable any Hosted File for any reason at any time or require that
within 72 hours of receipt of a written request from LiveCareer Affiliate will disable the Hosted File so it is no longer
active or viewable by an End User,
5.
Mutual Responsibilities:
5.1.
Each party is solely responsible for the development, operation and maintenance of its respective
websites (and in the case of the principal Affiliate any of its Sub-Affiliates' websites) and for all materials that appear
on such websites, except that LiveCareer is responsible for the development, operation and maintenance of the API,
Hosted File and LHPs. These responsibilities include, but are not limited to, the technical operation of websites and
all related equipment; the accuracy and propriety of materials posted on websites; ensuring that materials posted on
websites do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal.
5.2.
Neither party’s sites will, in any way, copy or resemble the look and feel of the other party’s site, nor
will either party use techniques such as framing (except with respect to LHPs) the other party’s site in any manner to
create consumer confusion with regard to site look, feel or identity.
5.3.
Affiliate will not "scrape" or "spider" LiveCareer’s Site or any other website for proprietary content of
the other website (such as images, logos and text); furthermore, upon LiveCareer’s reasonable request, Affiliate shall
immediately remove from the Affiliate Sites any API, Hosted File, LHP or Link to the LiveCareer Site which is
displayed on a page which LiveCareer, in its sole discretion, deem objectionable.
6.
Affiliate Commissions/Fees:
6.1.
Affiliate will receive commissions for Validated End User Traffic for Qualifying Traffic (“Affiliate
Commissions”). The Affiliate Commission rate that Affiliate will receive for the type of Qualifying Traffic will be set
forth in your Affiliate Account or an applicable IO. LiveCareer reserves the right to adjust payments to Affiliate
Commissions already paid to Affiliate to reflect Permitted Offsets from previous months.
6.2.
LiveCareer reserves the right to withhold Affiliate Commissions from otherwise qualifying activities
generated by Affiliates that are subject to Permitted Offsets, which for further clarification include non-receipt of
payment from, or refund of payment to, the applicable End User, or any activities that are in violation of these terms,
and all Affiliate Commissions will be subject to LiveCareer’s determination of the legitimate nature of Affiliate actions,
determined in part by abnormal chargeback ratios. All fraudulent charges (or Affiliate Commissions already paid on
fraudulent sales, as determined by LiveCareer, or credits for payments and debits for chargebacks, as calculated by
LiveCareer, shall be final and binding on Affiliates and shall be billed back to the Affiliate (or if applicable the principal
Affiliate) and the Affiliate (or, if applicable, the principal Affiliate) shall promptly remit such amounts to LiveCareer.
LiveCareer may set-off any amounts due to the Affiliate against any payments due under this Agreement. LiveCareer
has the right to cap daily sales volume.
6.3.
The Affiliate Commission Qualifying Traffic and rates are subject to change at any time or from time
to time, in LiveCareer's sole and absolute discretion. LiveCareer will provide Affiliate with seven (7) days’ advance
written notice of any such. LiveCareer may correct, and shall not be bound by, any typographical or clerical errors.
6.4.
In order to cover the expense associated with API implementation and support (as described in
Section 3.2 above), LiveCareer reserves the right to charge Affiliates electing to use the API an implementation fee
as stated in the Affiliate Account, to be paid in advance of API implementation.
7.
Commission payment:
7.1.
Within forty-five (45) days after the end of each calendar month LiveCareer will send Affiliate a
check for the payment of Affiliate Commissions that Affiliate has earned during such month less any taxes required to
be withheld under applicable law, provided: (i) Affiliate has not breached any of the terms of this Agreement; (ii) the
total payment for the month equals or exceeds one hundred dollars (US$100.00); (iii) Affiliate has previously provided
AffiliateProgramtermsEff2.21.13
us with a valid mailing address to which the payment may be mailed; and (iv) Affiliate has provided us with Affiliate’s
valid taxpayer identification number. If the balance of your account is less than one hundred dollars (US$100.00), we
will roll over the balance to the next month, provided however, that in the event in any calendar year the Affiliate
Commissions you have earned are less than one hundred dollars (US $100.00) you will forfeit your right to said
Affiliate Commissions.
7.2.
Affiliate and LiveCareer will both track (and in the case of LiveCareer, report) Validated End User
Traffic from Qualifying Traffic in order to determine proper Affiliate Commissions; however, payments will be based
solely upon the reporting and tracking of LiveCareer. Affiliate may view traffic performance by logging into their
Affiliate Account available online. In the event there is a significant discrepancy between Affiliate’s and LiveCareer’s
tracking (i.e. more than 10% in any given month), the parties agree to work in good faith to utilize a reconciliation
process to determine the mutually agreeable proper commission payment, provided, however, that in the event the
parties fail to come to a mutually agreeable resolution, LiveCareer’s determination will control.
8.
Privacy of End User Data:
8.1.
Affiliate and LiveCareer may exchange PII during the course of this Agreement. By way of
example, when an End User is referred to LiveCareer through the API, Affiliate will likely disclose certain PII,
including, but not limited to, name, postal address and email address to facilitate End User’s access to LiveCareer
Products. Similarly, LiveCareer may disclose PII to Affiliate upon the End User’s uploading of his or her resume to
the Affiliate Site from the LiveCareer Site. In no event shall the Affiliate collect or submit to LiveCareer, or permit the
collection or transmission to LiveCareer, PII of an End User without the permission from the End User and Affiliate
agrees that its use of any PII obtained from LiveCareer, or through LiveCareer Products, will comply with Affiliate’s
privacy policy. To that end, Affiliate will ensure that any and all Affiliate websites accessible through Links, API, or
the Hosted File, feature an easy-to-understand privacy policy, linked, at a minimum, conspicuously from such
website's home page, with a link that contains the word "Privacy", "Legal", "Terms" or similar language. Such privacy
policy shall, in addition to the disclosures about the Affiliate's privacy practices, identify the collection, disclosure and
use of any information related to an End User that the Affiliate may provide to LiveCareer and to any advertiser under
this Agreement. Such privacy policy shall also provide information on the Affiliate's use of tracking devices, such as
but without limitation, cookies, including tracking devices enabled by LiveCareer through this Agreement. The
collection of aggregate data through any tracking devices used by Affiliates must also comply with LiveCareer's
privacy policy located at http://www.livecareer.com/information/privacy.asp.
8.2.
All data submitted by End Users and/or generated through the performance of this Agreement and
the activities of the Affiliates, including PII provided by Affiliate to LiveCareer shall belong exclusively to LiveCareer,
including but not limited to, sales information, conversion data, performance details and aggregate statistics and other
information regarding the sales, LiveCareer, its Advertisers or its network of Affiliates.
9.
Publicity and Intellectual Property:
9.1.
Disclosure by Affiliate of the existence of this Agreement, including any terms of this Agreement,
not posted in public areas of LiveCareer’s Site (i.e., in non-password protected areas) can only be made upon prior
written agreement by LiveCareer. LiveCareer may disclose its relationship with Affiliate and use its logo solely to
identify the relationship as a LiveCareer affiliate without Affiliate’s prior approval.
9.2.
LiveCareer grants you a non-exclusive, non-transferable, revocable license during the Term of the
Agreement to (i) access the LiveCareer Site through the API, Hosted File LHPs and Links solely in accordance with
the terms of this Agreement; (ii) use our marks and logos only in the forms that they appear as provided to Affiliate by
LiveCareer (the "Marks") (or such other images or messages for which we grant prior express written consent,
hereafter "Pre - approved Images") solely in connection with such Links and only as permitted herein; and (iii) display
the LHPs and any Links or LiveCareer Content contained therein. You may not alter, modify, or change the Marks or
Pre-approved Images or message in any way.
9.3.
LiveCareer may build, host and maintain website(s), which shall have features and functionality that
enable consumers to access certain products, including, but not limited to, career and education tests and/or
LiveCareer Products (the “Co-Branded Sites”). The Co-Branded Sites shall be accessible only via API, Hosted File
LHPs and Links from the Affiliate Site. As between LiveCareer and Affiliate, LiveCareer has and will retain all claims
to, and all rights, title and interest in, the LiveCareer Products and resources available via the Co-Branded Sites. Any
proprietary rights with respect to the Co-Branded Sites not expressly granted to you hereunder are expressly
reserved exclusively by LiveCareer. Notwithstanding the foregoing, LiveCareer reserves all rights to its intellectual
property which includes, without limitation, technology, trademarks, trade names, patents and copyrights.
9.4.
Affiliate grants LiveCareer a limited, revocable, non-transferable, non-exclusive license to utilize the
Affiliate’s names, titles, logos and other intellectual property (“Affiliate Marks”) to advertise, market, promote, and/or
publicize the Co-Branded Site and the LiveCareer Products on the Co-Branded Site, provided however that
LiveCareer shall not be required to do so.
10.
Promotion:
Affiliate is free to promote LiveCareer or the LiveCareer Products or services in use on
Affiliate’s Sites. LiveCareer’s advanced written approval as to form, content and placement, must be obtained
in order for Affiliate to promote LiveCareer or the LiveCareer Products or services in use on Affiliate’s Sites in any
AffiliateProgramtermsEff2.21.13
other manner, including, but not limited to, print and television advertising; third party banner, email, direct mail or
other campaigns; or general advertising on third party sites. Whether through its own promotional campaigns or preapproved promotional campaigns, Affiliate shall not:
10.1. promote LiveCareer or Live Career Products or services next to, or one-click away, from content
that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable,
such as websites that: depict sexually explicit images; promote violence; promote discrimination based on race, sex,
religion, nationality, disability, sexual orientation, or age; promote illegal activities;
10.2. make claims regarding LiveCareer Products or services other than claims that have been set forth
in writing in the applicable LiveCareer Content nor make any misrepresentation or engage in any deceptive practices
in the promotion of LiveCareer or LiveCareer Products or services, including using the word “free” or a substantially
equivalent claim unless included as part of the LiveCareer Content, nor modify or obscure any disclosures or
disclaimers placed on the LiveCareer Content;
10.3. violate any guidelines set forth by the Federal Trade Commission (“FTC”), including, without
limitation, the Federal Trade Commission guidelines on testimonials and endorsements, which requires disclosing if
any endorser has a material connection to Affiliate or LiveCareer or has been asked to provide the endorsement or
has received any compensation;
10.4. promote LiveCareer or LiveCareer Products or services in any manner or engage in activities that
otherwise could be construed as damaging to LiveCareer or its reputation in any way;
10.5. if permitted in writing to promote LiveCareer Products by email, use any form of unsolicited
commercial e-mail (SPAM) or violate the CAN-SPAM Act of 2003, as amended or other laws, rules or regulations
related to email;
10.6. obligate LiveCareer in any way;
10.7. promote LiveCareer or LiveCareer Products or services in a profane, obscene or unlawful manner;
10.8. Promote LiveCareer through paid search including without limitation, Google Adwords, Yahoo
Search, or Microsoft Ad Center;
10.9. circumvent any tracking or security measures or attempt to automate or falsify activity through the
Links;
10.10. include price information in their descriptions of LiveCareer Products unless they are in the
LiveCareer Content;
10.11. violate the terms, conditions, guidelines and policies of any third party services they use, including
but not limited to, social media services, search engine marketing systems and other third party services; or
10.12. provide Links to LiveCareer’s Site on non-Affiliate websites.
Any violation of the foregoing shall constitute an immediate material breach of this Agreement and LiveCareer
reserves the right at any time to demand that Affiliate cease and desist. Affiliate agrees that it will cease and desist
from any advertising and promotion of LiveCareer and LiveCareer Products if LiveCareer determines in its sole and
absolute discretion that such advertising and promotion would be detrimental or harmful to LiveCareer or any goodwill
therein. Affiliate also agrees that any email lists and practices, if expressly permitted in writing between the parties,
which are used to promote LiveCareer or LiveCareer Products will be in full compliance with the CAN-SPAM Act of
2003, as amended, and any rules and regulations promulgated thereunder, as well as any and all other local, state or
federal laws, rules or regulations. Nothing contained herein shall restrict or limit LiveCareer’s rights to advertise and
promote LiveCareer Products and services to anyone.
11.
Indemnification: Each party (“Indemnifying Party”) shall, at the other party’s request, indemnify, defend and
hold harmless the other party, the other party’s affiliates and the officers, directors, employees and agents of the
other party and its affiliates (each an “Indemnified Party”) against and in any respect from any and all claims,
obligations, demands, suits, actions, settlements, judgments, fines, penalties, liabilities, injuries, damages, losses,
costs (including, but not limited to court costs), expenses and the like (including, but not limited to, reasonable
attorney’s fees), whether liquidated or unliquidated (where applicable) (collectively “Claims”) that arise out of any third
party Claims asserted against the Indemnified Party due to, or in any way connected with (i) the Indemnifying Party's
violation of any intellectual property and/or privacy rights, (ii) any breach of the Indemnifying Party’s obligations under
this Agreement, (iii) negligent or willful misconduct or other breach of applicable law that was proximately caused by
the acts or omissions of the Indemnifying Party or its affiliates, or the directors, officers, employees, agents or
contractors (excluding the Indemnified Party) of the Indemnifying Party or its affiliates. An Indemnifying Party’s
obligation to indemnify, defend and hold harmless the Indemnified Party shall be conditioned upon the following:
11.1. The Indemnified Party shall promptly notify the Indemnifying Party of any Claim made against the
Indemnified Party relating to the Indemnifying Party’s obligations under this Section. However, the failure to give
such notice shall release the Indemnifying Party from its obligations under this Section only to the extent the failure to
give such notice has prejudiced the Indemnifying Party.
11.2. The Indemnifying Party shall have exclusive control over the defense of any Claims; provided,
however, that in no event shall the Indemnifying Party settle or consent to any judgment in a Claim without the prior
written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
AffiliateProgramtermsEff2.21.13
However, in the event the settlement or judgment requires a contribution from or affects the rights, including, but not
limited to, the intellectual property rights, of the Indemnified Party, the Indemnified Party shall have the right to refuse
such settlement or judgment and, at its own cost and expense, take over the defense of such Claim, provided that in
such event the Indemnifying Party shall not be responsible for, nor shall it be obligated to indemnify the Indemnified
Party against, the Claim for any amount in excess of such refused settlement or judgment.
11.3. With respect to any defense accepted by the Indemnifying Party, the relevant Indemnified Party
shall be entitled to participate with the Indemnifying Party in such defense if the Claim requests equitable relief or
other relief that could affect the rights of the Indemnified Party and also shall be entitled to employ separate counsel
for such defense at such Indemnified Party’s expense. In the event the Indemnifying Party does not accept the
defense of any indemnified Claim as provided above, the relevant Indemnified Party shall have the right to employ
counsel for such defense at the expense of the Indemnifying Party.
11.4. The Indemnified Party shall offer the Indemnifying Party all reasonable cooperation and assistance
in the defense of any such Claim.
12.
Confidentiality:
12.1. Each party acknowledges that, during the Term of this Agreement, it may obtain access to
Confidential Information of the other party.
12.2. Each party shall keep all of the other party’s Confidential Information confidential in the same
manner it holds its own Confidential Information confidential (which in all cases shall be no less than in a
commercially reasonable manner) and shall use the other party’s Confidential Information only for the purpose of
performing under this Agreement. Neither party shall use the other party’s Confidential Information for any other
purpose except upon such terms and conditions as may be agreed upon between the parties in writing or to enforce
its rights hereunder (provided that the party wishing to disclose the other party’s Confidential Information submits the
same to arbitrators or courts of competent jurisdiction, as applicable, under a request for a protective order). Each
party agrees to restrict disclosure of the other party’s Confidential Information to its directors, officers, agents,
contractors, and employees and its Affiliates having a need to know the Confidential Information for the purpose of
performing under this Agreement. If a party wishes to disclose the other party’s Confidential Information to a third
party, agent or contractor, the disclosing party must obtain the prior express written permission of the owner of such
Confidential Information and any such agent or contractor shall be required by the disclosing party to comply with the
provisions of this Section.
12.3. “Confidential Information” means any information disclosed by you to us or us to you, either directly
or indirectly, in writing, orally, or by inspection of tangible objects that is designated as “Confidential,” “Proprietary,” or
some similar designation. Information communicated orally and/or other intangible information will be considered
Confidential Information if such information is confirmed in writing as being Confidential Information within a
reasonable time after the initial disclosure. Confidential Information may also include information disclosed to a
disclosing party by third parties. Unless otherwise agreed, the obligations of confidentiality and non-use set forth in
this Agreement do not apply to such Confidential Information that: (i) was, at the time of receipt, already known to the
receiving party free of any obligation to keep it confidential; (ii) is or becomes publicly known through no wrongful act
of or breach of this Agreement by the receiving party or the receiving party’s affiliates, or the directors, officers,
agents, employees, or contractors of the receiving party or the receiving party’s affiliates; (iii) is rightfully received
from a third person having no direct or indirect secrecy or confidentiality obligation to the owner of the Confidential
Information with respect to such information; (iv) is independently developed by an employee, agent, or contractor of
the receiving party that is not involved in any manner with the provision of services pursuant to this Agreement and
does not have any direct or indirect access to the Confidential Information; (v) is approved for release by written
authorization of the owner of the Confidential Information; or (vi) is required to be made public by the receiving party
pursuant to any governmental authority or by applicable law, provided that the receiving party shall have made
commercially reasonable efforts to give adequate notice of the requirement prior to the disclosure of the Confidential
Information to the owner of the Confidential Information to enable the owner to seek protective orders.
12.4. Subject to the restrictions and requirements herein, Affiliate hereby consents to LiveCareer’s
providing your Internet site name, logo, other basic information identifying you as an Affiliate and information relating
to your performance hereunder (when aggregated so as not to identify you specifically) to other existing and
prospective LiveCareer affiliates and/or in LiveCareer marketing materials. Use of any disaggregated information
pertaining to your performance hereunder or any information other than basic identification data pertaining to you
may only be shared with third-parties upon your prior review and written approval. Notwithstanding anything to the
contrary contained herein Affiliate acknowledges that its identity and the identify of all Sub-Affiliates must be
disclosed to LiveCareer and LiveCareer may disclose information about any Affiliate to third parties for enforcement
purposes, or otherwise, in the event that any Affiliate, in LiveCareer’s sole discretion, violates the terms of this
Agreement, including without limitation engaging in fraudulent acts to inflate Qualified Traffic.
12.5. Each party’s obligations to safeguard Confidential Information shall survive the expiration,
cancellation or termination of this Agreement. Following the expiration, cancellation or termination of this Agreement
and upon request by the disclosing party, the receiving party shall return or destroy within sixty (60) days of such a
request, all Confidential Information, whether written, graphic, electromagnetic or otherwise. Notwithstanding the
foregoing, neither we nor you will be required to remove copies of the other party’s Confidential Information from any
AffiliateProgramtermsEff2.21.13
backup media or servers. Each party agrees that the owner of Confidential Information may be irreparably injured by
a breach of this Section and that it may be entitled to equitable relief, including injunctive relief and specific
performance, in the event of any breach of the provisions of this Section.
13.
Exclusivity:
In consideration for participating in the Affiliate Program, Affiliate agrees that during the
Term of this Agreement and for a period of six months after the expiration or termination of this Agreement, Affiliate
will not (i) enter into any agreement, directly or indirectly through a third party, with a provider of career and education
testing software or web-based education testing or resume builder or cover letter writing products or services
(including, but not limited to, resume or cover letter creation, editing or downloading) and resume posting and
distribution services (collectively, “Competitive Products”), for the placement of links or other forms of integration on
Affiliate’s Site or to any co-branded site and/or (ii) develop and utilize its own or a third party’s advertising technology
or program to present any third party advertisements for such Competitive Products, through links or otherwise on
Affiliate’s Sites.
14.
Tax Obligations: Each party shall be solely responsible for all tax obligations due to all taxing authorities
arising from or in connection with its participation in the Affiliate Program, including, without limitation, foreign taxes,
United States federal, state, and local withholding taxes, FICA, FUTA, Social Security, Medicare, SUI, and any other
such taxes and deductions ("Taxes") with respect to any earnings or payments made hereunder, Affiliate understands
and agrees that LiveCareer shall not be responsible for withholding any Taxes from any payments due to Affiliate.
Notwithstanding any provisions contained herein, Affiliate agrees to indemnify and reimburse LiveCareer from any
Claim whatsoever for assessment of Taxes by any foreign, United States federal, state, and/or local taxing authority,
and any other costs and damages, arising from or in connection with any tax obligations.
15.
Limitations Of Liability/Warranty Disclaimer.
YOU ACKNOWLEDGE AND AGREE THAT ANY
SERVICES OR MATERIALS PROVIDED BY LIVECAREER PURSUANT TO THIS AGREEMENT ARE PROVIDED
AS IS, WITH ALL FAULTS AND AS AVAILABLE, AND THAT LIVECAREER MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS, ON
ITS OWN BEHALF ON AND BEHALF OF ALL ADVERTISERS, ITS SUPPLIERS, DISTRIBUTORS AND
LICENSORS, ANY WARRANTIES AS TO THE USEFULNESS, ACCURACY, RELIABILITY OR EFFECTIVENESS
OF ANY SERVICES OR MATERIALS PROVIDED HEREUNDER OR THAT THE SERVICES PROVIDED
HEREUNDER WILL BE UNINTERRUPTED, ERROR FREE OR AVAILABLE THROUGH ANY PARTICULAR
METHOD OF DISTRIBUTION, OR THAT ANY SERVICES OR MATERIALS PROVIDED PURSUANT TO THIS
AGREEMENT, INCLUDING ITS TRACKING TECHNOLOGIES OR REPORTING, WILL WORK WITH EVERY
INTERNET BROWSER, MOBILE DEVICE, OR THAT DEFECTS HAVE BEEN OR WILL BE CORRECTED, OR
THAT SUCH SERVICES OR MATERIALS WILL MEET THE NEEDS OF ANY PARTY. WITHOUT LIMITING THE
FOREGOING, AND EXCEPT AS OTHERWISE PROVIDED HEREIN, LIVECAREER DISCLAIMS ALL
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT WILL LIVECAREER BE LIABLE TO YOU FOR ANY SERVICE FAILURE,
DISRUPTION, DOWNTIME OR INCORRECT LINKAGE UNDER THIS AGREEMENT.
IN NO EVENT WILL LIVECAREER BE LIABLE TO AFFILIATES FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER
SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING
NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT LIVECAREER HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE AND IN NO EVENT SHALL LIVECAREER BE
LIABLE TO AN AFFILIATE OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND IN EXCESS OF THE
AFFILIATE COMMISSIONS PAID IN THE LAST 30 DAYS PRECEDING THE CLAIM. REGARDLESS OF ANY LAW
TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDEDING SHALL BE BROUGHT AGAINST LIVECAREER
MORE THAN ONE YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
16.
Relationship of Parties: The parties to this Agreement are independent contractors, and nothing in this
Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment
relationship between the parties. Neither party will have authority to make or accept any offers or representations on
the other party’s behalf. Neither party will make any statement, whether on Affiliate's or LiveCareer’s Sites or
otherwise, that reasonably could be construed to contradict anything in this section.
17.
Non-Compete: In consideration for participating in the Affiliate Program, Affiliate agrees that during the
Term of this Agreement, and for a period of eighteen (18) months after the expiration or termination of this
Agreement, (i) it will not divert clients, suppliers or accounts from LiveCareer nor make attempts to induce any
LiveCareer employees to terminate their employment with LiveCareer, and (ii) it will not make available, or cause
others to make available to End Users any Competitive Products, including without limitation, its own (meaning
created independently, licensed or purchased) Competitive Products. LiveCareer shall be entitled to injunctive relief
to enforce the provisions of this Section 17 and Section 13 herein.
AffiliateProgramtermsEff2.21.13
18.
Force Majeure: Neither party shall be liable to the other party for any delay or default hereunder to the
extent due to any cause beyond its reasonable control regardless of whether such delays or failures in performance
were foreseen or foreseeable as of the date of this Agreement, including, without limitation: acts of nature, unusually
severe weather conditions, riot, sabotage, volcano, military authority, fire, explosion, power failure, acts of God, war,
revolution, civil commotion, or acts of public enemies; labor unrest, including, without limitation, strikes, slowdowns,
picketing or boycotts; or delays caused by the other party or by other service or equipment vendors; default due to
Internet disruption or any other acts or occurrences beyond the party’s reasonable control (any of the foregoing, a
“Force Majeure Event”). All obligations hereunder shall resume upon the cessation or remediation of such Force
Majeure Event. Notwithstanding the foregoing, in no case shall a Force Majeure Event require the non-performing
party to settle any labor dispute except as the non-performing party, in its sole discretion, determines appropriate.
19.
Term and Termination: The term of this Agreement will begin upon written notice by LiveCareer (such
approval may be in the form of electronic notification) that the Affiliate has been approved to participate in
LiveCareer’s Program. The term will be continuous unless and until either party notifies the other in writing that it
wishes to terminate this Agreement, in which case this Agreement will terminate immediately ("Term").
TERMINATION MAY BE AT WILL, FOR ANY REASON, BY EITHER PARTY. Upon termination of the Agreement,
Affiliate shall immediately remove all LHPs and Links from the Affiliate Site to LiveCareer Site and/or stop using the
API or Hosted File and provide LiveCareer with written confirmation of same. Affiliate will not be entitled to any
compensation for post-termination traffic resulting from Links remaining on the Affiliate Site following termination.
Affiliate will not be entitled to any commission for any activity of Validated End User Traffic for Qualifying Traffic
completed after termination.
20.
Insurance:
The Affiliate shall maintain, at its own expense, comprehensive general liability insurance,
workers compensation insurance and such other insurance policies, and in such amounts, as are generally
maintained according to standard industry practices sufficient to cover any claims in connection with its obligations
under this Agreement. The Affiliate shall present insurance certificates or other proof of coverage to LiveCareer upon
written request.
21.
Modification of Terms: LiveCareer may change the terms of this Agreement from time to time. The most
recent version of the Agreement will always be posted on the LiveCareer Sites, with the "Effective Date" posted at the
top of the Agreement. By participating in the Affiliate Program after the Effective Date, you are deemed to consent to
our then-current Agreement.
22.
Inaccuracies/Typos:
LiveCareer is not responsible for typos or misprints contained within the
LiveCareer Site, and therefore, LiveCareer reserves the right to correct typos, errors and descriptions as needed to
maintain reasonably accurate information. Under no circumstances will LiveCareer be liable for misquoted content.
23.
Governing law: If a court having competent jurisdiction declares any provision of this Agreement invalid or
unenforceable, the remainder of this Agreement shall continue in full force and effect. This Agreement will be
governed by the laws of the United States and the State of New York, without reference to rules governing choice of
laws. Any action relating to this Agreement must be brought in federal or state courts located in New York County, in
the State of New York. Either party’s failure to enforce the strict performance of any provision of this Agreement will
not constitute a waiver of rights or the ability to subsequently enforce such a provision or any other provision of this
Agreement.
24.
Miscellaneous. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining
provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified
to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. The failure of
either party to partially or fully exercise any rights or the waiver of either party of any breach, shall not prevent a
subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of
this Agreement. The remedies under this Agreement shall be cumulative and not alternative and the election of one
remedy for a breach shall not preclude pursuit of other remedies unless expressly provided otherwise in this
Agreement. Affiliate may not assign this Agreement to any other entity, whether by operation of law or otherwise.
LiveCareer may assign this Agreement or any portion thereof at its sole discretion. This Agreement shall inure to the
benefit of the parties’ permitted successors and assigns. This Agreement, including any applicable IO,sets forth the
entire agreement between the parties on this subject matter contained herein and supersedes all prior negotiations,
understandings and agreements between the parties concerning this subject matter. To the extent there is a conflict
between these Terms and any Insertion Order, the Insertion Order shall govern; provided it has been executed by
both parties. The provisions of Sections 5, 8, 9, 11, 12, 13, 15, 17, 22, 23, and 24 shall survive the expiration or
termination of this Agreement regardless of the reason or reasons therefore. Any official notice given pursuant to this
AffiliateProgramtermsEff2.21.13
Agreement shall be sent to the other party at the email address provided upon registration by: (i) certified mail return
receipt requested, (ii) overnight courier and shall be deemed received upon receipt.
AffiliateProgramtermsEff2.21.13