The following Terms and Conditions ("Terms and Conditions"), together with any and all applicable Acceptable Use Policies ("AUP" and together with the Terms and Conditions, the "Agreement"), set forth the terms and conditions which shall govern the relationship between Stacks App LLC, registered office: 222 W. Merchandise Mart Plaza, Suite 1212 Chicago, IL 60654, its affiliates and subsidiaries (collectively "Stacks App LLC") and you as an affiliate ("You" or "Affiliate") using the advertising service (the "Service") offered through the Stacks App LLC ("Stacks App LLC Network") located at www.Stacks.app (the "Site"). You and Stacks App LLC may also be individually referred to herein as a "Party" and collectively as "Parties." You agree to use the Site, the Service and any additional products and/or services offered by Stacks App LLC only in accordance with the Agreement. Stacks App LLC 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 "Affiliate" 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 Stacks App LLC to use the Service. If You do not agree to the Terms and Conditions in its entirety, You are not authorized to: (a) register as an Affiliate; (b) use the Service; and/or (c) use the Site, in any manner or form whatsoever.
1. Stacks App LLC Network
The Stacks App LLC Network enables Affiliates to apply for and, upon approval by Stacks App LLC, have an opportunity to earn Bounties (as that term is defined below) through participation in various advertising campaigns ("Programs") offered by Stacks App LLC or its third party advertisers ("Advertisers") in accordance with the Agreement. The terms and conditions of any and all Programs (each, the "Program Terms") shall be posted on the Site. Stacks App LLC may, at its sole discretion, refuse to register You as an Affiliate and/or terminate Your participation in any Program at any time for any reason.
2. The Site and Service
Stacks App LLC posts offers and associated creatives ("Creatives") on the Site in connection with the Programs. Approved Affiliates shall be permitted to download the Creatives: (a) for publication on Affiliate's website and/or any other website published with, owned, operated and/or controlled by Affiliate ("Affiliate Website"); (b) for distribution in email messages sent to those e-mail addresses listed in Affiliate's database and/or any other database affiliated with, owned, operated and/or controlled by Affiliate ("Affiliate E-mails") and/or (c) other approved marketing channels. Stacks App LLC will specify the amount and terms under which You will earn payment ("Bounties"). Bounties are generated from a specified transaction ("Action") as defined by Stacks App LLC. Actions include, without limitation, clicks, click-throughs, sales, registrations, impressions and leads. The applicable Action associated with each Program shall be set forth in the applicable Program Terms and, unless otherwise specified, such definition shall only apply with respect to that Program. If You accept a Program, You agree to place that Program's Creatives on the Affiliate Website and/or in the Affiliate E-mails, in accordance with the Agreement and the accepted Program Terms. Stacks App LLC may, at its sole discretion, change a Program at any time, upon prior notice to You, unless otherwise specified in the Program Terms. Similarly, You may cease participation in a previously accepted Program at any time, unless otherwise specified in the Program Terms. Stacks App LLC is responsible for displaying and administrating all active Programs and tracking associated Bounties and Actions. Program data compiled by Stacks App LLC including, but not limited to, numbers and calculations regarding Actions and associated Bounties ("Program Data"), will be calculated by Stacks App LLC through the use of industry standard tracking technology and shall be final and binding on You. Any questions regarding the Program Data must be submitted in writing within fourteen (14) days of initial appearance in the tracking system; otherwise the Program Data will be deemed to be accurate and accepted by You. Affiliate understands and agrees that on occasion the Service and/or Stacks App LLC 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 Stacks App LLC or which are not reasonably foreseeable by Stacks App LLC 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. Stacks App LLC will attempt to provide the Service on a continuous basis. However, Affiliate acknowledges and agrees that Stacks App LLC has no control over the availability of the Service and Stacks App LLC Network on a continuous or uninterrupted basis. Terms of the Agreement are subject to Stacks App LLC hardware, software, and bandwidth traffic limitations. Stacks App LLC's failure to deliver because of technical difficulties does not represent a failure to meet the obligations of the Agreement.
Only Affiliate Websites, Affiliate E-mail distribution lists and other marketing channels that have been reviewed and approved by Stacks App LLC may be utilized in connection with the Site and Service. Stacks App LLC reserves the right to withhold, refuse or withdraw approval of any websites, email distribution lists and/or marketing channels for any reason, whatsoever, in Stacks App LLC's sole discretion. Notwithstanding the foregoing, Stacks App LLC'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. Stacks App LLC does not represent or warrant that such policies, specifications and/or recommendations are legally compliant or appropriate. Stacks App LLC 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 Stacks App LLC. Affiliate shall not alter, modify or otherwise change the Creatives, or any Creatives-related feature, that it obtains access to in connection with any Program in any manner whatsoever, without Stacks App LLC's prior express written consent. Unless otherwise specified in the applicable Program Terms or by Stacks App LLC, and subject to the restrictions herein, the positioning, placement, frequency and other editorial decisions related to Creatives shall be made by Affiliate. Notwithstanding the foregoing, Affiliate must comply, immediately, with any and all requests by Stacks App LLC to modify, alter, remove or otherwise change the positioning, placement, frequency and other editorial decisions related to the Creatives. Affiliate also shall not run any deactivated Creatives after the Advertiser has posted new Creatives to run in lieu of such deactivated Creatives for the applicable Program. AFFILIATE AGREES TO REVIEW THE AVAILABILITY OF CREATIVES THAT IT HAS PLACED WITHIN ITS MEDIA ON A DAILY BASIS. IT IS THE AFFILIATE'S SOLE RESPONSIBILITY TO CHANGE CREATIVES WITHIN ITS MEDIA WHEN A CREATIVE IS NO LONGER AVAILABLE IN THE Stacks App LLC NETWORK. Stacks App LLC ASSUMES NO RESPONSIBILITY TO NOTIFY AFFILIATE WHEN A SPECIFIC CREATIVE IS NO LONGER AVAILABLE IN THE Stacks App LLC NETWORK. In addition, Site integration tags and tracking pixels ("Tags") included in the Creatives or otherwise incorporated may not be altered under any circumstances. Stacks App LLC 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 Affiliate account, with or without notice.
Affiliate may desire to use its business partners and/or associates to fulfill the obligations or exercise the rights under a particular Program. Any of Affiliate's business partners or associates that participate in or perform any activities on behalf of Affiliate under the Agreement shall be considered to be a "Sub-Affiliate." Stacks App LLC reserves the right to review and approve or reject any and all Sub-Affiliates and may revoke a prior approval of any Sub-Affiliate at any time and for any reason. Sub-Affiliates must meet the same criteria for approval as the Affiliate as set forth in the Agreement and must comply with all the terms and conditions that are applicable to Affiliate under the Agreement and the applicable Program Terms. Affiliate is responsible for and shall fully and unconditionally indemnify Stacks App LLC for any and all actions of any of its Sub-Affiliates, including the payment of legal fees and costs if necessary. Further, Stacks App LLC may, at its sole discretion, terminate an Affiliate at any time based on the actions of that Affiliate's Sub-Affiliate(s). Once express approval of a Sub-Affiliate has been granted by Stacks App LLC, notices to the Affiliate shall be deemed notice to that Affiliate's approved Sub-Affiliate(s). Affiliate agrees that Stacks App LLC is under no obligation to pay a Sub-Affiliate. Stacks App LLC further reserves the right to withhold or refuse payment to any Affiliate in the event that any of its Sub-Affiliates breach the Agreement.
5. E-mail Programs; Suppression Lists
Where use of e-mail marketing is authorized by Stacks App LLC and/or the applicable Program Terms, the following terms shall apply. Any and all e-mails, e-mail based Creatives transmitted, as well as any and all e-mail addresses supplied by Affiliate: (a) shall comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003, as amended ("CAN-SPAM") 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 Affiliate 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 Stacks App LLC, and Affiliate and its Marketing Affiliates are prohibited from removing or altering "subject" and "from" lines provided by Stacks App LLC; (f) must comply with California Business & Professions Code § 17529 and the Canadian Anti-Spam Legislation. 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. Affiliate shall cause a valid physical postal address for Affiliate and/or the applicable Advertiser, as required by applicable law, to appear in each e-mail creatives, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery). Moreover, Affiliate must have active filters in place to prevent communications from being sent to any entity or person in Canada which include, at a minimum: (a) email filters (i.e. rejection of email addresses with ".ca" or other Canadian extensions); (b) zip code filters (rejection of Canadian zip codes); (c) area code filters (rejection of Canadian area codes); and (d) IP filters (rejection of Canadian IP addresses). Stacks App LLC reserves the right to add such address(es) should Affiliate fail to include same, but Stacks App LLC is in no way responsible for including such address(es) where Affiliate fails to do so. In addition, Stacks App LLC may make available, at a Stacks App LLC-designated FTP site ("FTP Site"), a suppression list (and associated login information), updated on a regular basis, generated from e-mail Programs transmitted by and/or through the Stacks App LLC Network for Affiliate's use in connection with applicable Programs. Affiliate shall upload its own list of suppressed e-mail addresses to the FTP Site, if one is provided by Stacks App LLC. If the FTP Site is provided by Stacks App LLC, and no such e-mail addresses are supplied by Affiliate, Stacks App LLC may conclude that no such addresses exist. The suppression list and login provided by Stacks App LLC are deemed to be Confidential Information of Stacks App LLC, as defined herein. Suppression lists may not be used by Affiliate for any purpose other than to comply with applicable laws regulating the e-mail transmissions. Affiliate agrees to process any unsubscribe requests within five (5) days of being posted at the FTP Site.
6. Affiliate E-mail Lists
All Affiliate E-mails sent under the Agreement shall be delivered to addresses on e-mail lists owned or managed solely by Affiliate ("Affiliate E-mail Lists"). Brokering third-party deals to deliver Creatives without disclosing such to Stacks App LLC is strictly prohibited and grounds for immediate termination, as well as other legal remedies. Affiliate 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 data for every subscriber to Affiliate's Email List(s). Affiliate agrees that, within twenty-four (24) hours of Stacks App LLC's request, it shall provide, at a minimum, the following subscriber sign-up/registration data for any email address that Affiliate sends an Affiliate E-mail to: (a) subscriber email address used to sign-up/register for Affiliate's Email List; (b) subscriber's IP address; (c) date and time of subscriber's sign-up/registration for Affiliate's Email List; and (d) location of subscriber's sign-up/registration.
You agree to be paid the applicable Bounty rate for each Action verified by Stacks App LLC as specified by Stacks App LLC approximately thirty (30) days after the last day of a given calendar month or before if you are on a NET 7 Payout arrangement, for Bounties realized in that month. You agree that payment for Bounties will be owed to You from the applicable Advertiser, and that corresponding payments shall be made by Stacks App LLC to You out of the funds actually collected by Stacks App LLC from the applicable Advertiser. Stacks App LLC shall have no payment obligation to Affiliate where Advertiser has not remitted sufficient payments to cover the Bounties otherwise due and owing Affiliate. Instead, Affiliate shall have the right to pursue any and all legal remedies directly against any Advertiser that has not made funds available to pay sums due and owing to Affiliate for Bounties earned in connection with a particular Program. All Affiliate accounts will be paid in US dollars ($US). Notwithstanding anything contained herein to the contrary, no Bounty payments will be issued for any amounts otherwise due Affiliate that total less than one hundred dollars ($100.00) ("Payment Threshold"). Upon termination of the Agreement, all legitimate moneys due to Affiliate that are actually collected from the applicable Advertiser, even amounts below the Payment Threshold, will be paid during the next billing cycle. Every Affiliate account must have a unique, valid taxpayer identification number (TIN), valid Social Security Number or other applicable unique government identification. All payments due hereunder shall be in U.S. dollars and are exclusive of any applicable taxes. Affiliate shall be responsible for all applicable taxes.
An Advertiser may request that Stacks App LLC, or Stacks App LLC may on its own initiative, debit from the Bounties otherwise due and owing Affiliate an amount equal to a Bounty previously credited to Affiliate'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 Affiliate's action, omission and/or failure to comply with the terms and conditions 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 Affiliate to comply with the Agreement and/or the applicable Program Terms (collectively referred to as a "Chargeback").
Chargebacks requested by an Advertiser 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").
An Advertiser may request that the payment of a Bounty be postponed for one (1) payment cycle where: (i) Advertiser is verifying a lead (for Programs in which lead generation is a component of the Action); (ii) Advertiser has a product return policy that allows the underlying purchaser to return the product during the Chargeback Period; or (iii) the applicable Program Terms provide for such a postponement. The number or amount of Actions, credits for payments and debits for Chargebacks, as calculated by Stacks App LLC, shall be final and binding on Affiliate.
Stacks App LLC actively monitors traffic, Actions, Bounties and other Program-related activities for potential fraud. If Stacks App LLC 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 Stacks App LLC, You will forfeit all of the Bounties related to that Program, and Your Affiliate account will be terminated effective immediately. Stacks App LLC reserves sole judgment in determining fraud and You agree to be bound by any and all such determinations. It is the OBLIGATION of Affiliate to prove to Stacks App LLC that it has NOT engaged in fraud. Stacks App LLC will hold Your Bounty-related payments in 'Pending Status' until You have satisfactorily provided evidence that demonstrates to Stacks App LLC that You have not engaged in fraud. If You are unable to provide Stacks App LLC with satisfactory evidence that You have not engaged in fraud within seven (7) days of Your Bounties being placed in "Pending Status," then Stacks App LLC reserves the right to terminate Your Affiliate account and cancel payment on the applicable Bounties, at its sole discretion and without any further obligations to You.
9. Term and Termination
The Agreement shall commence upon Stacks App LLC's acceptance of Your Affiliate application and remain in effect until terminated as set forth herein. The Agreement may be terminated by either Party upon three (3) days' prior written notice. In addition, Stacks App LLC reserves the right, in its sole and absolute discretion, to terminate a Program and/or remove any Creatives at any time for any reason, upon notice to You. Stacks App LLC 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 e-mail and will be effective immediately. Upon termination, Affiliate agrees to immediately remove from its Affiliate Website(s) any and all Creatives, Stacks App LLC Code or other intellectual property made available to Affiliate 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.
Stacks App LLC makes available to its Affiliates 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, e-mail marketing, search engine marketing, lead generation, blog-based marketing and product review websites. Affiliate hereby represents and warrants that it: (a) has read Stacks App LLC's policies and guidelines, as same are made available here: https://stacks.app/legal/privacy-policy ("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. Affiliate further represents and warrants that it has provided full and accurate information in the sign up process and thereafter with respect to providing to Stacks App LLC all websites, email practices and other methods of generating traffic to advertiser offers sourced from the Stacks App LLC network. Specifically, prior to the public use or dissemination to consumers of any marketing material promoting an advertiser offer sourced from Stacks App LLC, Affiliate will provide Stacks App LLC Compliance with all marketing materials. Affiliate will also maintain and provide to Stacks App LLC upon request records of the dates when the marketing materials are publically 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.
11. Representations and Warranties
The Parties hereby acknowledge and agree that Affiliate is solely responsible for the method by which the Creatives are disseminated. You represent and warrant that:
- Your Affiliate Website contains distinct and legitimate content, substance and material, not simply a list of links or advertisements and that Your Affiliate Website serves a purpose substantially or completely separate and distinct from merely being designed to earn money solely from Stacks App LLC's Advertisers or other third party advertisers;
- Your Affiliate Website and/or Affiliate E-mails 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);
- Your Affiliate Website is not offered as a part of a community-based website personal entry or personal page;
- Your Affiliate Website and Affiliate E-mails 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;
- Your Affiliate Website is not hosted by a free service and is fully functional at all times and at all levels (no "under construction" Affiliate Websites or any sections thereof are permissible);
- You will not use spawning process pop-ups and exit pop-ups in connection with Your Affiliate Website and/or Affiliate E-mails;
- 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 Programs without first obtaining the prior written consent of Stacks App LLC;
- 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 Advertiser;
- 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;
- 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 Affiliate Website or Advertiser 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;
- You will not violate guidelines of any search engines being utilized;
- You will not allow the Creatives to be placed on any non-Affiliate Website without the prior express written consent of Stacks App LLC;
- You will not use any Creatives or any other Program terms and/or content in connection with aggregating, soliciting or recruiting other Affiliates, Advertisers, 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 Stacks App LLC; and
- .You will not redirect traffic to a website other than the website specifically listed by the applicable Advertiser. You further represent and warrant that the content of Your Affiliate Website and Affiliate E-mails 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 Stacks App LLC and/or an Advertiser, without Stacks App LLC's and/or Advertiser'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).
12. Customer Information; Non-Disclosure
Any and all information submitted by end-user customers ("Customer Information") in connection with a Program shall be considered proprietary to and owned by Stacks App LLC. Such Customer Information is Confidential Information (as that term is defined below) of Stacks App LLC 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 Stacks App LLC hereunder or otherwise as part of the Services is proprietary to and owned by Stacks App LLC. 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 Stacks App LLC in any manner. These non-disclosure obligations shall survive termination or expiration of the Agreement.
13. Proprietary Rights
Subject to the Agreement and any underlying Program Terms, Stacks App LLC grants to Affiliate a revocable, non-transferable, royalty free, international license to display on, and distribute through, the Affiliate Website, Affiliate E-mails and/or other approved marketing channels, the Creatives, and any and all associated trademarks, service marks, tradenames and/or copyrighted material ("Intellectual Property Content") that Stacks App LLC provides to Affiliate through the Stacks App LLC Network for the limited purposes of promoting Programs to end users. Affiliate may not remove or alter any copyright or trademark notices. The Intellectual Property Content and other matters related to the Stacks App LLC Network, Programs, Creatives and Site are protected under applicable copyright, trademark and other proprietary rights. The use, copying, redistribution and/or publication by Affiliate of any part of the Stacks App LLC Network, Programs, Creatives and/or Site, other than as expressly permitted hereunder, are strictly prohibited. Affiliate does not acquire any ownership rights to the Stacks App LLC Network, Programs, Creatives and/or Site. The availability of the Stacks App LLC Network, Programs, 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. Stacks App LLC reserves any rights not explicitly granted in the Agreement.
14. Limitation of Liability; Disclaimer of Warranty
IN NO EVENT SHALL Stacks App LLC 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, A PROGRAM, ADVERTISERS' UNDERLYING PRODUCTS AND/OR SERVICES OR YOUR DISPLAY OF ANY CREATIVES ON OR THROUGH YOUR AFFILIATE WEBSITE AND/OR AFFILIATE E-MAILS INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF Stacks App LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Stacks App LLC'S MAXIMUM AGGREGATE LIABILITY TO AFFILIATE 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 Stacks App LLC MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE. AFFILIATE RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE. THE SITE, CREATIVES, PROGRAMS, ADVERTISERS' 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 ADVERTISERS' UNDERLYING PRODUCTS AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. Stacks App LLC HAS NO LIABILITY, WHATSOEVER, TO AFFILIATE OR ANY THIRD PARTY, FOR AFFILIATE'S USE OF, OR INABILITY TO USE, THE SITE, CREATIVES, PROGRAMS AND/OR ADVERTISERS' UNDERLYING PRODUCTS OR SERVICES AND Stacks App LLC DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT AFFILIATE'S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OF THE PROGRAMS WILL BE AVAILABLE TO AFFILIATE. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN Stacks App LLC AND AFFILIATE. THE SITE, CREATIVES, PROGRAMS AND/OR ADVERTISERS' UNDERLYING PRODUCTS AND SERVICES WOULD NOT BE PROVIDED TO AFFILIATE WITHOUT SUCH LIMITATIONS. Stacks App LLC 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 AFFILIATE FROM Stacks App LLC AND/OR ANY ADVERTISER BY AND THROUGH THE SITE, CREATIVES AND/OR PROGRAMS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.
You shall indemnify, defend and hold Stacks App LLC, its Advertisers and each of their respective parents, Affiliates, subsidiaries, officers, partners, 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, Program, Services and/or any Creatives; (b) any third party claim related to Your Affiliate Website, Affiliate E-mails and/or Your marketing practices; (c) any third party allegation or claim against Stacks App LLC and/or its Advertiser(s) relating to a violation of any and all state and federal laws or the laws of Your jurisdiction; (d) any content, goods or services offered, sold or otherwise made available by You on or through the Affiliate Website, Affiliate E-mails, other marketing channels or otherwise; (e) any claim that Stacks App LLC is obligated to pay any taxes in connection with payment made to You in connection with the Agreement and/or any Program; (f) breach and/or violation of the Agreement and/or any representation or warranty contained herein; and/or (g) Your use of the Site, Program, Services and/or any Creatives, in any manner whatsoever. Stacks App LLC 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 Program. 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 16 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.
Stacks App LLC 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 Stacks App LLC, 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 Stacks App LLC, at its sole discretion, immediately terminating the Agreement and/or Your participation in any Program, without any liability to Stacks App LLC. The Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties' successors and assigns.
17. Jurisdiction and Venue
The Agreement shall be construed and governed by the laws of the State of Florida, without giving effect to principles of conflicts of law. Any and all disputes or controversies whether of law or fact of any nature whatsoever arising from or respecting the Agreement shall be decided by arbitration by the American Arbitration Association ("Arbitrator"), in accordance with the rules and regulations of that Association. Arbitration shall take place in Sarasota, FL. At the request of Stacks App LLC, arbitration proceedings will be conducted in secrecy. In such case all documents, testimony and records shall be received, heard and maintained by Arbitrator in secrecy under seal, available for the inspection only by Stacks App LLC or Affiliate and by their respective attorneys and their respective experts who shall have agreed, in advance and in writing, to receive all such information confidentially and to maintain such information in secrecy. Arbitrator shall be able to decree any and all relief of an equitable nature including, but not limited to, such relief as a temporary restraining order, a temporary and/or a permanent injunction, and shall also be able to award damages, with or without an accounting and costs. Stacks App LLC shall be entitled to an award of its reasonable costs and expenses, including attorneys' 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 Stacks App LLC.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 Stacks App LLC 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 Stacks App LLC incurs in seeking such relief. This provisionpreventingYou 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.
18. 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 effect 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.
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 Stacks App LLC Network or any Program Terms are in conflict or inconsistent with the Agreement, the Agreement shall take precedence.
"Confidential Information" means any information disclosed to You by Stacks App LLC, 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 Stacks App LLC; (b) becomes publicly known and made generally available after disclosure to You by Stacks App LLC other than through Your action or inaction; and/or (c) is in Your possession, without confidentiality restrictions, at the time of disclosure by Stacks App LLC as shown by Your files and records prior to the time of disclosure. Stacks App LLC's Program 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 Stacks App LLC's personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to Stacks App LLC immediately upon Stacks App LLC's request.
21. 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.
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 Stacks App LLC infrastructure. You agree that any unauthorized and/or unlawful use of the Site, Service, Creatives, and/or Programs would result in irreparable injury to Stacks App LLC for which monetary damages would be inadequate. In such event, Stacks App LLC 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.
23. Ability to Perform
You agree that Stacks App LLC 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 Stacks App LLC to obtain credit reports regarding Your business and to require You to provide it with reasonable information regarding Your financial position.
Each Party is an independent contractor and not a partner, 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.
All notices shall be sent to the address submitted by You when You sign up for the Service and, if to Stacks App LLC, to the address listed in the Contact section of the Site.
What are cookies?
Cookies are small files that are stored on your data carrier and hold certain settings and data for exchange with our system via your browser.
Basically speaking, there are two different types of Cookies: the so-called session Cookies and temporary/permanent Cookies stored on your data carriers for a longer period or without limit. This type of storage helps us design our Site and adjust our offers to match your preferences, making it easier for you to use them, meaning that, for example, certain input from you can be stored so that you are not required to enter it repeatedly.
On our site you will find:
Google Analytics allows us to measure and thoroughly analyze the traffic on our Site.
It also enables us to estimate whether we earned back the investment in particular ad campaign and measure its outcome
DoubleClick is a company owned by Google, which services we use to manage our advertising campaigns on web, including on our Site.
3.Facebook Ad pixel:
Facebook Pixel is embedded within our Site to link the use of different websites and viewing of different advertisements by Visitors, as well as to optimize and convert the outcome of such analysis.
STACKS APP TEXT MESSAGE TERMS & CONDITIONS By “Opting In” to or using Stacks App “Text Message Service” (both terms defined below), you accept these Terms & Conditions. THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED BELOW.
“Text Message Service” includes any arrangement or situation in which Stacks App sends (or indicates that it may send, or receives a request that it send) one or more text messages. You may review a partial list of covered Text Message Services. “Opting In,” “Opt In” and “Opt-In” refer to requesting, joining, agreeing to, enrolling in, signing up for, acknowledging, or otherwise consenting to receive one or more text messages.
SIGNING UP FOR OUR TEXT MESSAGES
COSTS OF SIGNING UP FOR OUR TEXT MESSAGES
We do not charge you for our text message program. But message and data rates may apply, so depending on your plan with your wireless or other applicable provider, you may be charged by your carrier or other applicable provider.
FREQUENCY OF TEXT MESSAGES:
We may send you an initial message confirming that we have received your opt-in. After that, the specific amount of text messages may vary depending on how you use our services and the types of text messages you registered to receive. The number of text messages you receive may depend upon factors including how you use our services and whether you take steps to generate additional text messages from us (such as by sending a HELP request).
Content is not available on all carriers and carrier participation could change. As of February 7, 2020, our text messages can be sent through the following carriers: AT&T, Verizon Wireless, Sprint, T-Mobile USA, Aio Wireless, Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Boost Mobile, Carolina West Wireless, CellCom, Cellular One of East Central IL (ECIT), Cellular One of Northeast Arizona, Cellular One of Northeast Pennsylvania, Chariton Valley Cellular, Cricket, Coral Wireless (Mobi PCS), Cross, C-Spire (CellSouth), Duet IP (Maximum Communications New Core Wireless), Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Google Voice, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Metro PCS, Mosaic (Consolidated or CTC Telecom), MTA Communications, MTPCS (Cellular One Nation), Nex-Tech Wireless, Panhandle Communications, Peoples Wireless, Pine Cellular, Pioneer, RINA, Sagebrush Cellular (Nemont), SI Wireless/Mobile Nation, Simmetry (TMP Corporation), SouthernLinc, SRT Wireless, Thumb Cellular, Union Wireless, United Wireless, U.S. Cellular, Viaero Wireless, Virgin Mobile, and West Central (WCC or 5 Star Wireless). The list of participating carriers may be changed at company’s sole discretion without prior notice. The content is not compatible with all cell phone models. We will not be liable for any delays in the receipt of any SMS messages or changes to the participating carriers as delivery is subject to effective transmission from your carrier with active participation at that time. T-Mobile is not liable for delayed or undelivered messages.
BINDING ARBITRATION AND CLASS ACTION WAIVER
READ THIS SECTION CARE FULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
These BINDING ARBITRATION AND CLASS ACTION WAIVER provisions apply to you if you are domiciled in the United States. These provisions may also apply to you if you are domiciled in and use the Text Message Service from outside the United States. See JURISDICTION AND APPLICABLE LAW below for details. Initial Dispute Resolution: Stacks App Customer Support department is available by social media or in app support as well as on the web http://stacks.app to address any concerns you may have regarding the Text Message Service. Most concerns are quickly resolved in this manner to our customers' satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
Binding Arbitration: If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued pursuant to the paragraph above, then either party may initiate binding arbitration as the sole means to formally resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including its interpretation, formation, performance and breach), the parties' relationship with each other and/or your use of the Text Message Service shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its Comprehensive Arbitration Rules or Streamlined Arbitrations Rules, as appropriate, excluding any rules or procedures governing or permitting class actions. This arbitration provision is made pursuant to a transaction involving interstate commerce, and the Federal Arbitration Act (the "FAA") shall apply to the interpretation, applicability, enforceability and formation of this Agreement notwithstanding any other choice of law provision contained in this Agreement. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including without limitation any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
The JAMS Rules governing the arbitration may be accessed at http://www.jamsadr.com/ or by calling JAMS at (800) 352-5267. Your arbitration fees and your share of arbitrator compensation shall be governed by the JAMS Comprehensive Arbitration Rules, but shall not incorporate the JAMS Class Action Procedures, and, to the extent applicable, the Consumer Minimum Standards, including the then-current limit on arbitration filing fees. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Stacks App will pay the additional cost. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Location: If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. For residents outside the United States, arbitration shall be initiated in Los Angeles County, California, and you and Stacks App agree to submit to the personal jurisdiction of any federal or state court in Los Angeles County, California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver: The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND STACKS APP AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception - Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, moral rights violations, trademark infringement, and/or trade secret misappropriation, but not, for clarity, claims related to the license granted to you for the Text Message Service under this Agreement. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
THE FEDERAL ARBITRATION ACT AND APPLICABLE FEDERAL LAW (OR IN THE ABSENCE OF APPLICABLE FEDERAL LAW, THEN THE LAWS OF THE STATE OF CALIFORNIA), WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS, WILL GOVERN THESE TERMS & CONDITIONS AND APPLY TO ANY DISPUTES OR CLAIMS AGAINST STACKS APP ARISING OUT OF OR RELATING IN ANY WAY TO ANY STACKS APP TEXT MESSAGE SERVICE. Copyright 2020 Stacks App