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Terms & Conditions:*
OfferMarket Advertiser Terms of Service
The following Terms of Service (.Terms and Conditions. or .Agreement.), shall govern the relationship between OfferMarket, LLC, and you as an Advertiser ("You" or .Advertiser. or .Party. or .Parties.) using the advertising service (.Service.) offered through the OfferMarket network (.OfferMarket Network.) located at www.OfferMarket.com (the .Site. or .Platform.). You agree to use the Service, the Site, and any additional products and/or services offered by OfferMarket only in accordance with this Agreement. OfferMarket reserves the right to make modifications to the Service, the Site, the Platform and the Agreement at any time, without prior notification.
The latest Agreement will be posted on the Site. Your continued use of the Site and/or the Service after any change thereof shall establish Your consent to such modification. For purposes of the Agreement the term .Advertiser. includes the company, entity or individual, and, without limitation, any owners, parent entities, subsidiaries, predecessor or successor entities, and any employees, agents, officers, or directors acting on behalf of same, registering with or using the OfferMarket Service. You must agree to the Terms and Conditions in entirety to be authorized to: (a) create & use an Advertiser account; (b) use the Service; and/or (c) use the Site, in any manner or form whatsoever. If You do not agree to the Terms and Conditions contained within the Agreement in their entirety, You are not authorized to register as an Advertiser, or use the OfferMarket Site and/or Service.
1. OfferMarket Network: OfferMarket provides a performance based advertising platform with detailed offer creation, targeting and reporting. Advertisers use the OfferMarket Network to setup & launch Offers in order to receive increased traffic/exposure/conversions/etc. of their product/service/etc. Use of the OfferMarket Network does not guarantee increased traffic/exposure/conversions/etc. for Advertisers. Your use of the OfferMarket Network is subject to OfferMarket.s approval. Your Offers are not guaranteed approval and distribution on OfferMarket. OfferMarket reserves the right, in it.s sole discretion, at any time, to refuse any Advertiser Offer and the right to stop promoting any Advertiser Offer previously approved by OfferMarket. Advertiser Offers are distributed through OfferMarket.s network of Traffic Sources, which may include; Display, Email, Search, Social, Mobile and others traffic types as designated by Advertiser upon Offer setup. Traffic will be directed to Advertiser by the method that Advertiser sets during the Offer setup process.
2. OfferMarket Usage: Advertiser is solely responsible for any content, products, and/or services associated with their Offer(s)/Campaign(s), including the content and operation of any Web pages, Call Centers, Software, Applications, etc. associated with Offer(s)/Campaign(s) (together, the "Advertising Content"). Advertiser is solely responsible for any and all liabilities, losses, costs, claims, and expenses arising out of or relating to the Advertising Content. Advertiser warrants and represents that: (a) the Advertising Content does not promote or make claims not easily verifiable, nor does it misrepresent or falsify the Ad or message being communicated; (b) the Advertiser owns and/or has the right and authority to permit the distribution, usage, transmission and reproduction of the Advertising Content; (c) any consumer-related data collected pursuant to this Agreement shall comply with all applicable terms of service and federal, foreign and state law governing the collection and usage of such data; (d) the Advertising Content does not contain any deceptive or fraudulent materials, is factually accurate, and does not contain any material which misrepresents or defames any individual or group, nor any material which discriminates against persons on the basis of age, color, national origin, race, religion, sex, sexual orientation, handicap, or other prohibited basis; (e) the use, reproduction, distribution, or transmission of the Advertising Content does not violate any foreign or domestic, federal, state, or local law regulation or code, including the CAP Code in the U.K. or similar codes governing standards of practice, or any rights of any third party, including but not limited to, any copyright, patent, trademark, trade secret, or other proprietary or property right, or constitute false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, or any other right of any person or entity.
Advertiser represents and warrants that it shall access the OfferMarket Network solely and exclusively to manage Advertisers account & offers with OfferMarket and and shall not assign, share or transfer its login/access information to any third party. Advertiser shall not use any unauthorized means to access Its account or OfferMarket content and shall not share, disseminate or use information or content gained through the OfferMarket Network for any purpose not explicitly granted in this Agreement.
Advertiser shall be accountable for any tracking errors, which occur as a result of Advertiser's action or inaction in performance of this Agreement. Consequently, Advertiser shall make best efforts to keep all landing pages associated with their Offer(s) available while the Offer is active within OfferMarket.
Advertiser further represents and warrants that the Advertiser Offer, Content, and/or Business does not facilitate, promote, advocate or otherwise contain any of the following: (i) sexually explicit, pornographic, obscene or similar content; (ii) profanity or violence; (iii) hate speech or content that discriminates on the basis of race, ethnicity, religion, gender, age, disability or sexual orientation; (iv) without OfferMarket.s specific prior written consent, any indication that statements Advertiser makes are in any way sanctioned by OfferMarket; (v) Money making or investment opportunities/advice not legally permissible; (vi) content that threatens physical harm, is libelous, defames, abuses, or is tortuous to others; (vii) content that is harmful or inappropriate to children; (viii) content that shows any confidential information of any third person without their express consent; (ix) content which maliciously impersonates any person or entity; (x) content promoting illegal activities or substances (e.g., illegal narcotics, counterfeiting money, etc.); (xi) encouraging terrorism or terrorist-related activities, sedition or similar; (xii) content in violation of CAN-SPAM; (xiii) software pirating (e.g., warez); (xiv) hacking or phreaking; (xv) software, services or products that violates the rights of a third party or are illegal including, but not limited to, adware, spyware, spamware (i.e. programs devised to send unsolicited advertisements), services sending unsolicited advertisements, programs intended to initiate .denial of service. attacks, mail bombs, or are meant to gain unauthorized access to networks on the Internet, or any material that contains software viruses or any other computer programs, files, or code created to disrupt, interfere, destroy or otherwise limit the functionality of any computer software or hardware or telecommunications equipment; (xvi) any software, product or service that functions to secretly gather or collect Internet users personal information without the express permission of such users; (xvii) any unauthorized traffic redirecting, site spoofing, hijacking or trafficking from Non-Advertiser 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, invasion of rights of publicity or privacy, false advertising, or unfair competition; (xix) any illegal gambling, contests, lotteries, raffles, or sweepstakes; or (xx) any illegal activity whatsoever under the laws of any country, province, state or jurisdiction in which Advertiser operates.
Approval of any Advertiser Offer is contingent upon the Advertisers account having funds currently available in the account. Advertiser payment obligation is based solely on the number of conversions, as tracked by OfferMarket unless Advertiser shows higher numbers in which case Advertisers numbers will be used, multiplied by the payout amount for each Offer. Advertiser's account funds will be deducted from for each conversion that occurs. In order to keep their Offers active in the OfferMarket Network, Advertisers must keep funds available in their account. If Advertisers account funds reach $0 then all Advertiser Offers will be immediately paused until such time as the account funds are replenished. Accounts can be funded through the following major credit cards (Visa, MasterCard and American Express) and other payment vehicles that may be offered on OfferMarket (and Advertiser waives any .chargeback rights.). Advertiser can request a reimbursement of any unused funds from their account at the end of a given month. OfferMarket will make such reimbursement 15 days from the end of the month in which the reimbursement request was made. OfferMarket only processes payments in United States Dollars. Evidence of payment transactions are displayed within the Advertiser OfferMarket account. With respect to the financial amounts recorded in the Advertiser.s account, if there are any discrepancies between the on-screen display and OfferMarket accounting records, it is the latter which shall govern. OfferMarket shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys. fees, in-house counsel costs, expenses and costs) incurred in attempting to collect payment from Advertiser. Advertiser agrees that in the event a collection suit is commenced, in any proceeding for default judgment OfferMarket may, in lieu of seeking statutory attorneys. fees, elect to recover one-half of the outstanding principal plus penalties as stipulated attorneys' fees. Such an election is in OfferMarket.s sole discretion.
Advertiser understands that all traffic delivered by OfferMarket is on an .as is. and .as available. basis and Advertiser will not hold OfferMarket or it.s Traffic Sources liable or accountable for the activities of visitors who come to Advertiser's website (s) through a link or redirect provided from OfferMarket and/or another Traffic Source.
OfferMarket.s Platform is a proprietary system and Advertiser agrees to treat all information regarding OfferMarket as proprietary and to use all reasonable means, to prevent the disclosure and to protect the confidentiality of all information received in regards to OfferMarket, It.s Platform, Systems, Processes, Procedures, Partnerships, etc. (.Confidential Information.). Advertiser will not engage in any .reverse engineering. or otherwise use the Confidential Information for any purposes than for furtherance of this Agreement. At the conclusion of this Agreement, Advertiser shall return or certify the destruction of all Confidential Information acquired hereunder. Advertiser recognizes that a breach of the provisions of this Section would cause irreparable injury to OfferMarket; therefore, in the event Advertiser breaches or threatens to breach the provisions of this section, OfferMarket, in addition to any other remedies it may have, shall be entitled to seek preliminary and permanent injunctive relief without the necessity of posting a bond.
The following Offer changes will take effect 48 hours after they have been initiated; Offer Pause or Deletion, Payout Decrease.
3. Representations and Warranties: Advertiser represents and warrants it is fully expert in and compliant with the law(s) and regulation(s) applicable to the industry, vertical or field of business they are working in. Also, if necessary, Advertiser is duly licensed and in good standing in its regulated community. OfferMarket warrants that the delivery of Advertiser's Offers complies with applicable law, including but not limited to the U.S. CAN-SPAM Act of 2003, and each of the regulations promulgated pursuant thereto; and content used by OfferMarket (a) are owned or authentically licensed for use by OfferMarket, or are in the public domain; (b) will not be used in a manner constituting defamation, libel or patently offensive obscenity; and (c) will not infringe, dilute, 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 rights of privacy and publicity.
Each party represents and warrants to the other that (a) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.; (b) for international Offers authorized hereunder, each party further warrants that it is familiar with the applicable law and best practice standards for such jurisdiction; (c) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; (d) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound.
EXCEPT AS EXPRESSLY STATED HEREIN, OFFERMARKET MAKES NO REPRESENTATIONS, AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING OFFERMARKET.S ADVERTISING PLATFORM, NETWORK OR PROGRAM, THE AVAILABILITY OR FUNCTIONALITY OF THE PLATFORM, SITE, OR NETWORK, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND INCLUDING ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OFFERMARKET SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (A) THE NUMBER OF PERSONS WHO VIEW AN AD UNIT, (B) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM HAVING AN AD ADVERTISED HEREUNDER, AND (C) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF THE SERVICES PROVIDED BY OFFERMARKET HEREUNDER.
4. Limitation of Liability: UNDER NO CIRCUMSTANCES WILL OFFERMARKET BE LIABLE TO ADVERTISER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST DATA, PROFITS OR REVENUE IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF OFFERMARKET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES ARE FORESEEABLE. TO THE FULLEST EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE TOTAL AGGREGATE LIABILITY FOR OFFERMARKET ARISING UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY ADVERTISER TO OFFERMARKET FOR THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
5. Indemnity: The parties agree to indemnify and hold each other, including each parties employees, officers, directors, agents, partners, affiliates, shareholders, representatives, agents shareholders and representatives (.Indemnified Parties.) harmless from and against any and all claims, lawsuits, liabilities, allegations, actions, causes of action, damages, obligations, costs and expenses (including without limitation reasonable court expenses, attorneys. fees and witness fees) incurred by, or imposed or asserted against, the Indemnified Parties which, if true, would constitute or relate to any proceedings, suits or claims for any acts of willful misconduct or gross negligence or any breach by the Indemnifying Party of any duty, representation or warranty under this Agreement. The Indemnifying Party shall have sole and exclusive control over the defense and settlement of any such claim, provided that Indemnifying Party (a) must use counsel acceptable to the Indemnified Party (which consent shall not be unreasonably withheld) and (b) may not enter into any settlement that adversely affects the Indemnified Party.s rights or interests without such party.s prior written consent.
6. Termination and Modification: OfferMarket reserves the right to terminate any Advertiser, Offer, Campaign and/or Advertisement for any reason. Termination notice may be provided via e-mail or any other public means and will be effective immediately. Upon termination, Advertiser agrees to immediately cease use of the terminated Account, Offer, Campaign and/or Advertisement in conjunction with OfferMarket. Upon termination, any moneys owed or due to OfferMarket must be paid within 30 business days.
Advertiser may terminate the Agreement upon 24 hours prior notice to OfferMarket.
OfferMarket may modify this Agreement at any time by posting an amended Agreement on the OfferMarket site. Unless Advertiser terminates the Agreement as set forth herein, such amendment will take effect seven (7) days after the amended Agreement is posted on OfferMarket.
7. General: Except as otherwise expressly stated in this Agreement, neither party shall be liable in damages for any delay or default in performance of this Agreement if such delay or default is caused by unforeseen conditions beyond the reasonable control of the delaying or defaulting party, including wars, revolutions, acts of God, restrictions by a government authority, strikes (other than any strike by the delaying or defaulting party's employees), embargoes, floods, fires, earthquakes, or degradation of telecommunications services, including but not limited to, degradation of all or part of Internet infrastructures.
Advertiser and OfferMarket are independent contractors and neither party is a representative, partner or agent of the other. Nothing in this Agreement shall constitute or create a partnership, joint venture or any other similar arrangement between the parties.
This Agreement constitutes the entire agreement of the parties with respect to the subject matter and supersedes all previous agreements, understandings, communications and representations, either written or oral, between the parties with respect to the subject matter thereof. The parties each acknowledge the provisions of this Agreement were negotiated to reflect a voluntary and informed allocation between them of all the risks, known and unknown, connected with the dealings considered hereunder. Any obligations that expressly or by their nature are to continue after cancellation, termination or expiration of this Agreement shall survive and remain in effect after such occurrence. In the event that any provision of this Agreement is held invalid or unenforceable by a court with jurisdiction over the parties to the Agreement or if any such provision conflicts with the law under which the Agreement is to be construed, then (a) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (b) the remaining provisions, restrictions, terms and covenants of the Agreement will remain in full force and effect. Failure by either party to enforce at any time, or for any period of time, any provisions of this Agreement shall not be construed as a waiver of such provisions, and shall in no way affect a party's right to later enforce such provisions.
No obligations, rights or responsibilities under this Agreement may be assigned by either Party without the prior written consent of the other Party; provided, however, either party may assign this Agreement upon notice in connection with an acquisition, corporate reorganization, merger or sale of all or substantially all of its relevant assets. Any transfer, assignment or attempted transfer or assignment in violation of this Section shall be void and of no force and effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
This Agreement shall be governed by the laws of the State of Utah without respect to the choice of law rules. The Parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in Utah County, Utah for any dispute arising out of this Agreement. Any claim under this Agreement, other than for indemnity and defense as provided herein, must be filed within one (1) year of the time such claim arose, notwithstanding any law to the contrary, otherwise such claim will be forever barred.
This Agreement can be executed in one or any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument. For purposes of this Agreement, a copy by facsimile or other electronic means of this Agreement shall be deemed to be an original.
OfferMarket Advertiser Agreement, 1 Jan 2013
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