TERMS OF SERVICE
Last Updated July 24, 2023
“Applicable Laws and Requirements” means all applicable online marketing, influencer and social media laws, rules, regulations, orders, guidance, or other governmental mandatory requirements, including the Federal Trade Commission Act, the Federal Trade Commission’s Guides Concerning Use of Endorsements and Testimonials in Advertising, the FTC Consent Order, the Requirements for Social Media Influencers, and these Terms.
“FTC Consent Order” means the Stipulated Order for Permanent Injunction, Monetary Judgment, Civil Penalty Judgment, and Other Relief dated July 17, 2023, and entered into by Fluent Inc. and the Federal Trade Commission (which is Exhibit 1 to these Terms), as well as any and all subsequent or related official materials, regulations, laws, judgements, or orders.
2. Infuse Partner Program
The Infuse Partner Program enables you to apply for and, upon our approval, earn Commissions by participating in various advertising campaigns (each a “Program” and collectively the “Programs”) offered by us or our third-party advertiser clients and marketing partners (collectively, “Marketing Partners”). Participation in the Infuse Partner Program requires your consent to the Agreement.
3. Approval Process
To apply to participate in the Infuse Partner Program, download the Infuse App and submit a Partner Program application. Your application must include your complete and accurate contact information and information about your relevant social media accounts. You agree that all information you submit during the application process and include within your account profile and bio must be accurate, truthful, and kept up to date. You’re responsible for keeping your account secure and for all activities that occur on your account. To get paid, you’ll also need to set up an account with Trolley, our third-party payment processor, as described below. After we review your application, we will notify you of your acceptance or rejection to the Infuse Partner Program. We may accept or reject your application for any reason at our sole discretion. We may withdraw your approval to participate in the Infuse Partner Program, or any individual Program at any time, for any reason, without prior notification.
4. How the Infuse Partner Program Works
Once approved, you will be permitted to create content (“Creatives”) for each Program and create and post Creatives including the links through various approved social media marketing channels so you can earn Commissions as described below.
We will specify the amount and terms under which you will earn Commission payments for each Program you participate in. You can earn a Commission by generating a certain action, such as a click or a purchase (“Action”). The applicable Action associated with each Program will be set forth in the applicable Program Terms which, unless otherwise specified, will apply only for that Program.
To get paid, you will be required to set up an account with Trolley, our third-party payment processor. Trolley will need to collect your social security number and banking information; we will not have access to this information. Trolley will pay you your Commission payments.
The Infuse App will track and display all active Programs, which may include data related to Commission and Actions (collectively “Program Data”). Program Data that we compile will be final and binding unless you dispute it in good faith. If you wish to dispute the Program Data, you must contact Infuse within fourteen (14) days; otherwise, the Program Data will be deemed to be accurate and accepted by you.
As an approved participant in the Infuse Partner Program, you’ll create your own Creatives and have access to preapproved Creatives for the Programs you choose. You agree not to materially modify any preapproved Creatives or any of your Creatives that we’ve approved. Your Creative or the bio or profile page of your social media account must refer to the Program and include a link from the Infuse App so users can click on the links. If users take the required Action as specified in the Program terms, you’ll earn Commissions.
Creatives which you create and post on your social media accounts must comply with the terms for the particular Program, the Infuse Requirements for Social Media Influencers, the terms of the applicable social media platform, and all Applicable Laws and Requirements.
You must comply, immediately, with all requests by Infuse to modify, alter, remove or otherwise change the content, positioning, placement, frequency and other editorial decisions related to the Creatives. You may not run any deactivated Creatives after we or our Marketing Partner have posted new Creatives to run in lieu of such deactivated Creatives for the applicable Program.
In addition, Site integration tags and tracking pixels (“Tags”) included in the Creatives or otherwise incorporated may not be altered under any circumstances. We employ 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 Infuse account and this Agreement, with or without notice.
8. Compliance with Terms and Guidelines
Only approved individuals using approved social accounts may participate in the Infuse Partner Program. You may not share access to the Infuse Partner Program with any other individuals or parties.
We reserve the right to monitor or have third-party service providers monitor your social media accounts approved for the Infuse Partner Program to ensure compliance with this Agreement, the Program Terms, the Requirements for Social Media Influencers, and all Applicable Laws and Regulations.
If you violate this Agreement, we may withhold Commission payments and suspend or terminate your account.
9. Representations and Warranties
Each of us represent and warrant to the other that: (a) we have the full power and authority to enter into the Agreement and to fulfill and perform the rights and obligations required of it hereunder; and (b) the Agreement constitutes the legal, valid and binding obligation of such party, which is enforceable against the party in accordance with this Agreement.
The Creatives and any offers for goods and services offered on the Infuse App or Site and any other content, information, documents, graphics and images displayed as part of the Infuse Partner Program (collectively, “Program Content”) are provided by us, our Marketing Partners, and other third parties (“collectively, “Content Providers”) and could include inaccuracies, typographical errors or other errors. We make no commitment to update or correct any errors in the Program Content.
You understand and agree that the Site and/or the Infuse App may, at times, be inaccessible or inoperable for any reason, including: (a) equipment or communications malfunctions; (b) periodic maintenance, repairs or administrative reviews which we may undertake from time-to-time; or (c) causes beyond our control or which are not foreseeable by us. We will not be responsible or liable in any way to you or anyone else due to or as a result of any such inaccessibility or inoperability.
OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS & CONDITIONS, NEITHER WE NOR ANY CONTENT PROVIDER MAKE ANY SPECIFIC PROMISES ABOUT THE PROGRAMS, CREATIVES FURNISHED BY US, SITES, PROGRAM CONTENT, OR THE INFUSE APP OR SITE CONTENT PROVIDED THEREIN. WE PROVIDE THE PROGRAMS, CREATIVES, THE PROGRAM CONTENT AND THE INFUSE APP, SITES, SITE CONTENT AND OTHER SERVICES ON AN “AS IS, AS AVAILABLE BASIS.”
SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, SUCH AS THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES.
10. Limitation of Liability
Infuse assumes no obligation and hereby disclaims any liability for your use of and/or reliance upon the Infuse Program, the Infuse App or the Program Content, Program Terms, Requirements for Social Media Influencers, or any other policies, specifications and/or content. You should consult with your legal counsel and/or other professional advisors before participating in the Infuse Partner Program or acting on the Requirements for Social Media Influencers, Program Content or any policies, specifications and/or content we provide.
WHEN PERMITTED BY LAW, IN NO EVENT WILL WE AND/OR OUR MARKETING PARTNERS AND CONTENT AND SERVICE PROVIDERS, BE LIABLE OR RESPONSIBLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA, LOST REVENUES, OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT. TO THE EXTENT PERMITTED BY LAW, OUR TOTAL LIABILITY, AND THAT OF OUR MARKETING PARTNERS AND SERVICE AND CONTENT PROVIDERS, FOR ANY CLAIMS UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT WE PAID YOU FOR YOUR PARTICIPATION IN THE INFUSE PARTNER PROGRAM OR USE OF THE SITE OR THE INFUSE APP DURING THE SIX (6) MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO THE CLAIM.
IN ALL CASES, WE AND OUR MARKETING PARTNERS AND SERVICE AND CONTENT PROVIDERS WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
The Infuse Partner Program, Infuse App and the Site are intended for use by United States residents who are over 16 years of age. We do not represent that all Program and Site Content and other content, materials and services available through the Infuse Partner Program or on our Site are appropriate or available for use in geographic locations outside the United States and accessing Infuse Partner Program or a Site from certain locations may be illegal and prohibited. You agree not to access or use the Infuse Partner Program, the Infuse App, a Site or any Program Content or other content, materials and services available through the Infuse Partner Program, Infuse App or on the Sites where prohibited by law. We are not responsible for your compliance with local laws or other Applicable Laws and Regulations.
You are solely responsible for providing and maintaining all hardware, software, electrical and other physical requirements for your use of the Infuse Partner Program, the Infuse App or the Site, including telecommunications and internet access connections and links, web browsers or other equipment, compatibility, and all other programs or services required to access and use the Infuse Partner Program, Infuse App and/or Site.
14. Proprietary Rights
The Infuse Partner Program including the Site, Program Content and Infuse App are made available for your personal use only and you agree not to copy, duplicate, display, transmit, distribute, modify, reverse engineer or prepare derivative works of all or any portion of the Infuse Partner Program, Infuse App, or Site for any purpose. Portions of the Infuse Partner Program, the Site and the Infuse App are proprietary to us and are protected by intellectual property laws and treaties, including copyright, trademark, service mark, trade secret and/or patent laws and we reserve all of our rights. Some of the services and content available through the Infuse Partner Program, the Infuse App or the Site are provided by third parties and is proprietary to these third parties. The names of companies and products that we do not own and that are mentioned on the Sites, Infuse Partner Program, or the Infuse App may be the trademarks of their respective owners. The trademark owners do not sponsor the Infuse Partner Program and in some instances, do not endorse the Infuse Partner Program or the Site or the Program Content. Any use of the protected services and/or content belonging to us or third parties without the express written permission of the owner thereof is strictly prohibited.
15. Site Links and Third-Party Sites
The Infuse Partner Program and the Site and Infuse App contains Program Content and may contain other links to third-party websites which are independent of the Infuse Partner Program. We make no representation or warranty as to the accuracy, value, integrity, completeness or authenticity of the information or opinions contained in the Site, Program Content or any other linked website. We do not endorse any goods or services or websites contained in any linked website, or the products or services described therein and are not responsible for and disclaim all liability for these third-party websites. You should review the terms and conditions and privacy policies applicable to these third-party websites.
Furthermore, these links may lead to websites or links that contain offensive and objectionable content or which may contain dangerous computer viruses. You assume, and we hereby disclaim, all responsibility for any of the content on these websites or for any damage sustained by users of these websites.
16. Choice of Law
You agree that the Agreement constitutes the agreement between you and us and shall be construed and governed in accordance with the laws of the State of New York, regardless of the conflicts of law provisions of the jurisdiction where you live or in any other jurisdiction.
17. Arbitration/Dispute Resolution
You agree to arbitrate any and all claims arising out of or related to the Agreement. If you have a dispute concerning any aspect of the Agreement, you should first contact Infuse. We will attempt to resolve the matter to your satisfaction within thirty (30) days. We may choose to provide you with a final written settlement offer during this process. If we provide you with a final written settlement offer and you don’t accept it, if we can’t otherwise satisfactorily resolve your dispute, or if you choose to skip this step, you must submit your dispute for resolution by arbitration before the American Arbitration Association (“AAA”) in the county where you live by filing a separate Demand for Arbitration online by following the instructions at https://www.adr.org/Most-Viewed-Forms.
An AAA arbitrator will have exclusive authority to resolve any dispute or claims that you may have with us and our Marketing Partners who are third-party beneficiaries of the mandatory arbitration provision, arising out of or related to the Agreement. Matters subject to mandatory arbitration include, without limitation, whether this Arbitration/Dispute Resolution provision applies to your particular claim or dispute, and any claim that all or any part of the Agreement, including this provision, are/is unenforceable. If the claim is against us, you will need our mailing address to file online which is:
300 Vesey St. 9th Floor
New York, NY 10282
If we have a dispute, we will submit our dispute for resolution by arbitration before the AAA in New York, NY. If either party files for arbitration, it will be conducted in accordance with the then current AAA Commercial Arbitration Rules.
If you proceed to arbitration against us, you will pay all AAA filing fees and we will pay for all administration and arbitrator fees unless the arbitrator determines that your claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). For claims brought by you of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions. The arbitrator may award any form of individual or equitable relief, including injunctive relief. Any award will be final and conclusive to the parties and may be entered in any court of competent jurisdiction. If you initiate arbitration against us and the arbitrator awards you relief that is greater than our final written settlement offer made before an arbitrator was selected, then we will pay you a minimum recovery of Five Hundred Dollars ($500.00), plus we will reimburse any reasonable expenses incurred by your attorney, if any, including fees reasonably accrued for investigating, preparing and pursuing the claim in arbitration. You and your attorneys are not required to keep the results of the arbitration confidential. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in such a suit.
18. Class Action Waiver
The arbitration provision contained in these Terms 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.
19. Exceptions to Mandatory Arbitration
There are two narrow exceptions to mandatory arbitration. First, you may opt-out of the Arbitration/Dispute Resolution provision by providing written notice of your decision within thirty (30) days of the date that you first register on the Site or the Infuse Partner Program. Please send it to our address above or email@example.com.
Second, you may choose to pursue your dispute or claim in Small Claims Court rather than by arbitration but only if your dispute or claim qualifies for Small Claims Court in a location where jurisdiction and venue over both you and us is proper.
Other than these two exceptions, you must arbitrate any claims as provided above.
YOU ACKNOWLEDGE AND AGREE THAT, VIA YOUR ACCEPTANCE OF THESE DISPUTE RESOLUTION PROVISIONS, YOU WAIVE ANY RIGHT TO A JURY TRIAL, AS WELL AS YOUR RIGHT TO BRING, JOIN OR PARTICIPATE AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS ACTION SUIT OR MULTI-PARTY ARBITRATION BROUGHT AGAINST US, OUR MARKETING PARTNERS OR ANY CONTENT OR SERVICE PROVIDER USED BY US TO PROVIDE THE INFUSE PARTNER PROGRAM, THE SITE, PROGRAM CONTENT AND THE SUBJECT SERVICES.
We agree to indemnify, defend, and hold you harmless from and against all third-party claims, actions, liabilities (including all reasonable costs, expenses, and attorneys’ fees) arising from or relating to any uncured material breach of our obligations, representations, or warranties.
You agree to indemnify, hold harmless and defend us, our shareholders, directors, employees and agents and Marketing Partners and Program Content and Service Providers from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person or entity, arising out of or relating to: (a) these Terms and/or any breach or alleged or threatened breach by you; (b) your participation in the Infuse Partner Program and your use of the Infuse App, Site Program Content, or any content or materials or services transmitted or received by you from us; (c) any unacceptable or objectionable use of the Infuse Partner Program or Program Content by you; (d) any material changes made to preapproved Creatives without our approval; (e) any negligent or willful misconduct by you; or (f) any claims attributable to any comments or other content you supply to us.
21. Acknowledgment of Receipt of FTC Order; Consequences of Non-Compliance
You acknowledge receipt of a copy of the FTC Order and agree that engaging in acts or practices prohibited by it will result in disciplinary action, which may include immediate termination and forfeiture of all Commission owed to you.
If we receive a complaint or other information alleging or indicating that you are engaging in acts or practices that do not comply with Applicable Laws and Regulations including the FTC Order, we will initiate an investigation. At the conclusion of the investigation, we will send you a written report which documents our factual findings and conclusions. If we determine you have engaged in acts or practices that do not comply with Applicable Laws and Regulations or which are otherwise inappropriate, we may immediately suspend or permanently terminate your account and you will forfeit all Commissions. We reserve the right to hold you liable for all damages or claims attributable to your conduct which we determine is in violation of any Applicable Laws and Regulations or are otherwise inappropriate without regard to any of the damage limitations contained herein.
We reserve the right to make updates (“Modifications”) to the Terms at any time upon prior notice to you. The latest version of the Terms will be posted here. If you do not accept such Modifications, you must provide notice of termination to us in writing within two (2) business days of such Modification. Your continued performance of services after any such Modifications are posted constitute your acceptance of the Modifications.
23. Integration and Conflicting Terms; Severability