Affiliati Network Advertiser Terms and Conditions
These Affiliati Network Advertiser Terms and Conditions (these “Terms”), together with the Insertion Order(s) (collectively referred to as the “Agreement”), shall govern the relationship between The Affiliati Network, Inc. (“Affiliati Network”) and both the Advertiser and Guarantor, as identified herein, whose signatures appear below.
Affiliati Network is a technology¬based network exchange platform that serves as a marketplace through which third party businesses/advertisers agree to purchase online traffic, clicks, calls, views, actions, leads, sales, or conversions, depending on the type of campaign and billing model, that are generated for the advertisers by various independent third¬party media publishers and affiliates. By participating in the Network, advertisers promote their products or services to those consumers users the publishers and communicate directly with consumers generated from their advertising campaign, but advertisers and publishers are at all times required to abide by Affiliati Network’s terms and conditions, and all applicable laws in order to participate in the Network. The Advertiser entering into Affiliati Network’s Insertion Order(s) wishes to acquire, and Affiliati Network wishes to provide, the Services (as defined herein), subject to Advertiser’s and Guarantor’s agreement to be bound by these Terms, the Insertion Order(s), and any further terms to which the parties may agree. Accordingly, the Parties agree as follows:
The following terms identified in these Terms and the Insertion Order(s) shall have the following definitions:
a. “Ad, “Ad Content,” “Advertisement,” “Creatives,” or “Advertising Content” means any and all creative and substantive materials or content of the Advertiser, which may include, but is not limited to, text, images, websites, landing pages, checkout pages, terms and conditions of its products or services, and product and service information and descriptions.
b. “Advertiser” “You” or “Your” means the individual or entity that has entered into these Terms and the Insertion Order(s) with Affiliati Network, that seeks to drive online sales, users or consumers to its website(s) or application(s).
c. “Affiliati Network” means The Affiliati Network, Inc., which is the entity identified in this Agreement that is providing the Services to Advertiser.
d. “Agreement” means collectively these Affiliati Network Advertiser Terms and Conditions, together with all Insertion Order(s) submitted and executed by Advertiser.
e. “Cap” means any agreed upon limit placed on the Services, including, but not limited to, the limit of the number of conversions, actions, clicks, leads, calls, views, or sales generated.
f. “Click¬Thru” means when an internet user clicks on an Advertiser’s Ad banner, coupon redemption, link, or action directing him/her to a landing page or website.
g. “Commission” or “Payout” means the amount due to Affiliati Network by the Advertiser for the Services, pursuant to the specific payment terms set forth in the Insertion Order(s).
h. “Conversion” means each independent click, sale, registration, transaction, lead, conversion, call, view, or action, depending on the billing program of the Campaign, as set forth in the applicable Insertion Order(s).
i. “Co¬Registration” or “Co¬Reg” means the process of collecting orders, authorizations, opt¬ins, or acceptances for multiple offers, products, services, subscriptions, or marketing communications from a customer in a single registration event.
j. “Cost¬Per¬Action” or “CPA” means a type of billing program for a Campaign involving a fee for all leads or conversions delivered by Affiliati Network or an authorized Publisher. Such fees will be based on the number of leads or conversions received from all of your Ads, multiplied by the cost per lead or conversion as identified in the Insertion Order(s), which shall be computed according to these Terms and the Insertion Order(s).
k. “Cost¬Per¬Click” or “CPC” means a type of billing program for a Campaign involving a fee for all Click¬Thru’s on your Ads. Such fees will be based on the number of Click¬Thru’s on all your Ads, multiplied by the cost of each of your Click¬Thru’s as identified in the Insertion Order(s), which shall be computed according to these Terms and the Insertion Order(s).
l. “Cost¬Per¬Milli” or “CPM” means a type of billing program for a Campaign involving a fee for every 1,000 impressions generated from a traffic source as identified in the Insertion Order(s), which shall be computed according to these Terms and the Insertion Order(s).
m. “Display Banner” or “Display” means a banner advertisement placed on the internet, an application, a website, or social media. The location of the banner on a website can either be purchased for a limited time (media buys), or owned outright by the publisher (content sites belonging to the publisher).
n. “E¬mail” means a form of digital advertising that involves sending offers to prospective online users and/or consumers via electronic mail, whether in HTML or text format, that will direct prospective online users or consumers to an Advertiser’s landing page or website.
o. “Guarantor” means the individual principal, officer, member, partner, director, or authorized representative of the Advertiser that is identified in this Agreement as the personal guarantor of the payment obligations of the Advertiser with respect to the amounts due to Affiliati Network for the Services provided pursuant to this Agreement and Insertion Order(s).
p. “Incentivized” means a form of digital advertising by which an online user or consumer is offered something of value, such as reward, cash, gift card, online or virtual currency, or tangible gift, in exchange for completing an online offer, or registering or purchasing a product or services.
q. “Insertion Order(s)” means the written Advertiser Insertion Order(s) form that has been executed and submitted by Advertiser to Affiliati Network that is incorporated into and governed by these Terms. Advertiser acknowledges that it may submit more than one Insertion Order(s) to Affiliati Network, and that each and every Insertion Order(s) shall be governed by these Terms.
r. “Network” means Affiliati Network’s private affiliate network that allows it to carry out the Services, as well as all associated Network systems and content, including, without limitation, all text, information, images, applications, templates software and other information, services, and materials owned by Affiliati Network.
s. “Offer” or “Campaign” means the Advertiser’s advertising offer, campaign or program aimed at selling, marketing or promoting Advertiser’s own products or Services as more specifically described in each Insertion Order(s), and which serves as the basis to drive prospective online users and/or consumers to its landing page, website(s) or applications.
t. “Parties” means, collectively each of the parties to this Agreement, that is, Affiliati Network, Advertiser, and Guarantor, as defined herein. The parties may also be individually referred to as a “party.”
u. “Pay Per View” or “PPV” means a type of billing program for a Campaign involving traffic generated when a user views or visits a website, which can appear via pop up, pop under, banner advertising, display and contextual advertising, as described in the Insertion Order(s), which shall be computed according to these Terms and the Insertion Order(s).
v. “Pay Per Call” or “PPC” is defined as the fee for traffic that goes through to an offer via a telephone call or any digital voice chat or action, as described in the Insertion Order(s), which shall be computed according to Affiliati Network’s rules applicable to the program that you selected as stated in these Terms and the Insertion Order(s).
w. “Program” means the digital advertising and affiliate marketing program and billing model selected in the Insertion Order(s) to be used in an Advertiser’s Campaign.
x. “Publisher” means each individual or company that serves as an internet advertising publisher or affiliate, which maintains a proprietary relationship with Affiliati Network, and owns internet advertising space, links, newsletters, websites, and/or opt¬in email lists for the purpose of completing digital advertising or affiliate marketing campaigns for the benefit of Advertiser using Advertiser’s Ad Content.
y. “Rebill” means the instance when the Advertiser bills and collects payment from a consumer at the second cycle of its trial program or campaign (also known as a negative option or continuity program or plan). In trial programs, the second cycle is the first full billing transaction after the first cycle, i.e. initial sale for shipping/handling charges. The Rebill Rate, also known as “Retention Rate” refers to the percentage of transactions that rebilled in that second cycle, that is by taking the total number of rebills and dividing it by the total number of first cycle/initial trial sale transactions.
z. “Revenue Share” means a type of billing program where there is an allocation of profits from a Campaign between You and Affiliati Network, which shall be computed according to these Terms and the Insertion Order(s).
aa. “Search” means buying traffic on a pay per click basis from a search engine by bidding on keywords relevant to a given Offer. Traffic can be driven either directly to the Offer landing page, or through a landing page controlled by the Publisher (which eventually links to the Offer’s landing page).
bb. “Services” means the affiliate marketing services offered by Affiliati Network, that is, Affiliati Network, shall act solely as a broker and exchange platform that connects advertisers with certain publishers who will promote an advertiser’s Campaign in accordance with terms of the Insertion Order(s). Affiliati Network does not create nor conduct advertising, market nor sell any products or services to consumers, and does not create nor disseminate consumer-directed advertisements. Affiliati Network does not conduct media buying or placements associated with any consumer¬directed advertisements for itself or on behalf of any advertisers or publishers.
cc. “Social Media” means any advertisement or display banner on a social networking website or application, such as Facebook.
dd. “Step” or “Steps” means certain stages of the sales process, including any upsale of an additional product, by which an Advertiser and Network can agree on certain commissions per each Step.
ee. “Survey” means a website or webpage that contains an online survey and questions aimed at gathering information from an online user or consumer, used to direct an online user or consumer to an Advertiser’s Offer or webpage solely in exchange for completing the survey or questions. Survey does not include however, …
ff. “Terms” means these Affiliati Network Advertiser Terms and Conditions.
gg. “Testimonial” includes, without limitation, consumer endorsements or testimonials, celebrity or expert endorsements, verbal statements, demonstrations, photos or other depictions of the name, signature likes or other identifying person characteristics of an individual or the name, logo, or seal of an organization
hh. “Traffic” means online data sent, transmitted, or received by users or visitors to a landing page or website, whether derived from computers, mobile devices or any other physical or electronic device or application.
ii. “Trial Offer,” “Trial Program,” “Continuity Program,” “Negative Options,” or “Negative Option Plans” means a marketing program in which an Advertiser offers consumers a trial of a product or service for free or at a nominal price for an introductory period (such as shipping and handling), then the consumer incurs a charge or pays a greater amount if they do not take cancel, reject, or return the good or service before the end of the trial period or in accordance with the Advertiser’s terms of its trial offer.
a. Commissions and Programs. As set forth in each Insertion Order(s), Advertiser has agreed to one of the following digital advertising and affiliate marketing Programs:
i. In a Cost¬Per¬Action (CPA) model, the Advertiser shall pay a fee for all leads, actions, or conversions delivered by Affiliati Network or an authorized Publisher. Such fees will be based on the number of leads or conversions delivered to Advertiser, multiplied by the cost per lead, action, or conversion, which shall be computed according to Affiliati Network’s rules applicable to the program that you selected, as stated in these Terms or in any Insertion Order(s).
ii. In a Cost¬Per¬Click (CPC) model, the Advertiser shall pay a fee for all Click¬Thru’s on your Ads. Such fees will be based on the number of Click¬Thru’s on all your Ads, multiplied by the cost of each of your Click¬Thru’s as identified in the Insertion Order(s), which shall be computed according to Affiliati Network’s rules applicable to the program that you selected, as stated in these Terms or in any Insertion Order(s).
iii. In a Cost¬Per¬Milli (CPM) model, the Advertiser shall pay a fee for each 1,000 impressions on Your Ads. Such fees will be based on each 1,000 impressions, multiplied by the cost per 1,000 impressions as identified in the Insertion Order(s), which shall be computed according to Affiliati Network’s rules applicable to the program that you selected, as stated in these Terms or in any Insertion Order(s).
iv. In a Pay Per View (PPV) model, the Advertiser shall pay a fee for traffic generated when a user views or visits a website, and can appear via pop up, pop under, banner advertising, display and contextual advertising, as described in the Insertion Order(s), which shall be computed according to Affiliati Network’s rules applicable to the program that you selected as stated in these Terms or in any Insertion Order(s).
v. In a Pay Per Call (PPC) model, the Advertiser shall pay a fee for traffic that goes through to an Offer via a telephone call or any digital voice chat or action, as described in the Insertion Order(s), which shall be computed according to Affiliati Network’s rules applicable to the program that you selected as stated in these Terms or in any Insertion Order(s).
vi. In a Revenue Share (RevS) model, the Advertiser shall pay a fee for the Campaign based on the performance of the Campaign (such as a contingent commission based on sales, which shall be computed according to Affiliati Network’s rules and conditions set forth in the Insertion Order(s) and these Terms.
b. Computation of Commissions/Payouts. Advertiser shall timely pay Affiliati Network the designated Commission for the applicable Program set forth in Section 3(a) above and as described in the Insertion Order(s), for each applicable Conversion delivered by the Publishers. The total fees will be based on the number of each applicable Conversion delivered to Advertiser, multiplied by the applicable commission or payout rate, which will be described and set forth in Affiliati Network’s Insertion Order and Invoices.
c. Tracking and Reporting by Advertiser. Although Affiliati Network will track all applicable Conversions, Advertiser shall accurately track all applicable Conversions through its own applications or customer relationship management (CRM) software, and shall make such tracking records available to Affiliati Network upon request at any time, including after the termination of the Services. Advertiser understands and agrees that Affiliati Network shall invoice Advertiser using the higher of the numbers tracked by Affiliati Network or tracked by Advertiser, and Advertiser agrees to pay for all such amounts . Within five (5) days after the end of each traffic period, Advertiser shall provide Affiliati Network with the total number of Conversions that are applicable to the Advertiser’s Offer or Campaign, generated by the Publishers in the previous traffic period.
d. Cap or Limitation of Services. If applicable to Advertiser’s Campaign, Affiliati Network may cap or limit the Services, including, but not limited to, the number of conversions, actions, clicks, leads, calls, views, or sales generated (“Cap”). The amount of such Cap shall be set forth in the Insertion Order(s), and may be requested by the Advertiser or set forth by Affiliati Network, in its sole discretion. If Advertiser wishes to modify or lift the agreed upon Cap after the execution of the Insertion Order(s), Advertiser shall notify Affiliati Network of its desire to lift or modify such Cap in writing, and the parties shall execute a new Insertion Order specifying the new Cap in order for the Cap to become effective on the campaign. If no Cap is set forth in the Insertion Order(s), then there shall be no limit on the Services, including, but not limited to, the number of Conversions generated to be provided by Affiliati Network under this Agreement. Notwithstanding the foregoing, as set forth in Section 4 herein, Affiliati Network shall have the sole discretion and right to suspend the Advertiser’s Campaign, in addition to its right to place a Cap on the Services under this provision.
4. Payment, Claims or Disputes, Refunds, and Credit, Debit, and Electronic Payments.
a. Payment. Advertiser shall timely submit payment or prepayment for all amounts due to Affiliati Network for the Services in accordance with the Insertion Order(s) and these Terms. Unless otherwise stated in the Insertion Order(s), Affiliati Network shall issue invoices to Advertiser each month, and Advertiser shall pay all such amounts invoiced to Affiliati Network within fifteen (15) days of the date listed on each invoice. Advertiser shall make all payments hereunder by cash, cash equivalents, wire transfer, check, or by any other payment method agreed to by the parties in writing, and in US dollars. Advertiser shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly as permissible under applicable law. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Affiliati Network does not waive by the exercise of any rights hereunder), Affiliati Network shall be entitled to immediately suspend or pause the performance of any Services without notice if Advertiser fails to pay any amounts when due hereunder.
b. Claims or Disputes. Advertiser acknowledges that Affiliati Network and its Publishers incur great expense to carry out the Services on behalf of Advertiser. Publishers maintaining a relationship with the Affiliati Network have agreed to carry and complete advertising Offers or Campaigns on their internet advertising space, links, newsletters, websites, and/or opt¬in email lists and are paid a commission by Affiliati Network generated from the Advertiser’s Campaign(s). Accordingly, Advertiser shall timely submit in writing notice of any claims or disputes it may have with respect to the Services or any charge to Advertiser’s account, to Affiliati Network within fifteen (15) days of the date of such claim or dispute arose, or the date of such charge or invoice, whichever occurs first (the “Dispute Period”). Advertiser shall then allow Affiliati Network thirty (30) days from the date on which Affiliati Network receives Advertiser’s written notice to investigate and if applicable, cure such claim, dispute, charge, or invoice. Otherwise, if Advertiser does not timely submit in writing notice of any claims or disputes within the Dispute Period, Advertiser shall be deemed to have waived any such claim or dispute, and such charge or invoice will be final and not subject to any dispute, claim or refund. Advertiser shall not at any time withhold payment of any amounts due and payable by reason of any set¬off of any claim or dispute with Affiliati Network, whether relating to Affiliati Network’s alleged or actual breach, nonperformance, or otherwise. Affiliati Network may at any time request that Advertiser prepay all or any portion of the amounts due to Affiliati Network hereunder for Services, and Advertiser agrees to submit such prepayments upon request. Additionally, unless expressly set forth in writing in an Insertion Order, Advertiser understands and acknowledges that Advertiser’s obligations to pay Commissions to Affiliati Network for the Services are not contingent upon retention rates, rebill rates, charge backs, refunds, fraud, fulfillment of goods or services by Advertiser, or the overall success of the Advertiser’s Ad campaign or marketing program.
c. Refunds. All funds paid or due to Affiliati Network by Advertiser for the Services are nonrefundable and not subject to adjustment to reduce amounts due by Advertiser absent written agreement of the parties.
d. Credit, Debit, and Electronic Payments. Advertiser agrees that it shall not initiate any chargeback, dispute, claim, or bank reversal related to any charges Advertiser pays to Affiliati Network by credit, debit, or electronic payment or an electronic transfer of funds, or otherwise initiate chargeback proceedings if such dispute or chargeback would cause Advertiser to be in violation of the terms of this Agreement. In the event that Advertiser wrongfully initiates any form of a chargeback, dispute, claim, or bank reversal for any credit, debit, electronic payment or electronic transfer of funds to Affiliati Network due for its Services under this Agreement, Advertiser shall be deemed to be in default of this Agreement, Affiliati Network may immediately suspend or pause the performance of the Services without notice, and Affiliati Network impose a fee of 10% of the total sum wrongfully disputed as reasonable liquidated damages, and not as a penalty, for Affiliati Network’s loss of the bargain, in addition to all other remedies available to Affiliati Network at law or in equity to recover all amounts due to Affiliati Network under this Agreement. Advertiser shall also be responsible for any and all expenses, costs, and legal fees incurred by Affiliati Network in disputing and/or resolving any such chargebacks, claims, and bank reversals.
Advertiser acknowledges that there is a potential for fraud by third parties, including consumers, which is outside the control of Affiliati Network. Advertiser further understands Affiliati Network implements policies and procedures to reduce and combat against fraud, and that should Affiliati Network discover any fraud, it reserves the right to immediately terminate the Services and this Agreement, if necessary, in addition to pursuing any additional legal remedies available under applicable law. Affiliati Network enforces strict processes to help avoid and combat fraud, such as credentialing its Publishers however, without sufficient proof of fraud, as determined by Affiliati Network, Advertiser shall remain obligated to pay Affiliati Network in full for all Services performed under this Agreement, notwithstanding any alleged, potential or actual fraud committed by any third parties.
6. Advertiser’s Responsibilities, Representations, Warranties, and Covenants.
a. Submission of Ads. Advertiser is responsible for all Ads and Ad Content used and created by Advertiser, which includes, but is not limited to, its websites, landing pages, checkout pages, terms and conditions related to its websites and products, and content and/or images related to its products and/or services. In the event Advertiser requests that the Publishers create Ad Content, Advertiser shall remain solely responsible for such content and in that case, Advertiser may request that the Publisher’s Affiliati Network shall not be responsible for Advertiser’s websites, landing pages, checkout pages, or applications including, but not limited to, maintenance of Advertiser’s websites, landing pages, checkout pages, applications, order entry, customer Services, payment processing, shipping, fulfillment of orders, cancellations or returns. Affiliati Network may, in its discretion, reject any Ads and Ad Content that is not in accordance with its policies or specifications, or which it offensive or violates any law. Neither Advertiser, nor the Ads or Ad Content shall violate any and all rights of any third party with respect to the Ads or Ad Content, including any intellectual property rights, copyrights, marks, names, or brands. Ads or Ad Content shall not include content that is deceptive, misleading, untruthful, unsubstantiated, or otherwise fails to comply with applicable federal and state consumer protection laws, regulations, and guidelines.
b. Compliance. At all times Advertiser shall comply with all applicable laws, statutes, ordinances, regulations, and legal guidelines (collectively, “Laws”) including, without limitation, those Laws governing false or deceptive advertising, cybersquatting, intellectual property, privacy, and publicity rights, the Federal Trade Commission Act (“FTC Act”), Federal Trade Commission (“FTC”) regulations and guidelines implementing the FTC Act, Restore Online Shopper’s Confidence Act (ROSCA), all state and local counterparts to the FTC Act and associated regulations in every jurisdiction in which Advertiser conducts business, the CAN¬SPAM Act of 2003, the Telephone Consumer Protection Act, the FTC’s Telemarketing Sales Rule, the Federal Reserve Board’s Regulation E, Federal Communications Commission regulations and guidelines, including Mobile Marketing Association guidelines, and FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, all as amended from time to time.
c. Trial Offers and Negative Options. Certain Advertisers may be in the business of providing Trial Offers or Negative Option Plans, also called continuity programs. In the event Advertiser participates in the Network by engaging in any type of Trial Offer or Negative Option Plan, Advertisers, who exclusively control and are solely responsible for the various components of their business and Trial Offer/Negative Option Plan, including without limitation, the Advertiser’s Ads, creatives, landing and checkout pages, method and mode of disclosure of the Trial Offer or Negative Option Plan, websites, payment portals, Advertiser’s products, Advertiser’s terms/conditions, customer service and cancelation procedures, chargeback/refund mitigation, shipping/fulfillment of orders., must at all times:
i. Clearly and conspicuously disclose all material terms of its Trial Offer or Negative Option Plan, before getting consumers’ billing information;
ii. Obtain consumers’ express informed consent to the material terms of its Trial Offer or Negative Option Plan before charging the consumers’ credit cards or accounts;
iii. Offer simple and clear ways for consumers to cancel or stop the recurring charges in the Advertiser’s Trial Offer or Negative Option Plan; and
iv. Refrain from misrepresenting any of the material terms of its Trial Offer or Negative Option Plan, and present all such terms in a truthful and non¬deceptive manner at the appropriate stage of the transaction, websites, landing pages, ordering pages or payment portals.
In no event shall Affiliati be responsible, nor provide any oversight or advice, related to the compliance or management of Advertiser’s Ads, creatives, landing and checkout pages, method and mode of disclosure of the Trial Offer or Negative Option Plan, websites, payment portals, Advertiser’s products, Advertiser’s terms/conditions, customer service and cancelation procedures, chargeback/refund mitigation, shipping/fulfillment of orders.
d. E¬mail Campaigns. Advertiser may publish E¬mail advertising campaigns only to addressees or recipients who have agreed in advance to opt¬in and receive such transmissions from the Publishers at the e¬mail address to which the e¬mail is sent. Immediately upon Affiliati Network’s request, Advertiser shall provide to Affiliati Network the name, date, time, and IP address of a recipient of an offer in an E¬mail advertising campaign. Advertiser is solely responsible for all complaints, claims, or losses related to E¬mail campaigns and Advertiser shall respond to all such complaints within forty¬eight (48) hours of notification from any recipient or other party on the recipient’s behalf.
i. Suppression List. Advertiser shall update Advertiser’s suppression list no less than two
(2) times per week during the E¬mail campaign. Advertiser additionally agrees to: (a) use the suppression list solely for the suppression purposes set forth herein; (b) use the suppression list to remove any and all e¬mail addresses contained therein from receiving future commercial e-mail messages; (c) follow all procedures set forth in this Agreement with regard to the suppression list; and (d) not use the suppression list for any purpose related to or in connection with e¬mail marketing or appending, except pursuant to the terms and conditions specifically contained in this Agreement.
ii. Delivery of E¬mail. Advertiser will ensure that “subject” and “from” lines used in any email communications are truthful and non¬misleading and do not otherwise violate the CAN¬SPAM Act or any other federal and state consumer protection laws and regulations and do not infringe on the intellectual property rights of any third party. Advertiser shall disclose in all E¬mail campaigns that the subject e¬mails are commercial transmissions. Advertiser additionally agrees that it shall not do any of the following in connection with the delivery of any E¬mail campaign hereunder: (a) engage in any conduct to circumvent or attempt to circumvent spam filters or blacklists; (b) forge, falsify or use unrelated or deceptive content in any part of the header or body in any manner; (c) make use of false registrations, invalid domains and IP addresses for e-mail accounts; (d) use third party brand names, trademarks, copyrights or other intellectual property in any part of the header or body; or (e) relay or retransmit e¬mail for any purpose from a computer or computer network that was accessed without authorization.
iii. Opt¬Out. Advertiser agrees that: (a) Advertiser will ensure that each email message includes (i) clear and conspicuous notice of the recipient’s right to opt¬out of receiving future commercial messages from the Advertiser; and (ii) a functional electronic mechanism that the recipient can use to make such an opt¬out request, in compliance with the requirements of the CAN¬SPAM Act and Federal Trade Commission regulations and guidelines implementing the CAN¬SPAM Act; (b) the recipient shall not be required to make any payment or submit any personal information in order to opt¬out; and (c) in the event that Affiliati Network receives a complaint from any recipient of any e¬mail sent by Advertiser, upon Affiliati Network’s request, Advertiser shall immediately provide Affiliati Network with appropriate records to verify such recipient’s consent to receive e¬mail from Advertiser.
e. Search Campaign. An Advertiser who operates a Search campaign shall not: (a) use any Affiliati Network trademarks, brand names, website addresses, or any variation thereof in the display URL; (b) mask Affiliati Network’s URL’s with a different URL; (c) bid on any term set forth in the Search campaign supplemental list provided by Affiliati Network; (d) use language such as “Official Site” or “Official Store” in keyword descriptions; (e) use the registered trademark symbol unless authorized in writing by Affiliati Network or the owner of such symbols; (f) engage in search engine spam, masking, doorway pages, cloaking or direct linking; (g) use terms that reflect negatively on Affiliati Network brands or marks (e.g., “Cheap”, “Bargains”, “Wholesale”, “Discount”, etc.); (h) utilize pop¬up or pop¬under technology to promote Company products without prior written authorization; (i) make any representations, warranties, claims, or other statements concerning Affiliati Network or any of Affiliati Network’s Offers, products, Services or policies except as approved or provided by Company; or (j) use any third party brand names, trademarks, copyrights or other intellectual property in the search campaign without express and written authorization of such third party, which must be provided together with the Insertion Order(s) prior to initiating any advertising campaign with Affiliati Network.
f. Exclusivity. If the Insertion Order(s) is marked “Exclusive,” then Advertiser agrees that Affiliati Network shall be the exclusive affiliate network (and provider of marketing) for that campaign, offer, or program and Advertiser shall not contract for affiliate marketing with any other digital advertising and affiliate marketing service for that campaign, offer, or program.
g. Authority. Advertiser represents and warrants that Advertiser is qualified and licensed to do business and is in good standing in every jurisdiction where such qualification and licensing is required for purposes of this Agreement; Advertiser has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder; Advertiser has taken all necessary corporate action(s) to authorize the execution of this Agreement by its representative whose signature is set forth at the end hereof and who is authorized to bind Advertiser to all terms of this Agreement; and when executed and delivered by Advertiser and/or Advertiser’s representative, this Agreement will constitute the legal, valid and binding obligation of Advertiser and Guarantor enforceable against it in accordance with its terms.
7. Prohibited Uses.
Advertiser shall not use Affiliati Network’s Services or the Network in any way to:
a. offer points, rewards, cash, prizes, contest entries, or other incentives to consumers in return for their response to any Advertisement;
b. use any method to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the consumer;
c. run any Advertisement containing Co¬Registration;
d. transmit any fraudulent, deceptive, misleading, unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind, as determined by Affiliati Network;
e. transmit any material which contains, promotes, or has links to profanity, sexually explicit materials, hate material, libelous or defamatory material, or material that promotes promote violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other material deemed by Affiliati Network to be unsuitable or harmful to the reputation of Affiliati Network;
f. promote or reference illegal activities including, without limitation, the promotion of gambling, illegal substances, software piracy, or hacking;
g. run any Advertisement where Advertiser is labeled as an “official site” or similar designation or include any other designation indicating the Ad is an “official” advertisement or web site of the Advertiser;
h. violate or infringe the personal rights, trademarks, copyrights, patent rights, services marks, trade dress, logos, publicity rights, or any other intellectual property right of any third party;
i. send spamming, chain letters, junk mail or distribution lists to contact any person who has not given specific permission to be included in such;
j. send communications to a wireless device via text message;
k. send Advertisements via facsimile or telemarketing (including, without limitation, by use of prerecorded or artificial voice messages);
l. use any false, fake, unsubstantiated, untruthful Testimonials, endorsements, reviews, news reports or articles, scientific evidence, medical opinions, findings, or experiences;
m. include in any Ad content any “worm,” “virus” or other device that could impair or injure any person, entity, or equipment;
n. include in any Ad Content any Testimonial unless either (i) the Testimonial is truthful, non-misleading, and substantiated, reflects the honest opinions, findings, and/or experiences of the person providing the Testimonial, and otherwise complies with current Federal Trade Commission Guidelines concerning the use of endorsements and testimonials in advertising, or
(ii) Publisher clearly and conspicuously discloses, in close proximity to the Testimonial, that the Testimonial is fictitious and not based on the actual opinions, findings, and/or experiences of any person;
o. include a photo or other image of any celebrity endorsement and/or testimonials purporting to have been made by a celebrity or other individuals without having their express written consent.
Advertiser shall only use the Services for lawful purposes, in compliance with all applicable laws, regulations, ordinances, orders, rulings, findings, guidelines, procedures, and all other applicable requirements, including, but not limited to those issued by the Federal Trade Commission and its state and local equivalents, The Uniform Deceptive Trade Practices Act or other similar legislation that is in effect in every jurisdiction in which You do business, copyright, trademark, obscenity and defamation laws. Unlawful activities may include (without limit) deceptive advertising, storing, distributing or transmitting any unlawful material, attempting to compromise the security of any networked account or site, or making direct threats of physical harm. Advertiser hereby agrees to defend, indemnify and hold Affiliati Network harmless against any claim or action that arises from Advertiser’s use of the Services or Network in an unlawful manner or in any manner inconsistent with the restrictions and policies stated herein. Except as may be expressly provided elsewhere in this Agreement or except to the extent applicable law precludes such activities from being prohibited by contract, Advertiser shall not: decompile, reverse engineer, disassemble or otherwise determine or attempt to determine source code or the executable code of the Services or create any derivative works based upon the Services, or authorize any third party to do so; rent, lease, distribute, or resell the Services, or attempt to do any of the foregoing; or obfuscate, remove or alter any of the logos, trademarks, internet links, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Services or the related documentation that is not the property of Advertiser. You shall not and shall not allow anyone working on Advertiser’s behalf to (i) perform any technical security integrity review, penetration test, load test, simulation or vulnerability scan without Affiliati Network’s prior written consent, or (ii) attempt to access the data of another Affiliati Network customer, publisher or advertiser.
Other than as specified in this Agreement, either party may terminate this Agreement, and/or any Insertion Order(s), at any time by delivering to the other forty¬eight (48) hours advance written notice of such party’s intent to terminate. No termination shall be effective, and this Agreement shall remain in full force and effect, until forty¬eight (48) hours after the other party receives the terminating party’s notice of termination. Advertiser shall continue to be obligated to pay for all Services provided to Advertiser until the end of the termination period of forty-eight (48) hours. Upon termination or expiration of this Agreement, for any reason, Advertiser shall:
a. Pay Affiliati Network for all outstanding amounts then due and owing in accordance with these Terms; and
b. Continue to perform its obligations under Sections 10, 11,12, 20, and any other provisions of the Agreement which are to expressly survive, or that may reasonably be expected to survive, or until termination or expiration of this Agreement.
9. Ownership of Website, Services, and Intellectual Property.
a. Advertiser Content. Advertiser and its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to the Ads and Ad Content, including all Intellectual Property Rights therein. Advertiser hereby grants the Publishers, a limited, irrevocable, fully paid¬up, royalty¬free, non¬transferable, non¬sublicensable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell and otherwise exploit any of the Ads and Ad Content solely to the extent reasonably required in connection with Advertiser’s receipt or use of the Services described herein. All other rights in and to the Ads and Ad Content are expressly reserved by Advertiser. Upon termination or expiration of this Agreement or the Services of Affiliati Network, for any reason, this license shall automatically and immediately cease.
b. Approval of Advertiser Content. Affiliati Network reserves the right to approve, omit, or edit, for content or reject any Ads or Ad Content for any reason at any time. In addition, we reserve the right, at any time to remove any Ad Content if we determine, in our sole discretion, that the Ads or Ad Content or any portion thereof, violates any of our policies or may result in liability to us. In addition, Affiliati Network shall have the absolute right to reject any URL link embodied within any Ad or Ad Content. Affiliati Network’s failure to reject, cancel, approve, omit, edit, or modify any Ads or Ad Content shall not be construed as an acceptance of the Ads or Ad Content, nor would this negate other parts of this Agreement, specifically with respect to liability.
c. Ownership of Services and Network. Affiliati Network retains all ownership, right, and interest in the website, Network, Services and Intellectual Property of Affiliati Network. Affiliati Network’s Services are being licensed to you, not sold, for your use in accordance with the terms and conditions set forth in this Agreement. All marks, graphics, logos, product names, Services marks, domain names, trademarks, dress, trade and names, in connection with Affiliati Network’s websites or Services, are the sole property of Affiliati Network. Advertiser is strictly prohibited from using, modifying, copying or misappropriating any of Affiliati Network’s intellectual property. Upon termination or expiration of this Agreement or the Services of Affiliati Network, for any reason, this license shall automatically and immediately cease.
10. Non-Disclosure and Confidentiality.
a. Non¬Disclosure. As an advertiser with Affiliati Network, it is anticipated that Affiliati Network may disclose or deliver to Advertiser certain trade secrets, and/or Confidential Information, as defined herein, belonging to Affiliati Network and/or its clients, Publishers. “Confidential Information” includes, but is not limited to, all proprietary or business¬sensitive information, whether oral, written, graphic, machine¬readable or tangible form, and whether or not registered, and including all notes, plans, records, documents, computer programs and software and other evidence thereof, including without limitation all: methods, know¬how, strategies, patents, patent applications, copyrights, trademarks, trade names, Services marks, customer or client lists, pricing policies, operational methods, marketing plans or strategies, procurement and sales activities or methods, promotion and pricing techniques, credit and financial data, and other information, data and documents now existing or to be created by Affiliati Network, regardless of whether any of such information, data or documents qualify as a “trade secret” under applicable federal or state law. Affiliati Network wishes to ensure that the information so exchanged is treated by its advertisers in the strictest confidence, and Advertiser agrees to treat all information Advertiser receives from Affiliati Network in the strictest confidence. Advertiser shall hold the Confidential Information in the strictest confidence and shall not disclose the Confidential Information to any third party without Affiliati Network’s written consent. Advertiser agrees not to disclose any Confidential Information to any unauthorized person and promise not to use any Confidential Information for any purpose other than in connection with the subject matter contained in this Agreement. Upon termination or expiration of this Agreement for any reason, with or without cause, Advertiser shall immediately surrender and turn over to Affiliati Network all proprietary and Confidential Information in Your possession.
b. Procedure. If Advertiser becomes legally compelled to disclose any Confidential Information, Advertiser shall provide to Affiliati Network: (1) prompt written notice of such requirement so that Affiliati Network may seek, at its sole cost and expense, a protective order or other remedy; and (2) reasonable assistance, at Affiliati Network’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, Advertiser remains required by law to disclose any Confidential Information, Advertiser shall disclose no more than that portion of the Confidential Information which, on the advice of Advertiser’s legal counsel, Advertiser is legally required to disclose, and, upon Affiliati Network’s request, Advertiser shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
c. Injunctive Relief. The Parties recognize that each Party has legitimate business interests to protect and as a consequence, each Party, and its principals, agree to the restrictions contained in this Agreement because they further each Party’s legitimate business interests. The Parties acknowledge and agree that damages in the event of a breach or threatened breach of the covenants contained above in this Agreement will be difficult to determine and the non-breaching Party will not have an adequate remedy at law, and therefore the Parties agree that they may, in addition to seeking actual damages, seek specific enforcement of the covenants set forth in this Agreement by way of the issuance of a temporary or permanent injunction, without notice and without the necessity of a bond. The Parties agree that the covenants in this Agreement are reasonable, including without limitation the period of time, scope, and geographical area. However, should it be determined that any provision is unreasonable, the Parties agree that the covenants should be interpreted and enforced to the maximum extent deemed reasonable under applicable law. The Parties’ obligations contained in this Section 10 shall survive the termination of this Agreement for any reason.
Advertiser recognizes that Affiliati Network has proprietary relationships with its Publishers. Advertiser agrees not to circumvent Affiliati Network’s relationship with such Publishers, or to otherwise solicit, purchase, contract for or obtain Services similar to the Services performed by Affiliati Network hereunder from any Publisher that is known, or should reasonably be known, by Advertiser to have such a relationship with Affiliati Network. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers already provided such Services to Advertiser prior to the date of the first Insertion Order(s) executed by the Parties, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section 11 will not be adequate and that Affiliati Network shall be entitled to injunctive relief (including temporary and preliminary relief) without the requirement to post a bond, in additional to any other available legal remedies or damages.
Advertiser agrees to defend, indemnity and hold harmless Affiliati Network and its respective directors, officers, employees, and agents from any and all losses, damages, demands, claims, assessments, actions, deficiencies, penalties, interest, reasonable attorneys’ fees (including without limitation those incurred to enforce this indemnity), and other costs and expenses (collectively “Losses”), related to or incurred as a result of Advertiser’s actions, inactions, negligence, Advertisements, Ad Content, Campaign, and/or Advertiser’s breach of any portion of this Agreement or applicable Insertion Order(s). If any action is brought against Affiliati Network with respect to any allegation for which indemnity may be sought from Advertiser, Affiliati Network will promptly notify Advertiser of any such claim of which it becomes aware and will (i) provide reasonable cooperation to Advertiser at Advertiser’s expense in connection with the defense or settlement of any such claim and (ii) be entitled to participate at its own expense in the defense of any such claim. Advertiser shall not acquiesce to any judgment or enter into any settlement that adversely affects Affiliati Network’s rights or interests without the prior written consent of Affiliati Network.
13. DISCLAIMER OF WARRANTIES.
AFFILIATI NETWORK PROVIDES ITS SERVICES AND THE SERVICES OF ITS PUBLISHERS, AS PERFORMED HEREUNDER, ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY OF THE SERVICES. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY OF AFFILIATI NETWORK’S SERVICES, AFFILIATI NETWORK’S SOLE OBLIGATION WILL BE TO RESTORE THE SERVICES AS SOON AS PRACTICABLE. AFFILIATI NETWORK DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
14. LIMITATION OF LIABILITY.
IN NO EVENT SHALL AFFILIATI NETWORK BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTION OF BUSINESS, LOSS OF USE, LOST BUSINESS, LOST PROFITS, LOSS OF INFORMATION OR DATA, OR THE LIKE (EVEN IF AFFILIATI NETWORK WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR INSERTION ORDER(S), OR YOUR USE OF AFFILIATI NETWORK’S SERVICES. UNDER NO CIRCUMSTANCES SHALL AFFILIATI NETWORK BE LIABLE TO YOU OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED BY AFFILIATI NETWORK FROM ADVERTISER UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO LIABILITY. AFFILIATI NETWORK SHALL NOT BE RESPONSIBLE FOR ANY CONDUCT OR FRAUD OF THE ADVERTISER, PUBLISHER(S), ONLINE USERS, OR THIRD PARTIES.
All notices shall be sent to the addresses submitted by Advertiser when enrolling, registering, or creating an account with Affiliati Network, or when using Affiliati Network’s Website, Network, or Services, by certified mail, facsimile, electronic mail (e¬mail) or courier. Affiliati Network’s Services are conducted and provided electronically. Therefore, Advertiser agrees that Affiliati Network may communicate electronically with Advertiser and its representatives with respect to any and all matters relating to the Services.
Each provision of this Agreement reasonably intended by its terms to survive termination or expiration of this Agreement shall so survive.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, in which the total amount in controversy of the action, including any claim, counterclaim, and/or third party claim, exceeds $150,000.00 (exclusive of interest, fees, and costs) shall be settled by binding arbitration administered by the American Arbitration Association (AAA) in Miami, Florida, in accordance with the AAA’s Commercial Arbitration Rules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. All claims shall be heard by a single arbitrator and the arbitration shall be governed by the laws of the State of Florida. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. The prevailing party in any such arbitration shall be entitled to an award of its reasonable attorney’s fees and costs. The award of the arbitrators shall be accompanied by a reasoned opinion. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness(es). In such event, the other party shall be required to present evidence and legal argument as the arbitrator may require for the making of an award.
18. Governing Law, Venue and Jurisdiction.
This Agreement will be governed and construed in accordance with the laws of the state of Florida without giving effect to conflict of laws principles, and all federal law. In all other disputes arising from this Agreement that are not subject to Arbitration under Section 17 of this Agreement, including the Insertion Order(s), you agree to submit to exclusive jurisdiction and venue in the courts of Miami¬Dade County, Florida.
19. Attorneys’ Fees.
The prevailing party in any action to enforce or interpret any provision or provisions of this Agreement shall be entitled to its/his/her reasonable attorneys’ fees in addition to all other costs associated with the action or appeal whether or not the action advances to judgment, including any and all costs for expert witnesses, in addition to any other relief to which that party may be entitled.
If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. You may not assign this Agreement without the prior written consent of Affiliati Network. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and assigns. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee¬employer relationship is intended or created by this Agreement. This Agreement, including any active Insertion Order(s) between the parties, sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Except as otherwise set forth herein, only a writing signed by both parties may change this Agreement or any Insertion Order(s). In the event the terms of any Insertion Order(s) and these Terms conflict, the Insertion Order(s) will govern only with respect to the duration of the Services, fees, invoicing and payment terms, otherwise these Terms shall govern and control. Affiliati Network’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.
21. WAIVER OF JURY TRIAL.
EACH PARTY TO THIS AGREEMENT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED UPON THIS AGREEMENT OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE INSERTION ORDER(S), OR ANY OTHER AGREEMENT CONTEMPLATED AND EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF DEALING, COURSE OF CONDUCT, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO.
22. Personal Guaranty.
As consideration for this Agreement and the Services provided by Affiliati Network, the Guarantor, intending to be legally bound, personally, irrevocably, and unconditionally guarantees payment and performance of, and as a primary debtor agrees to be jointly liable for (without becoming entitled to the benefits of) all terms and conditions of this Agreement and all of Advertiser’s obligations hereunder, until all of Advertiser’s obligations under this Agreement are satisfied, including payment of collection costs and attorney’s fees. Affiliati Network may first proceed against the Guarantor without resorting to other remedies, and Guarantor waives any statutory or other right to require otherwise. Guarantor waives subrogation rights; waives defenses and rights relating to impairment, invalidity, modification, extension of this Agreement, or relating to substitution, dishonor, release, or compromise of the Advertiser; waives demand, protest, and presentment; and waives all notices relating to the foregoing. The liability of Guarantor is continuing and relates to any obligations to Affiliati Network incurred by Advertiser, including those arising under successive transactions which shall either continue the Guarantor’s indebtedness to Affiliati Network or from time to time renew it after it has been satisfied. This guaranty is cumulative and does not supersede any other outstanding guaranties, and the liability of Guarantor under this guaranty is exclusive of Guarantor’s liability under any other guaranties signed by Guarantor. This guaranty shall be governed by the laws of the State of Florida, and Guarantor consents to the personal jurisdiction and exclusive venue of federal and state courts in Miami¬Dade County Florida as specifically identified in Section 18 of these Terms.
THE AFFILIATI NETWORK, INC.