AFFILIATI NETWORK PUBLISHER TERMS AND CONDITIONS
These Affiliati Network Publisher Terms and Conditions (these “Terms”) shall govern the relationship between The Affiliati Network, Inc. (“Affiliati Network”) and the Publisher, as identified herein, whose signatures appear below.
Affiliati Network is a technology based network exchange platform that serves as 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, as defined herein, 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. Publisher wishes to acquire, and Affiliati Network wishes to provide, Affiliati Network’s Services, as defined herein, subject to Publisher’s agreement to be bound by these Terms. Accordingly, the Parties agree as follows:
When used in these Terms in the singular or plural, the following defined terms shall have the meanings set forth below:
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” 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” or “Terms” means these Affiliati Network Publisher Terms and Conditions.
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. “ClickThru” 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 for the Services by the Advertiser, or amount that will be paid to Publisher for generating traffic, leads, actions, or conversions under the Campaign for an Advertiser.
h. “Conversion” means each independent click, sale, registration, transaction, lead, conversion, call, view, or action, as set forth in the applicable Insertion Order(s).
i. “CoRegistration” or “CoReg” means the process of collecting orders, authorizations, optins, or acceptances for multiple offers, products, services, subscriptions, or marketing communications from a customer in a single registration event.
j. “CostPerAction” 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 the Advertiser’s Ads, multiplied by the cost per lead or conversion, which shall be computed according to Affiliati Network’s terms, conditions, and rules as set forth in the Advertiser’s Insertion Order(s) and Affiliati Network Advertiser Terms and Conditions.
k. “CostPerClick” or “CPC” means a type of billing program for a Campaign involving a fee for all ClickThru’s on the Advertiser’s Ads. Such fees will be based on the number of ClickThru’s on the Advertiser’s Ads, multiplied by the cost of each of the ClickThru’s as identified in the Insertion Order(s), which shall be computed according to Affiliati Network’s terms, conditions, and rules as set forth in the Advertiser’s Insertion Order(s) and Affiliati Network Advertiser Terms and Conditions.
l. “CostPerMilli” 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 Advertiser’s Insertion Order(s), which shall be computed according to Affiliati Network’s terms, conditions, and rules as set forth in the Advertiser’s Insertion Order(s) and Affiliati Network Advertiser Terms and Conditions.
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. “Email” 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. “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.
p. “Insertion Order(s)” means any of the written Insertion Order(s) form that has been executed and submitted by an Advertiser to Affiliati Network that sets out the parameters for the Campaign, and such terms of the Insertion Order(s) regarding the Advertiser’s Campaign are detailed and available to Publishers on the Network when they are participating in an Advertiser’s Campaign.
q. “Network” means Affiliati Network’s private affiliate network that allows it to carry out the Services to Advertisers, 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.
r. “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 of the Advertiser’s 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.
s. “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.”
t. “Pay Per View” or “PPV” is defined as the traffic generated when a user views or visits a website, and can appear via pop up, pop under, banner advertising, display and contextual advertising, which shall be computed according to Affiliati Network’s terms, conditions, and rules as set forth in the Advertiser’s Insertion Order(s) and Affiliati Network Advertiser Terms and Conditions.
u. “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, which shall be computed according to Affiliati Network’s terms, conditions, and rules as set forth in the Advertiser’s Insertion Order(s) and Affiliati Network Advertiser Terms and Conditions.
v. “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.
w. “Person” means any individual, company, body corporate, association, partnership, firm, joint venture, trust, or Governmental Entity.
x. “Publisher,” “You,” or “Your” means each individual or company that has entered into these Terms, and 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 optin email lists for the purpose of completing digital advertising or affiliate marketing campaigns for the benefit of Advertiser using Advertiser’s Ad Content.
y. “Publisher’s Emails” means electronic mail messages sent to email addresses listed in Publisher’s database and/or any other database affiliated with, owned, operated and/or controlled by Publisher, which much comply with these Terms.
z. “Publisher’s Website” means any website or application published, used, owned, operated and/or controlled by Publisher for the purposes of carrying out the Advertiser’s Campaign and driving Traffic and/or Conversions, , which much comply with these Terms.
aa. “Rebill” means the instance when the Advertiser bills and collects payment from a consumer at the first cycle of its trial program or campaign (also known as a negative option or continuity program or plan). In trial programs, the first cycle is the first billing transaction after the initial sale for shipping and handling charges. The Rebill Rate, also known as “Retention Rate,” refers to the percentage of transactions that rebilled in that first cycle, that is by taking the total number of rebills and dividing it by the total number of initial trial transactions.
bb. “Revenue Share” means a type of billing program where there is an allocation of profits from an advertiser’s Campaign subject to and in accordance with Affiliati Network’s terms, conditions, and rules applicable to the program selected by the Advertiser in the Insertion Order.
cc. “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).
dd. “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 consumerdirected advertisements. Affiliati Network does not conduct media buying or placements associated with any consumerdirected advertisements for itself or on behalf of any advertisers or publishers.
ee. “Social Media” means any advertisement or display banner on a social networking website or application, such as Facebook.
ff. “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.
gg. “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, …
hh. “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
ii. “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.
jj. “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
3. Approval of Publisher.
Upon approval by Affiliati Network and subject to the terms and conditions of these Terms, Publisher agrees to promote an Advertiser’s product or service in accordance with the Campaign in exchange for earning a commission. Publisher agrees and acknowledges that Publisher must obtain official approval from Affiliati Network before Publisher may become an approved Publisher and before it receives commissions. In order to be eligible to become an approved Publisher, and in order to maintain an active Publisher status, Publisher must at all times meet the following criteria:
i. Publisher is qualified and licensed to do business and is in good standing in every jurisdiction where such qualification and/or licensing is required for purposes of these Terms;
ii. Publisher has the full right, power and authority to enter into these Terms and to perform its obligations under these Terms; Publisher has taken all necessary corporate action to authorize the execution of these Terms by its representative who has approved or executed these Terms, and who is authorized to bind Publisher to all terms of these Terms; and when executed and delivered by Publisher, these Terms will constitute the legal, valid and binding obligation of Publisher enforceable against it in accordance with its terms.
iii. Publisher 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 Publisher conducts business, the CANSPAM 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.
iv. Publisher’s Website and Publisher’s Emails shall contain legitimate content, substance and material, not simply a list of links or advertisements.
v. Publisher’s Website and Publisher’s Emails shall contain the appropriate and approved language content in accordance with the terms of the Campaign;
vi. Publisher’s Website and Publisher’s Emails shall be represented by a legitimate secondlevel domain name. A shared server is not acceptable;
vii. Publisher’s Website shall not be offered as a part of a communitybased website, personal entry or personal page;
viii. Publisher’s Website and Publisher’s Emails may not incentivize users to click on ads. Incentives include, but are not limited to, awarding users cash, points, prizes, contest entries, etc.;
ix. Publisher’s Website shall be entirely functional at all levels; no “under construction” sites or sections are permissible;
x. Publisher’s Website and Publisher’s Emails shall not contain spawning process popups and exit popups; and
xi. Publisher’s Website and Publisher’s Emails shall not promote nor contain any racial, ethnic, political, hatemongering, investment, moneymaking opportunities, deceptive, misleading, fraudulent, advice or content not permitted by law, violence, profanity, or otherwise objectionable content, as determined by Affiliati Network; obscene or sexually explicit content; defamatory, tortious, or threatening content; private or confidential information of another person, materials that impersonate any person or entity, unauthorized endorsements, promotions of illegal activities, substances, drugs, terrorism, crimes, software piracy, hacking, or explosives; any material that contains spyware, adware, spamware, mail bomb, software viruses, computer code, files or Campaigns designed to interrupt, destroy or limit the functionality of any network, computer software or hardware or telecommunications equipment; software or processes that harvest and/or collect personal identifiable or confidential information of another person or entity without consent; material that otherwise infringes upon the rights of any third parties including, without limitation, false advertising, unfair competition, invasion of rights of publicity or privacy, violation of any antidiscriminatory law or regulation, or any other right of any person or entity; material that violates the CANSPAM Act of 2003, as amended (“CANSPAM”); or contain material or content related to any illegal activity whatsoever (including any violations of applicable U.S. state or federal law or regulation, or the laws of any other jurisdiction in which Publisher operates).
xii. Before sending any Emails, Publisher shall obtain consent of all Email recipients and shall maintain all records evidencing recipient consent. These records shall include, but shall not be limited to, each recipient’s email address, first and last name, physical address if known, opin date, and registration source. Publisher shall produce such records to Affiliati Network immediately upon Affiliati Network’s request.
4. Ad Content and Creatives.
Ad Content and Creatives are the sole responsibility of and generated by the Advertiser, and in some instances by Publisher so long as the Ad Content and Creatives that are generated by Publisher comply with these Terms, all applicable laws, rules and regulations, and/or the Campaign terms. Upon approval of the Publisher by Affiliati Network to participate in the Campaign, Publisher shall be permitted to download Creatives from Affiliati Network’s Network: (i) for appropriate publication by Publisher on all approved marketing channels. Publisher shall include the specific links provided by Affiliati Network directing traffic to Affiliati Network’s Advertisers in all Creatives for each specific Campaign in which Publisher participates. Publisher’s use of all Creatives, whether created by Advertisers, Affiliati Network, or Publisher, may be rejected at any time by the Affiliati Network if they fail to comply with these Terms. Affiliati Network may, at its sole and absolute discretion, request Publisher remove or stop using Creatives or other Campaign related material, and Publisher shall remove Creatives or other Campaign related material within 24 hours of Affiliati Network’s request. Failure by Publisher to do so may, in Affiliati Network’s sole discretion, result in Affiliati Network terminating Publisher’s active status, removing Publisher from any or all Campaigns, and or terminating Publisher as an affiliate of the Affiliati Network, as Affiliati Network deems appropriate at its sole and absolute discretion.
5. Use of Sub-Affiliates.
Subject to the terms of these Terms, Publisher may use another Person or business partner to fulfill its obligations or perform under the Campaign (“SubAffiliate”), so long as the SubAffiliate(s) are first disclosed in writing by Publisher to Affiliati Network, the SubAffiliate(s) meet the same criteria for approval as set forth in these Terms and the SubAffiliate(s) comply with all the terms and conditions that are applicable to Affiliate under these Terms and Campaign terms. Affiliati Network reserves the right to approve or reject any SubAffiliates and may revoke a prior approval of any SubAffiliate at any time and for any reason. As a result, Publisher shall be responsible for and shall fully and unconditionally indemnify, defend and hold Affiliati Network harmless for any and all actions of any of its SubAffiliates, including the payment of legal fees and costs if necessary. If Affiliati grants approval to a Publisher’s SubAffiliate, notices to the Publisher shall be deemed adequate notice to that Publisher’s approved SubAffiliate(s). Publisher agrees that Affiliati Network shall never have any obligation to make any payment to SubAffiliate, including, but not limited to the payment of any fees or commissions. Affiliati Network reserves the right to withhold or refuse payment to Publisher in the event that any of its SubAffiliates breach the terms of the Campaign or these Terms.
6. Payment of Commissions.
Affiliati Network will specify within its Network the amount and terms under which Publisher will earn payment of a Commission for a particular Campaign. Payments to Publisher are generated from a specified Action as defined by Affiliati Network for each particular Campaign, Affiliati Network shall pay Publisher the specified and applicable rate. The applicable Action associated with each Campaign shall be set forth in the applicable Campaign terms and, unless otherwise specified, such definition shall only apply with respect to that Campaign. Publisher shall only be entitled to payment for Actions Affiliati Network deems valid based upon Affiliati Network’s tracking of such Actions pursuant to Section 7 of these Terms. If Publisher agrees to participate in a Campaign, Publisher agrees to place that Campaign’s Creatives on the Publisher Website and/or in the Publisher Emails, in accordance with these Terms and the accepted Campaign terms. Affiliati Network may, at its sole discretion, change a Campaign at any time, upon prior notice to Publisher, unless otherwise specified in the Campaign terms. In the event Publisher violates, or if Affiliati Network in good faith believes that Publisher has violated, any of the terms in these Terms or the Campaign, Affiliati Network shall not be obligated to pay Publisher any Commissions applicable to such Campaign, in Affiliati Network’s sole and final discretion, and Affiliati Network may offset and withhold the amount, such amount be determined in Affiliati Network’s sole and final discretion, that is related to any losses, damages, legal fees, consulting fees, or penalties incurred by Affiliati Network against any commissions or other amounts that may be owed to Publisher. Publisher further understands and agrees that Commissions will be paid to Publisher only following Affiliati Network’s receipt of the Advertiser’s payment of the applicable Commissions with respect to such Campaign. Affiliati Network may, in its sole discretion and from time to time, elect to advance to Publisher part or all of the Commissions prior to the receipt of payment by an Advertiser, but in no event will Affiliati Network be obligated to do so. Publisher acknowledges and agrees that payment of Commissions may be delayed where the Publisher has not complied with these Terms and that in no case shall Affiliati Network be liable to the Publisher for any loss, costs, or expenses directly or indirectly incurred by the Publisher as a result of such delay or that arises from Publisher’s violations of these Terms.
Affiliati Network shall track all Actions for each Campaign in real time. Campaign data compiled by Affiliati Network including, but not limited to, data, numbers and calculations regarding Actions (“Campaign Data”), will be calculated by Affiliati Network through the use of industry standard tracking technology and shall be final and binding on Publisher. Publisher shall not modify or otherwise interfere with Affiliati Network’s tracking devices in any way. Any questions, objections, or complaints regarding the Campaign Data must be submitted in writing within fourteen (14) days of initial appearance in the tracking system; otherwise the Campaign Data will be deemed to be accurate and approved by Publisher.
8. Timing of Payments.
Publisher agrees to be paid and accept the amount for each Action specified in the applicable Campaign terms and in accordance with these Term. Unless otherwise stated in the Campaign terms and excluding circumstances that would result in a delay in payment of Commissions to Publisher by Affiliati Network as described in more detail in Section 6 above, Affiliati Network will issue payment to Publisher on a monthly net 15 basis, i.e. by the 15th of each month, for each preceding month.
9. Availability of Network.
Publisher understands and agrees that on occasion the Network may be inaccessible, unavailable or inoperable for any reason, including, but not limited to, the following: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs; or (iii) causes beyond the control of Affiliati Network or which are not reasonably foreseeable by Affiliati Network including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. Affiliati Network will attempt to provide the Service on a continuous basis. However, Publisher acknowledges and agrees that Affiliati Network has no control over the availability of the Service and Network on a continuous or uninterrupted basis. Terms of these Terms are subject to Affiliati Network’s hardware, software, and bandwidth traffic limitations. Affiliati Network’s failure to deliver because of technical difficulties does not represent a failure to meet the obligations of these Terms.
10. Fraud, Claims and Disputes.
Affiliati Network actively monitors Campaigns for fraudulent activity. In the event that Affiliati Network suspects that Publisher’s account or the Campaign has been used in a fraudulent manner, Publisher’s account may be deactivated by Affiliati Network without notice effective immediately pending Affiliati Network’s further investigation. If Publisher inflates Actions, through the use of fraudulent means of traffic generation, Publisher will forfeit all of the amounts owed to Publisher by Affiliati Network related to that Campaign, and Publisher’s account may be either suspended or terminated effective immediately without notice. Affiliati Network reserves sole judgment in determining fraud. Publisher agrees to cooperate in good faith with Affiliati Network during its investigation of any fraud, and Publisher agrees to be bound by any and all of Affiliati Network’s determinations. It is Publisher’s obligation to prove to Affiliati Network that Publisher has not engaged in fraud. Affiliati Network will hold Publisher’s payments in ‘Pending Status’ until Publisher has satisfactorily provided evidence that demonstrates to Affiliati Network that Publisher has not engaged in fraud. If Publisher is unable to provide Affiliati Network with satisfactory evidence that Publisher has not engaged in fraud within seven (7) days of Publisher’s account being placed on hold pending an investigation of fraud, then Affiliati Network reserves the right to terminate Publisher’s account and cancel payment on the applicable Actions, at its sole discretion and without any further obligations to Publisher.
Unless otherwise set forth in these Terms, either party may terminate these Terms at any time by delivering to the other fortyeight (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 fortyeight (48) hours after the other party receives the terminating party’s notice of termination. In the event Affiliati Network discovers that Publisher has violated these Terms or engaged in any questionable or fraudulent marketing practices, Affiliati Network may in its discretion suspend, terminate, or permanently ban Publisher from the Network. Upon termination or expiration of these Terms, for any reason, Publisher shall continue to perform its obligations under Sections 12, 13, and 14 below, and any other provisions of these Terms which are to expressly survive, or that may reasonably be expected to survive, termination or expiration of these Terms.
12. Non-Disclosure and Confidentiality.
a. NonDisclosure. As an Affiliate of the Affiliati Network, it is anticipated that Affiliati Network may disclose or deliver to Publisher certain trade secrets, and/or Confidential Information, as defined herein, belonging to Affiliati Network and/or its Advertisers or other affiliates. “Confidential Information” includes, but is not limited to, all proprietary or businesssensitive information, whether oral, written, graphic, machinereadable or tangible form, and whether or not registered, and including all notes, plans, records, documents, computer Campaigns and software and other evidence thereof, including without limitation all: methods, knowhow, 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 all parties as strictly confidential, and Publisher agrees to treat all information Publisher receives from Affiliati Network in the strictest confidence. Publisher 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. Publisher 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 these Terms. Upon termination or expiration of these Terms for any reason, with or without cause, Publisher shall immediately surrender and turn over to Affiliati Network all proprietary and Confidential Information in Publisher’s possession.
b. Procedure. If Publisher becomes legally compelled to disclose any Confidential Information, Publisher 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, Publisher remains required by law to disclose any Confidential Information, Publisher shall disclose no more than that portion of the Confidential Information which, on the advice of Publisher’s legal counsel, Publisher is legally required to disclose, and, upon Affiliati Network’s request, Publisher 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 nonbreaching 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 12 shall survive the termination of these Terms for any reason.
Publisher recognizes that Affiliati has proprietary relationships with its Advertisers. Publisher agrees not to circumvent Affiliati Network’s relationship with such Advertisers, or to otherwise solicit, purchase, contract for or obtain Services similar to the Services performed by Affiliati Network hereunder from any Advertiser that is known, or should reasonably be known, by Publisher to have such a relationship with Affiliati Network. Affiliati Network shall confirm to Publisher whether a particular Person has a relationship with Affiliati Network upon Publisher’s reasonable request for the sole purpose of Publisher’s compliance with this Section 12, and Publisher may not use such information for any other purpose other than compliance with this Section 12. Notwithstanding the foregoing, to the extent that Publisher can show that any such Advertisers already provided such Services to Publisher prior to the date of the first Insertion Order(s) executed by the Parties, then Publisher shall not be prohibited from continuing such relationship. Publisher agrees that monetary damages for its breach, or threatened breach, of this Section 10 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.
Publisher 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 Publisher’s or Publisher’s SubAffiliate’s actions, inactions, negligence, the Publisher Website, Advertisements, Ad Content, Offer, Campaign, and/or Publisher’s or Publisher’s SubAffiliate’s breach of any portion of these Terms or applicable Campaign terms. If any action is brought against Affiliati Network with respect to any allegation for which indemnity may be sought from Publisher or Publisher’s SubAffiliate(s), Affiliati Network will promptly notify Publisher of any such claim of which it becomes aware and will (i) provide reasonable cooperation to Publisher at Publisher’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. Publisher or Publisher’s SubAffiliate 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.
15. DISCLAIMER OF WARRANTIES.
AFFILIATI NETWORK PROVIDES ITS WEBSITES AND THE WEBSITES OF ITS AFFILIATES, AND ALL ITS SERVICES AND THE SERVICES OF ITS AFFILIATES, 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.
16. 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 THESE TERMS, CAMPAIGN, OR PUBLISHER’S USE OF OR ASSOCIATION WITH AFFILIATI NETWORK’S SERVICES. UNDER NO CIRCUMSTANCES SHALL AFFILIATI NETWORK BE LIABLE TO PUBLISHER OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS PAID TO PUBLISHER UNDER THESE TERMS IN THE 12 MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO ANY ALLEGED LIABILITY. AFFILIATI NETWORK SHALL NOT BE RESPONSIBLE FOR ANY CONDUCT OR FRAUD OF THE ADVERTISER(S), PUBLISHER, ONLINE USERS, AFFILIATES, OR THIRD PARTIES.
All notices shall be sent to the addresses submitted by Publisher when enrolling, registering, or creating an account with Affiliati Network, or when using Affiliati Network’s Website or Services, by certified mail, facsimile, electronic mail (email) or courier. Affiliati Network’s Services are conducted and provided electronically. Therefore, Publisher agrees that Affiliati Network may communicate electronically with Publisher with respect to any and all matters relating to the Services.
Each provision of these Terms reasonably intended by its terms to survive termination or expiration of these Terms shall so survive.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, 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 crossexamine 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.
20. Governing Law.
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..
21. 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.
22. WAIVER OF JURY TRIAL
EACH PARTY TO THESE TERMS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED UPON THESE TERMS OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THESE TERMS, 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.
If any provision of these Terms 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. Publisher may not assign these Terms 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 these Terms are independent contractors, and no agency, partnership, joint venture or employeeemployer relationship is intended or created by these Terms. These Terms 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 these Terms. In the event the terms of any Campaign and these Terms conflict, the Campaign terms 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 these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision.
THE AFFILIATI NETWORK, INC.
Sonny Palta, President