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 manages a private affiliate network of various websites, relationships, and exclusive partnerships that allow Affiliati Network to carry out successful digital advertising and affiliate marketing services for its advertiser clients and affiliates. 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. “Advertiser” means any Person who submits Creatives through the Website and/or participates in a Campaign with Affiliati Network to drive online users or consumers to its website(s), application(s), product(s), and/or services, pursuant to the terms of an offer, campaign, or program.
b. “Affiliati Network” means The Affiliati Network, Inc., which is the entity identified in these Terms that is providing the Services and is entering into these Terms with Publisher.
c. “Campaign” means an Affiliati Network advertiser’s advertising offer, campaign, or program aimed at selling, marketing or promoting the advertiser’s products or services with the purpose of driving prospective online users and/or consumers to the advertiser’s landing page, website(s) or applications as set forth in the offer, campaign, program,or Publisher IO.
d. “Click-Thru” means when an Internet user clicks on a Publisher’s Ad banner, coupon redemption, link, or action directing him/her to a landing page or website.
e. “Action” means each independent sale, registration, transaction, lead, conversion, call, view, or action, including any such Actions that are defined in the applicable Campaign.
f. “Creatives” means all creative and substantive materials, advertisements, or content related to a Campaign.
g. “Display/Banner” 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).
h. “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.
i. “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.
j. “Network” means Affiliati Network’s private affiliate network of websites, relationships, and exclusive partnerships that allow Affiliati Network to carry out successful digital advertising and affiliate marketing Services, as well as all associated Network systems, platforms, and content, including, without limitation, all text, information, images, applications, templates software and other information, services, and materials.
k. “Parties” means, collectively each of the parties to these Terms, that is, Affiliati Network and Publisher, as defined herein. The parties may also be individually referred to as a “party.”
l. “Person” means any individual, company, body corporate, association, partnership, firm, joint venture, trust, or Governmental Entity.
m. “Publisher” means each individual or company that serves as an internet advertising publisher or affiliate, which maintains a proprietary relationship with Affiliati Network, and provides access to internet advertising space, links, newsletters, websites, and/or opt-in email lists for the purpose of completing digital advertising or affiliate marketing campaigns.
n. “Publisher’s E-mails” means electronic mail messages sent to e-mail addresses listed in Publisher’s database and/or any other database affiliated with, owned, operated and/or controlled by Publisher, which comply with the terms of these Terms.
o. “Publisher IO” means the written Publisher Insertion Order(s) form that has been executed and submitted by Publisher to Network that is incorporated into and governed by these Terms. Publisher 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.
p. “Publisher’s Website” means any website published with, owned, operated and/or controlled by Publisher, which comply with the terms of these Terms.
q. “Services” means the digital advertising and affiliate marketing services being provided to an Advertiser by Affiliati Network and the Publisher for the Campaign, through the use of Publisher’s publication of Creatives on Publisher’s Websites, Publisher’s E-mails, or other approved marketing channels.
r. “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.
3. Approval of Publisher.
Upon approval by Affiliati Network and subject to the terms and conditions of these Terms, Publisher agrees to assist Affiliati Network and promote an Advertiser’s product or service in accordance with the Campaign or Publisher IO 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, unless otherwise expressly agreed to in the Publisher IO, 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, all state and local counterparts to the FTC Act and associated regulations in every jurisdiction in which Publisher conduct 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.
iv. Publisher’s Website and Publisher’s E-mails shall contain legitimate content, substance and material, not simply a list of links or advertisements.
v. Publisher’s Website and Publisher’s E-mails shall contain the appropriate and approved language content in accordance with the terms of the Campaign;
vi. Publisher’s Website and Publisher’s E-mails shall be represented by a legitimate second-level domain name. A shared server is not acceptable;
vii. Publisher’s Website shall not be offered as a part of a community-based website, personal entry or personal page;
viii. Publisher’s Website and Publisher’s E-mails 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 E-mails shall not contain spawning process pop-ups and exit pop-ups; and
xi. Publisher’s Website and Publisher’s E-mails shall not promote nor contain any racial, ethnic, political, hate-mongering, investment, money-making opportunities, advice 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 anti-discriminatory law or regulation, or any other right of any person or entity; material that violates the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”); 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 E-mails, Publisher shall obtain consent of all E-mail recipients and shall maintain all records evidencing recipient consent. These records shall include, but shall not be limited to, each recipient’s e-mail address, first and last name, physical address if known, op-in date, and registration source. Publisher shall produce such records to Affiliati Network immediately upon Affiliati Network’s request.
Affiliati Network posts offers and associated Creatives through its Network in connection with the terms of each Campaign. Creatives are only generated by Advertiser, and in some instances by Publisher so long as the Creatives that are generated by Publisher comply with these Terms, or the Campaign terms. Upon approval of the Publisher by Affiliati Network, Publisher shall be permitted to download Creatives from Affiliati Network’s Network: (i) for publication on Publisher’s Website; (ii) for publication on Publisher’s E-mails and/or (iii) other approved marketing channels. Publisher shall include the specific links provided by Affiliati Network directing traffic to Affiliati Network’s Advertisers in all Creatives, the Publisher Website, and/or Publisher E-mails, for each specific Campaign in which Publisher participates. Publisher’s use of all Creatives, whether created by Advertisers, Affiliati Network, or Publisher, are subject to approval by Affiliati Network. Affiliati Network may, at its sole and absolute discretion, request Publisher remove or stop using Creatives or other Campaign related material from the Publisher Website or any other placements, and Publisher shall remove Creatives or other Campaign related material from the Publisher Website within 24 hours of Affiliati Network’s request. Failure by Publisher to do so will 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 (“Sub-Affiliate”), so long as the Sub-Affiliate(s) are first disclosed in writing by Publisher to Affiliati Network, the Sub-Affiliate(s) meet the same criteria for approval as set forth in these Terms and the Sub-Affiliate(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 Sub-Affiliates and may revoke a prior approval of any Sub-Affiliate 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 Sub-Affiliates, including the payment of legal fees and costs if necessary. If Affiliati grants approval to a Publisher’s Sub-Affiliate, notices to the Publisher shall be deemed adequate notice to that Publisher’s approved Sub-Affiliate(s). Publisher agrees that Affiliati Network shall never have any obligation to make any payment to Sub-Affiliate, 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 Sub-Affiliates 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 cost-per-Action (“CPA”) 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 E-mails, 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.
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 Affiliaiti 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. Unless otherwise stated in the Campaign terms, Affiliati Network shall issue payments to Publisher every fifteen (15) days during the Campaign for all Actions incurred during the course of each 15-day period.
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 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. Further, pursuant to Section 6 above, Affiliati Network shall continue to be obligated to pay for all Actions provided by Publisher until termination becomes effective. In the event Affiliati Network discovers fraud, Affiliati Network may terminate these Terms immediately. 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. Non-Disclosure. 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 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 Campaigns 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 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, agrees to the restrictions contained in these Terms 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 these Terms 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 these Terms in any court of competent jurisdiction, including, without limitation, by the issuance of a temporary or permanent injunction, without notice and without the necessity of a bond. The Parties agree that the covenants in these Terms are reasonable, including without limitation the period of time, scope, and geographical area. However, should any court determine that any provision is unreasonable, the Parties agree that the covenants should be interpreted and enforced to the maximum extent such court deems 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 Publer’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 Sub-Affiliate’s actions, inactions, negligence, the Publisher Website, Advertisements, Ad Content, Offer, Campaign, and/or Publisher’s or Publisher’s Sub-Affiliate’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 Sub-Affiliate(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 Sub-Affiliate 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, PUBLISHER IO, 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 (e-mail) 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.
19. Attorneys’ Fees.
If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret any provision or provisions of these Terms, the prevailing party will 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.
20. 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.
These Terms 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 the event of any dispute between the parties’ arising from these Terms, Publisher agrees to submit to exclusive jurisdiction and venue in the courts of Miami-Dade County, Florida. 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 employee-employer 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