LAST UPDATED: JULY 2014
This Agreement constitutes the entire and only agreement between us and You, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Network (which include, without limitation, the website through which You access the Network and any services offered by the Company in connection with the Network now or in the future), the content and computer programs provided by or through the Network, and the subject matter of this Agreement. The Company may change or update this Agreement at any time and from time to time by posting the changed or updated version of this Agreement on the Company's web site but without specific notice to You. The current version of this Agreement will be posted on the Company's web site at http://www.adsdirect.com/affiliate-terms and the administrative web site made available to You by the Company to access the Network (the "Admin Site"), and You should review this Agreement prior to each use of the Network. Your continued use of the Network after any such modification and notification thereof shall constitute Your consent to such modification. You agree to use the Network only in accordance with this Agreement.
1. Network Description; Use of the Network.
Through the Admin Site, the Company will make creative advertising images and data of Advertisers ("Programs") available to You for placement on or distribution through Your media properties ("Media" or "Your Media"), such as by posting on Your web sites(s) or distributing to Your email distribution lists. Each Program will include specific terms governing Your use of the Program (the "Program Terms"). You must place or distribute the Program through Your Media in accordance with the Program Terms. The Program Terms will specify the amount and terms under which You may receive payment ("Bounty") for placing or distributing the Program when the requirements set forth in the Program Terms are fulfilled. Bounties are generated from a specified event ("Event") as specified in the Program Terms, such as clicks, click-throughs, sales, registrations, impressions and/or leads. The Company and/or its Advertisers may change the Program Terms for any Program at any time upon notice to You, at which time You must promptly make any changes in Your presentation or distribution of the Program to accommodate any such changes to the Program Terms, or immediately cease using the Program.
From time to time, the Company may also make available to You samples of content promoting Programs ("Sample Promotional Content"). Sample Promotional Content is provided only as samples. If You use any Sample Promotional Content within Your Media, You are responsible for ensuring that such Sample Promotional Content complies with the terms of this Agreement and applicable Laws (defined below). Any reference in this Agreement to Your Media shall include any Sample Promotional Content You choose to include within Your Media.
The Company will track all active Programs and compile, calculate and electronically deliver data required to determine the compensation that may be owed to You as a Bounty under this Agreement. Upon delivery of any such report to You, You must submit any questions or disputes regarding the Company's data and calculations to the Company in writing, including a detailed explanation for any such dispute, within seven (7) days otherwise, the Company's data and calculations shall be deemed accurate and accepted as such by You.
2. Application to Participate.
Participation in the Network is subject to the Company's prior approval. We reserve the right to refuse acceptance of Your application, in the Company's sole discretion, with or without cause. If we accept Your application and later determine that acceptance was granted in error for any reason, at the Company's discretion, we may immediately terminate this Agreement upon notice to You. Notwithstanding the foregoing, we reserve to terminate this Agreement at any time, with or without cause, upon notice to You.
You have an ongoing responsibility to update any information provided to us in Your application, including Your list of Media that may be used to place or distribute Programs, to ensure that the Company's files remain current. You acknowledge and agree we may communicate with You regarding Your participation in the Network and any other aspect of the Network via email, telephone, mail, or any other means. We may, from time-to-time, send necessary communications relating to the Publishers Program and this Agreement to the email address then-currently associated with Your Account. You will be deemed to have successfully received all notifications, approvals, and other communications sent to that email address, even if the email address associated with Your account is not or no longer current.
Upon the Company's approval of Your application, You will receive an account and password ("Account") to access the Admin Site. Upon termination of this Agreement for any reason, we will disable Your Account. You are solely responsible for all activities that occur under Your Account or with the use of Your password. You are solely responsible for maintaining the security of Your password. You may not disclose Your password to any third party for any reason (other than third parties authorized by You to use Your Account in accordance with this Agreement). If Your password is compromised You must immediately notify us in writing. You will indemnify us and hold us harmless against, and we will not be liable for, any loss, damage and/or expense (including Fees and Expenses, as such term is defined below) arising from Your failure to comply with the requirements of this paragraph.
3. Affiliate Responsibilities.
- You are solely responsible for all aspects of Your Media, including but not limited to the development, operation, and maintenance of Your Media and all content that appears on or within Your Media. You represent and warrant that Your Media and all marketing and other activities related to this Agreement and Your Media comply with all applicable federal, state, local and other applicable laws, regulations, and guidelines, including but not limited to, the Federal Trade Commission Act (“FTC Act”), the Federal Trade Commission dot.com Disclosure Guidelines, The Telephone Consumer Protection Act (“TCPA”), the CAN-SPAM Act, Federal Trade Commission (“FTC”) regulations and guidelines implementing the FTC Act and the CAN-SPAM Act, FTGuides Concerning the Use of Endorsements and Testimonials in Advertising, and other federal, state, local and other applicable laws, regulations, and guidelines (collectively, “Laws”). If any such Laws are amended or modified, in whole or in part, then You shall comply fully with all applicable requirements thereof, on and after the effective date of any such amendment or modification.
- Without limiting the foregoing, Your Media must meet the following requirements:
- not include content that is deceptive, misleading, untruthful, unsubstantiated, defamatory, libelous, disparaging, offensive, false or otherwise fails to comply with applicable federal and state consumer protection Laws, without limitation, Section 5 of the FTC Act;
- not include claims about the efficacy or generally expected results of using any product or service unless You can substantiate the claim with competent and reliable scientific evidence in the form of tests, analyses, research, studies or other such evidence;
- where the Media includes a message that consumers are likely to believe reflects the unbiased opinions, beliefs, findings, or experiences of You or any other person or party (“Endorser”), other than the Advertiser, (including but not limited to consumer testimonials or celebrity or expert endorsements, blogs, and other statements), the message;
- must reflect the honest opinions, findings, beliefs and/or experience of the Endorser, and may not convey an express or implied representation, statement or promise that would be deceptive if made directly by the Advertiser;
- may not be presented out of context or reworded so as to distort in any way the Endorser’s opinion or experience with the Advertiser’s product, service, or brand;
- if the message represents that the Endorser uses the Advertiser’s product, service, or brand, the Endorser must have been a bona fide user of it at the time the message was distributed and the message may remain posted only as long as You have good reason to believe the Endorser continues to subscribe to the views presented;
- may not claim that the experience is representative of what consumers will generally achieve; and
- must include in the Advertisement a disclosure that the Endorser has been paid for his/her message and otherwise disclose the material connection or relationship between the Endorser and the Affiliate or Advertiser, as appropriate;
- not infringe on the personal rights, trademark, service mark, trade dress, trade name, logo, publicity right, copyright, patent rights, or any other intellectual property right of any third party;
- not be labeled as an “official site” or similar designation or include any other designation indicating that the Media is an “official” advertisement of the Advertiser;
- not constitute any advertising via facsimile or telemarketing (including without limitation by use of an automatic telephone dialing system, pre-recorded or artificial voice messages);
- not constitute any advertising to wireless devices or portable electronic devices by text messaging in any form (including without limitation SMS, Smart Messaging, EMS, and MMS);
- not use any methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of a consumer;
- be content-based, not simply a list of links or advertisements, nor can the site be marketed towards earning money from the Company’s Advertisers;
- have a top-level domain name;
- not offer incentives to users to click on ads or to sign-up for advertiser offers; “incentives” include but are not limited to awarding them cash, points, prizes, contest entries, etc.;
- be fully functional at all levels; no ‘under construction’ sites or sections;
- not include racial, ethnic, political, hate-mongering or otherwise objectionable or disparaging content;
- not include investment advice, investment opportunities, money-making opportunities or other advice not permitted under law;
- not include violence or profanity. Not include material that defames, abuses, or threatens physical harm to others;
- not include or promote any illegal activity including, without limitation, the promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, terrorism, etc.;
- not constitute Software Pirating (e.g., Warez, Hotline), Hacking or Phreaking; and
- not spoof, redirect, or traffic from adult-related websites in an effort to gain traffic.
- Consistent with the CAN-SPAM Act and applicable state spam law, Affiliate must ensure that all email transmitted by Affiliate to promote an Advertiser’s product, service, or brand must include identification of the message as an advertisement or solicitation, a physical postal address for the “sender” of the message (as that term is defined in the CAN-SPAM Act, 15 U.S.C. § 7701 et seq.), and a functioning electronic mechanism by which the recipient of the message can request not to receive future commercial messages from the “sender.” Without limiting any of the foregoing responsibilities and requirements, Affiliate shall:
- not falsify email “Header” information, as that term is defined in the CAN-SPAM Act and applicable state spam law;
- not seek or obtain unauthorized access to computers for the purposes of sending out commercial email, including without limitation use of an unauthorized open relay to facilitate distribution of emails;
- not alter any “subject” line provided in the Program Terms, or otherwise use any “subject” line that is false or misleading. All subject lines not specified in the Program Terms must be pre-approved for use by the Company in writing;
- ensure that the “from” line used in transmitting message is not materially false or misleading;
- ensure that each unsubscribe or opt-out link is active for 30 days from date the Affiliate sends the email;
- update all mailing lists using current Advertiser suppression lists (as made available by the Company or the Advertiser) not more than five (5) calendar days prior to each mailing or as otherwise required by law;
- not send any unsolicited commercial email or other unsolicited online communication; and
- not display content or engage in any practice that violates any law, rule, regulation, court order, judgment, decree or agreement.
- Lists of email addresses used by Affiliate to transmit Programs shall be:
- collected and maintained in compliance with all federal and state Laws;
- collected from websites and other online venues only in compliance with the applicable websites’ and or other online venues’ privacy policies, provided that such privacy policies specifically allow for Affiliate to use such email addresses as contemplated under this Agreement; and
- obtained and collected without employing email address harvesting, dictionary attacks and/or any other deceptive or illegal act and/or practice.
- Prior to emailing any campaign available in the Network, You will download the most recent suppression file(s) for any particular campaign as made available by the Company through the Program Terms or otherwise, and, for that campaign, You will suppress all email addresses within its database that are found on such list. In addition, for any campaigns that include a domain suppression list, You, prior to emailing the campaign, will download the most recent domain suppression list for any particular campaign and, for that campaign, will suppress all domains within its database found on such list. You will download and remove from its email distribution lists the domains located on the FCC’s wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from all current data used in all mailings. You warrant that any new data that You acquires, regardless of its source, will be run against the FCC’s wireless domain names list and that domain names contained therein will be removed before sending any mailings. The Company retains the right to “seed” suppression lists to ensure Affiliate’s compliance with this section.
- You shall not (i) use as keywords another company’s name, or another company’s key-phrases, or another company’s trademarked terms, (ii) use as keywords variations or keyword strings of another company’s name, or another company’s key-phrases, or another company’s trademarked terms, (iii) bid on another company’s names, or another company’s key-phrases, or another company’s trademarked terms or keyword strings of the same, nor (iv) bid on variations or keyword strings of another company’s names, or another company’s key-phrases, or another company’s trademarked terms. From time to time, the Company may provide You a list of company names, key-phrases or trademarked terms and variations of the same that You may not use or bid on. Without limiting the generality of the foregoing, you shall not intentionally target the trademarked brands that Company represents either by purchasing advertisements with such brand names, engaging in keyword bidding for such brand names for search engine listings, or by attempting to rank in search engine results for such brand names through search engine optimization or otherwise. Without limiting any other remedies available to Company, should you violate this Section 3(F), Company may, in its sole discretion, pause all of your links associated with the brand in question or pause or suspend your Account either temporarily or indefinitely.
- You shall not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Network tags, source codes, links, pixels, modules or other data provided by or obtained from the Company that allows the Company to measure ad performance and provide its service (“Network Data”). If instructed to do so by the Company and/or if this Agreement terminates, You will immediately remove and discontinue the use of any Network Data. You acknowledge that the Company does not represent, warrant, or make any specific or implied promises as to the successful outcome of any Programs. You will display the creative exactly as it appears on the Program and will not alter any creative that has been submitted to the Network. If any errors or undesirable results occur from Your use of the Network, the Company shall not be responsible for losses and You may not be compensated.
If Affiliate contracts with or otherwise engages or arranges for other parties ("Sub-Affiliates") to distribute Programs, Affiliate (a) must require each Sub-Affiliate to agree in writing to terms and conditions substantially similar to the terms and conditions stated in this Agreement, including, without limitation, the obligations set forth in Section 3 in this Agreement, and the Program Terms, (b) remain solely responsible and liable to the Company and/or Advertiser(s), as applicable, for all of the actions (or failure to act) of any such Sub-Affiliates or any other parties working with, for, or under such Sub-Affiliates, and (c) shall indemnify the Company and Advertiser(s), and hold the Company and Advertiser(s) harmless against, any and all losses, damages and/or expenses (including Fees and Expenses) arising from all of the actions (or failure to act) of any such Sub-Affiliates or any other parties working with, for, or under such Sub-Affiliates. Affiliate must keep records of all Sub-Affiliates and Programs distributed by Sub-Affiliates during the term that this Agreement remains effective and for a period of one (1) year thereafter. Affiliate must immediately comply with any demand made by the Company to terminate any Sub-Affiliate from distributing Programs; failure to comply immediately with this demand may result in Affiliate's termination from the Network, loss of Bounties, and/or any other remedy available to the Company at its discretion.
5. Intellectual Property.
The Company grants You a revocable, temporary, non-transferable, non-exclusive limited license, if approved, to use the Network(s) and any data, reports, information or analyses arising out of such use, subject to the terms and conditions set forth in this Agreement. You acknowledge and agree that You do not have, nor will claim any right, title or interest in the Networks' software, applications, data, methods of doing business or any elements thereof. You may only access the Network via web browser, email or in a manner approved by the Company. Network integration tags must NOT be altered. Altering tags may jeopardize Your ability and right to be paid for Events as the Company may determine.
If we suspect fraud, Your account will be made inactive pending further investigation. The Company may assess and re-assess Your account for fraud at any time and from time to time. Your receipt of a Bounty is not counter-evidence of fraud, and You agree to this clause.
If You fraudulently add leads, clicks or conversions or inflate leads, clicks or conversions by fraudulent traffic generation (as determined solely by the Company, such as pre-population of forms or any mechanism not approved by the Company), You will forfeit Your entire commission and/or Bounty for all programs and Your account may be terminated in the Company's sole discretion. The Company reserves sole judgment in determining fraud, and You agree to this clause.
It is the OBLIGATION of the Affiliate to prove to the Company that Affiliate is NOT committing fraud. The Company will hold Your payment in 'Pending Status' until You have satisfactorily provided evidence that You have not and are not committing fraud. Potential evidence of fraud that triggers the Company's recourse under this section includes the following:
- have click-through rates that are much higher than industry averages and where solid justification is not evident;
- have ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks reported;
- have conversion rates that are much higher than industry averages without justification;
- have shown fraudulent leads as determined by the Company’s Advertisers;
- use fake redirects, automated software, and/or fraud to generate clicks or leads from the Company’s programs; or
- engage in credit card fraud (“Carding”) to generate conversions. Carding includes recommending and/or promoting affiliate links to friends, immediate and/or extended family, business associates and/or partners and/or any other individual considered by the Company or the advertiser to be an illegitimate customer.
You will be paid per the occurrence of an Event. Except as provided in this Agreement, the Parties understand and agree that payment will be owed to the Affiliate from the Advertiser via the Company on terms net 7 days after the end of the pay period. The pay period runs weekly from Monday to Sunday. All accounts will be paid in US dollars ($US). No checks will be issued for any amounts less than $50 US Dollars. No wires will be issued for less than $500. Every Affiliate account must have a unique, valid taxpayer identification number (TIN) or valid Social Security number on file with the Company except where the Affiliate is a Canadian citizen or business. All payments are based on actual figures as defined, accounted and audited by the Company. Notwithstanding anything contained in this Agreement to the contrary, any amounts owing, due or payable under this Agreement to the Affiliate shall be the obligation of the applicable Advertiser and shall not be deemed to constitute an obligation or liability of the Company.
The Company reserves the right to suspend payments without notice if payment is not received from the Advertiser. If the Company does not receive payment from the Advertiser after engaging in commercially reasonable efforts to collect the funds, the Company is not obligated to make the payment to You. However, pending Affiliate payouts may be negotiated in good faith on a case-by-case basis as the Company may determine in its sole discretion. The Company does not guarantee payments on behalf of the Advertiser.
The Company will not pay for any Events that occur before a Program is initiated, after a Program terminates or for Events for a Program that the Affiliate was not invited to or is not assigned to promote. Invoices submitted to the Company and payments made to You shall be based on the Events and corresponding Bounties as reported by the Company. The Company will not be responsible to compensate You for Actions that are not recorded due to Your error.
This Agreement is effective as of the date that You electronically submit Your application to participate in the Network and it is accepted by the Company, provided that this Agreement shall become null and void if the Company denies Your application for any reason. This Agreement may be terminated by either Party upon three (3) days' notice, or without notice by the Company in cases of violation of Section 3 (Affiliate Responsibilities), 4 (Use of Sub-Affiliates), and 5 (Fraud) of this Agreement. This Agreement shall terminate immediately upon the dissolution or insolvency of either Party. The Company reserves the right, in its sole and absolute discretion, to terminate a Program and remove any advertisements at any time for any reason. The Company also reserves the right to suspend or terminate Your access to the Network at any time without notice.
Termination notice may be provided via e-mail, and will be effective immediately once the email is sent. All Bounties due to Affiliate, subject to the terms of this Agreement, will be paid during the next billing cycle. If Affiliate defrauds the system, then payment is revoked as determined solely by the Company. If Your e-mail address is not operative, the Company's actual attempt to send the Termination notice e-mail to Your last known address shall suffice as Termination notice under this Agreement. The representations, warranties, covenants and obligations contained in Sections 7, 8, 9, 10, 11, and 12 shall remain in full force and effect after termination of this Agreement.
9. Representations and Warranties.
- Affiliate represents and warrants that:
- it will at all times comply with the materials obligations imposed on it under this Agreement, including but not limited to the requirements listed in Section 3 of this Agreement;
- it has the full corporate right, power, and authority to enter into this Agreement, to grant the rights and licenses granted and to perform the acts required of it;
- the execution of this Agreement, and the performance by it of its obligations and duties, do not and will not violate: any agreement to which it is a party or by which it is otherwise bound, any applicable state, federal, local and other applicable Laws, governmental Laws, regulations and guidelines to which it is subject, or any trademark, copyright, intellectual property, or other third party right;
- when executed and delivered by You, this Agreement will constitute the legal, valid, and binding obligation of You in accordance with its terms;
- it will abide by the terms and conditions set forth in this Agreement; and
- it obtained all licenses, authorizations, approvals, consents or permits required to perform its obligations under this Agreement and to conduct its business.
- The failure to comply with any material obligation of this Agreement shall result in the loss of payment of Bounties, in addition to any other remedy available to the Company at law or in equity. Affiliate acknowledges that the Company makes no representations, warranties, or agreements related to the subject matter of this Agreement that are not expressly provided for in this Agreement; and
As applicable, all information about consumers (collectively, "Customer Information") submitted to the Affiliate by reason of Affiliate's participation in distributing a Program through the Network is proprietary to and owned by the Company and/or its Advertiser(s). The Customer Information is confidential and may not be disclosed by You or used for any purpose by You except as may be permitted by this Agreement or the Program Terms for any particular Program.
Each Party agrees to use the other Party's Confidential Information (defined below) solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other Party's Confidential Information or the Company's Advertisers' Confidential Information (including Customer Information) to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving Party's performance of its obligations or exercise of its rights under this Agreement; (b) any disclosure is required by applicable law; provided, that the receiving Party uses reasonable efforts to give the disclosing Party reasonable advance notice thereof so as to afford the disclosing Party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing Party. As used in this Agreement, "Confidential Information" means any and all oral or written information that is identified as confidential and is provided by one Party to the other, or information which, under the circumstances surrounding the disclosure, reasonably ought to be treated as confidential.
11. Limitation of Liability; Disclaimer of Warranty.
IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE NETWORK, OPERATION OF A PROGRAM, THE PRODUCTS OR SERVICE PROMOTED IN ANY PROGRAM, OR YOUR DISPLAY OF ANY PROGRAM CREATIVE OR SAMPLE PROMOTIONAL CONTENT ON YOUR MEDIA, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOST REVENUE, OR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR OTHER DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE PROGRAMS, SAMPLE PROMOTIONAL CONTENT, NETWORK, AND THE INFORMATION, CONTENT AND SERVICES AVAILABLE ON AND THROUGH THE NETWORK AND ALL TECHNOLOGY, SOFTWARE, MATERIALS, DATA, OR IMAGES PROVIDED OR USED BY OR ON BEHALF OF US OR THE COMPANY'S LICENSORS IN CONNECTION WITH THE NETWORK (COLLECTIVELY, THE "NETWORK OFFERINGS") ARE PROVIDED ON AN 'AS IS' AND 'AS AVAILABLE' BASIS. YOU USE THE NETWORK AND RUN PROGRAMS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE NETWORK OFFERINGS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENTS, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ON NETWORK OR PROVIDED BY THE COMPANY IS ACCURATE, COMPLETE OR CURRENT.
THE COMPANY WILL NOT BE HELD RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTIONS, DAMAGE OR LOSS OF, ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. THE COMPANY MAY DISCONTINUE THE NETWORK OR NETWORK OFFERINGS, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE OR OPERATION OF THE NETWORK OR NETWORK OFFERINGS, AT ANY TIME AND FROM TIME TO TIME. THE COMPANY SHALL NOT BE LIABLE FOR ANY ACTS OF ADVERTISERS OR OTHER CONTENT PROVIDERS WHOSE CONTENT OR OFFERS APPEAR ON THE NETWORK AND/OR IS MADE AVAILABLE TO YOU THROUGH THE NETWORK, NOR THE CONTENTS OF ANY OTHER ADVERTISEMENTS, WEB SITES, OR WEB PAGES. FURTHER, COMPANY'S AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO YOU PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
You shall indemnify, pay, defend and hold harmless the Company, Advertiser, and each of their respective parents, affiliates, successors, permitted assigns, subsidiaries and licensors, and the Company, Advertiser, and each of its parents, affiliates successors, permitted assigns, subsidiaries and licensors' respective employees, officers, directors, agents and representatives, from and against any and all claims, actions, allegations, damages, losses, liabilities, fees, costs and expenses (including, without limitation, court and arbitration costs and reasonable fees and costs of attorneys, paralegals, accountants and other experts, whether litigation or arbitration be instituted or not ) (collectively, "Fees and Expenses") incurred or arising from or relating to Your: (a) improper use of the Network; (b) improper use or operation of a Program; (c) breach or violation of this Agreement, including, without limitation a breach, inaccuracy, nonfulfillment or violation of any representation, warranty, agreement or covenant in this Agreement; (d) Media or any materials that appear on Your Media, including the combination of Media or those materials with other applications, content or processes; (e) the use, development, design, manufacture, production, advertising, promotion or marketing of Media or any materials that appear on or within such Media; (f) breach of confidentiality obligations pursuant to this Agreement; (g) infringement or violation or alleged infringement or violation of a third party's patent right, copyright trade secret or other intellectual property or proprietary rights, or (h) Your or Your employees' or agents' fraud, negligence or willful misconduct.
The Company may assign this Agreement and/or all or a portion of its rights, duties and obligations under this Agreement to any affiliate, subsidiary, successor and/or third party. You may not assign this Agreement without the prior written consent of the Company, which may be withheld in the Company's sole and absolute discretion. Subject to the foregoing, this Agreement will be fully binding upon, and inure to the benefit of and be enforceable by, the Parties' respective successors and permitted assigns.
14. Dispute Resolution.
- In the event that any controversy, claim or dispute of whatever nature arises between the Parties relating to this Agreement, any Programs or any Program Terms, or the construction, interpretation, performance, breach, termination, enforceability or validity of this Agreement, or any prior relationship between the Parties (a “Dispute”), then, before undertaking any arbitration or litigation, the Parties will make reasonable efforts to resolve such Disputes informally, including by means of a conference between corporate officers of the Company and Affiliate who have authority to resolve the dispute. However, notwithstanding anything contained in this Agreement to the contrary, the foregoing provision shall not be deemed to establish or constitute a pre-condition or pre-requisite to the institution of any arbitration proceedings or other proceedings permitted under this Section 14 or a pre-condition or pre-requisite to the exercise of any other rights or remedies under this Agreement or applicable law.
- Subject to the provisions of Section 14.E, any Dispute, whether such Dispute existed prior to or arises on or after the date of this Agreement, including the determination of the scope of this Agreement to arbitrate, which is not settled through discussions and negotiations as provided in Section 14.A above, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC”), subject to the Parties agreements in this Agreement by a panel of three (3) arbitrators, unless the Parties agree to the appointment of less than three. One of the arbitrators shall be selected by the claimant, one by the respondent, and one by joint selection by the two arbitrators selected by the Parties; provided, however, that if one Party has failed to select an arbitrator within thirty (30) days after notice of the request for arbitration, the ICC’s International Court of Arbitration (the “ICC Court”) shall select the second arbitrator. Thereafter the two selected arbitrators will select the third. If the selected arbitrators cannot within forty-five (45) days agree on a third arbitrator, the selection of the third arbitrator shall be made by the ICC Court. The Party selecting an arbitrator shall be responsible for any travel or other costs of that arbitrator incurs in attending proceedings. The Parties shall share the costs of the third arbitrator equally.
- The language to be used in the arbitration (including in any proceedings, documents and awards thereunder) shall be the English language. The arbitrators will allow such discovery as is appropriate, consistent with the purpose of arbitration, the amount in controversy and to accomplishing fair, speedy, and cost-effective resolution of disputes. The arbitrators will limit document discovery to avoid undue expense and will limit discovery to avoid interference with the Parties’ ongoing business. The arbitrators shall have the power to rule on their own competence and on the validity of the agreement to submit to arbitration. The arbitrators shall have the authority to award attorneys’ fees and disbursements and other costs and expenses only in accordance with Section 14.D of this Agreement. The arbitrators shall base their decisions and award on the agreed upon law as set forth in Section 15 of this Agreement and related judicial precedent under that law and, unless the Parties agree otherwise, shall include in such award the findings of fact and conclusions of law upon which the award is based. The arbitrators shall hold the arbitration proceedings in the location selected by the Parties in Section 14.D of this Agreement. The arbitration award shall be final and binding on the Parties. The award shall be in US Dollars and immediately paid. The arbitrators may not award any punitive, consequential or other damages to the extent excluded by this Agreement. The award will include pre-judgment interest if applicable and will bear post-judgment interest. Judgment on the award may be entered in any court having jurisdiction, whether for a judicial acceptance of the award and/or an order of enforcement, as the case may be. The provisions of Section 14.B and Section 14.C of this Agreement shall be deemed to be self-executing and shall remain in full force and effect after expiration or termination of this Agreement. The Parties agree that arbitration shall be conducted on an individual, and not a class-wide or multiple claimant basis. In the event either Party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such Party by default or otherwise, notwithstanding said failure to appear.
- The Parties shall be responsible for the ICC fees and arbitrator fees as set forth in the ICC Rules, and arbitrator costs as set forth in Section 14.B. Subject to the foregoing and the provisions of Section 14.E, in the event of any arbitration or litigation in the connection with this Agreement or any Dispute, the Company shall be entitled to an award of the actual attorneys’, paralegals’, accountants’ and other experts’ fees (including allocated costs for in-house legal services), costs, interest, and necessary disbursement incurred in any such action or proceeding, as determined by the court or arbitrator, and in connection with enforcing any award, judgment or order thereby obtained. The Parties specifically and knowingly agree that the location of any arbitration proceedings shall be as follows: (1) if Affiliate’s address as set forth in Your application to participate in the Network is in Europe, Russia, the Middle East, Africa or any location other than those set forth in items (2) and (3) of this Section 14.D, below, the proceedings will be held in New York City, New York; (2) if Affiliate’s address as set forth in Your application to participate in the Network is in Asia, Australia, New Zealand or the Pacific Islands, the proceedings will be held in Tokyo, Japan; and (3) if Affiliate’s address as set forth in Your application to participate in the Network is in Central or South America or the Caribbean, then the proceedings will be held in Miami, Florida.
- Affiliate acknowledges and agrees that damages in the event of breach of the provisions of Sections 3, 5 or 10 of this Agreement would be difficult, if not impossible, to ascertain, and Affiliate therefore agrees that notwithstanding anything contained in Sections 14.A, 14.B, 14.C or 14.D of this Agreement, and in addition to and without limiting any other remedy or right that the Company may have, the Company will have the right (1) to seek an injunction or other equitable relief from any court of competent jurisdiction, enjoining any such breach, and enforcing specifically the terms and provisions of Sections 3, 5 and/or 10 of this Agreement, as applicable, and (2) to enter and enforce any such award in any court of competent jurisdiction. Furthermore, notwithstanding anything contained in Sections 14.A, 14.B, 14.C or 14.D of this Agreement, and in addition to and without limiting any other remedy or right that the Company may have, the Company shall have the right (1) to pursue and enforce its rights and remedies to receive and collect payment and performance of all amounts due to it under this Agreement, and to realize on any collateral securing such payments and obligations, in any court of competent jurisdiction, whether such right or remedy arises under this Agreement or applicable law, (2) to enforce any and all such rights and seek and obtain relief and remedies by accelerated proceedings, injunctive proceedings or equitable proceedings, and (3) to enter and enforce any such award in any court of competent jurisdiction. Affiliate irrevocably waives, to the fullest extent permitted by applicable law, any and all defenses it may have on the ground of inconvenient forum to the maintenance of any action or proceeding, as contemplated under this Section 14.E, in any such court, or lack of jurisdiction or competence of any such court to enforce the same. Without limiting the generality of the foregoing provision, You expressly consent to the venue and personal jurisdiction of the state and federal courts located in Palm Beach County, Florida for any actions or proceedings that are contemplated under this Section 14.E. Notwithstanding anything contained in Sections 14.A, 14.B, 14.C or 14.D of this Agreement, the Parties agree that in any action or proceeding under this Section 14.E, the Company shall be entitled to recover from Affiliate the actual attorneys’, paralegals’, accountants’ and other experts’ fees (including allocated costs for in-house legal services), costs, interest, and necessary disbursement incurred by the Company in connection with such action or proceeding and in connection with enforcing any award, judgment or order thereby obtained. The existence of this right shall not preclude the Company from pursuing any other rights and remedies at law or in equity which the Company may have pursuant to this Agreement or applicable law.
The validity, interpretation and enforcement of this Agreement shall be construed and governed by the internal laws of the State of Florida, United States of America (without regard to conflicts-of-laws principles thereof that would require the application of any other law).
If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not effect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained in this Agreement.
17. Force Majeure.
Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations under this Agreement on account of Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters, interruption in internet service or any other cause which is beyond the reasonable control of such Party.
17. Force Majeure.
Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations under this Agreement on account of Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters, interruption in internet service or any other cause which is beyond the reasonable control of such Party.
18. Attorneys' Fees.
The Company shall be entitled to an award of the actual attorneys', paralegals', accountants' and other experts' fees (including allocated costs for in-house legal services), costs, interest, and necessary disbursement incurred by the Company in any action or proceeding arising out of this Agreement and in connection with enforcing any award, judgment or order thereby obtained.
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. The exchange or delivery of copies of this Agreement and of signature pages by facsimile or email transmission shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes. The signature of a Party transmitted by facsimile or email shall be deemed to be its original signature for all purposes.
This Agreement constitutes the entire and only agreement between us and You, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Network (which include, without limitation, the website through which You access the Network and any services offered by the Company in connection with the Network now or in the future), the content and computer programs provided by or through the Network, and the subject matter of this Agreement. The Company may change or update this Agreement at any time and from time to time by posting the changed or updated version of this Agreement on the Company’s web site but without specific notice to You. The current version of this Agreement will be posted on the Company’s web site at http://www.adsdirect.com/terms-legal/affiliate-terms and the administrative web site made available to You by the Company to access the “Admin Site, and You should review this Agreement prior to each use of the Network. Your continued use of the Network after any such modification and notification thereof shall constitute Your consent to such modification. This Agreement is drafted in the English language, and shall be interpreted in the English language. Notwithstanding any translation of this Agreement and/or any supplement or amendment hereto from time to time into any language other than English for purposes of recordation or registration with any governmental entity or any other reason, the English language version shall control, and any alternate language version shall so provide. Each Party is an independent contractor and not a partner, joint venture or employee of the other. All notices shall be sent to You to the addresses submitted by You on Your application to participate in the Network by certified mail, overnight service (e.g., Federal Express), fax, email or courier. The Company reserves the right to change any conditions of this contract at any time by posting the changed or updated version of this Agreement on the Company’s web site, with or without specific notice to You. Your continued use of the Network after any change has been posted on the Admin Site constitutes Your agreement to the change.
21. No Right to Immunity.
Affiliate, under the laws, rules and regulations of the jurisdictions of Affiliate's residence, formation, existence or operation, is subject to private commercial law and suit, and neither Affiliate nor its properties or assets have the right of immunity from suit or execution on the grounds of sovereignty in any such jurisdictions. The provisions of this Agreement concerning applicable law, service of process, and jurisdiction are valid and binding on Affiliate under laws, rules and regulations of the jurisdictions of Affiliate's residence, formation, existence or operation, and no provision of this Agreement is prohibited, unlawful, or unenforceable under said laws, rules and regulations, and there is no existing laws, rules and regulations in such jurisdictions that would inhibit or prohibit the exercise by the Company of the remedies under this Agreement. To the extent that Affiliate has or hereafter may acquire, any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) with respect to Affiliate or Affiliate's assets, Affiliate hereby irrevocably waives such immunity in respect of Affiliate's obligations under this Agreement and the other transaction documents.
22. SERVICE OF PROCESS.
AFFILIATE HEREBY IRREVOCABLY APPOINTS THE SECRETARY OF STATE OF THE STATE OF FLORIDA AS AFFILIATE'S AGENT FOR SERVICE OF PROCESS IN RESPECT OF ANY ACTION OR PROCEEDING AND FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, AT AFFILIATE'S ADDRESS AS SET FORTH IN AFFILIATE'S APPLICATION TO PARTICIPATE IN THE NETWORK AND TO THE SECRETARY OF STATE OF THE STATE OF FLORIDA, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER SUCH MAILING. NOTHING IN THIS AGREEMENT SHALL AFFECT THE RIGHT OF THE COMPANY TO SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR THE ICC RULES OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST AFFILIATE IN ANY OTHER JURISDICTION.
During the term of this Agreement and for a period of thirty six (36) months after termination of this Agreement for any reason, Affiliate agrees and acknowledges that Affiliate will not directly or indirectly solicit, encourage, contract with, work with, promote any goods or services for or enter into and/or execute any performance-based online advertising and/or marketing relationship with any Advertiser or any other person or entity to whom the Company provided or provides goods or services. In the event an Advertiser or such other person or entity contacts Affiliate directly and Affiliate determines then or at any later time that such Advertiser or other person or entity is an Advertiser or other person or entity to whom the Company provided or provides goods or services, then Affiliate shall notify such Advertiser or other person or entity immediately regarding the restrictions set forth in this Section 23 and immediately halt any marketing campaigns and other efforts and activities being conducted with such Advertiser or other person or entity. Affiliate understands and agrees that if Affiliate violates its obligations under this Section 23, the Company will suffer irreparable injury and shall be entitled to: (a) damages in the amount of one hundred percent (100%) of the gross revenues earned or received from Affiliate resulting from sales conducted by Advertiser through any advertising, marketing and/or other efforts provided by Affiliate as described in this Agreement, (b) injunctive relief, and (c) any other remedies available to the Company at law or in equity, including but not limited to all consequential damages and punitive damages available.
(the "Company" or "we" or "us")