MonetizeIt, MediaWhiz Companies Affiliate Agreements
This Monetizeit, MediaWhiz Companies Affiliate Agreement (the "Agreement") is entered into by and between Matomy U.S.A., Inc., d/b/a MediaWhiz, a Delaware State corporation with offices at 77 Water Street, 12th Floor, New York, NY 10005 ("MediaWhiz") and you ("Affiliate"), a participant in the MediaWhiz affiliate program featured on www.monetizeit.com (the "MediaWhiz Website"), and sets forth the parties' respective rights and obligations with respect to the above-referenced affiliate program (the "Affiliate Program"). Notwithstanding the effective date of this Agreement, MediaWhiz shall have sole discretion to determine the date that the Affiliate Program begins. Please be advised that this Agreement is subject to change at any time, in MediaWhiz's sole discretion. Changes may include, without limitation, changes in the payout structure, payment procedures and other Affiliate Program-related policies; provided, however, that: (i) any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, "Dispute Resolution Provisions") shall not apply to any disputes incurred prior to the applicable amendment or modification; and (ii) any amendment or modification to pricing and/or billing provisions ("Billing Provisions") shall not apply to any charges incurred prior to the applicable amendment or modification. The latest Agreement will be posted on the MediaWhiz Website, and you should review this Agreement prior to using the MediaWhiz Website and/or Affiliate Program. The continued participation by Affiliate in the Affiliate Program and/or use of the MediaWhiz Website after such modification and notification thereof constitutes Affiliate's consent to any and all changes to this Agreement in effect at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable). Affiliate also understands and agrees that MediaWhiz may operate multiple websites that may or may not be similar to or compete with this Affiliate Program and that MediaWhiz may solicit customer referrals that may be different than the terms and conditions contained in this Agreement. Further, Affiliate agrees that Affiliate is relying solely on this Agreement in making Affiliate's decision to enroll in the Affiliate Program and Affiliate is not relying on any representation, guarantee or statement other than as stated in this Agreement. Any insertion order (the "Insertion Order") submitted by or to MediaWhiz or its agency (if one is designated in any applicable Insertion Order) shall be deemed incorporated by reference herein, and this Agreement shall govern the Insertion Order, superseding all terms therein except for those relating to advertisement scheduling and pricing. All Insertion Orders are subject to acceptance in writing by MediaWhiz.
TERM AND TERMINATION: The term of this Agreement will begin upon MediaWhiz's written acceptance of the Affiliate Application and will end when terminated by either party as set forth herein. Affiliate may terminate this Agreement at any time upon three (3) days' prior written notice to MediaWhiz. MediaWhiz may reject and/or terminate Affiliate's participation in the Affiliate Program, and/or terminate this Agreement, immediately at any time and for any reason, in MediaWhiz's sole discretion including, without limitation: (i) where MediaWhiz believes that Affiliate is in any way in breach of this Agreement; (ii) where MediaWhiz believes that any website owned, operated or controlled by Affiliate ("Affiliate Websites") or any Email database owned, operated or controlled by Affiliate ("Affiliate Database") is unsuitable for the Affiliate Program for any reason including, without limitation, where MediaWhiz deems that the Affiliate Websites contain material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise controversial or objectionable; (iii) MediaWhiz deems that Affiliate is engaging in deceptive marketing; (iv) where MediaWhiz believes that Affiliate is not, in any fashion, conducting permission-based Email marketing that fully complies with: (a) all applicable international, federal and state laws, rules and regulations including, but not limited to, the CAN-SPAM Act of 2003, as amended from time to time ("CAN-SPAM"); or (b) the applicable published rules or guidelines of the Internet access service ("IAS") network, domain or Email servers to which it is transmitting commercial Email. For purposes of this Agreement, IAS shall have the same meaning as set forth in CAN-SPAM; and/or (v) upon the dissolution or insolvency of either party. Affiliate is only eligible to earn "Commissions," as defined hereinbelow, on billings generated during the term of this Agreement. Upon termination of this Agreement for any reason: (1) Affiliate shall immediately cease to use and remove from the Affiliate Websites any and all Content (as defined hereinbelow) and/or other materials made available to Affiliate in connection with Affiliate's participation in the Affiliate Program; (2) Affiliate shall immediately cease transmitting any and all Emails in connection with any Advertising Campaign (as defined hereinbelow); (3) any and all licenses and rights granted to Affiliate in connection with this Agreement shall immediately cease and terminate; and (4) any and all Confidential Information, (as defined hereinbelow) Content or proprietary information of MediaWhiz (including, as applicable, any confidential or proprietary information of any Advertiser) that is in Affiliate's possession or control must be immediately returned or destroyed. If requested, Affiliate will certify in a writing signed by Affiliate or an authorized officer of Affiliate that all such confidential and/or proprietary information has been returned or destroyed.
LICENSE: Registration with MediaWhiz shall not confer any right to participate in the Affiliate Program. Participation by you in the Affiliate Program is subject to review and approval by MediaWhiz. Upon MediaWhiz's acceptance of your application to be an Affiliate, MediaWhiz grants Affiliate a non-exclusive, non-transferable, revocable and limited license to use the Content made available via the Affiliate Program in connection with each advertising campaign (each, an "Advertising Campaign") solely and exclusively in connection with Affiliate's efforts to market the products and/or services featured in each such Advertising Campaign in accordance with the terms and conditions contained herein. MediaWhiz retains sole and exclusive ownership of all Content and other information developed by MediaWhiz and/or otherwise supplied to you from time to time in connection with this Agreement.
CONTENT: MediaWhiz will make available to Affiliate certain marketing pieces created by Advertiser and/or MediaWhiz for use in the Affiliate Program. In particular, MediaWhiz will post various creative materials, text links and/or banner advertisements (collectively, the "Content") on the MediaWhiz Website for download, use and publication by Affiliates subject to the license set forth above, and the other provisions of this Agreement. MediaWhiz may terminate Affiliate's right to use the Content for any reason at any time, in its sole discretion. Subject to the terms and conditions of the Advertising Campaign offered by the applicable Advertiser, the Content shall be used to generate valid sales, leads, applications, registrations, clicks, impressions or other compensable activities (collectively, "Compensable Transactions"). Unless otherwise stated in writing by MediaWhiz, each piece of Content made available to Affiliate in connection with any Advertising Campaign must include, in unaltered form, the MediaWhiz special transaction tracking codes as embedded in all such Content (the "Transaction Tracking Codes"). Affiliate will not knowingly, modify, circumvent, impair, disable or otherwise interfere with any Transaction Tracking Codes and/or other technology and/or methodology required or made available by MediaWhiz to be used in connection with any and all Content. MediaWhiz may change or revise the Content that is made available hereunder at any time, in its sole discretion, and Affiliate agrees to use only the most recent version of the Content that is posted on the MediaWhiz Website. Affiliate may not alter, modify or otherwise change the Content in any manner, whatsoever. Affiliate may only use Content that is supplied by MediaWhiz and that is posted on the MediaWhiz Website. Use, or the attempted use, of any marketing materials other than the Content in connection with the Affiliate Program will result in the immediate termination of this Agreement, without notice.
MARKETING RESTRICTIONS/RESTRICTIONS ON USE OF CONTENT: Affiliate agrees that MediaWhiz may, in its sole discretion, direct the placement of the Content. Unless such direction is given, and subject to the terms and conditions of this Agreement, the applicable Advertising Campaign and all applicable laws, rules and regulations, Affiliate may display the Content as often and in as many areas of its Affiliate Websites, and/or in Email messages distributed to those Email addresses listed in its Affiliate Database, as it desires, in its discretion. Notwithstanding the foregoing, Affiliate must comply, immediately, with any and all requests by MediaWhiz to modify, alter or otherwise change the positioning, placement, frequency and/or other editorial decisions related to Content. Affiliate must immediately remove Content upon receiving notice from MediaWhiz or upon the termination or expiration of any applicable Advertising Campaign. Affiliate may NOT use brand names and/or trademarks of another party (e.g., Milton Bradley or Apple) in the "subject" or "from" lines or body of any commercial Email transmission. Affiliate may not use third-party trademarks in any other way to direct traffic to any Affiliate Websites or Advertiser websites including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name, or any derivative of any such trademark, service mark or brand name, of any of the Advertisers, MediaWhiz and/or any of their respective affiliates or clients. Affiliate may not utilize deceptive practices to generate leads such as "job sites" that mislead consumers with the promise of employment for completing an offer such as education or business opportunity. Affiliate may not post content on public message boards, chat rooms, or in public areas of social networking and job sites including but not limited to MySpace.com, Facebook.com, Tagged.com, Craig'slist.org, etc. Affiliate may not allow the Content to be placed on any non-Affiliate Websites without the prior express written consent of MediaWhiz. Affiliate may not include or promote any Content or Advertiser Campaigns by and through any blogs, news articles or other social media without the prior written consent of MediaWhiz in each instance. Affiliate must place or use the Content only with the intention of delivering valid Compensable Transactions. Affiliate may not, nor knowingly permit any person to, activate the Content or inflate the amount of Compensable Transactions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, Iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing a Compensable Transaction. Affiliate agrees and acknowledges that it shall not: (i) use incentivized offers, create the appearance of incentivized offers, establish or cause to be established any promotion that provides any incentives, sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Compensable Transactions, or otherwise attempt to induce Internet users to click on any of the Content or perform any action through use of any other incentives, without obtaining the prior written approval of MediaWhiz; (ii) place any statement in close proximity to the Content requesting that Email recipients or Internet users "click" on the Content (e.g., "Please click here"); (iii) place misleading statements in close proximity to the Content; (iv) take control of a user's computer by delivering advertisements that a user of a computer cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; (v) install or execute on another's computer one or more additional software program(s) without consent of the user (in addition, Affiliate must clearly provide instructions to disable the software, such that the software is easily identifiable and the removal can be performed without undue effort or knowledge by the user of the computer); (vii) distribute spyware or other similar harmful software; and/or (viii) redirect traffic to a website other than the website listed by the particular Advertiser. The Affiliate Websites must be fully functional at all levels; no "under construction" sites or sections shall be permitted. Spawning process pop-ups are prohibited.
AUDIT: Affiliate agrees that at all times during the term of this Agreement it shall maintain accurate books and records relating to its use of the Content and Suppression Lists (as that term is defined below). Affiliate agrees that MediaWhiz, or any designee of MediaWhiz that is legally bound to obligations of confidentiality and non-disclosure, shall have the right during the term of this Agreement, and for a period of six (6) months thereafter, to reasonably examine, inspect, audit and review all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to Affiliate at least seven (7) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be at MediaWhiz's sole cost and expense and shall be strictly limited to those books and records that specifically relate to Affiliate's use of the Content and Suppression Lists. Notwithstanding the foregoing, if MediaWhiz uncovers any material misconduct associated with Affiliate's use of the Content and/or Suppression Lists, then the audit shall be at the sole cost and expense of Affiliate.
PAYMENTS: MediaWhiz shall pay commissions according to the payment terms of the applicable Advertising Campaign ("Commissions") as set forth in the Affiliate Program and/or on the MediaWhiz Website. MediaWhiz shall pay Affiliate Commissions based on the Compensable Transactions recorded by the Transaction Tracking Codes approximately fifteen (15) days after the last day of a given calendar month, for Commissions earned in that month. All determinations made by MediaWhiz in connection with the Transaction Tracking Codes, Compensable Transactions and any associated payments due to Affiliate shall be final and binding on Affiliate. Payments will be made to Affiliate provided that the applicable Affiliate account has reached a minimum of Twenty-Five Dollars ($25.00) ("Payment Threshold") in accrued revenues. Where an account has not reached the Payment Threshold, the amount due to Affiliate will continue to roll over to the next month until an amount equal to or greater than the Payment Threshold has been reached. Upon termination of this Agreement, all legitimate funds due to Affiliate, even amounts below the Payment Threshold, will be paid during the next billing cycle. MediaWhiz, in its sole discretion, may withhold any and all payments due and owing to Affiliate until such time as the applicable Advertiser has paid MediaWhiz for the associated Advertising Campaign. MediaWhiz reserves the right to reduce any and all payments owed to Affiliate where the applicable Advertiser has offset corresponding payments owed to MediaWhiz. Notwithstanding the foregoing, MediaWhiz's services do not involve investigating or resolving any claim or dispute involving Affiliate and any Advertiser or other third party. MediaWhiz shall compile, calculate and post on the MediaWhiz Website data derived from the Transaction Tracking Codes, and otherwise, that MediaWhiz has used to determine Affiliate's billing and the associated Commissions due to Affiliate (the "Data"). Any questions or disputes regarding the Data must be submitted in writing to MediaWhiz within five (5) business days of the date that the Data is posted on the MediaWhiz Website; otherwise, the information contained therein will be deemed accurate and accepted by Affiliate. MediaWhiz will investigate and resolve any Data-related questions or disputes in its sole discretion. If, due to any impairment of the Transaction Tracking Codes or any other reason, MediaWhiz is unable or fails to provide Affiliate with accurate and/or complete Data, MediaWhiz shall calculate Compensable Transactions ("Projected Compensable Transactions"), based upon: (i) Affiliate's average monthly Compensable Transactions recorded by MediaWhiz for the applicable Advertising Campaign, prorated for any shorter or longer period of time, where data is available to calculate a monthly average; or (ii) such amount that MediaWhiz reasonably determines is due and owing, in its sole discretion, where data needed to calculate Affiliate's average monthly Compensable Transactions is unavailable. MediaWhiz shall not be responsible to pay Affiliate on any eligible Commissions where: (a) the applicable Compensable Transaction involves the generation of leads, and the applicable leads delivered by Affiliate are comprised of consumers that have previously registered for, opted-in to and/or are already a member and/or an applicable campaign customer of the applicable Advertiser, as the case may be; (b) are generated using fraud, incentivized marketing or otherwise in violation of the restrictions contained herein; and/or (c) the subject Email recipient did not opt-in to receiving Email marketing from Affiliate. MediaWhiz will not pay Commissions on any billings: (1) that occur before Affiliate is accepted into the Affiliate Program; and (2) that occur after termination of this Agreement or any applicable Advertising Campaign. MediaWhiz will not pay any Commissions to Affiliate unless MediaWhiz has documentation to support such Commissions. MediaWhiz may require Affiliate to provide a W-9, or similar tax identification information, as a condition precedent to receiving any Commission payments. MediaWhiz reserves the right to withhold and/or cancel Commission payments due and owing to Affiliate at any time, in its sole discretion, when MediaWhiz believes that Affiliate is in breach of any term of this Agreement. Customers that buy products and/or services through the Affiliate Program shall not be deemed to be the customers of Affiliate. All Commission payments due to Affiliate will be paid in US dollars. Affiliate shall be responsible for paying any and all applicable taxes (if any) due to all taxing authorities arising from, or in connection with, Affiliate's participation in the Affiliate Program. Without limiting the foregoing, Affiliate agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by MediaWhiz and/or any of its Advertisers pursuant to Chapter 57 of the Laws of 2008 amending the New York State Tax Law.
SUB-AFFILIATES: For purposes of this Agreement, any business partners or associates of Affiliate that participate in or perform any activities for Affiliate as a part of the Affiliate Program shall be deemed to be "Sub-Affiliates." Any and all Sub-Affiliates must be pre-approved by MediaWhiz. MediaWhiz reserves the right to withhold or refuse approval of any Sub-Affiliate for any reason whatsoever, and MediaWhiz may revoke its approval of a Sub-Affiliate at any time for any reason whatsoever. All Sub-Affiliates must meet the same criteria for approval and must comply with the same terms and conditions as the Affiliate as set forth in this Agreement. Affiliate is fully responsible for the acts and/or omissions of its Sub-Affiliates, jointly and severally liable with such Sub-Affiliates and MediaWhiz may revoke approval of Affiliate's participation in any Advertising Campaign based on the acts or omissions of that Affiliate's Sub-Affiliates. MediaWhiz reserves the right to use all legal measures necessary in order to ensure that Affiliate and its Sub-Affiliates are in compliance with this Agreement. Affiliate shall fully and unconditionally indemnify MediaWhiz for any and all actions of any Sub-Affiliate including, but not limited to, payment of legal fees and costs if necessary.
EMAIL MARKETING POLICY/CAN-SPAM COMPLIANCE: Prior to the sending of any commercial Email in connection with the Affiliate Program, Affiliate shall provide MediaWhiz with a list of Internet protocol ("IP") addresses and domain names that it intend(s) to use in connection with the particular Advertising Campaign. Affiliate must, upon the request of MediaWhiz, be able to produce the name, date, time, IP address and referral uniform resource locator ("URL") where the applicable consumers granted Affiliate affirmative consent, as defined by applicable law ("Affirmative Consent"), to send such Email marketing messages. Affiliate is solely responsible for all consumer complaints relating to Email campaigns conducted by Affiliate. Affiliate represents and warrants that it will respond to all consumer complaints within forty-eight (48) hours of notification. In addition to all other available remedies, MediaWhiz may withhold and suspend Commission payment until any and all outstanding consumer complaints are resolved. All costs associated with such required actions shall be deducted from the Affiliate Commission. Affiliate represents and warrants that, at all times, it will comply with all applicable state and federal laws, rules and Federal Trade Commission implementing regulations (including, but not limited to, CAN-SPAM and any international laws, rules and regulations), as well as any published rules or guidelines of the IAS networks, domains and/or Email service providers, with respect to its Email marketing. Affiliate acknowledges that any failure to comply with this Section may, in MediaWhiz's sole discretion, result in the immediate termination of this Agreement and the forfeiture of any and all rights to any Commissions otherwise owed to Affiliate by MediaWhiz. When performing Email marketing of any kind and on behalf of any Advertiser, Affiliate represents and warrants that Affiliate shall transmit commercial Email only to those recipients that have given Affiliate Affirmative Consent to receive Email advertising from Affiliate and have not revoked such consent as of the date that the commercial Email was transmitted to such recipient. Affiliate must: (i) refrain from falsifying Email header and transmission information (including, without limitation, source, destination and routing information); (ii) not use any "subject" or "from" line that is materially false or misleading; (iii) refrain from seeking or obtaining unauthorized access to computers for the purpose of sending any and all commercial Email; (iv) include within all commercial Email sent: (a) a valid street address for both Affiliate and the Advertiser (if any); (b) a clear and conspicuous opt-out notice and functional opt-out mechanism that must remain active for at least thirty (30) days from the date that the subject Email was transmitted; (c) clear and conspicuous language in the body of the email identifying the message as an advertisement or solicitation by use of either header or footer information which states that the message is an advertisement or solicitation; and (d) process unsubscribe requests within three (3) days of receipt of same; (v) comply with all legal obligations and best practices with respect to unsubscribing consumers from the Affiliate's Email mailing lists; (vi) at least once a week, scrub the Affiliate Database against the Advertiser suppression list, MediaWhiz suppression list and Affiliate generated suppression list (collectively, the "Suppression List"), subject to the provisions contained hereinbelow; and (vii) immediately notify MediaWhiz in the event that any complaint, investigation and/or litigation ensues concerning Affiliate's or any Sub-Affiliate's Email practices (whether or not such complaint, investigation and/or litigation relates to Affiliate's relationship with MediaWhiz). In the event any state or federal law, rule or regulation governing Email communications is enacted or amended after the effective date of this Agreement setting forth standards more restrictive than those set forth herein, the more restrictive standards contained in such enacted or amended law, rule or regulation shall apply to all Affiliates with or without notice from MediaWhiz of such change in the law.
SUPPRESSION LISTS: With respect to any Suppression List generated in connection with, or made available by and through the Affiliate Program, Affiliate agrees to: (i) use such Suppression List, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of this Agreement; (ii) regularly use such Suppression List to remove any and all Email addresses or domains contained therein from future commercial Email mailings; (iii) not use the Suppression List for purposes of Email marketing (or provide the Suppression List to any third party for said purposes) and not send, or cause to be sent, any commercial Email messages to an Email address or domain appearing on any Suppression List; (iv) not use any Suppression List for purposes of Email appending in any manner whatsoever; (v) hold any Suppression List made available by MediaWhiz or any Advertiser in trust and confidence and use same solely for the suppression purposes set forth herein; (vi) not retain a copy of any Suppression List made available by MediaWhiz or any Advertiser following termination of this Agreement; and (vii) not disclose any Suppression List made available by MediaWhiz or any Advertiser to any employee, consultant, subcontractor or third party individual, corporation or entity without first ensuring said party's written agreement to be bound by the terms of this Agreement. Such agreement shall be immediately forwarded to MediaWhiz, upon request. MediaWhiz reserves the right to withhold its consent to such disclosure and may, within its discretion, accordingly bar the disclosure of any and all Suppression Lists made available by MediaWhiz or any Advertiser. Affiliate shall upload its own list of suppressed Email addresses to the applicable area of the MediaWhiz Website ("Suppression List Upload Section"), if such a Suppression List Upload Section is provided by MediaWhiz. If the Suppression List Upload Section is provided by MediaWhiz, and no such Email addresses are supplied by Affiliate, MediaWhiz may conclude that no such addresses exist. Affiliate further agrees and acknowledges that: (a) it has downloaded and removed the domains located on the Federal Communications Commissions ("FCC's") wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all current data used in MediaWhiz mailings; and (b) any and all new data that it acquires, regardless of its source, will be scrubbed against the FCC's wireless domain names list and that the domain names contained therein will be removed before sending any MediaWhiz mailings. Affiliate shall maintain electronic or tangible records evidencing the removal of any email addresses from Affiliate's lists for verification by MediaWhiz as required or requested.
AUP: The Acceptable Use Policy ("AUP") of MediaWhiz is posted at http://www.monetizeit.com/Policy/AcceptableUse. This AUP is intended to describe the proper conduct and prohibited uses associated with the Affiliate Program. By registering for and using the Affiliate Program, you agree to be bound and abide by the AUP. The AUP is not exhaustive and MediaWhiz reserves the right to modify the AUP at any time, effective upon posting of the modified AUP to http://www.monetizeit.com/Policy/AcceptableUse. It is your sole responsibility to periodically review the AUP for updates. MediaWhiz does not provide notices of any changes in any manner other than by posting the changes at the MediaWhiz Website. Your continued participation in the Affiliate Program and/or use of the MediaWhiz Website after such modification and notification thereof constitutes your consent to any and all changes to the AUP in effect at that time
DISCLAIMERS/LIMITATION OF LIABILITY: THE AFFILIATE PROGRAM, MEDIAWHIZ WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE AFFILIATE PROGRAM, MEDIAWHIZ WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CONTENT MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. MEDIAWHIZ HAS NO LIABILITY, WHATSOEVER, TO AFFILIATE OR ANY THIRD PARTY, FOR AFFILIATE'S USE OF, OR INABILITY TO USE, THE AFFILIATE PROGRAM, THE MEDIAWHIZ WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND/OR CONTENT. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, MEDIAWHIZ IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR THERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN MEDIAWHIZ AND AFFILIATE. THE AFFILIATE PROGRAM, MEDIAWHIZ WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CONTENT WOULD NOT BE PROVIDED TO AFFILIATE WITHOUT SUCH LIMITATIONS. MEDIAWHIZ MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE AFFILIATE PROGRAM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY AFFILIATE FROM MEDIAWHIZ THROUGH THE AFFILIATE PROGRAM, MEDIAWHIZ WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES OR CONTENT SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. ALL RESPONSIBILITY AND/OR LIABILITY FOR ANY AND ALL DAMAGES CAUSED BY, AND/OR THROUGH, THE AFFILIATE PROGRAM, MEDIAWHIZ WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CONTENT IS EXPRESSLY DISCLAIMED. AFFILIATE UNDERSTANDS AND AGREES THAT PARTICIPATION IN THE AFFILIATE PROGRAM AND ACCESS AND/OR USE OF THE MEDIAWHIZ WEBSITE AND CONTENT IS DONE SOLELY AT AFFILIATE'S OWN DISCRETION AND AT AFFILIATE'S OWN RISK. AFFILIATE IS ALSO SOLELY RESPONSIBLE FOR ANY USE, OR ALLEGED USE, OF THE AFFILIATE PROGRAM, MEDIAWHIZ WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CONTENT THAT MAY INFRINGE UPON A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS. UNDER NO CIRCUMSTANCES SHALL MEDIAWHIZ BE LIABLE TO AFFILIATE OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH AFFILIATE'S MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM AFFILIATE'S PARTICIPATION IN THE AFFILIATE PROGRAM. MEDIAWHIZ'S MAXIMUM AGGREGATE LIABILITY TO AFFILIATE AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE EQUAL TO THE MONEY PAID BY MEDIAWHIZ TO AFFILIATE DURING THE PRECEDING SIX (6) MONTHS.
PROPRIETARY RIGHTS: The organization, graphics, design, compilation, magnetic translation, digital conversion, software and other matters related to the MediaWhiz Website, Affiliate Program, Content, Data, Transaction Tracking Codes and Suppression Lists made available by MediaWhiz or any Advertiser, are protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights. The usage, copying, redistribution and/or publication by Affiliate of any part of the MediaWhiz Website, Affiliate Program, Content, Data, Transaction Tracking Codes and Suppression Lists made available by MediaWhiz or any Advertiser, other than as contemplated hereunder, are strictly prohibited. Affiliate does not acquire any ownership rights to the MediaWhiz Website, Affiliate Program, Content, Data, Transaction Tracking Codes and Suppression Lists made available by MediaWhiz or any Advertiser. The availability of the MediaWhiz Website, Affiliate Program, Content, Data, Transaction Tracking Codes and Suppression Lists made available by MediaWhiz or any Advertiser does not constitute a waiver of any rights related thereto.
PUBLICITY/CONFIDENTIALITY/NON DISCLOSURE: Affiliate agrees that MediaWhiz may use, in perpetuity and without prior approval, Affiliate's name, company name and/or likeness, the Affiliate Website addresses and any associated information in MediaWhiz's marketing materials and press releases, without compensating Affiliate. Affiliate shall not create, publish, distribute or permit any written material that makes reference to MediaWhiz without first submitting such material to MediaWhiz and receiving MediaWhiz's prior written consent, which MediaWhiz may withhold in its sole discretion. For purposes of this Agreement, "Confidential Information" shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of this Agreement by one party ("Disclosing Party") to the other party ("Receiving Party"), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to: (i) a party's business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, processes, methodologies, trade secrets, customer and vendor lists, personally identifiable customer information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format; (ii) the material terms of this Agreement and/or any associated Advertisers and/or Advertising Campaigns; and (iii) any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in this Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers: (a) who need to know such information in order for the Receiving Party to perform its obligations hereunder; and (b) who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof: (1) is generally available to or known to the public through no wrongful act of the receiving party; (2) was independently developed by the Receiving Party without the use of Confidential Information; or (3) was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The information and services provided through the Affiliate Program and the Content are proprietary in nature and, by enrolling, Affiliate acknowledges that Affiliate is not a competitor of MediaWhiz and agrees not to share this information with any competitors of MediaWhiz. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond. This Section shall survive any termination of this Agreement for a period of five (5) years, or for as long as the Confidential Information in question remains a trade secret under New York State law, whichever period is longer.
NON-SOLICITATION: Affiliate recognizes that MediaWhiz has proprietary relationships with the affiliates, Advertisers and other third-parties that participate in the Affiliate Program (collectively, "MediaWhiz Partners"). Affiliate agrees not to circumvent MediaWhiz's relationship with such MediaWhiz Partners, or otherwise offer, make available, provide, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by affiliates in the Affiliate Program for any MediaWhiz Partner that participates in the Affiliate Program, during the term of this Agreement and for the one (1) year period following termination or expiration of this Agreement. Notwithstanding the foregoing, to the extent that Affiliate can show that any such MediaWhiz Partner already obtained such services from Affiliate prior to the date of this Agreement, then Affiliate shall not be prohibited from continuing such relationship.
INDEMNIFICATION: Affiliate agrees to indemnify, defend and hold harmless MediaWhiz, its parents, affiliates and/or subsidiaries, and each of their respective officers, directors, partners, members, managers, employees, agents and attorneys, from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys' fees, court costs and/or settlement costs) arising from or related to: (i) Affiliate's, or a Sub-Affiliate's, breach of this Agreement and/or any representation or warranty contained herein; (ii) the Affiliate Websites, Affiliate Database, and/or Affiliate's or any Sub-Affiliate's marketing practices; (iii) any third party allegation or claim against MediaWhiz relating to a violation of any Laws and Regulations; (iv) any allegation that Affiliate or a Sub-Affiliate has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; (v) any non-Advertising Campaign related content, goods or services offered, sold or otherwise made available by Affiliate on and through the Affiliate Websites, Affiliate Database or otherwise; (vi) any claim that MediaWhiz is obligated to pay any taxes in connection with Affiliate's participation in the Affiliate Program; and/or (viii) Affiliate's or any Sub-Affiliate's participation in the Affiliate Program, in any manner whatsoever. You will promptly assume such defense with counsel reasonably acceptable to us upon written notice to you of such indemnifiable claim. MediaWhiz reserves the right to participate in the defense at its sole expense. You agree that you will not settle any indemnifiable claim without our prior written approval of MediaWhiz. Affiliate shall immediately notify MediaWhiz if Affiliate receives notice of any complaints, inquiries or investigations related to the Affiliate Websites, Affiliate Database, any Sub-Affiliates or any other violations in connection with Affiliate's or any Sub-Affiliate's business whether or not Affiliate is obligated to indemnify MediaWhiz for such claim hereunder.
FORCE MAJEURE: Affiliate agrees that MediaWhiz will not be liable or considered in breach of this Agreement on account of MediaWhiz's delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond MediaWhiz's reasonable control and that MediaWhiz is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, MediaWhiz will give Affiliate notice and will use commercially reasonable efforts to minimize the impact of any such event.
DISPUTE RESOLUTION PROVISIONS: This Agreement shall be treated as though it were executed and performed in New York, New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles). Any dispute arising out of or relating to this Agreement shall be resolved in a binding arbitration under the auspices of the American Arbitration Association in New York, New York in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. In addition to all other rights and remedies a party may have, the prevailing party in any arbitration or legal action shall be entitled to an award of its reasonable attorneys' fees and costs. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. This binding arbitration provision shall not, however, prevent either party from seeking equitable or injunctive relief in a court of competent jurisdiction. Affiliate agrees that any unauthorized and/or unlawful use of the Affiliate Program would result in irreparable injury to MediaWhiz for which monetary damages would be inadequate. In such event, MediaWhiz shall have the right, in addition to other remedies available to it pursuant to this Agreement, to immediate injunctive relief against Affiliate without the need to post a bond. Nothing contained in this Agreement shall be construed to limit any legal remedies available to MediaWhiz. To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against MediaWhiz and its employees, officers, directors, members, representatives and/or assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney's fees and court costs that MediaWhiz incurs in seeking such relief. This preventing you from bringing, joining or participating in class action lawsuits: (i) does not constitute a waiver of any of your rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (ii) is an independent agreement.
MISCELLANEOUS: If any Section or provision of this Agreement, or the application of such Section or provision, is held invalid by any court of competent jurisdiction, applicable statute or rule of law, then such Section or provision shall be deemed automatically adjusted to the minimum extent necessary to conform to the requirements for validity as declared at such time and, as so adjusted, shall be deemed a Section or provision of this Agreement as though originally included herein. In the event that the Section or provision invalidated is of such a nature that it cannot be so adjusted, the Section or provision shall be deemed deleted from this Agreement as though such Section or provision had never been included herein. In either case, the remaining Sections and provisions of this Agreement shall be interpreted so as to best reasonably effect the original intent of MediaWhiz and Affiliate. MediaWhiz and Affiliate are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. MediaWhiz's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Any attempt by any individual, whether or not an Affiliate, to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Affiliate Program, is a violation of both criminal and civil law and MediaWhiz will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity. This Agreement will be binding on, inure to the benefit of and be enforceable against the parties and MediaWhiz's successors and assigns. Affiliate is not permitted to transfer any rights and obligations pursuant to this Agreement. Any attempt to do so will result in the immediate termination of this Agreement. For technical/general questions, please contact: email@example.com.
ELECTRONIC SIGNATURES: Affiliate acknowledges and agrees that by clicking on the button labeled "I Agree" or such similar links as may be designated by MediaWhiz to accept this Agreement, Affiliate is submitting a legally binding electronic signature and is entering into a legally binding contract. Affiliate acknowledges that Affiliate's electronic submissions constitute Affiliate's agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, AFFILIATE HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY MEDIAWHIZ. Further, Affiliate hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
Acknowledged and Agreed by:
Company Name: ________________________
First Name: ____________________________
Last Name: ____________________________
Date: ____ / ____ / ______
Fax this entire document to:
Attention: MediaWhiz Affiliate Agreement
Fax: (208) 445-0093
Effective Date: January 1, 2012