This Affiliate Agreement (hereinafter, the “Agreement”) is executed by and between Diablo Media, LLC (hereinafter, the “Company”) and you or your company (in either case, hereinafter “Affiliate”). You and Company may also be individually referred to herein as “Party” and collectively as “Parties.”
BY CLICKING THE “I ACCEPT” OR “SUBMIT” BUTTON, YOU HEREBY AGREE THAT YOU HAVE READ AND UNDERSTAND, AND AGREE TO BE BOUND BY, THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. Company Service(a) Participation in the Service. Participation in the Service and use of the Company Site is subject to the terms and conditions of this Agreement, agreements of advertisers (if any) and to Company’s explicit approval, as set forth below in Section 1(c). Company’s approval of Affiliate’s participation may be withheld or terminated at any point, in Company’s sole discretion, regardless of initial acceptance. For the purposes of this Agreement, “Service” shall mean the web based application, reporting, access to data and advertising provided by Company. “Site” or “Company Site” means the website through which such Services are accessed.
(b) Criteria. Affiliate hereby acknowledges and agrees that to the extent it represents or acts on the behalf of third party publishers or websites (“Third Party Publishers”), Affiliate assumes all liability for such Third Party Publishers and will ensure that such Third Party Publishers comply with the terms of this Agreement and all applicable laws. Affiliate further agrees that it shall fully and completely indemnify Company for all damages arising from a Third Party Publisher’s breach of any obligations or warranties set forth herein and that Affiliate has the ability to terminate such Third Party Publisher’s rights to the Service or the Site immediately. For the purposes of this Agreement, “Affiliate” means the Affiliate and any Third Party Publishers.
(c) Approval Process. Affiliate is required to complete and submit to Company an affiliate application (“Application”). Upon Affiliate’s receipt of an acceptance email (“Acceptance Email”), Affiliate is entitled to access the Site and participate in the Services. This Agreement is effective as of the date Affiliate receives an Acceptance Email and Affiliate participates, or otherwise engages, in the Affiliate Program (the “Effective Date”). If an Acceptance Email is not sent to Affiliate, or Affiliate does not begin to participate in the Services in a timely manner, then this Agreement will immediately and automatically terminate and the Parties shall have no obligations to each other hereunder. In addition, certain advertiser Campaigns (as defined in Section 2(a), below) may have their own terms & conditions. In such event, prior to accepting such Campaign, Affiliate shall be required to affirmatively consent to those Campaign-specific terms and conditions.
(d) License. Subject to the terms and conditions of this Agreement, and upon Company’s issuance of an Acceptance Email, Company grants Affiliate a revocable, non-transferable, non-exclusive limited license to use the Service, the Company Site and any data, reports, information or analyses arising out of such use (the "Site Data") solely for the purposes set forth in this Agreement.2. Company Site
(a) Advertising Campaigns. Company shall display offers of advertising campaigns on the Company Site (the "Campaigns"). Campaigns shall set for the advertisement and the amount and terms under which an Affiliate may be entitled to payment (the "Bounty"). When applicable, Company shall also display Campaign-specific terms and conditions. COMPANY DOES NOT REPRESENT, WARRANT OR ENDORSE ANY CAMPAIGN, OR THE ACCURACY, CURRENCY, CONTENT, FITNESS, LAWFULNESS OR QUALITY OF THE INFORMATION MATERIAL, GOODS OR SERVICES AVAILABLE THROUGH CAMPAIGNS. COMPANY DISCLAIMS, AND AFFILIATE AGREES TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM YOUR USE OF CAMPAIGNS AND ANY RELATED MATERIALS, INCLUDING WITHOUT LIMITATION SUPPRESSIONS LISTS (AS DEFINED IN SECTION 5, BELOW).(i) Bounty. A Bounty is generated from a specified event (the "Event") identified in the applicable Campaign, e.g. clicks, click-throughs, sales, registrations, impressions and leads. Company is solely responsible for compiling, calculating and electronically delivering data required to determine Bounties. Company's figures and calculations shall be final and binding. Any questions regarding the Bounty must be submitted in writing within (ten) 10 days of receipt, or the Bounty will be deemed accepted and undisputed. In the event of a conflict between Affiliate and Company regarding any data or calculation regarding the Bounty, Company’s data and calculations shall govern.
(b) Affiliate’s Acceptance of a Campaign. Without limiting any other provision of this Agreement, Affiliate agrees that, upon acceptance and implementation of a Campaign, Affiliate shall: (i) comply with all local, state and federal laws and regulations regarding the use of commercial email, including, but not limited to, the Can-Spam Act of 2003, and the Utah and Michigan “Child Protection Registry” laws; (ii) place the creative and advertisement exactly as specified in the Campaign; and (c) not insert a misrepresentative, fraudulent or deceptive phrase or words in the “from line” or anywhere in the email or advertisement. Failure to adhere to these requirements may, in addition to all other remedies available to Company, result in immediate termination of this Agreement and withholding of a Bounty or any payment to Affiliate, without penalty to Company.(c) Changes to Agreement. Company may modify any of the terms and conditions contained in this Agreement, at any time and at its sole and absolute discretion, upon posting such changes on the Company Site or providing notice to Affiliate as set forth herein. Affiliate’s continued use of the Company Site after any such modification thereof shall constitute its explicit consent to such modification.
3. Proprietary Rights
Affiliate agrees that it does not have, nor will it claim, any right, title or interest in the Service, the Company Site or any underlying technology, software, applications, data, methods of doing business or any elements thereof, or any content provided on the Company Site (including any advertisements and creative). Affiliate may only access the Company Site via web browser, email or in a manner approved by Company. Affiliate shall not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Company Site tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide the Service. In addition, Affiliate acknowledges that all Site Data, including but not limited to non-public information, data and reports received from Company as part of the Services are proprietary to and owned by Company. If instructed to do so by Company, Affiliate will immediately destroy and discontinue the use of any such, including Site Data, and any other material owned by Company or the third party advertisers.
4. Suspension of Affiliate Account
(a) Company may terminate this Agreement and/or suspend Affiliate’s account, at any time and at Company’s sole and absolute discretion, in the event that Affiliates website(s): (i) have click-through rates that are higher than industry averages and where solid justification for such click-throughs is not evident to the reasonable satisfaction of Company; (ii) have only click Campaigns generating clicks with no indication by site traffic that it can sustain the clicks reported; (iii) have shown fraudulent leads as determined by advertisers; (d) have much higher conversions per click rates than industry averages and where solid justification is not evident to the reasonable satisfaction of Company; or (e) use fake redirects, automated software, and/or fraud to generate Events.
(b) If Company determines in its sole and absolute discretion that Affiliate fraudulently adds or inflates leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre-population of forms, incentivization or mechanisms not approved by Company), Affiliate will forfeit its entire Bounty for all Campaigns and Affiliates account will be terminated immediately. If Affiliate is notified that fraudulent activities may be occurring, and Affiliate fails to take prompt action to stop the fraudulent activities, then, in addition to any other remedies available to Company, Affiliate shall be responsible for all costs and legal fees arising from such fraudulent activities.(c) Upon notice by Company that a Third Party Publisher is engaging, or has engaged, in any activity prohibited by this Agreement, including but not limited to fraudulent traffic generation, Affiliate agrees to terminate its relationship with such Third Party Publisher, as it pertains to the Third Party Publisher’s participation in the Company network. If Affiliate is notified that a Third Party Publisher is engaging, or has engaged, in prohibited activities, and Affiliate fails to terminate its relationship with such Third Party Publisher within three (3) days of notice by Company, Company reserves the right to immediately terminate this Agreement. Further, in the event that Company determines, in its sole discretion, that a Third Party Publisher is engaging, or has engaged, in prohibited activities, Company shall recalculate and withhold the Affiliate’s Bounty accordingly. For clarity, Company reserves the right to withhold or recalculate amounts generated by prohibited activity of Third Party Publishers, regardless of whether Affiliate participated in or knew about the prohibited activity.
(d) To the extent that Affiliate becomes aware of any litigation or investigation concerning Affiliate's email or other Internet practices or procedures, irrespective of whether such litigation relates to Affiliate’s relationship with Company, Affiliate shall immediately notify Company of such litigation or investigation.5. Suppression Lists
(a) To the extent that Company, via either the Company Site or email, provides an opt-out or unsubscribe list (the "Suppression List") to Affiliate in connection with any Campaign, Affiliate shall regularly scrub its database against such Suppression List no less than every five (5) days and shall not at any time send any commercial emails to any individuals on such Suppression List.(b) Affiliate will not use any Suppression List in any manner other than for the purpose set forth in Section 5.1 above. Affiliate shall not obtain any ownership interest or rights in and to any Suppression List.
6. Confidential Information
Each Party agrees to use the other Party's Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other Party's Confidential 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 or any other agreement between the Parties; (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. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding any existing or contemplated Company services, products, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the Service.
7. Privacy
Affiliate agrees to comply with all applicable privacy laws. Affiliate further agrees to post conspicuously on each of its websites a privacy policy, linked, at a minimum, from the website’s home page, that: (a) discloses Affiliate’s privacy practices, including its use of a third party for its ad serving activities, (b) identifies the collection and use of information gathered in connection with both ad serving activities and delivery of the Affiliate’s content, and (c) provides the user with instructions as to opting out from such collection.
8. Payment Terms
Affiliate shall receive payment upon the occurrence of an Event. Payment shall be made to Affiliate within sixty (60) days of the end of the month in which a completed Event occurred, less any returns and charge backs. ALL PAYMENT TO AFFILIATE BY COMPANY IS CONTINGENT UPON COMPANY RECEIVING PAYMENT FROM THE APPLICABLE ADVERTISER. IN THE EVENT COMPANY FAILS TO RECEIVE PAYMENT FROM ADVERTISER, COMPANY SHALL HAVE NO PAYMENT OBLIGATION TO AFFILIATE AND AFFILIATE WILL HAVE THE RIGHT TO CONTACT THE NON-PAYING ADVERTISER DIRECTLY. If Advertiser does not pay on time, Company will notify Affiliate and make reasonably commercial efforts to assist in the collection. Company shall not remit payment for any Event that occurs before a Campaign is initiated, or after a Campaign terminates. Company is not liable for Events that are not recorded due to Affiliate’s error. All accounts will be paid in US dollars ($US). If the compensation owed to Affiliate for any one month period is less than $100.00, Company will hold payment until the total amount due is at least $100.00 or, if earlier, until this Agreement is terminated. Every Affiliate account must have a unique, valid taxpayer identification number (TIN) or valid Social Security number.
9. Term and Termination
(a) Term. This Agreement shall begin on the Effective Date and remain in effect for an initial term of one (1) year. Unless terminated by either Party upon three (3) days notice prior to the end of the initial term or any renewal term, the Agreement shall automatically renew for successive one (1) year terms.(b) Termination. Either Party may terminate this Agreement, or any Campaign or ad, effective upon three (3) days written notice, for any reason or no reason, at any time. In the event that either Party (i) files a voluntary petition in bankruptcy, (ii) makes an assignment for the benefit of its creditors, or (iii) breached any of the material terms of this Agreement which breach is not remedied within thirty (30) days from the receipt of written notice of such breach, this Agreement shall automatically terminate. Such termination shall be automatic, and shall not require any action by either Party.
(c) Effect of Termination. Upon termination of this Agreement for any reason, any and all licenses and rights granted to Affiliate in connection with this Agreement shall immediately cease and terminate. Further, Affiliate acknowledges and agrees that if instructed to do so by Company, and/or if this Agreement terminates, Affiliate will (i) immediately discontinue the use of the Service and any Site Data; (ii) immediately cease to use and remove from the Affiliate’s websites any and all advertisements and/or related materials made available to Affiliate in connection with Affiliate’s participation in the Services; and (iii) immediately cease transmitting any and all emails in connection with any Campaign. In the event of termination of this Agreement, Sections 3, 4, 6, 9-14 shall survive.10. Representations and Warranties; Indemnification
(a) Affiliate represents and warrants that: (i) Affiliate has all necessary rights and authority to enter into this Agreement and to place Ads on its website(s) or those of its partners (collectively, the “Affiliate Websites”), (ii) Affiliate owns and/or has the right to use all materials contained on Affiliate Websites, (iii) the Affiliate Websites and the content contained on the Affiliate Websites will not infringe or violate the patents, copyrights, trademarks, rights of publicity, defamation, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party, (iv) the Affiliate Websites will not contain any content, or links to content that is misrepresentative, defamatory, or that violates any applicable law or regulation, including but not limited to sexually explicit, ethnic, violent, illegal gambling, illegal investments, software pirating or any other illegal or objectionable content.(b) If Affiliate uses email to market Campaigns, either on its own behalf or in connection with its Third Party Publishers or other partners, Affiliate further represents and warrants, on behalf of itself and its Third Party Publishers and other partners, that: (i) Affiliate has the power and authority to bind its Third Party Publishers and other partners; (ii) Affiliate shall comply with all local, state and federal laws and regulations, including, but not limited to, the Can-Spam Act of 2003, and the Utah and Michigan “Child Protection Registry” laws; and (iii) Affiliate shall not transmit any email: (a) with materially false or misleading header information; (b) with a “from line” that is materially false or misleading and does not accurately identify the person sending the email; (c) with a subject line that is misleading, false or misrepresentative or is likely to mislead the recipient about the content of the email; (d) with a non-functioning return email or Internet address, clearly and conspicuously displayed (or a functioning return email or Internet address that does not function for thirty (30) days after the email is sent), that a recipient can use to submit a reply email requesting not to receive future commercial emails or Internet communications from that sender, including advertiser and Affiliate; (e) that does not include a clear and conspicuous identification that the email is an advertisement or solicitation, a clear and conspicuous notice of the opportunity to decline to receive further communications, and a valid physical postal address of the advertiser and Affiliate; or (f) with any content that (1) infringes or violates any intellectual, proprietary or privacy rights.; (2) is misrepresentative, defamatory, contains racial, ethnic, political, hate mongering or otherwise objectionable content or violates any applicable law or regulation. Affiliate also represents and warrants that it will not transmit an email: (aa) if Affiliate knows, or has reason to know, that the email address was obtained using an automated means, including without limitation, harvesting software, such as harvesting bots or harvesters, dictionary attacks, etc., or an Internet service, which indicated that at the time the address was obtained, the service was not to give or sell the address to others; or (bb) to any individual that has requested not to receive any emails more than five (5) days after receipt of such request, provided that the email falls within the scope of the request.
(c) Indemnification. Affiliate, on its own behalf, and on behalf of its Third Party Publishes and other partners, will defend, indemnify, and hold harmless Company, the advertisers, and each of their affiliates, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney's fees and expenses) (collectively "Claims") arising from or related to: (i) any breach of Affiliates obligations under this Agreement and/or any Campaign-specific terms and conditions, including the representations or warranties contained therein; (ii) any claim that Affiliate infringes upon any rights of any third party; and (iii) any allegation that Affiliate or its partners or other agents violated any foreign or domestic, federal, state or local law or regulation, including but not limited to the Can-Spam act of 2003. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder.11. Disclaimer of Warranty
THE INFORMATION AND CONTENT ON THE COMPANY SITE AND MADE AVAILABLE IN CONNECTION WITH THE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTY. COMPANY EXPRESSLY DISCLAIMS, AND MAKES NO, EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY CAMPAIGN, ADVERTISEMENT, CREATIVE, SUPPRESSION LIST, ADVERTISER PRODUCTS AND/OR SERVICES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. IN ADDITION, COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF THE COMPANY WEBSITE, SUPPRESSION LISTS AND THE CREATIVE WILL BE UNINTERRUPTED OR ERROR-FREE.
12. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABILE FOR ANY LOST PROFITS, LOST REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY’S LIABILITY HEREUNDER EXCEED THE PAYMENTS MADE BY COMPANY TO AFFILIATE IN THE 6 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
13. Non-Solicitation with Advertisers
Affiliate will not participate in any performance based advertising relationship with any advertiser whose ads are posted on the Company Site, unless a previously existing business relationship between advertiser and Affiliate can be demonstrated to the reasonable satisfaction of Company. In this connection, both Parties agree and acknowledge that if Affiliate violates its obligations hereunder, Company will be entitled to damages in the amount of twenty-five percent (25%) of the gross revenues resulting from sales conducted by advertiser through the advertising or marketing efforts of Affiliate.
14. Electronic Signatures
Affiliate hereby acknowledges and agrees that by clicking the “I accept” or “submit” button, or taking such other action as may be designated by Company as a means of accepting this Agreement, Affiliate is submitting a legally binding electronic signature and is entering into a legally binding contract. Affiliate acknowledges that Affiliate’s electronic submission constitutes 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 COMPANY. 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.
15. Miscellaneous(a) General. This Agreement, together with any Campaign-specific terms & conditions, constitute the entire agreement between the Parties and supersedes all prior agreements or understandings between the Parties whether written or oral. Affiliate shall not assign this Agreement and any rights or obligations hereunder without the express written approval of Company, which approval shall not be unreasonably withheld. Any transfer of control of substantially all of the assets or business of the Affiliate to a third party by sale, merger, or otherwise shall be deemed to be an assignment for purposes of this section. Company may assign this Agreement, and any and all rights granted hereunder, in its sole discretion, without Affiliate’s consent. Accept as otherwise provided in this Agreement, all notices under this Agreement will be in writing and will be delivered by personal service, confirmed fax, confirmed email, express courier, or certified mail, return receipt requested, to the addresses designated from time to time by the Parties. Notice will be effective upon receipt. This Agreement shall be construed and governed by the law of the State of Colorado and each Party expressly agrees to jurisdiction and venue in Denver, Colorado. Company shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding arising out of this Agreement. No failure of either Party to enforce any of its rights under this Agreement will act as a waiver of such rights. If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from this Agreement, and the rest of the Agreement shall be enforceable in accordance with its terms. No waiver by either Party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision. The Parties agree that the relationship between the company and the affiliate shall not constitute a partnership, joint venture or agency.
(b) Independent Counsel. Each Party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either Party by reason of its drafting.(c) Force Majeure. Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such Party.