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MyAffiliateMedia AFFILIATE ASSOCIATION AGREEMENT THIS AFFILIATE ASSOCIATION AGREEMENT ("Agreement") is entered into by and between MyAffiliateMedia, Inc., d/b/a MyAffiliateMedia, a Delaware Corporation ("Company"), and the applying host site's representative submitting the Affiliate Network Application ("Publisher") set forth on the signature page hereto ("Publisher"), referred to herein jointly as the parties ("Parties;" each a "Party"). WHEREAS, Company and Publisher desire to provide for the terms and conditions of this Affiliate Association Agreement as more specifically set forth herein; NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants set forth herein, the Parties agree to be legally bound as follows: Definitions "Advertisement" means the graphic or text file(s) contained in the Company Network and available for Publishers' use. "Click-Through" means the number of times, as recorded by Company's server, a user directly interacts with (i.e., clicks on) an Advertisement linked for transfer to the Advertiser's site or suggested destination. Advertising campaigns conducted on a cost per click basis are known as "CPC". Click-Throughs are counted for Unique, Valid Users by a twenty-four (24) hour period. "Company Network" means Company's affiliated group of third party Websites by which Company may insert Advertisements. "Company" means MyAffiliateMedia, Inc. d/b/a MyAffiliateMedia, a Delaware corporation. "Double Opt-In" means that the Website may not use a User's collected information unless the User specifically directs the Site to do so and also receives and responds positively to an e-mail confirmation from Company. "Impression" means the number of times an Advertisement is served to a User. Company shall measure impressions in accordance with its standard methodologies and protocols. Advertising campaigns conducted on a cost per Impression basis are known as "CPM". "Opt-in" means that the consumer has
made an active, affirmative choice to select the advertisement in question
in order to be counted as a Unit. Forced, negative choice, passive, opt-out
or other types of non-active, non-affirmative choice actions are NOT "opt-in". Start Date" means the first day an Advertisement may be displayed on the Company Network. "Stop Date" means the last day an Advertisement may be displayed on the Company Network. "Unit" means a User's completion of the act requested by the specific Advertiser supplying Advertisements through MyAffiliateMedia. If a User is directly compensated for completing such required action, such action is not considered a Unit. "Unique Sign-Up" means a User who Opts-In or Double Opts-In to a Website who is not already a member of or registered with the Advertiser or Advertiser's Campaign as specified in the Affiliate Network Application. "User" means any person accessing a Website or electronic mail services. "Valid Sign-up" means a Unique Sign-up who provides complete information as required by Advertiser. A Sign-up who is directly compensated for providing the required information is not Valid. "Website" means an HTML document containing a set of information available via the Internet. 1. Advertising Services. 1.1 Company hereby grants to Publisher, at the agreed to pay-out price and provided that Publisher complies with all provisions of this Agreement, a nonexclusive, limited, revocable license to (i) market, display, perform, copy, transmit, and promote the Advertisement in connection with its obligations hereunder; and (ii) market display, perform, copy, transmit, and promote the Advertisement to third parties in connection with its obligations hereunder. Publisher's use of Company copyrighted materials in violation of this agreement is strictly forbidden and will result in this limited license being immediately withdrawn and may further result in Publisher being held liable under applicable law. 1.2 Upon acceptance by Company of a properly completed Affiliate Network Application, Company shall provide Advertisements for placement on the Company Network. If an Affiliate Network Application is not properly completed on behalf of Publisher, then this Agreement shall be of no force and effect, and Company shall have no obligation to Publisher hereunder. 1.3 For the purposes of this Agreement, Company's acceptance of an Affiliate Network Application shall in all cases be evidenced by an e-mail clearly communicating Company's acceptance ("Acceptance E-mail") and also containing further instructions for Publisher regarding participation in the Company Network. If an Acceptance E-mail is not sent to Publisher or Publisher does not begin participation in the Company Network in a timely manner upon receipt of an Acceptance E-mail, then this Agreement shall be of no force and effect, and Company shall have no obligation to Publisher hereunder. 1.4 The Company's sole obligation to Publisher under this Agreement with respect to Advertisements shall be to provide such Advertisements for placement on the Company Network, as provided in this paragraph. 2. Rules and Regulations. In addition to the terms set forth in the Affiliate Network Application, if any, the following Rules and Regulations shall be followed at all times: 2.1. All site submissions are subject to review and may be rejected for any reason by Company. The following are examples of the types of sites that will not be accepted: adult sites containing pornographic or offensive material; sites engaged in the piracy of copyrighted, trademarked, or patented material; software trading sites; hacking sites; libelous or defamatory sites; sites containing software piracy; and sites with any illegal activity whatsoever. The examples are meant to be illustrative only and under no circumstances shall be construed as an exhaustive list. 2.2. Company will only pay for Unique Sign-Ups, as defined within the network. Any data submitted that is not a Unique Sign-Up or completed Unit, will not be paid. Upon payment for the Unit, as defined within the network, Company shall have no further obligation to Publisher. Company and/or its Advertisers, in their sole discretion, shall have the right to market and re-market the person(s) and or data represented in the Unit, without further obligation to Publisher. 2.3. Company will only pay for Valid Sign-Ups, as defined within the network. If required by the Advertiser, all leads must be Double Opted-In in order to be Valid; any leads that do not Double Opt In and/or where the lead does not complete all required information, will not be paid. 2.3.1 Publisher and Company acknowledge that any leads rejected as not a Valid Sign-Up may, on occasion, be retained and marketed by the Advertiser and/or Company, to the extent possible. The Unit price for Valid Sign-ups offered to and accepted by Publisher includes compensation for such invalid data and the price for Valid Sign-ups would otherwise be less. 2.4. Publisher must: (i) place Advertisements through Company's graphics; (ii) load Advertisements from the Company's server only; (iii) use only "html" or other code supplied to Publisher by Company with no modification by Publisher. 2.5. Publisher must not: (i) incentivize offers or create the appearance to incentivize offers (ii) place statements near the Advertisements requesting that Users "click" on the Advertisement (i.e., "Please "click here") or "visit" the sponsor (i.e., "Please visit our sponsor."); (iii) place misleading statements near the Advertisement (i.e., "You will win $50,000."); (iv) copy Company's ads and display them from Publisher's site directly; (v) change any Advertisement in any way without Company's prior express written permission; (vi) redirect traffic to a Website other than that listed by the particular Advertiser; (vii) ask Users to take advantage of other Advertisements or offers other than those listed by the particular Advertiser. Network reserves the right to define incentivization; (viii) use any name other than Publisher's in the "from" box when sending an e-mail to a consumer; using any other name, specifically including but not limited to MyAffiliateMedia's name or the ultimate advertiser's name, is prohibited and will not be paid; and/or (ix) replace or modify Affiliate tracking codes. 2.6. All Click-Throughs must: (i) go through Publisher's
unique gateway; (ii) be recorded by Company's server; (iii) be non-incentivized. 2.8. Company will periodically review Publisher's Website(s) in order to determine whether or not Publisher or Click-Throughs are violating any of the terms herein. If, in its reasonable discretion, Company deems that Publisher or Click-Throughs are violating any of the terms of this Agreement, such violation will result in immediate termination of this Agreement. 2.9 If Publisher conducts e-mail campaigns to its users, Publisher must, if requested, be able to supply the name, date, time and IP address where the consumer signed-up and/or gave permission to the Publisher to conduct such e-mail campaign. Publisher is solely responsible for all consumer complaints relating to e-mail campaigns conducted by Publisher. Publisher will respond to all consumer complaints in a timely fashion and shall immediately remove any person from its database who makes such request for removal. In addition, all e-mail must contain a functioning unsubscribe link which, when activated by a user, actually and permanently removes the user's e-mail address from the publisher's database. 2.10 ALL E-MAIL CAMPAIGNS MUST ONLY BE CONDUCTED TO PERSONS WHO HAVE GIVEN PRIOR PERMISSION! FAILURE TO FOLLOW THIS RULE IS A VIOLATION OF THIS AGREEMENT AND MAY RESULT IN FORFEITURE OF ALL PAYMENT DUE. REPEAT OFFENDERS MAY BE REMOVED FROM THE NETWORK. BY CONDUCTING AN e-mail CAMPAIGN WITH ADVERTISEMENTS AVAILABLE THROUGH THE COMPANY NETWORK, PUBLISHER REPRESENTS AND WARRANTS THAT SUCH CAMPAIGN IS CONDUCTED IN ACCORDANCE WITH THE PRIVACY POLICY SET FOR ON PUBLISHER'S WEBSITE AND IN ACCORDANCE WITH STATE AND FEDERAL LAW; INCLUDING BUT NOT LIMITED TO THE CAN-SPAM ACT OF 2003. 3. Modifications. 3.1. Company reserves the right to change, modify, add, or remove portions of this Agreement at any time, provided that Company first notifies Publisher within five (5) business days via email. Company also reserves the right to add to, change, modify, suspend, or discontinue any aspect of the service at any time, provided that Company first notifies Publisher within five (5) business days via email. In either case, such changes or modifications will be incorporated by reference to this Agreement unless Publisher responds within five (5) business days of the e-mail transmittal. Publisher's rejection of such changes or modifications may be grounds for termination of this Agreement by Company. 3.2. No change, amendment, or modification of any provision of the Agreement by Publisher will be valid unless set forth in a written instrument signed by an executive of both Parties with the corporate authority to do so. 4. Auditing and Tracking of Campaigns. 4.1. Publisher acknowledges that Company requires a tracking system that will serve as the verifiable log of responses for computing billing amounts and as the reporter of registrations by URL, Origin ID, or Affiliate ID code. The technical specifications of the tracking system and its delivery methods must be met to the reasonable satisfaction of Company before any Advertisement(s) will be provided by Company. 4.2. Company requires a weekly and a month's end summary report reflecting the exact number of Units delivered. The Company, in its reasonable discretion and by consultation with Publisher, will determine the form of said reports. 4.3. Company has the final responsibility for determination of Units delivered. 5. Payment. Company shall process and send Publisher's payment within fifteen (15) days from the last business day of which earnings are accrued, if that amount exceeds twenty-five (25) dollars. For all co-registration campaigns, payment is contingent and will be made upon Company's receipt of payment from the Advertiser. 6. Term. This Agreement shall continue for the term set
forth above, provided that either Party may terminate this Agreement upon
thirty (30) business days prior written notice. Provided however, that
Company reserves the right to terminate this Agreement immediately without
payment in the event that the Publisher violates any of the rules set
forth above or any other provisions of the Agreement. In addition, Company,
at its sole discretion, reserves the right to terminate the Agreement
or to reduce host site's payment if it deems Publisher's Sign-Ups are
violating this Agreement. 8. Representations and Warranties/Non-Solicitation. The advertising service provided by the Company, its use and the results of such use are provided "as is." TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTIES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. COMPANY DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES. COMPANY DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF A RESPONDENT. COMPANY DOES NOT GUARANTEE TO MATCH COLORS, TEXT, PHOTO IMAGE OR SCREEN DESIGN. ALL ORDERS ARE CONTINGENT UPON COMPANY'S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS AND COMPANY IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. COMPANY WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES. 10. Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED BELOW WITH RESPECT
TO INDEMNIFICATION, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE
TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED
HEREIN. COMPANY SHALL NOT IN ANY EVENT BE LIABLE TO PUBLISHER FOR MORE
THAN THE AMOUNT PAID TO PUBLISHER HEREUNDER. NO ACTION, SUIT OR PROCEEDING
SHALL BE BROUGHT AGAINST COMPANY MORE THAN ONE YEAR AFTER THE DATE OF
SERVICE. 11.1. Each Party shall defend, indemnify, and hold the other Party and its officers, directors, agents, affiliates, distributors, franchisees, and employees harmless from and against any and all third party claims, losses, damages, actions, liabilities, expenses, or costs (including, without limitation, reasonable attorney's fees) arising out of any claim, demand, action, suit, investigation, arbitration, or other proceeding by a third party out of the indemnifying Party's material breach of any duty, representation, or warranty under the Agreement. 11.2. Publisher is solely responsible for any legal liability arising out of or relating to (i) the Publisher's Website(s), (ii) any material to which users can link through the Publisher's Website(s) and/or (iii) any consumer and/or governmental/regulatory complaint arising out of any e-mail campaign conducted by Publisher, including but not limited to any SPAM or fraud complaint and/or any complaint relating to failure to have proper permission to conduct such campaign to the consumer. Publisher shall indemnify, defend, and hold harmless Company and its officers, agents, affiliates and employees from and against any and all claims, losses, damages, actions, liabilities, expenses, or costs (including, without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits, or proceedings (a) for libel, defamation, violation of rights of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Publisher's Website(s); (b) arising out of any material breach by Publisher of any duty, representation or warranty under this Agreement; (c) arising out of any breach by Company of any duty, representation, or warranty under to provide Advertisement(s) for placement on the Company Publisher's Website(s) due to any breach by Publisher of this Affiliate Network Application, or (d) relating to a contaminated file, virus, worm, or Trojan horse originating from the Publisher's Website(s). 11.3. If the Party entitled to indemnification ("Indemnified Party") becomes aware of any matter it believes is indemnifiable hereunder involving any claim, action, suit, investigation, arbitration, or other proceeding against the Indemnified Party by any third party (each an "Action"), the Indemnified Party shall give the other Party ("Indemnifying Party") prompt written notice of such Action. Such notice shall (i) provide the basis on which indemnification is being asserted and (ii) be accompanied by copies of all relevant pleadings, demands, and other papers related to the Action and in the possession of the Indemnified Party. The Indemnified Party, with the Indemnifying Party and its counsel in the defense, shall have the right to participate fully, at its own expense, in the defense of such Action. If a dispute arises over whether the Party requesting indemnification hereunder is so entitled, the Party requesting indemnification shall be free, without prejudice to any of such Party's rights hereunder, to compromise or defend (and control the defense of) such Action. Any compromise or settlement of an Action shall require the prior written consent of both Parties hereunder; such consent will not be unreasonably withheld or delayed. 12. Arbitration. In the event of any dispute, claim, question, or
disagreement arising from or relating to this Agreement or the breach
thereof, the Parties shall use the following procedure: 13. General. 13.1 Waiver. The failure of either Party to insist
upon or enforce strict performance by the other Party of any provision
of the Agreement or to exercise any right under the Agreement will not
be construed as a waiver or relinquishment to any extent of such Party's
right to assert or rely upon any such provision or right in that or any
other instance; rather the same will be and remain in full force and effect. 13.3 Independent Contractors. The Parties to the Agreement are independent contractors. Neither Party is an agent, representative, partner, employee, or joint venture of the other Party. Neither Party will have any right, power, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other Party. The Agreement will not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either part. 13.4 Survival. Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening. 13.5 Construction: Severability. Each Party acknowledges that the provisions of the Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. Further that, all provisions are inserted conditionally on their being valid in law. In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties to the Agreement, (i) such provision will be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect. 13.6 Remedies. Except as otherwise specified, the rights and remedies granted to a Party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity. 13.7 Entire Agreement. The Agreement includes any
accepted Affiliate Network Application(s) or duly executed Insertion Order(s)
as a material part. The Agreement constitutes the entire and only agreement
and supersedes any and all prior agreements, whether written, oral, express,
or implied, of the Parties with respect to the transactions set forth
herein. Neither Party will be bound by, and each Party specifically objects
to, any term, condition, or other provision which is different from or
in addition to the provisions of the Agreement (whether or not it would
materially alter the Agreement) and which is proffered by such Party in
any correspondence or other document, unless the Party to be bound specifically
agrees to such provision(s) in writing. 13.9 Assignment. Neither Party to this Agreement shall sell, transfer, or assign this Agreement or the rights or obligations hereunder, other than to a parent or wholly-owned subsidiary, without the prior written consent of the other Party. Notwithstanding the foregoing, without securing such prior consent, either Party shall have the right to assign or transfer this Agreement and their obligations hereunder to any successor-in-interest of such Party by way of sale, merger, consolidation, reorganization, restructuring or the acquisition of substantially all of the business and assets of the assigning Party of more than 75% of the outstanding stock of the assigning Party. Subject to the foregoing, the Agreement will be fully binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, legal representatives, successors and permitted assigns. 13.10 Headings. The captions and headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of the Agreement. 13.11 Counterparts. The Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document. 13.12 Governing Law: Jurisdiction and Venue. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of of Delaware, except for its conflicts of laws principles. Each Party irrevocably consents to the exclusive jurisdiction of the state courts of Delaware and the federal courts situated in the United States District Court for the District of Delaware, in connection with any action arising under this Agreement. 13.13 Notice. All notices, requests, demands, and other communications to Company hereunder shall be in writing and shall be deemed given at the time such communication is sent by registered or certified mail (return receipt requested), or recognized national overnight courier service, or delivered personally, to the following address (or other address as shall be specified by like notice): If to Company, to the attention of both the CEO and General Counsel, each at the address of: MyAffiliateMedia If to Publisher, to the executive and e-mail address
set forth on the Affiliate Network Application. |
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