AFFILIATE MEMBERSHIP AGREEMENT
STANDARD TERMS AND CONDITIONS
This
Affiliate Membership Agreement (“Agreement”) is between AKMG, a Florida
corporation ("AKMG") and the Affiliate ("Affiliate”) providing
the registration information.
WHEREFORE the parties agree as follows:
1.
DEFINITIONS
1.1.Content means information, data, text, documents, software, music,
sound, photographs, graphics and video.
1.2.A "Corporate Affiliate" is any other person or entity that,
directly or indirectly, controls such person, is controlled by such person, or
is under common control with such person, with "control" meaning the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person.
1.3.An “End User” means an actual or potential consumer, customer or other
natural person.
1.4.An "Engagement" means any type of agreement or arrangement
between an Advertiser and any Network Affiliate that can be performed on or in
relation to the Internet, including affiliate marketing, performance-based
linking, insertion order, or any other type of agreement or arrangement.
1.5.An “Entity” means a sole proprietorship, corporation, partnership,
Limited Liability Company, trust, government agency or instrumentality or other
Entity recognized by law as a legal person separate from its owners.
1.6.The words "include," "includes" and
"including" shall be deemed to be followed by the phrase
"without limitation."
1.7."Intellectual Property Rights" means technology, templates,
designs, Sites, methodologies, processes, names, strategies, marks, logos,
Content, documentation, training manuals, and other materials, as well as any
and all patent, trade secret, trademark, copyright and other intellectual
property and proprietary rights therein and thereto.
1.8.A "Link" means any software, software code, programming or
other technology or method (or any combination of the foregoing) that (i)
creates a hyperlink between two Sites, or (ii) otherwise causes a Web access
device to display to its user a banner, button, text-mention, word, phrase,
logo or other textual or graphical material that, when activated by a person,
results in a Site being served to such person or such person being able to
electronically access, receive or obtain Content, products, services or other
offerings from the linked Site.
1.9."AKMG Network" means one or more of the networks operated by
AKMG and consisting of participating Merchants (i.e., Advertisers), on the one
hand, and a proprietary pool of Sites (i.e., Network Affiliates), on the other
hand. Through the AKMG Network and use of the AKMG Offering, such participants
may explore, initiate and develop Engagements with each other, typically on a
one-on-one basis, and, in turn, to track, report on and/or otherwise manage or
have managed such Engagements.
1.10.“AKMG Offer/s/ings” means (a) AKMG's offerings to be a
Network Affiliate or Advertiser participating on any AKMG Network and (b)
offerings provided by AKMG or any AKMG Related Parties in the form of
technology, software, reports and databases, customer support, account
management and other client services, symposia, summits and other educational
and networking events, as well as any other tools, services, and other
resources that may be provided or otherwise made available from time to time.
1.11.“AKMG Related Parties” means AKMG corporate affiliates and its and
their contractors, licensors, licensees and suppliers.
1.12."Merchant" means any person that owns or operates a Site
and/or other business that can acquire customers or other types of End Users by
way of the Internet.
1.13."Network Affiliate" refers to a Site that participates on one
or more AKMG Networks and, through such participation and use of the
appropriate AKMG Offerings, desires or makes itself available to be recruited
or to enter into Engagements to display, distribute or place Qualifying Links
provided by Advertisers for compensation.
1.14."Network Affiliate Account Area" means, for any AKMG Network,
the Webpage(s) or other area of the Site having the URL designated from time to
time by AKMG for use by members of that Network for the purpose of facilitating
formation of Qualifying Links, accessing reports and otherwise participating in
such AKMG Network.
1.15."Advertiser" refers to a Merchant that participates on one or
more AKMG Networks and, through such participation and use of the appropriate
AKMG Offerings, desires or seeks to recruit Network Affiliates to enter into
Engagements with such Merchant in order to display, distribute or place its
Qualifying Links for compensation.
1.16.A "Person" is to be broadly construed and includes any
natural person or Entity.
1.17.A "Qualifying Link" means any type or format of link that is
provided or authorized by a Advertiser to be displayed, distributed or placed
on or by a Site pursuant to an Engagement and which, through addition and/or use
of any technology and/or methodology, can be tracked so that such Advertiser
can monitor the impressions, click-throughs, conversions, and/or other tracked
activities achieved by the display, distribution and/or placement of such link.
The term Qualifying Link shall also refer to any equivalent link, mechanism or
technology that, upon being activated, causes the same result as clicking on a
Qualifying Link.
1.18.A "Tracked Activity" means any type of pre-agreed or
predefined activity or result that is sought by a Merchant in relation to a
Qualifying Link. The kinds of tracked activities that a Merchant may seek to
promote through such arrangements may include, by way of example, impressions,
click-throughs, the sale of products or services, the downloading of software,
files or other items, the completion of an application, registration or other
form, the opening of an account, membership enrollment, conversions, the number
of sales or actions from impressions, clicks, or leads, or any other kind of action, transaction
or activity that can be tracked and reported upon.
1.19."Web" or "Internet" or "online" means the
global computer network currently referred to as the Internet, including the
World Wide Web, and any and all successor networks, irrespective of what wired,
wireless or otherwise connected device, platform or technology is used to
access it.
1.20."Site" means, as the context requires,
either (a) one or more Web pages, database, computer files, emails, scripts,
software or other application, or other destination, together with supporting
files and programming, that are on, provided, or accessible through the Web or
works on or in relation to the Web, or (b) a person owning or operating any
such Site, or (c) both. A person that owns or operates a Site may have offline
businesses which would not preclude it from being a Site for the purposes of
this Agreement.
2.
REGISTRATION AND AFFILIATE ASSENT
2.1.Affiliate Assent: Affiliate hereby agrees and understands that by Affiliates
registration, use and participation in the AKMG Offerings, services and Network
that he agrees to and is bound to the terms and conditions herein contained in
this Agreement.
2.2.Registration:
Affiliate must provide AKMG with truthful, accurate and complete registration
information. If the registration information changes at anytime, Affiliate must
immediately notify AKMG and update Affiliate’s registration information.
2.3.Verification:
AKMG may, in its sole discretion, confirm or otherwise verify or check, the
truth and accuracy of any registration information provided by Affiliate.
Affiliate’s participation in the AKMG Network as a Network Affiliate does not
depend on Affiliate’s credit worthiness or financial stability. AKMG is not
making as part of the registration process, and will not otherwise make, any
type of inquiry to any third party regarding any individual's credit history
and personal financial information without first obtaining such individual's
express prior authorization to do so. If at anytime AKMG, in its sole judgment
and discretion, determines the Affiliate registration information to be
misleading, inaccurate or untruthful, AKMG may restrict, deny or terminate
Affiliate’s account, Affiliate’s access and use of, and/or any benefits derived
from Affiliate’s participation on, any AKMG Network; AKMG may also withhold
payment of any commissions and/or other fees that may be or become due or
payable to Affiliate, and may assess charges against such amounts for AKMG's
activities in connection with the investigation and/or verification of such information
and/or otherwise in accordance with this Agreement.
2.4.Eligibility:
To join any AKMG Network, the Affiliate representative or person signing and
entering into this Agreement must be an individual of legal age. Affiliate is
solely responsible for the expense his own computer equipment and Internet
access.
2.5.Use of the Network: Affiliate may use the AKMG Networks only for the business purposes
contained herein and not for personal, household or family purposes.
3.
AFFILIATE PARTICIPATION
3.1.Participation:
Subject to the terms and conditions in this Agreement, Affiliate may use and
offer the AKMG Offerings to Network Affiliates via the Network Affiliate
Account Area or otherwise to enter into, track and report on, and/or manage (or
have managed) affiliate marketing and/or other types of AKMG tracked
Engagements on behalf of Affiliate business.
3.2.Voluntary Participation: Affiliate participation in any one or more AKMG
Networks is as an Online Affiliate. Affiliate participation is purely
voluntarily and Affiliate may terminate Affiliate participation at any time.
Neither AKMG nor any Advertiser shall be construed or deemed as having
solicited, requested or procured Affiliate or Affiliate services to promote
AKMG or any Advertiser or its respective trade or business, or goods, products,
property, or services.
3.3.Vendor Services.
Affiliate are not and shall not, at any time, be deemed to be a vendor,
supplier or provider of goods or services to AKMG, and neither Affiliate
participation on any AKMG Network, use of any AKMG Offerings or receipt of
payment of any compensation under any AKMG tracked Engagement shall be
construed or be deemed to be an inducement for, solicitation of Affiliate to
provide any products or services to AKMG.
3.4.Regulated Business: Affiliate represents, warrants and covenants that Affiliate
businesses and activities will not cause, nor could cause, AKMG or any Site
with which Affiliate has entered into a AKMG tracked Engagement to be or become
subject to any law, rule or regulation adversely affecting AKMG or such Site,
and Affiliate shall defend and indemnify AKMG and such Sites against any such
adverse effect.
4.
ENGAGEMENTS AND QUALIFYING LINKS
4.1.Use of Qualifying Links: Each Qualifying Link used by Affiliate in relation
to an AKMG tracked Engagement must include, in unaltered form, the special
"tagged" link codes and/or other transaction tracking codes in the
manner and format made available or otherwise dictated by AKMG that, among
other things, associates such Qualifying Link with such Engagement.
4.2.Valid Referrals Only: Affiliate will place or use Qualified Links of an Advertiser only
with the intention of delivering valid sales, leads, applications, accounts,
clicks or other specified compensable tracked activities for the benefit of
such Advertiser. Affiliate may not knowingly permit any person to activate a
Qualifying Link or inflate the amount of any sought-after or resulting tracked
activities through any method or technology that does not actually deliver an
End User to the destination Site associated with such Qualifying Link.
4.3.AKMG's Determination of Compensation: AKMG in its sole and absolute discretion and
judgment shall determine a link as being qualified and compensation due thereof
to Affiliate and all determinations of Qualifying Links and the compensation
due to Affiliate made by AKMG shall be final and binding on Affiliate. AKMG's
services do not involve investigating or resolving any claim or dispute
involving Affiliate and any Advertiser or other third party person. If AKMG, in
its sole discretion, elects to investigate or otherwise become involved in any
such claim or dispute, it shall not thereby undertake, assume or have any duty,
obligation or liability to Affiliate or any other party to the claim or dispute
and Affiliate shall indemnify AKMG from any and all claims arising out of said
claim or dispute.
4.4.Merchants' Terms and Conditions. In addition to and without limiting Affiliate’s
obligations under this Agreement, the terms and conditions of the Advertiser's
Engagement govern Affiliate’s performance of such Engagement including
Affiliate’s use of the associated Qualifying Links, the tracked activities
sought, the compensation that might become payable, and any limitations or
restrictions that may apply to Affiliate’s promotion of such Advertiser or its
Qualifying Links. AKMG has no liability or responsibility to review, endorse,
police or enforce any such Engagements.
4.5.Distribution of Qualifying Links: If Affiliate currently distributes, or plans to
distribute, Qualifying Links to or through Sites other than those owned or
operated by Affiliate and registered with AKMG, Affiliate may only do so upon
AKMG's approval. Such approval may be unreasonably withheld by AKMG and may be
conditioned upon Affiliate’s agreement to additional terms and conditions and
additional disclosures.
4.6.No Modification of Qualifying Links: Affiliate will not modify, circumvent, impair,
disable or otherwise interfere with any tracking codes and/or other technology
and/or methodology required or made available by AKMG and/or the Advertiser to
be used in connection with such Qualifying Link.
4.7.Termination of Qualifying Links: AKMG or the relevant Advertiser may terminate any
Qualifying Links associated with any affiliate marketing programs of, and/or
other AKMG tracked Engagements with which Affiliate has entered into with
Advertiser. Affiliate must remove any Qualifying Links after any termination of
the corresponding Engagements, including termination or expiration of a
relevant Advertiser's participation. If Qualifying Links are not removed, AKMG
may redirect such links as it determines in its sole discretion, with or
without compensation to Affiliate.
4.8.Discontinuing Use of Qualifying Links: Affiliate may at any time discontinue use of
Qualifying Links by removing such Qualifying Links from Affiliate’s Site or
marketing creative, with or without notice to AKMG or, subject to the terms of
Affiliates Engagement with the relevant Advertiser, provided, however, that
Affiliate remain subject to such Engagement and this Agreement until Affiliate
separately terminates the Engagement or Agreement.
4.9.AKMG as Neutral Host: Participation in any AKMG Network is not an endorsement by AKMG of
any Advertiser or Network Affiliate. AKMG operates the AKMG Networks and/or
provides the AKMG Offerings as a neutral host, and although AKMG may regularly
or proactively monitor, regulate or police the usage thereof by any of its
participants, AKMG is not responsible or liable for the acts, omissions,
agreements or promises of or by any Advertiser, Network Affiliate or other Site
using AKMG offerings to enter into any arrangement or otherwise work with any
other person or Entity.
4.10.Independent Contractors. AKMG is the host of each AKMG Network. Advertisers
and Network Affiliates are independent parties and AKMG does not and shall not
have any responsibility or liability for the acts, omissions, promotions,
Content or Qualifying Links or other
Links of any Advertiser, Network Affiliate or other third party,
including breaches of Engagements by Advertisers, or for screening or policing
the Sites or actions of Advertisers or Network Affiliates.
5.
REPORTING
5.1.Reports and Revisions: Affiliate acknowledges and agrees that each
Advertiser whose Program Affiliate joins shall receive reports from AKMG that may
identify Affiliate and may include data about Affiliate and Affiliate’s
Qualifying Links with that Advertiser. If AKMG is notified by Advertiser that
it believes that its reports about its relationship with Affiliate contain an
error or omission or otherwise require adjustment, AKMG may elect to revise
those reports as requested by the Advertiser and make corresponding changes to
Affiliate Reports in AKMG’s sole discretion and judgment. Affiliate understands
that the reports AKMG provides Affiliate and Advertiser are the basis for
calculating the compensation, if any, due to Affiliate from Advertiser, any
such adjustment by AKMG may affect the amount of compensation to which
Affiliate is entitled.
5.2.Data Furnished by Advertisers: In providing AKMG Offerings, including giving
Affiliate reports on Affiliate’s Network activities, Affiliate agrees that AKMG
relies on data provided by Advertisers and that AKMG is not obligated to
confirm, and does not warrant or guarantee, the accuracy, truth or completeness
of any data provided by Advertisers.
5.3.Errors: If
Affiliate believes that any of Affiliate Reports for any month contains errors
in the data about Affiliate’s Engagement with any Advertiser, Affiliate must
notify AKMG in writing within ten (10) days after the end of that month or any
shorter period in Affiliate’s Engagement. Affiliate agrees and understands that
AKMG, in their sole and absolute discretion and judgment shall make a
determination within fourteen (14) days of any corrections to the Affiliate
Reports and Affiliate agrees that said determination shall be final and binding
upon Affiliate.
5.4.No Personal End User Data. In order to provide any of the AKMG Offerings, AKMG
does not require to be provided, nor does it capture any personally
identifiable information about any End User who undertakes tracked activities
in relation to Affiliate or any Advertiser. Affiliate hereby indemnifies and
holds AKMG harmless from any End User or any other person if Affiliate, any
Advertiser or other third person should provide such information to AKMG for
whatever reason.
5.5.Privacy Policy.
Affiliate will ensure that any and
all Sites and marketing channels employed by Affiliate in connection with
Affiliate’s participation in any AKMG Network or any AKMG tracked Engagement
will feature an easy-to-understand privacy policy, linked, posted conspicuously
on Site's home page, with a Link that contains the word "Privacy",
"Legal", "Terms" or similar language. Said privacy policy
shall, in addition to the disclosures about Affiliate’s privacy practices,
identify the collection and use of any information Affiliate provides or may
provide to AKMG and to any Advertiser or other Sites or persons with which
Affiliate has an AKMG tracked Engagement or other arrangement in relation
thereto. As to Affiliate’s personal information, AKMG may use Affiliate’s
personal information in any manner or for any purpose that AKMG determines to
be appropriate or necessary in its sole discretion in connection with
conducting any activities of or on any AKMG Network and in relation to AKMG's
business. Furthermore AKMG may disclose said information to government agencies
or officials upon their request, even if not compelled by a subpoena or other
legal process, and without any duty on AKMG’s part to independently confirm
that such agencies or officials are legally entitled to such disclosure.
5.6.Backing Up Data and Other Precautions. Data transfer, conversion, processing and storage
are subject to the likelihood of human and machine errors, delays,
interruptions and losses and AKMG hereby disclaims all warranties and Affiliate
shall hold AKMG harmless from any and all liability that may arise from the
above. Affiliate is solely responsible for adopting measures to limit the
impact of such events, including backing up any reports or data provided to
Affiliate. AKMG may, from time to time, with or without notice, change the time
period covered, type and/or scope of current or historical data stored by AKMG
and/or to which it provides Affiliate with access.
6.
AFFILIATE OBLIGATIONS, REPRESENTATIONS, AND
NON-CIRCUMVENT
6.1.For purposes of this Section Affiliate agrees that aggregate campaigns shall be all those
advertising campaigns that Affiliate ran for AKMG on any one specific AKMG
client/Advertiser (“Aggregate Campaigns”) for the previous EIGHTEEN (18) Months
prior to the breach specified in Section 6.2
6.2.During the term of this Agreement and for a period of
EIGHTEEN (18) months thereafter, regardless of the reason for termination,
Affiliate agrees that it will not knowingly engage, contract, license, and/or
permit any person, firm, or entity to work with any of AKMG’s client’s that
were a client of AKMG as of EIGHTEEN (18) months prior to the conclusion or
termination of this Agreement on same or similar AKMG Offerings, Engagements,
or advertising campaigns , without prior written approval by authorized party
at AKMG. Affiliate agrees and understands that AKMG has incurred significant
expense forming AKMG’s affiliate network and in recruiting Advertiser, and
Affiliate agrees and understands that in the event of a breach by Affiliate of
this section, Affiliate SHALL pay AKMG as liquidated damages an amount equal to
AKMG’s profits for the preceding EIGHTEEN (18) months generated by the
Aggregate Campaigns, or shorter in the event the Aggregate Advertising
Campaigns ran for a shorter period of time. The liquidated damage remedies provided herein in this
section shall not preclude AKMG from seeking injunctive relief.
6.3.Affiliate further agrees that it will not in any way
bypass or circumvent, or attempt to bypass or circumvent, AKMG and any AKMG
Network in connection with any Engagement Affiliate may have entered into with
any Advertiser. This includes entering into a direct relationship or linking
arrangement where AKMG provided Qualifying Links are not used in accordance
with this Agreement such that AKMG is unable to track and monitor the
commissions owing to Affiliate under an AKMG tracked Engagement or the fees
owing to AKMG. Affiliate may not enter into any relationship that would result
in the avoidance or reduction of the AKMG tracking process, the commissions to
be paid pursuant to this Agreement, or the fees to be paid to AKMG as a result
of any tracked Engagement,
Further, if AKMG brokers an introduction or arrangement between
Affiliate and any Advertiser through any AKMG Offering, Affiliate and such
Advertiser will track any resulting Engagement through using a AKMG Network
using AKMG provided Qualifying Links and Affiliate agrees that AKMG shall be
paid under the current AKMG Offering. This includes using Affiliate’s Network
Affiliate Account Area to investigate Advertiser terms and contacting such
Advertisers directly to enter into Engagements that are not tracked by AKMG provided
Qualifying Links. AKMG will be deemed to have brokered an introduction or
arrangement and payment shall be due under the current AKMG Offering in any of
the following circumstances: (i) such Advertiser recruits or otherwise first
contacts Affiliate through use of any AKMG Offerings; or (ii) Affiliate applies
to such Advertiser's affiliate marketing program or otherwise first contacts
such Advertiser through use of any AKMG Offerings; or (iii) at Affiliate’s
request or the Advertiser's request or with Affiliate’s or its express
involvement, AKMG arranges an introduction or facilitates the consummation of
an arrangement between Affiliate and such Advertiser through the use of any
AKMG Offerings, (c)Affiliate’s obligations under this Section will survive any
termination by Affiliate or AKMG of Affiliate’s participation in any AKMG
Networks for a period of one EIGHTEEN (18) months after such termination.
Notwithstanding the preceding sentence, Affiliate’s obligations under this
Section will cease with respect to any individual Advertiser upon the expiration
or termination (other than due to breach by such Advertiser) of such individual
Advertiser's participation in the relevant AKMG Network.
6.4.Non Solicitation. During the term of this
Agreement and for a period of EIGHTEEN (18) months after termination of this
Agreement, Affiliate shall not solicit AKMG employees, the identities of which
may be disclosed to Affiliate during the term of the Agreement. Affiliate
agrees that monetary damages for a breach of or a threatened breach of this
Section will not be adequate and that AKMG shall be entitled to injunctive
relief (including temporary and preliminary relief). If Affiliate shall employ
an AKMG employee in violation of this Agreement then AKMG shall be entitled to
liquidated damages of two times the employee's total current salary and
compensation for a period of one year.
6.5.Affiliate may not use any AKMG Offerings in connection
with aggregating, soliciting or recruiting Advertisers, Network Affiliates,
other Sites or other persons to form or join an affiliate marketing,
advertising or similar network.
6.6.The parties expressly acknowledge and agree that the
laws of the State of California shall not be applicable to this Agreement, and
specifically sections 6.1,6.2, 6.3 6.4, and 6.5, under any circumstance
whatsoever.
7.
AFFILIATE LICENSING
7.1.Use of AKMG Offerings: Affiliate is authorized to run AKMG Offers as
specified in the Network Affiliate Account Area and Engagement and through the
traffic channels therein specified.
and For each AKMG Network of which Affiliate is a member in good
standing, AKMG grants Affiliate a personal, non-exclusive, non-transferable,
non-sublicense able, revocable and limited license and right, subject to the
terms of this Agreement to: (a) Participate in any AKMG Network for which
Affiliate have registered as a Network Affiliate, (b) Access the areas of the
relevant Network Affiliate Account Area necessary for Affiliate’s participation
in such AKMG Network as a Network Affiliate, (c) Solely for Affiliate’s use in
connection with Affiliate’s participation in the AKMG Network, download any
reports made available to Affiliate by AKMG, (d) Use any software code or other
Content that is provided by AKMG Solely for the purpose of creating and
maintaining Qualifying Links in accordance with this Agreement and Affiliate’s
Engagements, for such purpose, and no other purpose, but only in the form so
provided. All other use of any AKMG Network, Network Affiliate Account Area,
any reports made available to Affiliate by AKMG and software code or Content, including
modification, publication, transmission, transfer or sale of, reproduction,
creation of derivative works, distribution, performance, display, incorporation
into another Site or mirroring is prohibited.
7.2.Use of the AKMG Trade Name: This Agreement does not grant to Affiliate any
license or right to use AKMG's name or any of its logos, trade or service names
or marks, except to the extent required to be used in connection with a URL.
Any press release or other public announcement by Affiliate regarding this
Agreement or any AKMG Network or that mentions AKMG shall require the prior
written approval of AKMG, and said approval may be unreasonably withheld by
AKMG. Affiliate agrees that Affiliate shall not disparage AKMG or any of the
AKMG Networks or any other participants thereof. In the event of a breach of
this section by Affiliate, AKMG may terminate this Agreement immediately
without notice and may withhold any payments due or accrued to Affiliate.
7.3.Duration of License Rights: The licenses granted to Affiliate in this Agreement with
respect to any AKMG Network are valid only while Affiliate remains a member of
such AKMG Network as a Network Affiliate in good standing and comply with this
Agreement and AKMG may revoke any such license at any time without notice. AKMG
reserves all rights that are not specifically granted to Affiliate by this
Agreement.
8.
AKMG LICENSING
8.1.Use of Affiliate’s Content: Other than as provided below, in order to
participate in the AKMG Network, Affiliate is not required to provide AKMG with
any Content or other materials. Should Affiliate do so, by way of uploading,
delivering or otherwise making available to AKMG any Content and/or other
materials (including any Intellectual Property Rights therein and thereto),
Affiliate agrees to grant, and hereby grants, to AKMG a non-exclusive,
worldwide, royalty-free, sublicense able, perpetual license to use and store
the same including in relation to conducting its business or performing any
services in relation to any AKMG Network. This Section will survive any
termination.
8.2.Use of Affiliate’s Name: AKMG shall have the right to refer to Affiliate by
Affiliate’s name in connection with any AKMG Network and/or the performance or
provision of any AKMG Offerings, including in communications sent to actual or
prospective participants of the AKMG Networks in which Affiliate participate.
8.3.Disclosure of Business Relationship: Nothing in this Agreement shall prevent AKMG from
making any public or private statements about Affiliate’s business relationship
with AKMG and/or any Advertiser and/or Affiliate’s participation in any AKMG
Network.
8.4.Use of Affiliate’s Logo: Except as expressly provided above, AKMG shall not
use any of Affiliate’s logos and/or other trademarks without Affiliate’s prior
written approval. Any and all uses of Affiliate’s logos and/or other trademarks
shall be in accordance with Affiliate’s specified usage guidelines.
9.
REPRESENTATION AND WARRANTIES
9.1.Affiliate Representations: Affiliate represents, warrants and covenants as
follows: (a) Affiliate has the legal right to conduct any business to be
conducted by Affiliate including in respect to any Site(s) participating in any
AKMG Network; and (b) Any and all information Affiliate provided as part
of the registration process or otherwise shall be truthful, accurate and
complete, irrespective of any independent verification or other determination
made by AKMG; and (c) This Agreement has been duly and validly authorized,
accepted, executed and delivered by Affiliate (or Affiliate’s authorized representative)
and constitutes Affiliate’s legal, valid, and binding obligation, enforceable
against Affiliate in accordance with its terms; and (d) The performance by
Affiliate of this Agreement and the participation by Affiliate in any AKMG
Network and any relevant Advertiser's Engagement does not and shall not
conflict with or violate (i) any law, rule, regulation, order, judgment,
decree, agreement or instrument applicable to Affiliate or (ii) if Affiliate is
an Entity, any provision of Affiliate’s certificate of incorporation or other
organizational documents.
9.2.Policies and Guidelines: Affiliate agrees to abide by all of AKMG’s policies
and guidelines posted on AKMG’s web site. Affiliate further agrees that AKMG
may amend, alter, or modify the policies and guidelines posted on the AKMG web
site at any time and without notice to Affiliate.
10.
NON-DISCLOSURE
10.1.Confidential Information: Affiliate acknowledges that in connection with
Affiliate’s participation in the AKMG Network and/or in one or more
Advertisers' Engagements, Affiliate will be provided with confidential and
proprietary data and information from time to time through reports as well as
other AKMG Offerings to Affiliate through Affiliate’s Network Affiliate Account
Area or otherwise. Such confidential and proprietary data and information may
be owned variously by AKMG or Advertisers and/or its or their suppliers or
contractors. Affiliate will only retain ownership of any data and information
that Affiliate independently collects through Affiliate’s Sites without the use
of AKMG Offerings, provided that any data and information that may be provided
by Affiliate to AKMG shall be deemed to be covered by the licenses granted to
AKMG under this Agreement.
10.2.Duty of Care:
Affiliate will keep all reports, data and other confidential information
provided to Affiliate through the Network Affiliate Account Area or otherwise
strictly confidential. Without AKMG's prior written consent, Affiliate will not
disclose any such confidential information to any third party or use any such
confidential information other than solely as and to the extent required for
Affiliate to perform under this Agreement and/or Affiliate’s Engagements with
any Advertisers.
10.3.Disclosure of Confidential Information: Affiliate may disclose any such confidential
information only to Affiliate’s employees, officers and directors who need to
know such information in order to perform their respective duties; provided
that each such person has a legal or contractual obligation to maintain the
confidentiality of such information.
10.4.Legally Required Disclosures: If Affiliate receives any document request,
interrogatory, subpoena or other legal process (Request) that would, by its
terms, require the disclosure of any Confidential Information protected by this
Agreement, then promptly upon receipt thereof, and prior to making any response
thereto, Affiliate will notify AKMG in writing of Affiliate’s receipt of such
Request, and shall provide a copy thereof. Upon receipt of such notice, AKMG
may seek to intervene in the matter in which the Request was issued to seek
protection of the confidentiality provided for by this Section. Absent written
agreement signed by AKMG, Affiliate may not make such disclosure absent an
order or directive from the tribunal from which a Request was issued. AKMG will
be entitled to seek and obtain injunctive relief preventing any breach of
Affiliate’s obligations under this Section, without the need to show
irreparable harm, and without the need to post a bond or undertaking.
11.
FEES AND PAYMENT
11.1.Advertiser Responsible for Payment: Affiliate acknowledges that Affiliate’s entitlement
to any compensation reported with respect to any tracked activity (including if
reported) is solely a function of the terms of AKMG’s agreement with the
relevant Advertiser and that such Advertiser is solely responsible for Affiliates
payment. AKMG is not liable or responsible for payment and collection of amounts due to Affiliate even in the
event that AKMG performs the function of processing payments to Affiliate on
behalf of Advertisers.
11.2.Payment Terms:
Affiliate understands that payment by AKMG shall be made fifteen (15) days from
the date Affiliate receives the final payment report from AKMG for the monthly
period, provided that the actions generated are not based upon fraud or any
violation of the terms contained herein iin this Agreement.
11.3.AKMG's Right to Assess Fees: AKMG may, at any time upon prior written notice to
Affiliate as described below, commence charging or assessing fees in relation
to any or all AKMG Offerings made available to Affiliate including Affiliate’s
participation on any AKMG Network(s). Except as otherwise expressly provided in
this Agreement, in the event AKMG elects to charge or assess fees, Affiliate
will be notified at least one (1) month in advance in writing by email or
posting through the Network Affiliate Account Area. Affiliate may elect not to
pay any such fees by discontinuing Affiliate’s participation in all AKMG
Offerings prior to the commencement of such fees. Any and all fees or other
charges may be offset against or debited from any amounts that might be held in
account for Affiliate by AKMG or AKMG Related Parties including any amounts
that may be due, payable or paid to Affiliate by any Advertisers or other third
parties.
11.4.Tax:
Affiliate agrees that Affiliate is solely responsible for any and all tax
obligations, if any, due to all taxing authorities arising from or in
connection with Affiliate’s participation in any AKMG Offerings, AKMG Network
or any Advertiser Engagement.
11.5.Advertiser returned Actions or Leads. Affiliate agrees and understands that in the event
that Advertiser returns any actions or leads to AKMG, Affiliate shall deduct
said actions and returns and payment to Affiliate shall be reduced accordingly.
11.6.Source of Traffic: Upon request Affiliate shall disclose to AKMG the source or sources
of their traffic in any given Offering. In the event that Affiliate fails to
disclose said sources then AKMG may withhold the payment to Affiliate until
Affiliate complies with AKMG’s request.
12.
TERMINATION OF ADVERTISERS
12.1.Any Advertiser's participation in any AKMG Network may
end or be suspended for a number of reasons, including but not limited to
expiration or early termination of its merchant agreement or demand from
Advertiser, and Affilliate agrees and understands that AKMG may terminate
Affiliate’s participation in AKMG’s program without notice. In any event AKMG shall endeavor in good faith, but does not guarantee, to give Affiliate two (2) days notice
(said notice may be via e-mail or phone communication) before AKMG “kills links”
of any offer being run by Affiliate.
12.2.If an Advertiser's participation in any AKMG Network
ends or is suspended for any reason, its program conducted through such AKMG
Network shall end or be suspended and AKMG may, without notice to Affiliate,
terminate or suspend all Qualifying Links that Affiliate has with that
Advertiser immediately or, in AKMG's discretion, at any time thereafter. AKMG
shall have no obligation or liability to Affiliate because of any such
termination or suspension of any Advertiser.
13.
DISCLAIMER OF WARRANTIES
13.1.AKMG and AKMG Related Parties hereby disclaim any and all warranties,
express or implied, including any warranty as to accuracy, merchantability,
completeness, correctness, security, non-infringement, title, or fitness for a
particular purpose of any AKMG service, AKMG Network or any AKMG Offerings or
that Affiliate’s use of the same will be uninterrupted or error-free, or that
any Advertiser will be available (including in the event of being terminated
for whatever reason from any AKMG Network) or can or will be willing to enter
into any Engagement with Affiliate.
EACH AKMG
NETWORK AND AKMG OFFERING IS PROVIDED "AS IS, WHERE IS" AND "AS
AVAILABLE."
14.
LIMITATION ON LIABILITY
14.1.If Affiliate reasonably determines that any AKMG
Offering or services does not materially meet AKMG's obligations under this
Agreement, then Affiliate must notify AKMG in writing within ten (10) days of
receiving any such allegedly nonconforming AKMG Offerings or services. Affiliate’s failure to notify
AKMG within ten (10) days of the above shall mean that Affiliate has accepted
such services and AKMG Offers, and AKMG shall thereafter have no liability
whatsoever with respect to such services and AKMG Offers. If upon receipt of
any notice under this Section, AKMG may, at its sole discretion, re-perform the
service in question or otherwise provide Affiliate with any substitution or
replacement services in lieu thereof. Any re-performance or provision of substitute
or replacement services shall in no event be construed as an admission that the
original service was nonconforming or otherwise improper, and Affiliate’s
acceptance of the same constitutes Affiliate’s sole remedy and in such case
constitutes AKMG's maximum liability for any such alleged breach of this
Agreement.
14.2.Notwithstanding the above, if any liability is imposed
on AKMG or AKMG related parties, then Affiliate agrees that the total liability of AKMG and AKMG Related
Parties, and its and their officers, directors, employees, agents,
subcontractors and representatives, to Affiliate will not exceed twenty five
percent (25%) of AKMG’s net profits derived, under this Agreement with
Affiliate, in the thirty (30) days prior to the breach or event that gave rise
to the action or cause. Affiliate
recognizes and acknowledges that this limitation of damages is fair and
reasonable, in light of the fact that AKMG is providing this service to
affiliate at no charge to affiliate.
14.3.None of AKMG and AKMG related parties will be liable
to Affiliate (whether in contract or based on warranty, negligence, tort,
strict liability or otherwise) for any indirect, incidental, consequential,
reliance, punitive or special damages, including loss of revenue or profits,
even if such person was aware that such damages could result.
14.4.Any claim or cause of action arising out of
Affiliate’s use of any AKMG Network, this Agreement or the Network Policies and
Guidelines must be filed within ninety (90) days after such claim or cause of
action arose or is forever barred.
14.5.IN THE EVENT OF A BREACH OF ANY OF THE TERMS OF THIS
AGREEMENT BY AKMG, THE SOLE AND EXCLUSIVE REMEDY OF AFFILIATE AND ALL AGENTS
SHALL BE RECOVERY OF DAMAGES not to
exceed twenty five percent (25%) of AKMG’s net profits derived, under this
Agreement with Affiliate, in the thirty (30) days prior to the breach or event
that gave rise to the action or cause. AKMG SHALL HAVE NO LIABILITY WITH RESPECT TO
ITS OBLIGATIONS UNDER THIS AGREEMENT FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL OR
EXEMPLARY DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT AFFILIATE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. AKMG DOES NOT MAKE ANY EXPRESS OR IMPLIED
WARRANTIES OR CONDITIONS WITH RESPECT TO THE SERVICES AND PRODUCTS PROVIDED
UNDER THIS AGREEMENT, INCLUDING BUT NOT RESTRICTED TO, THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND INFRINGEMENT.
14.6.COMPUTERS NEED ROUTINE MAINTENANCE AND SOMETIMES BREAK
DOWN, AKMG CANNOT CONTROL THE TIMING OR VOLUME OF ATTEMPTS TO ACCESS THE AKMG
WEB SITE OR MEDIA SITES; AS A RESULT AKMG DOES NOT GUARANTEE THAT AFFILIATE OR
ANY THIRD-PARTY WILL BE ABLE TO ACCESS THE AKMG WEB SITE OR MEDIA SITES AT ANY
PARTICULAR TIME. EACH AKMG NETWORK AND AKMG OFFERING IS PROVIDED "AS IS,
WHERE IS" AND "AS AVAILABLE."
15.
INDEMNIFICATION
15.1.Affiliate agrees to defend, indemnify and hold
harmless AKMG and AKMG Related Parties, and its and their directors, officers,
employees, agents, subcontractors and representatives for and against any and
all claims, actions, demands, liabilities, losses, damages, penalties,
interest, judgments, settlements, costs and expenses (including reasonable
attorneys' fees) that directly or indirectly arise out of or are based on:
(a) any misrepresentation or breach of any representation, warranty, or
covenant made by Affiliate in this Agreement, (b) any conduct, or
activity, error or omission by Affiliate, including in relation to Affiliate’s
participation on any AKMG Network, performance of any AKMG tracked Engagement,
or otherwise, (c) any violation by Affiliate of any law, regulation or
rule, (d) Affiliate’s use of any other AKMG Offerings, and/or
(e) any actual or alleged infringement by Affiliate of any Intellectual
Property Rights or other rights of any person, (f) or any other claim brought
against AKMG arising out of Affiliate’s actions or omissions.
15.2.AKMG may, at its election in its sole discretion,
assume the exclusive defense and control of any matter otherwise subject to
indemnification by Affiliate. AKMG may participate in the defense of all claims
as to which it does not assume defense and control, and Affiliate shall not
settle any such claim without AKMG's prior written consent.
16.
AMENDMENTS
16.1.Amendments:
Upon prior e-mail notice to Affiliate, AKMG may at any time amend any and all
terms, conditions and/or provisions of this Agreement, including any Network
Policies and Guidelines.
16.2.Changes in Service: Upon prior e-mail notice, AKMG may add, remove, suspend or
discontinue any aspect of any AKMG Network’s or any other AKMG Offering.
16.3.AFFILIATE’S CONTINUED USE OF ANY AKMG NETWORK AND/OR
AKMG OFFERING AFTER E-MAIL NOTICE IS GIVEN OF A CHANGE (AND AFTER EXPIRATION OF
ANY APPLICABLE PRIOR NOTICE PERIOD) SHALL CONSTITUTE AFFILIATE’S BINDING AND
LEGALLY ENFORCEABLE AGREEMENT TO SUCH CHANGE. IF AFFILIATE DOES NOT WISH TO
ACCEPT ANY SUCH CHANGE, THEN AFFILIATE MUST TERMINATE AFFILIATE’S ACCOUNT WITH
SUCH AKMG NETWORK AND/OR AKMG OFFERING AND CEASE USING SUCH AKMG NETWORK AND
ANY ASSOCIATED AKMG OFFERING.
17.
TERMINATION
17.1.Termination:
Affiliate or AKMG may, at any time without Notice, and with or without cause,
terminate this Agreement and Affiliate’s participation on any AKMG Network or
use of any other AKMG Offering. Affiliate may effect such termination through
Affiliate’s Network Affiliate Account Area or by written notice to AKMG subject
to actual receipt thereof.
17.2.Restricted Use:
Alternatively, AKMG may, in its sole discretion, suspend, limit, restrict,
condition or deny Affiliate’s access to or use of all or any part of any AKMG
Network or any AKMG Offerings.
17.3.Upon any termination of this Agreement and/or
Affiliate’s participation on all AKMG Networks: (a) Affiliate shall
immediately cease to use and remove from any and all Site(s), whether or not
owned or operated by Affiliate, any and all Qualifying Links and all other
Content or materials provided to Affiliate in connection with Affiliate’s
participation on such AKMG Network or Affiliate’s use of any other AKMG Offerings,
(b) Any and all licenses and rights granted to Affiliate under this Agreement
shall immediately cease and terminate, (c) AKMG may terminate or, in its sole
discretion, direct or redirect to any destination Site any and all Qualifying
Links continued to be used by Affiliate without AKMG or any Advertiser
incurring any further liability or obligation to Affiliate, (d) Any and all
confidential or proprietary information of AKMG (including as applicable any
confidential or proprietary information of Advertisers as and to the extent
originally provided by AKMG) that is in Affiliate’s possession or control must
be immediately returned or destroyed. If requested by AKMG, Affiliate will
certify in writing and signed by Affiliate or an authorized officer as to the
return or destruction of all such confidential or proprietary information.
17.4.AKMG may withhold and offset against any and all
compensation and/or other fees that are then unpaid to Affiliate; following
assessment of any fees or other charges owing to AKMG, and subject to AKMG
holding any amount it determines in its sole discretion to be needed to support
any of Affiliate’s indemnification and/or other obligations and/or liabilities
under this Agreement, AKMG may refund any remaining monies to any of the
Advertisers with which Affiliate had entered into a AKMG tracked Engagement.
Such withholding of such compensation and/or other fees is in addition to any
other rights and remedies that AKMG or any Advertiser may have in contract, at
law or in equity.
17.5.All rights or remedies arising out of a breach of any
terms of this Agreement shall survive any such termination of this Agreement
and of Affiliate’s participation in any AKMG Network or Affiliate’s use of
other AKMG Offerings.
18.
FTC and Compliance
18.1.AKMG is committed to helping the Online Media industry
self regulate and abide by all laws and regulations. Affiliate agrees that it
will keep itself informed as to all rules and regulations promulgated by the
Federal Trade Commission (FTC) as well as the FTC Act (15 U.S.C. 45). Although
it is Affiliates responsibility and duty to comply with all FTC regulations and
applicable laws, as a courtesy AKMG has posted on their websites Compliance
Center important information regarding the FTC and their advertising rules,
guidelines, and regulations. Affiliate agrees, warrants and represents, that it
will from time to time visit and review the information posted on the
Compliance Center. Affiliate agrees and understands that the Compliance Center
may not be complete or provide accurate information. Affiliate shall use the Compliance Center solely as an
informative tool and shall not rely on the information contained therein. The
Compliance Center can be accessed at:
http://www.akmg.com/compliance.html
For further
and more up to date information please visit the Federal Trade Commission’s Web
Site at:
http://www.ftc.gov/
18.2.Affiliate and Affiliate’ sub affiliates, officers,
directors, employees, consultants, agents and representatives, and the conduct
of Affiliate’s business, Affiliate’s performance under any Engagements with any
Advertiser, and Affiliate’s use of any AKMG Network and/or AKMG Offerings shall
comply at all times with all applicable federal, state, provincial and foreign
laws, ordinances, rules, regulations, orders, judgments and decrees.
18.3.AKMG may actively monitor the AKMG
Network for fraudulent activity using a combination of its proprietary
software, third party monitoring services. AKMG may freeze Affiliate’s account
and prohibit Affiliate access to that account and suspend its payment obligations to Affiliate pending the
conclusion of its investigation, if AKMG reasonably believes Affiliate has:
18.3.1.Click thru rates that are unjustifiably much higher
than industry practice.
18.3.2.Only click programs generating clicks with no
indication by site traffic that it can sustain the clicks reported.
18.3.3.Generated fraudulent leads.
18.3.4.Used fake redirects, automated software, and/or fraud
to generate clicks or leads.
18.3.5.Breached this Agreement.
18.4.Company may at any time audit Affiliate for compliance
purposes. Affiliate agrees to provide AKMG with any reasonable information
necessary to conduct and investigation into Affiliates compliance with the law
and this Agreement.
18.5.Affiliate Agrees to allow AKMG to use any means of
monitoring Affiliate’s offer
activities including but not limited to:
18.5.1.The use of a seed email account and seeded e mails to be
included in any offering or e mail advertising on the AKMG Network.
18.5.2.The use of third party monitoring services, which may
include but are not limited to: Lashback, Unsubcentral, Email Analyst, and any
other search monitoring services.
18.5.3.The use of AKMG proprietary monitoring systems,
including but not limited to, monitoring of IP usage.
18.5.4.Monitoring of all promotional activities for any AKMG Offer or service
including but not limited to Affiliates website(s), newsletter(s), and landing
page(s) to ensure compliance with the terms of this Agreement and any
additional Advertiser Rules.
18.6.Affiliate agrees and understands that some AKMG Offers
may have additional rules that Affiliate hereby agrees to adhere to. Violation
of said additional Offer rules shall constitute a breach of this Agreement.
18.7. AKMG has a zero tolerance for the violation of any
law and AKMG may terminate this Agreement immediately if at any time Affiliate
is in violation of any federal or state law, rule or regulation. Affiliate further warrants and
represents to abide by the following:
18.7.1.Electronic Communications Privacy Act (ECPA)
18.7.2.Federal Trade Commission Act (FTCA)
18.7.3.Child Online Protection Act (COPPA)
18.7.4.The Utah and Michigan “Child Protection Registry”
18.7.5.Gram Leach Bailey Act
18.7.6.Computer Fraud Abuse Act (CFAA)
18.7.7.CAN-SPAM Act of 2003
18.7.8.Any other Federal or State law, rule or regulation.
19.
AFFILIATE CONDUCT AND PROHIBITED ACTIVITY
19.1.In respect or in relation to any Site (or portion
thereof) used by Affiliate in connection with Affiliate participation on any
AKMG Network, Affiliate may not engage in any activity that is or constitutes,
or that involves, facilitates, advocates or promotes, one or more of the
following: (a) discrimination on the basis of race, ethnicity, gender,
religion, sexual orientation, age or disability; (b) libelous, defamatory,
threatening, harassing, tortuous, or similarly abusive activities; (c) obscene,
pornographic, sexually explicit or similar activities;; (d) sale, export or use
of illegal substances; (e) terrorism, sedition or other illegal activities; (f)
MP3, MPEG and/or other proprietary materials for download, sale or otherwise,
in any case without the permission of the owner of the Intellectual Property
Rights (g) a conflict or violation of any law or regulation or any Intellectual
Property Rights or other rights of any person or Entity; (i) harm to minors in
any way; (h) impersonation of any person, including any AKMG representative, or
misrepresentation of affiliation with any person; or (i) conducting of raffles,
contests, lotteries or sweepstakes and if AKMG at any times, sole discretion and
judgment, feels that Affiliate is in violation of any of the above, AKMG may
terminate this Agreement immediately.
19.2.Affiliate shall not promote any AKMG Offers using
fraudulent means. “Fraudulent
means” include, but are not limited to:
19.2.1. Adding leads or clicks through fraudulent traffic generation, such as
pre population of forms or via other such mechanisms not approved by AKMG;
19.2.2. Using “impression spam,” the frequent or automated searching of a
search term used to reduce competitors’ click-thru rates on their
advertisements, in conjunction with paid search campaigns;
19.2.3. Altering the creative materials provided in the AKMG Offer in any way,
unless authorized in writing by Company or in the AKMG Offer terms; or
19.2.4. Any illegal activity whatsoever, under the laws and
treaties of the United States, any of its states or localities, or under the
laws of any nation who has reciprocal treaty rights with the United States for
the enforcement of its laws or judgments relating to those laws;
19.3.Affiliates advertising for the AKMG Offers must not
include any of the following:
19.3.1.A site that consists solely of a list of links or
advertisements;
19.3.2.A site whose content consists solely of an
advertisement from a AKMG Offer;
19.3.3.A site that exclusively offers incentives to users to
click on ads, unless the only the AKMG Offer being run by the Affiliate explicitly
allow incentives; incentives include, but are not limited to, awarding
customers cash, points, prizes, contest entries, and any other thing of value
transferred or licensed to a user or a person or entity under the control of a
user.
19.4.Third party website internal communications systems,
including but not limited to internal website email (e.g. Myspace.com email),
bulletin boards, chat rooms, or comments.
19.5.Content or material that may infringe on any personal
property rights, intellectual property rights and Affiliate warrants the content to be free of tortious
behavior, including but not limited to:
19.5.1. Racial, ethnic, political, religious, gender, or
lifestyle hate-mongering or otherwise objectionable content;
19.5.2. Investment, money-making opportunities or advice not
permitted under law;
19.5.3. Gratuitous violence or profanity;
19.5.4. Material that defames, abuses, or threatens or urges
physical harm to others;
19.5.5. Promotion of illegal substances or activities such as
illegal online gambling, how to build a bomb, counterfeiting money, etc.;
19.5.6. Software or other media pirating (e.g., Warez,
Hotline);
19.5.7. Hacking, spoofing, phishing or Phreaking;
19.5.8. A site that is not fully functional at all levels,
with not “under construction” sites or sections;
19.5.9. Any spoofing, redirecting, or trafficking from or to
adult-related websites in an effort to gain traffic;
19.5.10.Email messages that constitute Unsolicited Commercial
Email. Unsolicited Commercial
Email includes all email so defined by the laws of the United States or any of
the several states. Unsolicited
Commercial Email also includes email messages with fraudulent or deceptive
“from” or “subject” lines (including the alteration of “from” or “subject”
lines where the AKMG Offer terms set forth “from” and “subject” lines to be
used), fraudulent or deceptive headers, or fraudulent or deceptive initiating
–IP addresses. In the event
that Company suspects that Affiliate may have sent an email that violates any
of these laws or Company’s policies regarding Unsolicited Commercial Email,
Affiliate agree to cooperate fully with Company’s investigation, and to send
Company all information relevant to the investigation that it requests within
twenty-four (24) hours of the sending of the request by Company.
19.6.Sublicense:
Affiliate may not sublicense, rent, lease, sell, resell, outsource or service
any AKMG Offerings, and any attempt to do so shall be null and void.
19.7.Reverse Engineering: Affiliate will not make unauthorized modifications, reverse engineer,
disassemble, decompile or attempt to derive source code of any AKMG Offerings.
19.8.Hacking:
Affiliate agrees not to hack, abuse, adversely interfere with, infect with
viruses, worms or other malicious or destructive code, or use or cause to be
used in extraordinary and unreasonable or inappropriate ways or amounts that
interfere with: any AKMG Offerings, including any servers, bandwidth supply,
equipment, software and other technological resources provided by AKMG.
19.9.Spam:
Affiliate may use email or other electronic messages to promote it or its
Qualifying Link and any and all such electronic messages must comply in all
respects with this Agreement, the Advertiser's terms and conditions, and any
and all applicable laws, including the requirements of the Can Spam Act of
2003. Further, no electronic message initiated or sent by Affiliate or on
Affiliate’s behalf may identify AKMG.
19.10.Spyware:
Affiliate shall not promote, disseminate, or cause to install any kind of
“spyware” or “Adware” on any computer, including but not limited to AKMG’s or
End User’s computers that violates any law or regulation and is installed and
used without the permission of AKMG or End User. In the event that Affiliate
violates this section AKMG may terminate this Agreement immediately.
19.11.Unsub List:
If the campaign is an e-mail campaign AKMG on behalf of Advertiser may provide
Affiliate with a list of all users that have unsubscribed from the Network
offer and no longer wish to participate in the offer (“Unsub List”).Affiliate
shall use its best efforts to scrub their e-mail list from unsubscribed users
of the AKMG Offering. The unsubscribe list is property of Advertiser and
Affiliate shall gain no interest, right, or title from the use of the Unsub
List. Furthermore should Affiliate lease, sell, or use the Unsub List, AKMG in
its sole discretion may terminate this Agreement immediately, cease any and all
payments to Affiliate, and seek
any and all remedies under law and equity.
19.12.Interference:
Affiliate may not, through downloadable or other technology, replace,
intercept, redirect, block, alter or otherwise interfere with the full
functioning and intended actions of any Qualifying Link that has been placed or
distributed by another Network Affiliate including any action that would in any
way prevent the behavior or result that would occur or would have occurred had
an End User activated such Qualifying Link without Affiliate’s interference.
19.13.Infringing Uses:
Affiliate may not use any name, trademark, service mark, domain name or other
Intellectual Property Rights of any third party in connection with Affiliate’s
use of any Qualifying Links, any AKMG Network or any other AKMG Offerings, in
any way or for any purpose that infringes or violates any Intellectual Property
Rights or other rights of such third party, whether for the purpose of
increasing the levels of tracked activities attributable to Affiliate’s
Qualifying Links or for any other purpose.
19.14.Fraud/Abuse:
Affiliate shall not knowingly permit other persons to, engage in any fraudulent,
abusive or illegal activity in connection with Affiliate’s participation on any
AKMG Network or in connection with any Advertiser's affiliate marketing program
or Engagement.
19.15.Incentivization:
Affiliate shall not incentivize or make any other offers in conjunction with
the AKMG Offering without getting AKMG’s written approval and said approval
will be in AKMG’s sole discretion. If Any AKMG Offer is to be incentivized it
will be so stated in the offer.
AKMG may terminate this Agreement immediately and cancel all payments
due and owing to Affiliate should AKMG, in its sole discretion and judgment,
believe that Affiliate is in violation of this section.
19.16.Affiliate shall not contact Advertiser directly for
any reason whatsoever unless written approval is granted by and authorized AKMG
representative, in AKMG’s sole discretion. If Affiliate contacts Advertiser
directly AKMG may cease any all payments due and terminate this Agreement
immediately. In the event AKMG is
in receipt of funds from a Advertiser for the purpose of paying commissions to
Affiliate, and a dispute arises between Affiliate and the Advertiser regarding
the amount of the funds that are due, AKMG will be entitled to return such
funds to the Advertiser, and to decline to offer further processing services
until such dispute is resolved and AKMG is notified, in writing, by all
parties, that payments should resume. Affiliate agrees that AKMG shall have no
obligations and shall incur no liabilities to Affiliate in connection with any
dispute arising from the above.
20.
ENFORCEMENT
20.1.Governing Law and Jurisdiction: This
Agreement shall be construed and enforced in accordance with the laws of the
State of Florida without regard to conflicts of laws principles. Except
for Arbitration as provided herein in this Agreement under, the parties agree
that exclusive jurisdiction for any disputes not subject to arbitration arising
between the parties to this Agreement shall be brought in the state courts
within Miami-Dade County, State of Florida and both parties expressly and
irrevocably waive any defense of personal and/or subject matter jurisdiction in
those courts. The parties agree that this section shall be concurrent and in
aid to Section 213 and at no times shall it be deemed to be in conflict with
Section 21.3. Furthermore, the parties expressly acknowledge and agree that the
laws of the State of California shall not be applicable to this Agreement under
any circumstance whatsoever.
20.2.Attorneys Fees and Costs: The parties shall be entitled to recover, in addition
to costs and disbursements allowed by law, reasonable attorney’s fees,
litigation costs, and expenses in connection with enforcement of this
agreement, including pre-litigation attorney fees and costs and such fees shall
be awarded to the prevailing party. Invalidation of any one of the covenants or
terms of this Agreement, by judgment of a court, shall not affect any of the
other provisions of this Agreement which shall remain in full force and effect.
20.3.Arbitration in Florida: Any and
all disputes or claims arising out of and/or related to this Agreement, its
performance, breach, or interpretation thereof (including issues about its
validity or enforceability), shall be exclusively (except as provided below)
resolved by binding arbitration utilizing the Commercial Arbitration Rules
promulgated by the American Arbitration Association (AAA). For all
disputes under three hundred thousand dollars ($300,000.00) one arbitrator
shall be selected using AAA’s procedures. For all disputes over three hundred
thousand dollars ($300,000.00) three (3) arbitrators shall be selected using
AAA procedures. The arbitrator(s) shall use all reasonable efforts to minimize
discovery and to complete the arbitration proceedings as expeditiously as
possible. Depositions SHALL be allowed. The Arbitrator(s) shall
render a written decision within thirty (30) calendar days of the
hearing. As to the issue of Attorney’s fee’s only, the arbitrator(s)
shall only determine the issue of entitlement to attorney’s fees and shall
award attorneys fees, the amount of which shall be determined in accordance
with Florida Law. Additionally the arbitrator shall award to the
prevailing party all costs associated with the Arbitration incurred by the
prevailing party, including but not limited to, filing fee, case management
fee, administrative fees, copying, and arbitrators fee, but will not award
punitive, incidental, consequential, treble or other multiple or exemplary
damages, and the parties hereby agree to waive and not seek such damages.
Either party may seek judicial relief to compel the other party to comply with
the provisions of this Section, or injunctive or other equitable relief to
protect its interests, provided (unless prohibited by applicable law) that the
remainder of the dispute or claim is submitted to arbitration. The
arbitration shall be held in Miami-Dade County, Florida; both parties hereby
give their irrevocable consent to jurisdiction of courts of or in the State of
Florida, as well as processes of the AAA in Florida. All awards may be
filed with one or more courts, state, federal or foreign having jurisdiction
over the party against whom such award is rendered or its property, as a basis
of judgment and of the issuance of execution for its collection. This agreement
does not preclude the parties from seeking injunctive relief prior to
arbitration in the proper courts. Furthermore the parties agree that any and
all awards and settlements will be confidential and the parties will not
communicate, publish, or transmit such information to a third party without
consent of all parties to this agreement.
21.
RULES OF CONSTRUCTION
21.1.Construction:
The preparation of this Agreement has been a joint effort of the parties, and
each of the parties has participated fully in the negotiation and preparation
hereof. Therefore, any rule of judicial construction that this Agreement is to
be construed more strictly against one of the parties than the other shall not
apply and has no effect.
21.2.Non-Waiver:
Either party’s failure to require the other party’s performance of any term or
condition of this Agreement shall not constitute a waiver and shall not affect
the right of such party to later enforce such provision, unless such waiver is
made expressly in writing signed by an authorized representative of the waiving
party. No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any prior, concurrent or subsequent breach of the same
or any other provisions hereof, and no waiver shall be effective unless made in
writing and signed by an authorized representative of the waiving party.
21.3.Force Majeure:
Neither party shall be liable for service interruptions, delays, failure to
perform, damages, losses or destruction, or malfunction of any consequence
thereof caused or occasioned by, or due to fire, flood, water, the elements,
acts of God, war, explosions, civil disturbances, governmental actions,
shortages of equipment or supplies, unavailability of transportation, acts or
omissions of third parties, or any other cause beyond the effected party’s
reasonable control. The party so
delayed or prevented from performing shall provide prompt notice of such event
to the other party and shall exercise good faith efforts to remedy any such cause
of delay or cause preventing performance.
21.4.Good Faith:
All parties agree to act in good faith at all times and to abide by all terms
and conditions set forth herein in such a manner.
21.5.Captions: The headings and captions in this Agreement are
included for convenience of reference and shall not affect or be considered in
the interpretation or construction of any provision of this Agreement.
21.6.Integration:
This Agreement is the entire agreement between the parties pertaining to its
subject matter, and supersedes all prior written or oral agreements (including
prior versions of this Agreement and any conflicting confidentiality
agreements), representations, warranties or covenants between the parties with
respect to such subject matter. There are no third party beneficiaries of this
Agreement.
21.7.Modification and Severability: No modification of these Standard Terms and
Conditions by Affiliate shall be binding unless in writing and signed by both
parties. If any provision herein is held to be unenforceable, the remaining
provisions shall remain in full force and effect. All rights and remedies
hereunder are cumulative. Any
provision of this instrument prohibited by law in any state shall, as to such
state, be ineffective to the extent of such prohibition, without invalidating
the remaining provisions of this instrument.
21.8.Assignment:
Affiliate shall not assign this Agreement and any rights or obligations
hereunder without the express written approval of AKMG which approval shall not
be unreasonably withheld. Any transfer of control of substantially all of the
assets or business of Client to a third party by any means, including without
limitation, stock acquisition or merger, shall be deemed to be an assignment
for purposes of this section. AKMG shall be entitled to assign this Agreement
without limitation.
21.9. Notice: All
notices, requests, demands, and other communications to AKMG 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 and made to the
attention of both the CEO and General Counsel) unless otherwise provided for in
this Agreement:
AKMG, Inc.
General Counsel / Conde & Cohen, P.L.
445 N. Andrews Ave.
Space 2
Fort Lauderdale, Florida 33301
21.10. Agent Third Party: Affiliate shall disclose to AKMG if it is acting as an agent for a
Third Party, and Affiliate agrees to provide AKMG written proof of any agency or
third party relationship, upon AKMG’s Request. Affiliate further agrees and
warrants that if it is acting as an agent or agency that it is authorized to
bind, and will bind, the third party to this Agreement, and that the third
party will be jointly and severally liable with Affiliate for all invoices and
payments due and owing to AKMG.
21.11. 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.