Online Affiliate Marketing Agreement
AGREEMENT (this 'Agreement') by and between exltrk.com , a corporation, known as (Advertiser ) having offices at 6900 College Blvd Suite 840, Overland Park, KS 66211, and Affiliate, with information provided upon registering at http://Exltrk.com .
WHEREAS , ADVERTISER wishes to engage AFFILIATE to perform the Sales and Marketing Services through Insertion Order, and ADVERTISER wishes to accept such engagement, upon the terms and subject to the conditions contained herein.
NOW, THEREFORE , in consideration of the premises and mutual covenants and conditions contained herein the parties, intending to be legally bound, agree as follows:
These terms and conditions ('Standard Terms') shall be deemed incorporated by reference into any insertion order (the 'Insertion Order') submitted by the ADVERTISER or its agency set forth in the Insertion Order (collectively, 'ADVERTISER') and shall govern the Insertion Order, superseding all terms therein except for those relating to advertisement scheduling and pricing. All Insertion Orders must be submitted with a ADVERTISER Insertion Order form and signed off on by ADVERTISER and are subject to acceptance by ADVERTISER. The Standard Terms and Insertion Order shall be collectively known as the 'Agreement.' ADVERTISER and its agency (if applicable) shall be jointly and severally responsible under this Agreement.
• Term of Agreement . The term of this Agreement commences on the Acceptance Date set forth in the Insertion Order and terminates on the End Date set forth in the Insertion Order or such later date as the parties may agree in writing.
• Terms of Payment . AFFILIATE will invoice ADVERTISER as set forth in the Insertion Order and as provided by ADVERTISER's reporting and tracking system. Payment as set forth in the Insertion Order shall be made to AFFILIATE 30 days from the end of each calendar month in which a transaction has occurred. All payments due hereunder are in US dollars and are exclusive of any applicable taxes. If Advertiser is acting as an agency for another client, and client fails to pay Advertiser all payments due to affiliate will be suspended until Advertiser obtains payment form Advertisers client. AFFILIATE, will allow ADVERTISER to assign any outstanding balances under this IO to AFFILIATE if ADVERTISER is acting as a third party or agency of record.
• ADVERTISER's Representations; Indemnification . ADVERTISER represents and warrants to AFFILIATE that ADVERTISER holds all necessary rights to permit the use of the advertisement by AFFILIATE for the purpose of this Agreement; and that the use, reproduction, distribution, transmission or display of advertisement, any data regarding users, and any material to which users can link, or any products or services made available to users, through or as a result of the advertisement will not (a) violate any criminal, (b) contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law or code, or (c) use any trademark, trade name, or corporate name of AFFILIATE without the prior written consent of AFFILIATE. ADVERTISER agrees to indemnify, defend and hold AFFILIATE and Third Parties (if any, and including, but not limited to AFFILIATE data and, or technology Partners,) harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to (i) breach of any of the foregoing representations and warranties, or (ii) any third party claim arising from use of or access to the advertisement under this Agreement or any material to which users can link, or any products or services made available to users, through the advertisement under this Agreement.
• Right to Reject Advertisement; Positioning . All contents of advertisements are subject to AFFILIATE's approval. AFFILIATE reserves the right to reject or cancel any advertisement, Insertion Order, URL link, space reservation or position commitment, at any time, for any reason whatsoever (including belief by AFFILIATE that any placement thereof may subject AFFILIATE to criminal or civil liability).
5. Can Spam Compliance . The parties hereby represent and warrant that they shall at all times fully comply with all applicable statutes, rules and regulations with respect to their respective businesses including, without limitation, the CAN-SPAM Act of 2003, laws governing deceptive trade practices and/or online marketing and/or advertising. Advertiser agrees to maintain a regularly updated suppression list containing current unsubscribe requests in conformance with the CAN-SPAM Act of 2003. Further, Advertiser specifically agrees to provide Affiliate with updated suppression files at a minimum of once per week. Affiliate agrees to NOT perform an email-marketing program without downloading the suppression located at http://Exltrk.com Affiliate agrees to indemnify, defend and hold harmless Advertiser, and its parents, subsidiaries, agents, affiliates, employees, directors and officers, from any and all liability, claim, loss, damage, demand or expense (including reasonable attorneys' fees) asserted by any third party due to, arising from, or in connection with: any breach by Affiliate of this Agreement including, without limitation, any representation or warranty contained herein; any fraudulent conduct committed by Affiliate; and/or any intellectual property claims associated with any and all copy and images supplied by Affiliate and Affiliate's usage thereof.
• Confidentiality . During the term of this Agreement, and until such time as the "Confidential Information" (as defined below) is no longer protected as a trade secret under the laws of Maryland, neither party will use or disclose any 'Confidential Information' of the other party except as specifically contemplated herein. 'Confidential Information' means information that: (1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Subject to the foregoing, Confidential Information shall include, without limitation, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, the advertisement before publication, and the terms of the Insertion Order. Confidential Information does not include information that: (i) has been independently developed by the receiving party without access to the other party's Confidential Information; (ii) has become publicly known through no breach of this Section by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority. At the request of the disclosing party, the receiving party shall return all of the disclosing party's Confidential Information to the disclosing party.
• Termination; Effect of Termination . In the event of a material breach by either party, either party may terminate this Agreement immediately without notice or cure period, without liability to the other. In the event of any termination, ADVERTISER shall remain liable for any amount due under an Insertion Order for advertisement delivered by AFFILIATE and such obligation to pay shall survive any termination of this Agreement.
• No Warranty . AFFILIATE MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, ADVERTISER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, AVAILABILITY, FUNCTIONALITY OR ANY OTHER ASPECT OF ADVERTISER'S SERVICE.
• Limitations of Liability ; ADVERTISER'S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT RECEIVED BY AFFILIATE FROM ADVERTISER FOR THE INSERTION ORDER GIVING RISE TO THE CLAIM. Without limiting the foregoing, AFFILIATE shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown or any other condition affecting production or delivery in any manner beyond the control of ADVERTISER. ADVERTISER acknowledges that AFFILAITE has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.
• Audit Rights . ADVERTISER shall keep proper records and books of account relating to the computation of payments to be made hereunder. AFFILIATE or its designee may inspect such records to verify reports. Any such inspection will be conducted in a manner that does not unreasonably interfere with ADVERTISER's business activities and, except as provided below, shall be conducted no more frequently than once every six months. ADVERTISER shall immediately make any overdue payments disclosed by the audit.
• Construction . No term or condition other than those set forth in the Standard Terms or in the Insertion Order relating to advertisement scheduling and pricing shall be binding on AFFILIATE unless in a writing signed by duly authorized representatives of the parties. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. The terms and conditions hereof shall prevail exclusively over any written instrument submitted by ADVERTISER, including AFFILIATE's insertion order, and AFFILIATE hereby disclaims any terms therein, except for terms therein relating to advertisement scheduling and pricing.
• Miscellaneous . This Agreement shall be governed by and construed in accordance with the laws of Maryland . This Agreement may be amended only by a writing executed by a duly authorized representative of each party. ADVERTISER shall make no public announcement regarding the existence or content of the Insertion Order without AFFILIATE's prior written approval, which approval shall not be unreasonably withheld. Any notices under this Agreement shall be sent to the addresses set forth in the Insertion Order (or in a separate writing) by facsimile or nationally-recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.