Aragon Advertising LLC Affiliate Network Terms and Conditions
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS RELATING TO YOUR APPLICATION TO, AND IF ACCEPTED, PARTICIPATION IN ARAGON ADVERTISING LLC’S AFFILIATE NETWORK (“AFFILIATE NETWORK”). YOU ACKNOWLEDGE AND AGREE THAT YOUR APPLICATION TO AND, IF ACCEPTED, PARTICIPATION IN THE AFFILIATE NETWORK IS GOVERNED BY THESE TERMS AND CONDITIONS.
These Affiliate Network Terms and Conditions (“Terms and Conditions” or “Agreement”), are effective as of the date that you click to accept (“Effective Date”), and are by and between Aragon Advertising LLC (“Aragon” or “we“), and [insert the applicant’s name here] you, the party submitting an application to become an Aragon Affiliate (“you” or “your“, and if accepted to the Affiliate Network, “Affiliate”). Aragon and you may be referred to in this Agreement individually as a “party” and together as “parties.”
- Enrollment in the Affiliate Network.
- You agree that any information which you submit to Aragon, including but not limited to information you submit in an Affiliate Network application, or information you provide in connection with your performance of services in the Affiliate Network (if you are accepted) shall be accurate, current, and complete. You shall not use any aliases or mask your true identity or contact information in any communications with Aragon or involving your participation in the Affiliate Network. You shall promptly notify us if any information you have provided to us changes by sending an email to firstname.lastname@example.org.
- We shall have the right to accept or reject your Affiliate Network application for any reason in our sole discretion. We will attempt to notify you via email or through our Platform about the status of your application, generally within two (2) business days after you have submitted your application, although Aragon makes no guarantee as to exact timing.
- If your application is accepted, you may participate in the Affiliate Network. Participation in the Affiliate Network shall be subject to these Terms and Conditions and any other rules, policies, or guidelines provided by Aragon.
- How the Affiliate Network Works. If you are accepted into the Affiliate Network, you will be given access to the Advertising Affiliate Platform (the “Platform”) and paired with an Affiliate Manager. The Platform contains requests for delivering advertisements to consumers and associated requirements made by its third-party advertising clients (each, a “Client”) in connection with advertising campaigns (each a “Campaign”).
- Creative Materials.
- We may make content, text, graphics, banners, buttons, text links, clicks, co-registrations, pop-ups, pop-unders, emails, social media, graphic files, website links and other creative materials available to you via the Platform for use exclusively in connection with a Campaign (collectively, the “Creative Materials”). You shall use the Creative Materials solely in the manner described in the applicable Offer and shall discontinue use of the Creative Materials promptly after termination of the Campaign or sooner if requested by us.
- You shall have a revocable, nontransferable, non-sub-licensable, non-exclusive limited license to use the Creative Materials solely in connection with the Campaign for which they are made available, and as described in the applicable Offer or as instructed by an Affiliate manager during the appliable Campaign. Affiliate shall use and display the Creative Materials on digital properties owned or controlled by it and in other online or digital advertising channels (collectively, “Affiliate’s Property or “Affiliate’s Properties”).
- Modification. Affiliate shall use and distribute the Creative Materials exactly as provided in an Offer. Aragon shall have the right to change, suspend, remove, or discontinue any element of an Offer or the Creative Materials, including but not limited to any tags, text, graphic or banner ad. Affiliate agrees to promptly implement any request from Aragon to change or remove any Creative Materials that are being used by Affiliate as part of the Affiliate Network.
- Use of Other Materials. Affiliate shall obtain Aragon’s prior written approval before using any materials other than, or in addition to, the Creative Materials. Affiliate shall request approval by sending an email to its Aragon Affiliate Manager. Aragon shall have the right to withhold such approval for any reason in its sole discretion.
- Placement. Subject to any requirements specified in these Terms and Conditions or an applicable Offer, Affiliate may determine placement and positioning of Creative Materials and other creative content. Affiliate shall not place Creative Materials on any properties or media that are directed to individuals less than eighteen (18) years of age. Affiliate shall discontinue use of Creative Materials promptly at the end of a Campaign. Affiliate shall update and/or remove Creative Materials from all properties and media as appropriate. Aragon disclaims all liability related to or arising in connection with the Creative Materials.
- Affiliate’s Properties. Affiliate understands and agrees that, except as may otherwise be set forth herein, Affiliate shall be solely responsible for the development, operation, and maintenance of any and all content on or linked to Affiliate’s Properties, including but not limited to the methods by which Creative Materials are used, displayed, or distributed on or through Affiliate’s Properties. Affiliate shall comply with any additional policies, rules, or guidelines provided by an Affiliate Manager regarding any Creative Materials, Offers, or IOs, and Affiliate shall ensure all permitted Sub-Affiliates’ compliance with the same.
- Aragon will automatically generate a monthly invoice on behalf of Affiliate for all Commissions payable, subject to Section 4.3 below, and will remit payment to Affiliate based upon that invoice. A “Commission” is the amount earned for each Compensable Transaction.
4.1.1. A “Compensable Transaction” means a transaction defined in an Offer or other agreement between Affiliate and Aragon, including but not limited to, conversions, clicks, impressions, sales/actions, installs/downloads, telephone calls, telephone call transfers, applications, leads, and acquisitions. As used in an Offer or other agreement between Aragon and Affiliate, “CPA” means cost per acquisition; (b) “CPC” means cost per click; (c) “CPM” means cost per thousand impressions; and (d) “ppCall” means cost per call.
4.1.2. The following shall not be considered Compensable Transactions:
(a) an action by a computer-generated user, such as a robot, spider, computer script or other automated, artificial, machine driven or fraudulent method designed to appear to be a natural person; or
(b) an action that does not meet the criteria set forth in an Offer; or
(c) an action that is not conducted at or from the URL provided to Affiliate by Aragon for tracking purposes; or
(d) is using pre-populated fields; or
(e) is determined by Aragon, in its sole discretion, to be fraudulent, incomplete, unqualified or a duplicate.
4.2. Promptly after acceptance into the Affiliate Network and Everflow or other affiliate tracking platform used by Aragon, Affiliate will be prompted to create an account in Tpalti (or other third-party payment provider designated by Aragon). Affiliate shall activate “payable” status in the payee account. Affiliate shall automatically forfeit any Commissions due to Affiliate in connection with these Terms and Conditions if it fails to create and/or activate an account with the designated third party payment provider within six (6) months of acceptance into the Affiliate Network.
4.3. Aragon will pay Affiliate Commissions as set forth in Section 4.4 below after Aragon has been paid for such Compensable Transactions by its Client. Aragon shall not be obligated to pay Affiliate the Affiliate Commission unless and until it has received payment for the Compensable Transactions on which the Commission was calculated from Aragon’s Client. Affiliate acknowledges and agrees THAT IT SHALL NOT RECEIVE COMMISSION ON ANY COMPENSABLE TRANSACTIONS THAT ARAGON’S CLIENT HAS NOT PAID ARAGON FOR.
4.4. Subject to Section 4.3 above, Aragon will pay any Commissions earned by Affiliate on a monthly basis, provided that the Commission due to Affiliate is greater than one hundred dollars ($100). If Affiliate earned less than one hundred dollars ($100) in Commission in a given month, the Commission will not be paid out, and will roll over to the next month until the amount of Commission earned meets or exceeds one hundred dollars ($100), at which time the balance will be paid out on the next scheduled payout date.
4.5. Chargebacks. Aragon reserves the right to chargeback or reverse any Commissions:
(a) that were paid out for actions which were subsequently found not to meet the requirements of a Compensable Transaction;
(b) where a return or cancellation has been made with respect to the applicable product and/or service;
(c) if Affiliate is in breach of these Terms and Conditions; or
(d) where Aragon has not received payment from a Client for the Compensible Transaction(s) supporting such Commission.
Unless set forth otherwise herein, Aragon will track, calculate, and account for all Compensable Transactions, Commissions, credits for payments, and debits against an Affiliate’s account, which calculations shall be final and binding on Affiliate. If Affiliate has an outstanding balance due to Aragon under these Terms and Conditions or any other agreement between the Affiliate and Aragon, whether or not related to the Affiliate Network, Affiliate agrees that Aragon may offset any such amounts due to Aragon from amounts payable to Affiliate under these Terms and Condition.
4.6. Disputes. Affiliate may dispute Aragon’s accounting of Compensable Transactions by providing Aragon with commercially reasonable and verifiable documentation supporting its position within ten (10) days of the applicable invoice date. Affiliate irrevocably waives any claims it fails to raise within ten (10) days of the applicable invoice date. Aragon and Affiliate will, in good faith, reasonably attempt to reconcile any differences identified by Affiliate’s documentation. If the parties are unable to arrive at a reconciliation, then Aragon’s calculations shall control. The procedure described in this Section 4.6 shall be Affiliate’s sole and exclusive remedy for a dispute regarding the number of Compensable Transactions.
4.7. Taxes. Aragon will withhold taxes to the extent required by applicable law.
- Affiliate’s Obligations
- Prohibited Activities. Affiliate shall not engage in any of the prohibited activities outlined in Exhibit A attached hereto (“Prohibited Activities”).
5.2.1. Affiliate shall not use a subcontractor or other affiliate (“Sub-Affiliate”) to perform Affiliate’s obligations under this Agreement without obtaining Aragon’s prior written approval. Aragon’s approval of a Sub-Affiliate will not constitute a waiver of any rights Aragon may have based upon Affiliate’s representations and warranties.
5.2.2. In response to Aragon’s request, Affiliate must promptly disclose the name and contact information of any Sub-Affiliate that Affiliate allows to access the Advertising Platform, use or place Creative Materials on the Advertising Platform, or render advertising services in connection with an Offer or Campaign. Affiliate agrees that it shall ensure that all approved Sub-Affiliates are bound by, and comply with, these Terms and Conditions. Affiliate shall maintain its affiliate network according to the highest industry standards and in compliance with all Applicable Laws. Affiliate shall be responsible for the actions and omissions of its Sub-Affiliates and shall promptly terminate any Sub-Affiliate that takes, or could reasonably be expected to take, any action that violates these Terms and Conditions. Aragon reserves the right, in its sole discretion and for any reason, to prohibit or revoke any Sub-Affiliate’s access to the Platform, and Affiliate shall take all actions reasonably necessary to effectuate such prohibition or revocation. Nothing in this Agreement shall be construed to create a contractual relationship between Aragon and any Sub-Affiliate, nor any obligation of Aragon to pay or to ensure payment of any money due any Sub-Affiliate.
- Sub-Affiliate and Affiliate Properties. Affiliate shall only utilize the Platform in connection with Affiliate’s Properties or the websites of Affiliate’s Sub-Affiliate that were approved in writing by Aragon (“Sub-Affiliate Sites”), which together will be referred to as “Affiliate’s Properties”. If an Affiliate Property is a website, the website must be fully functional at all levels while these Terms and Conditions are in effect, and all websites and Affiliate emails must be connected to a valid second-level domain name.
- Compliance Obligations. Aragon reserves the right to suspend Affiliate’s access to the Platform, Creative Materials, and Offers if Affiliate is not in compliance with these Terms and Conditions, at any time and with or without notice.
- Documents Required on Each of Affiliate’s Properties.
- Any violation of this Section 5 by Affiliate shall be considered a material breach of this Agreement, entitling Aragon to immediately terminate these Terms and Conditions and any IOs, withhold all payments to Affiliate and to pursue all available legal and equitable remedies, without liability and without prior notice.
- Affiliate shall consult with counsel of its choosing to ensure compliance with all Applicable Laws.
Aragon shall have the right, but not the obligation to, monitor and investigate traffic for fraud. Aragon shall have the right to suspend an Affiliate’s account if it suspects fraudulent activities or any breach of these Terms and Conditions. In addition, if Aragon determines, in its sole discretion, that Affiliate has engaged in fraudulent activities, Aragon shall have the right to not pay Affiliate any Commission due, whether such Commissions were legitimately or fraudulently earned, and immediately terminate an Affiliate’s account without notice. Without limiting the foregoing, in the event that Affiliate has already received payment for fraudulent activities, Aragon shall have the right to seek credit or remedy from future earnings or to demand reimbursement from Affiliate. Aragon will provide Affiliate with data supporting allegations of fraud unless Aragon is legally prohibited from disclosing such data. In the event of a material breach of this Agreement, Aragon shall have the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
- Intellectual Property.
- Aragon Materials. Affiliate shall not alter, modify, manipulate, or create derivative works of any graphics, creative, copy or other materials owned by, or licensed to, Aragon (“Aragon Materials”). At Aragon’s request and/or upon termination of Affiliate’s participation in the Affiliate Network, Affiliate must immediately return or destroy (at Aragon’s option) and discontinue the use of all Aragon Materials. This license terminates immediately and without notice if Affiliate breaches these Terms and Conditions. In addition, Aragon shall have the right to revoke this license for any reason at any time upon written notice to Affiliate.
- Aragon’s Intellectual Property. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights in any of Aragon’s trademarks, service marks, copyrights, patents or trade secrets.
- Feedback. You agree that Aragon may use any suggestion, comment or recommendation you choose to provide to Aragon, without attribution or compensation to you.
- Data. With the exception of Affiliate’s own consumer data lists, all consumer data, including but not limited to campaign results, user data, statistical information, traffic analyses or other data produced or provided by Affiliate and/or derived from use of the Creative Materials (“Data”) shall be the exclusive property and Confidential Information of Aragon. Affiliate shall not retain or transfer the Data to a third party.
- Reservation of rights. All rights not expressly granted in these Terms and Conditions are reserved by Aragon.
- “Confidential Information” means any information disclosed to Affiliate by Aragon, either directly or indirectly, in writing, verbally, or by inspection of tangible objects, including but not limited to information relating to Affiliate’s participation with Aragon’s Affiliate Network, these Terms and Conditions, business and financial information, pricing and sales information concerning us or any of our affiliates provided by or on behalf of any of them, Affiliate’s unique publisher identification number and login information, the identities of any advertiser Client, click-through or impressions generated as a result of this Agreement, Aragon’s commission rates, program rates, and pricing strategies. In addition, Affiliate agrees that all non-public information, data, and reports received from Aragon in connection with the Affiliate Network shall be the Confidential Information of Aragon. Notwithstanding the foregoing, Confidential Information does not include information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure to you by Aragon; (b) becomes publicly known and made generally available after disclosure to you by Aragon other than through your action or inaction; and/or (c) is in your possession, without confidentiality restrictions, at the time of disclosure by Aragon as shown by your files and records prior to the time of disclosure.
- Affiliate shall not, without the prior written consent of Aragon:
(a) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information;
(b) use any Confidential information for any purpose other than to confirm the accuracy of Commission calculations;
(c) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to you or as required by applicable law; or
d) use any Confidential Information to develop, enhance or operate a service that competes with the Affiliate Network, or assist another party to do the same.
You shall take all reasonable measures to prevent disclosure and unauthorized use of the Confidential Information. All Confidential Information, and any documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to Aragon by Affiliate immediately upon our request.
- A violation of this Section by Affiliate shall be a material breach of these Terms and Conditions and will entitle Aragon to immediately terminate this Agreement and any current Offers and Campaigns withhold Commission to Affiliate, and pursue all other remedies available at law or in equity. Affiliate acknowledges that a threatened or actual breach of this section could cause Aragon irreparable harm, for which Aragon shall have the right to seek appropriate injunctive relief, without requiring a bond or undertaking and without proof of damages.
- Term and Termination.
- Term. These Terms and Conditions shall be effective on the date that you accept these Terms and Conditions and shall remain in effect until terminated in accordance with this Section 9.
9.2.1. You may terminate your participation in the Affiliate Network at any time by removing all Creative Materials from all Affiliate Properties.
9.2.2. We may immediately terminate your participation in one or more Offers or Campaigns and/or terminate this Agreement at any time and for any reason upon written notice to you.
- Effect of Termination. Upon termination of your participation in one or more Offers or this Agreement for any reason, you must immediately cease all use of and delete all Creative Materials, and all Aragon or Client intellectual property, and must stop representing yourself as an Aragon Affiliate. Immediately upon termination, all licenses granted to you shall immediately terminate. Aragon reserves the right to permanently delete and destroy any information and data that you may have voluntarily or involuntarily provided to us at any time, including, without limitation, during the Affiliate Network application process.
- Survival. The provisions of this Agreement that should, by their nature survive termination, shall be deemed to survive, including, but not limited to, Sections 3.5, 4.3, 4.5, 5.2.2, 5.5, 5.6, 7-14.
- AFFILIATE ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF LEGAL COUNSEL OF ITS CHOOSING AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT.
THE AFFILIATE NETWORK, ARAGON SERVICES, ARAGON MATERIALS, AND ANY OTHER MATERIALS PROVIDED HEREUNDER, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” ARAGON MAKES NO WARRANTY WITH RESPECT TO THE SAME AND, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, ARAGON HEREBY EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. ARAGON DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSION UNDER THESE TERMS AND CONDITIONS. TO THE EXTENT THAT ARAGON, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. THE DISCLAIMER OF WARRANTIES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN ARAGON AND AFFILIATE. THE AFFILIATE NETWORK WOULD NOT BE MADE AVAILABLE TO AFFILIATE WITHOUT SUCH RESTRICTIONS.
- Limitation of Liability.
IN NO EVENT SHALL ARAGON BE RESPONSIBLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOST OPPORTUNITIES, ARISING FROM OR RELATING TO THESE TERMS AND CONDITIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND REGARDLESS OF THE CAUSE OF ACTION UPON WHICH ANY SUCH CLAIM IS BASED. ARAGON’S AGGREGATE LIABILITY UNDER THESE TERMS AND CONDITIONS, INCLUDING IN CONNECTION WITH ANY OFFER OR CAMPAIGN SHALL NOT EXCEED THE COMMISSION PAID BY ARAGON TO AFFILIATE DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING SUCH CLAIM. AFFILIATE WAIVES ITS RIGHT TO BRING AN ACTION, SUIT OR PROCEEDING AGAINST ARAGON MORE THAN ONE YEAR AFTER THE TERMINATION OF THESE TERMS AND CONDITIONS.
Affiliate shall defend, indemnify, and hold harmless Aragon, its Clients and Client partners, and each of their parents, subsidiaries, affiliates, and their respective officers, directors, managers, members, employees, agents, successors, and permitted assigns (“Affiliate Indemnitees”) from all alleged and actual claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorneys’ fees and expenses) (collectively “Claims”) arising from (a) Affiliate’s Properties or its participation in the Affiliate Network; (b) Affiliate’s use of any Creative Materials in a manner not permitted under this Agreement; (c) Affiliate’s breach of any of its Representations and Warranties; and (d) Affiliate’s breach of any provision of these Terms and Conditions, an Offer or any breach by a Sub-Affiliate of the same. Aragon shall have the right to assume the exclusive defense and control of any matter subject to indemnification by Affiliate, for which Affiliate must pay for all reasonable costs associated with such defense, including, but not limited to, reasonable attorneys’ fees, expert fees, costs, and settlement payments. Affiliate acknowledges that Aragon’s Clients are intended third party beneficiaries of the foregoing indemnification obligation. No settlement may be consummated without Aragon’s express written authorization, which consent shall not be unreasonably withheld. Affiliate shall immediately notify Aragon of any current or threatened legal action against it by a third party for matters relating to Affiliate’s actions in connection with the Affiliate Network and these Terms and Conditions.
- Non-Circumvention and Non-Solicitation.
13.1. Non-Circumvention. During the term of these Terms and Conditions and for a period of one (1) year following termination or expiration, Affiliate shall not directly or indirectly, for itself or any other individual or entity, circumvent or interfere with Aragon’s relationships with its Clients by working directly with those Clients or otherwise soliciting such Clients. Nothing herein shall be construed as prohibiting Affiliate from brokering offers from third-party advertising networks.
13.2. Non-Solicitation. Affiliate shall not solicit or hire any employee, contractor, publisher, affiliate, marketer, mailer, agent, or vendor of Aragon without Aragon’s prior written approval, which may be withheld in our discretion.
13.3. Injunctive Relief. Affiliate acknowledges and agrees that Aragon has invested significant time and resources into developing its relationships with Clients and that any breach of this Section 13 provision would cause irreparable harm to the Aragon. In the event of any breach of this Section 13, Aragon may seek an immediate injunction against any actual or threatened breach of this provision without the necessity of posting a bond. Aragon reserves the right to seek as monetary damages in amounts equal to the greater of what Aragon would otherwise have earned, or equal to the amounts that Affiliate has wrongfully earned, had this Section not been violated.
- Entire Agreement. These Terms and Conditions, along with any Offers, constitute the entire agreement between the parties and supersede all prior Agreements or understandings between the parties. If there is a conflict between these Terms and Conditions and an Offer, then these Terms and Conditions shall control. Any conflicting terms in an Offer shall supersede those in the Agreement only if the Offer clearly indicates that the parties are intentionally overriding these Terms and Conditions and shall apply solely for purposes of such Offer.
- Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services provided hereunder must be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court. THE PARTIES HEREBY WAIVE THEIR RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM, ACTION OR PROCEEDING, DIRECTLY OR INDIRECTLY, ARISING OUT OF, OR RELATING TO, THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. Prior to either party filing any legal suit, action, or proceeding arising out of or related to this Agreement, the parties agree to mediate any dispute arising from this Agreement. Any mediation that takes place in accordance with this Section shall take place in New York, NY unless Aragon agrees otherwise in its sole discretion. The parties shall cooperate in selecting a mutually agreeable mediator in good faith. In the event the parties cannot agree upon a mediator, each party shall select one name from a list of mediators maintained by any bona fide dispute resolution provider or other private mediator, and the two selected mediators shall then choose a third person who shall serve as mediator. The parties acknowledge and agree that any mediated settlement agreement may be converted to a judgment and enforced according to applicable New York law and rules of civil procedure. The parties shall share the mediator’s fees equally. In the event that either party fails to cooperate in a reasonable manner in the scheduling, facilitation, or conduct of the mediation contemplated herein, then the cooperating party will have the right to recover from the non-cooperating party the cooperating party’s costs and reasonable attorneys’ fees incurred in connection with any subsequent legal suit, action, or other proceeding, including costs, fees, and expenses on appeal regardless of which party succeeds on the merits and regardless of any other fee shifting provision in this Agreement.
14.3. Waiver. No waiver of any breach of any provision of the Agreement will constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
14.4. Assignment. These Terms and Conditions and the rights hereunder are not transferable or assignable without prior written consent of the non-assigning party; provided, however, that this Agreement may be assigned by either party: (a) to a person or entity who acquires substantially all of that party’s assets, stock or business by sale, merger or otherwise; and (b) to an affiliate of either party.
14.5. Severability. If any provision contained in the 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 real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
14.6. Independent Contractors. The parties are independent contractors, and neither party is an employee or other agent of the other party.
14.7. Publicity. Affiliate will not issue any public statement or reference to Aragon or otherwise present information on Aragon in reference to Affiliate’s services, including without limitation listing Aragon or any of its Clients in Affiliate’s customer lists, without the prior written consent of Aragon, whose consent may be withheld for any reason or for no reason.
14.8. Notices. Any notice, communication or statement relating to this Agreement must be in writing and will be deemed effective: (a) upon delivery when delivered in person; (b) upon transmission when delivered by email; or (c) when delivered by registered or certified mail, postage prepaid, return receipt requested, or by nationally-recognized overnight courier service to: (i) Affiliate at the address provided on its web site, in the registration, or on any IO or other Agreement entered into between the parties; or (ii) Aragon Advertising LLC at 66 Mineola Avenue #1355, Roslyn Heights, NY 11577, email@example.com.
14.9. Headings. The inclusion of headings in this Agreement is for convenience of reference only and will not affect the construction or interpretation hereof.
14.10. Force Majeure. Neither party shall be liable for delays in performing, or failure to perform the Agreement or any obligations hereunder if such delay or failure result from a Force Majeure Event. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. A “Force Majeure Event” means an occurrence beyond the control and without the fault or negligence of the party affected and which the party is unable to prevent or provide against by the exercise of reasonable diligence including acts of government, war, terrorism, cyberattacks (or threats thereof), rebellion, flood, fire, explosions, earthquakes, or other unforeseeable circumstances, whether similar or dissimilar to any of the foregoing. The party whose performance is so delayed shall use good faith efforts to minimize the effects of such delay and resume performance as soon as practicable.
14.11. Binding Effect. This Agreement shall inure to the benefit of, and be binding on, the parties and their successors and permitted assigns.
14.12. Modification. Aragon may modify these Terms and Conditions at any time by providing you with a notification via the Platform. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate these Terms and Conditions without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Affiliate Network ten (10) business days after a change notice has been posted will constitute your acceptance of such change.
14.13. Electronic Signature. By clicking to accept these Terms and Conditions, you represent that you fully understand and agree to these Terms and Conditions, that you had the opportunity to consult with counsel of your choosing and that you are entering into a legally binding contract. This Agreement may be executed in counterparts, each of which will be deemed to be an original, and both of which, taken together, will constitute one agreement binding on all parties. A facsimile signature or other similar electronic reproduction of a signature will have the force and effect of an original signature, and in the absence of an original signature, will constitute the original signature.
Affiliate shall not knowingly engage in any of the following activities, and shall prohibit its Sub-Affiliates from engaging in any of the following activities. If an Affiliate becomes aware that it, a Sub-Affiliate, or any third party has engaged in any of the following Prohibited Activities, Affiliate must promptly notify Aragon and take reasonable corrective action to stop and prevent future occurrences of such activity.
- Engage in any short messaging service (“SMS”), email, phone, and similar telecommunication marketing campaigns in connection with these Terms and Conditions without the prior express written consent of Aragon.
- Inflate, or permit any person to inflate, the amount of actions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, device, program, robot, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods.
- Use, nor knowingly permit any person or entity to use, any third-party trademarks to direct traffic to any Affiliate Property or Aragon’s website including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name, or any derivative of any such trademark, service mark or brand name, of a third party.
- Redirect traffic to a web site other than the web site specifically designed by Aragon or in the Creative Materials.
- Attempt to generate, or generate, any traffic from any online auction web sites, Craigslist, or similar web sites.
- Distribute any Creative Materials on chat rooms or bulletin boards unless otherwise agreed by Aragon in writing in advance.
- Implement any pop-ups/unders in connection with the Affiliate Network unless they are clearly identified as Affiliate-served in the title bar of the window.
- Install any client-side ad-serving software on an end-user’s computer unless:
(a) the function of the software is clearly disclosed to end-users prior to installation;
(b) the installation is pursuant to an affirmatively accepted and plain-English end user license agreement; and
(c) the software be easily removed by the end used according to generally accepted methods.
- Use any Affiliate Properties, including but not limited to Affiliate’s or Sub-Affiliates’ websites, newsletters, or emails, to promote, advocate, facilitate or otherwise include any of the following:
(a) hate speech or material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation;
(b) investment, money-making opportunities or advice not permitted under law;
(c) violence or profanity;
(d) pornographic, obscene, sexually explicit or related content;
(e) material that defames, abuses, is libelous, is tortuous or threatens physical harm to others;
(f) material that displays any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third person;
(g) material that impersonates any person or entity;
(h) any material that violates any law or regulation;
(i) promotion of illegal substances;
(j); content which is inappropriate or harmful to children;
(k) promotion of terrorism or terrorist-related activities, sedition or similar activities;
(l) software pirating;
(m) malicious hacking;
(n) any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(o) any software, product or service that is illegal or that violates the rights of a third party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. spamware), services that send unsolicited advertisements, programs designed to initiate denial of service attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet;
(p) any software, product or service that harvests or collects the personal information of Internet users, whether or not for commercial purposes, without the express consent of such users;
(q) any spoofing, redirecting or trafficking from other websites in an effort to gain traffic;
(r) any content that infringes upon the intellectual property rights of any third party or any other right including, without limitation, false advertising, unfair competition, invasion of rights of publicity or privacy; or
(s) gambling, contests, lotteries, raffles, or sweepstakes.
- Without Aragon’s prior written consent, make any representations, warranties, or other statements concerning Aragon or a Client or any of their respective products or services, or indicate and/or create the impression that any Affiliate statements or Affiliate Properties are endorsed by Aragon or a Client.
- Act on behalf of any person or entity that is prohibited from engaging in transactions with U.S. citizens, nationals, or entities under applicable U.S. law and regulation including, but not limited to regulations issued by the U.S. Office of Foreign Assets Control (“OFAC”).
- Engage in any deceptive or fraudulent practices, including but not limited to the following:
(a) utilizing tactics designed to scare consumers into believing you can help fix their “problems”;
(b) soliciting or seeking payment from consumers for unnecessary services;
(c) misrepresenting an association with other companies; or
(d) offering fake or illegitimate products or services.
Email Marketing Requirements
Affiliate shall comply with the following for all email marketing Campaigns:
- Affiliate shall obtain prior valid, verifiable consent from the consumer to send any email (“Consent to Email”),
- Affiliate shall keep records evidencing such Consent to Email, including:
(a) the content of the consent form;
(b) consumer’s opt-in date;
(c) the registration source;
(d) the consumer’s first and last name;
(e) the consumer’s mailing address (if collected);
(f) the consumer’s email address;
(h)any other information collected.
Affiliate shall provide the foregoing Consent to Email records to Aragon within two (2) business days of its request.
- Affiliate’s email-based Creative Materials shall:
(a) be clearly and conspicuously identified as an advertisement;
(b) have accurate email header information (including source, destination, date and time, and routing information); and
(c) accurate, non-misleading Subject lines and From lines.
- Affiliate shall provide Aragon with the proposed From lines and Subject lines of all email-based Creative for approval prior to use. If Aragon provides Affiliate with Subject and From lines for use in an email-based Campaign, Affiliate and its sub-Affiliates may not modify or remove them without Aragon’s prior consent.
- The “To” line of all emails shall contain the consumer’s email address, “Undisclosed”, or be left blank.
- Affiliate shall only send emails for an email-based Campaign to addresses on email lists owned or managed solely by Affiliate. Affiliate shall not assign or delegate any of its obligations under the Agreement to third parties without Aragon’s advance written approval.
- Affiliate shall not send emails to email addresses collected via harvesting, scraping or any other automated means.
- Affiliate shall provide and maintain accurate registration information for the domains from which it sends emails for a Campaign and will not make such information private or hidden. Affiliate shall not conceal the origin of the emails it sends or use false or misleading information in:
email headers; or
email account registrations; or
IP addresses used in connection with an email Campaign.
- Affiliate and Affiliate’s email delivery providers shall not transmit emails from a computer or computer network that was accessed without authorization.
- In each Campaign email, Affiliate shall:
(i) include a clear and conspicuous explanation of how the recipient can opt-out of receiving future emails and include the opt-out link provided in connection with an Offer;
(ii) provide the recipient the ability to send a reply message via a functional unsubscribe link that must remain operational for thirty (30) days from the date of the original email transmission;
(iii) include a valid physical street address associated with the applicable Client/Affiliate in the body of each Campaign email for the purpose of receiving correspondence from consumers requesting to opt-out, as required by applicable law.
- Affiliate shall honor a recipient’s opt-out request within ten (10) business days from receipt of such request. Once Affiliate has been informed that a recipient no longer desires to receive future email messages, Affiliate shall not sell or transfer the recipient’s email address to any third party.
- Affiliate shall have active filters in place to prevent communications from being sent to any entity or person outside of the United States, including but not limited to:
(a) email filters (i.e., rejection of email addresses with extensions from a country other than the US);
(b) zip code filters (rejection of non-US zip and/or postal codes);
(c) area code filters (rejection of non-US area codes); and
(d) IP filters (rejection of non-US IP addresses).
- Immediately prior to sending any emails for a Campaign, Affiliate shall submit a written request for and subsequently download the most recent suppression file(s), including, without limitation, domain suppression data located on the FCC’s wireless domain names list http://www.fcc.gov/cgb/policy/DomainNameDownload.html. Affiliate shall suppress all email addresses on such list(s) within its database and not send Campaign emails to any recipient and/or address on such list(s).
- Affiliate agrees that failure to comply with Section 13 shall constitute a material breach of the Agreement which may result forfeiture of Commissions, removal or suspension from all or part of the Affiliate Network, legal action and any other rights or remedies available to Aragon.
Telephone and SMS Messaging Campaign Requirements
Affiliate shall comply with the following requirements and other requirements under Applicable Law:
1. Express Written Consent Required Prior to Contacting Consumer. Affiliate shall obtain a consumer/customer’s express written consent as described below on behalf of Affililate, Aragon and Aragon’s Client(s) (as defined in the Terms and Conditions) prior to:
(a) making any autodialed and/or pre-recorded call; or
(b) sending a text message; or
(c) making a call to a cell phone; or
(d) making a pre-recorded call made to a residential land line.
2. Required Content of Written Consent Form. Affiliate shall provide consumer/customer with a written consent form which shall contain each of the following elements in a clear and conspicuous manner:
(a) state that consumer acknowledges and agrees that he or she will receive future calls that deliver autodialed and/or pre-recorded telemarketing messages on behalf of Aragon and/or its clients; and
(b) state that consumer’s consent is not a condition of purchase; and
(c) state that that data/message rates may apply; and
(d) state that consumer revoke his/her consent at any time; and
(e) provide a method for revoking consent; and
(iii) require consumer to designate a phone number at which to be reached.
A sample written consent form is attached as Schedule 1 to this Exhibit C. Affiliate is responsible for updating and/or modifying the written consent form as required by Applicable Law.
3. Required Retention of Express Written Consent for 4 Years. Affiliate shall maintain a record of the express written consent it receives for each consumer (i.e., a screenshot) as well as the IP address from which the consumer accessed the form. Affiliate shall maintain such records in a searchable format for a period of four (4) years after receipt of such consent.
4. in the event a consumer elects to revoke its express written consent, Affiliate shall remove the consumer’s name and number from its system and place the consumer on Affiliate’s internal Do Not Call List.
Long Form- FILL IN
[Telephone Consumer Protection Act/Phone Call/Text Message] [Prior Express Written/Marketing] Consent Form
[ORGANIZATION] (“Company,” “We,” or “Us“) seeks your consent to contact you with certain non-emergency, automated, autodialed, prerecorded, or other telemarketing phone calls [or text messages] under the Telephone Consumer Protection Act (TCPA). By signing this form, you authorize Us [and Aragon Advertising LLC and its clients, our affiliates and our service providersto contact you using:
- The phone or mobile number listed below.
- An automatic telephone dialing system (ATDS) or artificial prerecorded voice.
□ Yes, I consent to receive automated [FILL IN: telemarketing/advertising/[OTHER EXPECTED ACTIVITIES]] phone calls, or text messages from [FILL IN: ORGANIZATION] at these phone numbers:
Cell Phone: ________________________________________________
Home Phone: ________________________________________________
□ No, I do not consent to receive automated phone calls or text messages from [ORGANIZATION].
I understand that:
- I am not required to grant consent as a condition of buying any property, goods, or services.
- I may revoke my consent at any time [FILL IN: by contacting [NAME] at [CONTACT METHOD]].
- Message and data rates may apply.
- [If my contact information changes, I should inform [FILL IN: ORGANIZATION] by [FILL IN: CONTACT METHOD].]
Printed Name _____________________________________________________
Short Form- Fill IN
[Telephone Consumer Protection Act/Phone Call/Text Message] [Prior Express Written/Marketing] Consent Form
[□] Yes! [By checking this box/responding [Y/Yes],] I authorize [FILL IN: ORGANIZATION] [[and] its service providers][, [and/or] affiliates] to contact me at [[CONSUMER CONTACT INFO]/this number] via phone[,] [and/or] [text (SMS)][,] [and/or] [OTHER METHOD] using automated dialing technology for marketing/advertising purposes. No purchase required. Message and data rates may apply. To opt-out at any time [[FILL IN: OPT-OUT INSTRUCTIONS]/reply [STOP]].
Affiliate shall comply with the following requirements and all other requirements under Applicable Law:
THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT WAIVES YOUR RIGHT TO A COURT HEARING OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW OR UNLESS YOU OPT-OUT.
Agreement to Arbitrate
You and we each agree that any and all disputes or claims that relate to or arise from your use of or access to our Services, or any products or services sold, offered, or purchased through our Services, including any contact from our subsidiaries, affiliates, or agents including, but not limited to, Aragon Advertising LLC and its clients, shall be resolved exclusively through final and binding arbitration between us and you, or between our subsidiaries, affiliates, or agents and you, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate section (this “Agreement to Arbitrate”).
Prohibition of Class and Representative Actions and Non-Individualized Relief
You and we agree that each of us may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding, including but not limited to actions under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. Unless both you and we agree otherwise, the arbitrator may not
or join more than one person’s or party’s claims, and may not otherwise preside over any form if a consolidated, representative, or class proceeding. The arbitrator may award relief, including monetary, injunctive, and declaratory relief, only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). Any relief awarded cannot affect our other users.
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of this Agreement including, but not limited to, any claim that all or any part of the Agreement to Arbitrate or this Agreement is void or voidable.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules and a form for initiating arbitration proceedings is available on the AAA’s site at http://www.adr.org.
The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or we may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and us subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or us unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of New York, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving our other users but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
This arbitration provision shall survive termination of this Agreement to Arbitrate and the closing of your Account or your use of or access to our Services, or any products or services sold, offered, or purchased through our Services.
Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000 or less, at your request, we will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by us should be submitted by mail to the AAA along with your Demand for Arbitration and we will arrange to pay all necessary fees directly to the AAA. If the value of the relief sought is more than $10,000 and you can demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse us for all fees associated with the arbitration paid by us on your behalf, which you otherwise would be obligated to pay under the AAA’s rules.
The arbitration proceedings and arbitration award shall be maintained by the parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the parties’ respective attorneys, tax advisors and senior management and to family members of a party who is an individual.
Except for any of the provisions in this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If an arbitrator or court decides that any of the provisions in Section __ [fill in] of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”) is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void.