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ARAGON ADVERTISING LLC
AFFILIATE PROGRAM OPERATING AGREEMENT
This Affiliate Program Operating Agreement is made and entered into by and between Aragon Advertising ("Aragon Advertising" or "we"), and you, ("you" or "Affiliate") the party submitting an application to become an Aragon Advertising affiliate). For purposes of the Affiliate Program Operating Agreement, Affiliate includes the individual, company or entity and, without limitation, any parent entities, owners, subsidiaries, publishers, predecessor or successor entities, and any agents, officers, directors or employees acting on behalf of same, registering with Aragon Advertising to use the Affiliate Program. The terms and conditions contained in this Affiliate Program Operating Agreement apply to your participation with publishers.aragon-advertising.com ("Affiliate Program"). Each Affiliate Program offer (an "Offer") may be for advertising campaigns made available by Aragon Advertising’s network of third party advertising clientele (each such third party a "Client") and may, without limitation, link to a specific web site for that particular Offer ("Program Web Site"). Furthermore, each Offer may have additional terms and conditions on pages within the Affiliate Program and are expressly incorporated into this Affiliate Program Operating Agreement as though fully set forth herein. By submitting an application or participating in an Offer, you expressly consent to all the terms and conditions of this Affiliate Program Operating Agreement.
From time to time, the parties may negotiate and execute Insertion Orders (“IOs”) under which Affiliate will deliver advertisements to consumers for and on behalf of Aragon Advertising’s Clients. Each IO shall constitute a separate contract between the parties, which contract shall be deemed to incorporate and include the terms and conditions set forth in this Affiliate Program Operating Agreement. For the purposes of each such contract, the term Agreement shall refer both to the terms and conditions set forth herein and the additional terms and conditions set forth in the applicable Insertion Order. In the event of a conflict between any terms of an IO and this Affiliate Program Operating Agreement, this Affiliate Program Operating Agreement shall govern except where the specific section of this Affiliate Program Operating Agreement referenced for modification and the IO is signed by an authorized representative of Aragon Advertising.
1. Enrollment in the Affiliate Program.
You must submit an Affiliate Program application from our website. You must accurately complete the application to become an affiliate (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the Affiliate Program, generally within two (2) business days. We may accept or reject your application at our sole discretion for any reason. You must be at least eighteen (18) years of age to register as an Affiliate. Any registration by anyone under the age of eighteen (18) is unauthorized, unlicensed and in violation of this Agreement. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal authority to bind such business entity to this Agreement. Your assent to the terms, representations and warranties contained within this Agreement creates a legally binding and enforceable contract between you and Aragon Advertising. If you do not agree to this Agreement, in its entirety, you are not authorized to register as an Affiliate or use the Affiliate Program in any manner, whatsoever.
2. Aragon Advertising Obligations.
Subject to our acceptance of you as an Affiliate and your continued compliance with the terms and conditions of this Agreement, Aragon Advertising agrees as follows:
A. Our Clients will make available to you via the Affiliate Program content, text, graphics and textual links to the Program Web Site and/or other creative materials (collectively, the "Campaign Materials") which you may display on web sites owned or controlled by you, in emails sent by you and clearly identified as coming from you and in other online/digital advertisements (collectively, "Media"). The Campaign Materials will serve to identify you as a member of our Affiliate Program and will establish a link from your Media to the Program Web Site. Affiliate acknowledges and agrees that, except as may otherwise be set forth herein, Affiliate is solely responsible for the method by which the Campaign Materials are disseminated. Affiliate acknowledges and agrees that Aragon Advertising shall not be responsible for Affiliate Programs or Campaign Materials including any violation of any applicable laws or regulations, including, without limitation, Federal Trade Commission Act (as amended0, the Federal Communications Act (as amended), the CAN-SPAM Act of 2003 (as amended), applicable state anti-SPAM legislation, applicable Federal Trade Commission implementing regulations and any and all foreign, federal and state deceptive trade practices legislation (as amended).
B. We will pay Affiliate for each Qualified Action (the "Commission"). A "Qualified Action" shall be defined, as applicable and without limitation, as one that: (i) is completed by a natural person for purposes of potentially engaging in further action at, without limitation the Program Web Site via Campaign Materials, and not a computer generated user, such as a robot, spider, computer script or other automated, artificial, machine driven or fraudulent method designed to appear like an individual, live person; (ii) meets pre-defined criteria and completes relevant, valid data fields within the time period allowed by Aragon Advertising; (iii) is conducted at or from the URL provided to Affiliate by Aragon Advertising for tracking purposes; (iv) is not using pre-populated fields; (v) has been taken by a live person that is at least eighteen (18) years of age; and (vi) Aragon Advertising has verified and has not determined to be fraudulent, incomplete, unqualified or a duplicate.
C. We will pay you any Commissions earned monthly, less any taxes required to be withheld under applicable law, provided that your account is currently greater than $100. Accounts with a balance of less than $100 in USD or applicable foreign currency, as applicable, will roll over to the next month, and will continue to roll over monthly until $100 is reached. We expressly reserve the right to charge back to your account any previously paid Qualified Actions: (i) that are later determined to have not met the requirements to be a Qualified Action; (ii) where a return or cancellation has been made with respect to the applicable product and/or service; (iii) where there are actions that do not comply fully with the terms of the Agreement; (iv) where there is non-receipt of payment from, or refund of payment to, the customer; or (v) where there is a failure on the part of Affiliate to comply with the Agreement. Unless set forth otherwise herein, the number or Qualified Actions, credits for payments and debits shall be calculated by Aragon Advertising and be final and binding on Affiliate.
D. Payment for Commissions is dependent upon Clients providing such funds to Aragon Advertising, and therefore, you agree that Aragon Advertising shall only be liable to you for Commissions to the extent that Aragon Advertising has received such funds from the Clients and that such funds are sufficient to cover Commissions otherwise due and owing Affiliate . Any and all payments to Affiliate shall be made by Aragon Advertising out of funds actually collected by us from Clients. You hereby release Aragon Advertising from any claim for Commissions if Aragon Advertising has not received such funds from the Clients.
E. Aragon Advertising shall automatically generate an invoice on behalf of Affiliate for all Commissions payable under this Agreement and shall remit payment to Affiliate based upon that invoice. All tracking of Campaign Materials and determinations of Qualified Actions and Commissions shall be made by Aragon Advertising in its commercially reasonable and sole discretion. In the event that Affiliate disputes in good faith Aragon Advertising’s calculations regarding the number of Qualified Actions, Affiliate’s sole and exclusive remedy is to submit that dispute to Aragon Advertising in writing and in sufficient, commercially reasonable and verifiable detail within ten (10) days of the invoice date. If Affiliate does not dispute Aragon Advertising’s determination, as set forth herein, then Affiliate agrees that it irrevocably waives any claims based thereon. In the event that Affiliate is also tracking Qualified Actions and Affiliate claims a discrepancy, Affiliate must provide Aragon Advertising with Affiliate's reports within ten (10) days of the invoice date, and if Aragon Advertising's and Affiliate's reported statistics vary by more than 10% and Aragon Advertising reasonably determines that Affiliate has used generally accepted industry methods to track Qualified Actions, then Aragon Advertising and Affiliate agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then Aragon Advertising's numbers shall govern.
F. If Affiliate has an outstanding balance due to Aragon Advertising under this Agreement or any other agreement between the Affiliate and Aragon Advertising, whether or not related to the Affiliate Program, Affiliate agrees that Aragon Advertising may offset any such amounts due to Aragon Advertising from amounts payable to Affiliate under this Agreement.
Aragon Advertising may, but is not required to, monitor traffic for fraud. If fraud is detected, Affiliate’s account will be made inactive pending further investigation. If fraud is detected, as determined solely by Aragon Advertising and with limited exception pertaining to sub-Affiliates, at Aragon Advertising’s sole discretion, Affiliate will forfeit its entire Commissions, without regard as to whether or not such Commissions were earned as a result of such breach, and its account will be terminated. In addition, in the event that Affiliate has already received payment for fraudulent activities, Aragon Advertising reserves the right to seek credit or remedy from future earnings or to demand reimbursement from Affiliate. In the event of a material breach of this Agreement, Aragon Advertising reserves 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.
4. Affiliate Obligations.
Affiliate expressly represents, warrants and covenants that:
(a) It has the right, power, and authority to execute, deliver and perform its obligations under this Agreement;
(b) It shall use and distribute the Campaign Materials exactly as provided and shall not alter the Campaign Materials. Affiliate may not add, subtract or in any way alter, edit, or modify any Campaign Materials, nor may Affiliate make any use whatsoever of any Campaign Materials other than for the purposes of, and as contemplated by, this Agreement. Should Affiliate wish to use different Campaign Materials, the former shall obtain prior written approval. Placement and positioning of Campaign Materials and creative content may be set forth in this Agreement and/or the applicable IO. No Campaign Materials may be published in violation of this Agreement or any applicable IO. Affiliate expressly agrees that it shall not place Campaign Materials on any properties or media that are directed to individuals less than eighteen (18) years of age. Affiliate agrees to review the availability of Campaign Materials that it has placed within its media, no less than daily. It is Affiliate’s sole responsibility to change Campaign Materials within its media when such Campaign Materials are no longer available via Aragon Advertising’s Affiliate Program. Aragon Advertising assumes no responsibility whatsoever to notify Affiliate when specific Campaign Materials are no longer available via the Affiliate Program. Affiliate shall have sole responsibility for the development, operation and maintenance of any and all content on or linked to, your Media;
(c) It will conform to and not violate, without limitation and as applicable, any local, state, federal or international laws, rules and regulations, including, without limitation, those pertaining to internet marketing, consumer privacy, the CAN-SPAM Act of 2003 (as amended), California Business & Professions Code § 17529, et seq., the Canadian Anti-Spam Legislation, the Federal Trade Commission Act, the Telemarketing Sales Rule (16 C.F.R. Part 310), provisions relating to the National Do-Not-Call Registry (16. C.F.R. Part 310) and applicable state Do-Not-Call List requirements, the Telephone Consumer Protection Act (47 USC 227 et seq.), and the Telemarketing and Consumer Fraud and Abuse Prevention Act;
(d) Affiliate will not: (i) deceive consumers into believing that their computer has problems; (ii) seek payment from consumers for unnecessary services, (iii) claim to be a “computer tech” or such similar term(s); (iv) misrepresent association with well-known companies (i.e., Microsoft); (v) falsely claim to have detected viruses or other malware on a consumer’s computer to trick a consumer into providing remote access or paying for unnecessary software; (vi) set up face website to offer “free security scans”; (vii) send alarming messages to try to convince a consumer that their computer is infected (and/or then try to sell software to “fix” the “problem”); (viii) claim that legitimate computer files are viruses; (ix) utilize tactics designed to scare consumers into believing you can help fix their “problems” (x) ask a consumer for remote access to their computer and/or make changes to the settings thereof; (xi) attempt to enroll a consumer in a worthless computer maintenance or warranty program; (xii) request credit card information from a consumer in order to bill for phony services (or services available elsewhere, for free); (xiii) trick consumers into installing malware that could steal sensitive data, like user names and passwords; and/or (xiv) create a false sense of urgency or utilize high-pressure tactics;
(e) Affiliate will not engage in any short messaging service (“SMS”), email, phone and similar telecommunication marketing campaigns in connection with this Agreement without the prior express written consent of Aragon Advertising;
(f) Campaign Materials will only be sent or displayed to recipients who have consented to receive third party solicitations and such consent either was provided directly to Affiliate by the recipient or, if Affiliate received assurance of such consent from a third party list provider, such assurance is in writing;
(g) Campaign Materials will be purely content-based;
(h) Any/all web sites will be fully functional at all times and at all levels
(i) Any/all web sites and/or Affiliate emails are represented by a legitimate second-level domain name;
(k) It will not, nor knowingly 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;
(l) It will not use, nor knowingly permit any person or entity to use, any third party trademarks in any way to direct traffic to any Affiliate web site or Aragon Advertising 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;
(m) It will not redirect traffic to a web site other than the web site specifically listed by the applicable Client;
(n) It will not modify the Campaign Materials without prior express written consent of Aragon Advertising;
(o) It will terminate and/or exclude from its network any sub-Affiliate that it has a reasonable basis to believe has violated the terms of this Agreement;
(p) It will not attempt to generate, or generate, any traffic from any online auction web sites, Craigslist or similar web sites. No Campaign Materials can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by Aragon Advertising in writing. Any pop-ups/unders used for the Affiliate Program shall be clearly identified as Affiliate served in the title bar of the window and any client-side ad serving software used by Affiliate shall only have been installed on an end-user's computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and plain-English end user license agreement and the software be easily removed according to generally accepted methods;
(q) The content of your web site and, without limitation, your Affiliate newsletter and emails, do not promote, advocate, facilitate or otherwise include any of the following: (i) hate speech or material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation; (ii) investment, money-making opportunities or advice not permitted under law; (iii) violence or profanity; (iv) pornographic, obscene, sexually explicit or related content; (v) material that defames, abuses, is libelous, is tortuous or threatens physical harm to others; (vi) material that displays any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third person; (vii) material that impersonates any person or entity; (viii) any indication that any statements you make are endorsed by Aragon Advertising and/or a Client, without Aragon Advertising’s prior written consent; (ix) promotion of illegal substances or activities; (x); content which is inappropriate or harmful to children; (xi) promotion of terrorism or terrorist-related activities, sedition or similar activities; (xii) software pirating; (xiii) malicious hacking; (xiv) 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; (xv) 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; (xvi) 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; (xvii) any spoofing, redirecting or trafficking from other websites in an effort to gain traffic; (xviii) 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; (xix) gambling, contests, lotteries, raffles, or sweepstakes; or (xx) any material that violates CAN-SPAM, or any illegal activity whatsoever (including, but not limited to, any violations of applicable U.S. state or federal law or regulation, Canadian provincial or federal law or the laws of any other jurisdiction in which Affiliate operates);
(r) For all Affiliate's that maintain their own affiliate networks, Affiliate agrees to promptly disclose same, in writing and to only place the Campaign Materials in its affiliate network for access and use by those affiliates in Affiliate's network (each a ”sub-Affiliate”). Affiliate agrees that it will expressly preclude any sub-Affiliate from modifying the Campaign Materials in any way. Affiliate shall remain solely responsible for the actions/inactions of its sub-Affiliates. Affiliate agrees to maintain its network according to the highest industry standards and in compliance with all applicable laws, rules and regulations. Affiliate shall not permit any party to be a sub-Affiliate whose web site or business model involves content containing objectionable content. All sub-Affiliates must be in good standing with Affiliate. Affiliate must require that all sub-Affiliates affirmatively accept, through verifiable means, terms no less restrictive as those set forth herein governing compliance with applicable laws, rules and regulations, and use of the Campaign Materials prior to obtaining access to the Campaign Materials. Affiliate shall promptly terminate any sub-Affiliate that takes, or could reasonably be expected to take, any action that violates such terms and conditions. In the event that either party suspects any wrongdoing by a sub-Affiliate with respect to the Campaign Materials, Affiliate shall promptly disclose to Aragon Advertising the identity and contact information for such sub-Affiliate. Affiliate shall promptly remove any sub-Affiliate from the Affiliate Program and terminate their access to future Offers of Aragon Advertising upon written notice from Aragon Advertising;
(s) It will not make any representations, warranties or other statements concerning Aragon Advertising or Client or any of their respective products or services, except as expressly authorized herein;
(t) Your Media shall not copy or resemble the look and feel of a Program Web Site or create the impression that your Media is endorsed by Aragon Advertising or Clients or a part of the Program Web Site, without prior written permission from us;
(u) It will comply with the terms, conditions, guidelines and policies of any third party services used by Affiliate in connection with the Affiliate Program, including but not limited to, email providers, social networking services and ad networks; and
(v) Affiliate is not, nor is Affiliate acting 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”). Affiliate is not, nor is Affiliate acting on behalf of any person or entity that is, a Specialty Designated National, as OFAC may so designate from time to time
A violation of this section by Affiliate shall be considered a material breach of this Agreement, entitling Aragon Advertising to immediately, without liability and without prior notice, terminate this Agreement and any/all IOs, withhold all payments to Affiliate and to pursue all available legal and equitable remedies.
5. Email Marketing Compliance.
Aragon Advertising may provide Affiliate with written approval or rejection of any Campaign Materials. Where use of email marketing is authorized by Aragon Advertising, the following terms shall apply and any and all emails, email based Campaign Materials and/or email addresses supplied by Affiliate:
(a) Affiliate shall comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”) and any and all Federal Trade Commission implementing regulations;
(b) Affiliate’s email based Campaign Materials must be identified as an advertisement and by clear and conspicuous means, have accurate email header information (including source, destination, date and time, and routing information) and accurate, non-misleading Subject lines and From lines;
(c) Affiliate must use only Campaign Materials, From lines and Subject lines provided and approved by Aragon Advertising, and Affiliate and its sub-Affiliates are prohibited from removing or altering Subject and From lines provided by Aragon Advertising, without prior written approval (Subject lines may not be false or likely to mislead a reasonable recipient as to the contents or subject matter of the message);
(d) Affiliate must company with California Business & Professions Code § 17529, et seq. (and other state anti-SPAM legislation) and the Canadian Anti-Spam Legislation;
(f) Affiliate shall identify the appropriate sender and include the company name, email and physical or postal mailing address, all in a clear and conspicuous text and font size;
(g) All Affiliate emails sent under the Agreement shall be delivered to addresses on email lists owned or managed solely by Affiliate. False domain registrations, email accounts or IP addresses are prohibited. Brokering third party deals to deliver Campaign Materials without disclosing such to Aragon Advertising is strictly prohibited and grounds for immediate termination, as well as other legal remedies;
(i) From lines must identify the actual advertiser, its brand or a formally registered DBA;
(j) Affiliate must accurately register their mailing domains and mailing domains may not have proxy or privacy guards;
(k) Affiliate may not include falsification of header information, false registrations for domain accounts, email accounts, or IP addresses used in connection with email marketing nor retransmissions of an email ad for the purpose of concealing its origin. Affiliate and/or Affiliate’s email delivery providers are prohibited from relaying or retransmitting emails from a computer or computer network that was accessed without authorization;
(l) The To line must contain the consumer’s email address, Undisclosed, or be left blank;
(m) Affiliate must provide recipients an effective means of requesting not to receive future email advertisements. Affiliate shall cause a valid physical postal address for Affiliate (and/or the applicable Client advertiser). Within the body of the email, Affiliate may include a valid physical street address associated with the applicable Client/Affiliate for the purposes of receiving correspondence from consumers requesting to opt-out, as required by applicable law, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after email delivery);
(n) Affiliate must include a clear and conspicuous explanation of how the recipient can opt-out of getting email in the future and 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. The notice must be crafted in a way that is easy for an ordinary person to recognize, read and understand. Affiliate must honor opt-out requests promptly. Affiliate must honor a recipient’s opt-out request within ten (10) business days from receipt. Once Affiliate has been informed that a recipient no longer desires to receive more messages, Affiliate cannot sell or transfer the email address, even in the form of a mailing list;
(n) Affiliate must have active filters in place to prevent communications from being sent to any entity or person in Canada which include, at a minimum: (i) email filters (i.e. rejection of email addresses with .ca or other Canadian extensions); (ii) zip code filters (rejection of Canadian zip codes); (iii) area code filters (rejection of Canadian area codes); and (iv) IP filters (rejection of Canadian IP addresses);
(o) Affiliate agrees that prior to mailing any campaign, it will submit a written request for and subsequently download the most recent suppression file(s), including, without limitation, domain suppression data. Affiliate shall suppress all such email addresses within its database that are found on such list. Aragon Advertising will provide an opt-out method in all Campaign Materials, however, if any opt-out requests come directly to Affiliate, Affiliate shall immediately forward them to Aragon Advertising at email@example.com;
(p) Affiliate agrees that it will download and remove the domains located on the FCC's wireless domain names list http://www.fcc.gov/cgb/policy/DomainNameDownload.html from all current data used in all mailings. Affiliate further warrants that any new data that it acquires, regardless of its source, will be run against the FCC's wireless domain names list, and that domain names contained therein will be removed before sending any mailings; and
(q) Affiliate agrees that failure to download the suppression files and remove all emails from the database before mailing may result in Commission withholdings, removal or suspension from all or part of the Affiliate Program, possible legal action and any other rights or remedies available to Aragon Advertising pursuant to this Agreement or otherwise. Affiliate further agrees that it will not mail or market to any suppression files generated through the Aragon Advertising network, and that doing so may result in Commission withholdings, removal or suspension from the Affiliate Program, possible legal action and any other rights or remedies available to Aragon Advertising pursuant to this Agreement or otherwise.
"Confidential Information" means any information disclosed to Affiliate by Aragon Advertising, either directly or indirectly, in writing, verbally, or by inspection of tangible objects, other than information that you can establish: (a) was publicly known and made generally available in the public domain prior to the time of disclosure to you by Aragon Advertising; (b) becomes publicly known and made generally available after disclosure to you by Aragon Advertising other than through your action or inaction; and/or (c) is in your possession, without confidentiality restrictions, at the time of disclosure by Aragon Advertising as shown by your files and records prior to the time of disclosure. All information relating to Affiliate’s participation with Aragon Advertising’s Affiliate Program, including but not limited to the terms of this Agreement, 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 your login information, the identities of any advertiser Client, click-through or impressions generated as a result of this Agreement, Aragon Advertising’s commission rates, program rates and pricing strategies shall be considered “Confidential Information.” Affiliate shall not use any Confidential Information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same.
You shall not at any time, without the prior written consent of Aragon Advertising: (a) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information; (b) use any Confidential information (other than to confirm the accuracy of commission calculations); and/or (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. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain Aragon Advertising’s personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to Aragon Advertising immediately upon our request.
A violation of this section by Affiliate is a material breach of this Agreement and will entitle Aragon Advertising to terminate this Agreement and any/all current IOs without liability to Affiliate, withhold all payments to Affiliate and to pursue any and all other remedies available at law or in equity. Affiliate acknowledges that a breach of this section would cause Aragon Advertising irreparable harm and that Aragon Advertising shall be entitled to appropriate injunctive relief in the event such breach is threatened or occurs. Aragon Advertising may seek injunctive relief without the necessity of filing a bond or undertaking and may seek injunctive relief without proof of damages.
7. Limited License Grant.
Aragon Advertising grants Affiliate a revocable, nontransferable, non-sub-licensable, non-exclusive limited license to use: (i) the Campaign Materials and Affiliate Program, in accordance with the terms of this Agreement. Affiliate may not alter, modify, manipulate or create derivative works of the Campaign Materials or any Aragon Advertising graphics, creative, copy or other materials owned by, or licensed to, Aragon Advertising in any way. You are only entitled to use the Campaign Materials to the extent that you are a member in good standing of the Affiliate Program. In addition, Affiliate agrees that all non-public information, data, and reports received from Aragon Advertising hereunder or as part of the Affiliate Program is proprietary to and owned by Aragon Advertising. If instructed to do so by Aragon Advertising and/or if Affiliate is terminated by Aragon Advertising, Affiliate shall immediately destroy and discontinue the use of any/all Campaign Materials. We may revoke your license anytime, with or without notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of Aragon Advertising's trademarks, service marks, copyrights, patents or trade secrets. You agree that Aragon Advertising may use any suggestion, comment or recommendation you choose to provide to Aragon Advertising without compensation. All rights not expressly granted in this Agreement are reserved by Aragon Advertising.
8. Term and Termination.
This Agreement shall commence on the date of our approval of your Affiliate Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time by removing all Campaign Materials from your Media. We may terminate your participation in one or more Offers or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Campaign Materials or providing you with a written notice. Upon termination of your participation in one or more Offers or this Agreement for any reason, you will immediately cease all use of and delete all Campaign Materials, plus all Aragon Advertising or Client intellectual property, and will cease representing yourself as an Aragon Advertising or Client affiliate for such one or more Offers. Immediately upon termination, all licenses granted to Affiliate shall immediately terminate and Affiliate will return, purge all files related to and remove any and all Campaigns Materials. Aragon Advertising reserves the exclusive right to permanently delete and destroy any/all information and/or data that you may have voluntarily or involuntarily provided to us at any time, including, without limitation, during the Affiliate application process. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
9. Ownership of 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 Campaign Materials (“Data”) shall be deemed to be the property and Confidential Information of Aragon Advertising. Affiliate is, therefore, expressly precluded from assigning or otherwise transferring any interest in such Data. Any such transfer or assignment shall be treated as thought it was invalid from the outset.
Affiliate will defend, indemnify, and hold harmless Aragon Advertising, its Clients and Client partners, and each of their affiliates, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorneys’ fees and expenses) (collectively “Claims”) arising from (a) any violation of an applicable law; or (b) breach of any provision of this Agreement or any breach by a sub-Affiliate for the same. Aragon Advertising shall assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder for which Affiliate shall pay for all reasonable costs associated with such defense, including, but not limited to, reasonable attorney fees, expert fees, costs, and settlement. Affiliate hereby acknowledges that the Clients are intended third party beneficiaries of the foregoing indemnification obligation. No settlement may be consummated without each party’s express written authorization, which consent shall not be unreasonably withheld. Affiliate will immediately notify Aragon Advertising of any current, impending or potential legal action against it by a third party for matters relating to its participation in the Affiliate Program when the same arises.
11. Limitation of Liability.
IN NO EVENT SHALL ARAGON ADVERTISING BE RESPONSIBLE FOR ANY INCIDENTIAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOST OPPORTUNITIES, 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. IN NO EVENT SHALL ARAGON ADVERTISING’S LIABILITY UNDER THIS AGREEMENT IN CONNECTION WITH ANY IO EXCEED THE FEES PAID BY ARAGON ADVERTISING UNDER SUCH IO DURING THE SIX (6) MONTHS IMMEDIATELY PRIRO TO SUCH CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST COMPANY MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT.
12. Disclaimer of Warranties.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ARAGON ADVERTISING MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO, WITHOUT LIMITATION, THE AFFILIATE PROGRAM, CAMPAIGN MATERIALS, RESULTS OBTAINABLE, THIRD PARTY WEBSITES OR THE UNDERLYING SERVICE. WITHOUT LIMITATION, THE AFFILIATE PROGRAM, CAMPAIGN MATERIALS, , HYPERLINKS, COMPANY’S CLIENT ADVERTISER SITES, MATERIALS PROVIDED TO AFFILIATE PUBLISHER AND COMPANY’SSERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). ARAGON ADVERTISING DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS. DUE TO THE NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY, ARAGON ADVERTISING DOES NOT GUARANTEE THAT THERE WILL BE NO DOWNTIME OR OTHER INTERRUPTIONS IN SERVICE REGARDING ARAGON ADVERTISING’S SERVICES. THE DISCLAIMER OF WARRANTIES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN ARAGON ADVERTISING AND AFFILIATE. THE AFFILIATE PROGRAM WOULD NOT BE MADE AVAILABLE TO AFFILIATE WITHOUT SUCH RESTRICTIONS.
SOME STATES LIMIT THE ABILITY TO DISCLAIM ALL WARRANTIES, SO THIS CLAUSE OR SOME PORTIONS OF IT MAY NOT APPLY TO YOU.
13. Non-Circumvention and Non-Solicitation.
During the term of this Agreement and for a period of one (1) year following the termination of this Agreement, Affiliate agrees not, directly or indirectly, for themselves or any other individual or entity, to circumvent and interfere with Aragon Advertising’s relationships with its Clients by working directly with those Clients or otherwise improperly soliciting Aragon Advertising’s Clients. Affiliate agrees not to work directly with any Client of Aragon Advertising, or to state or imply that any Client should do business with them directly in order to interfere with Aragon Advertising’s relationships. Nothing herein shall be construed as prohibiting Affiliate from brokering offers from third-party advertising networks. Affiliate acknowledges and agrees that Aragon Advertising has invested significant time and resources into developing its relationships with its Clients and that any breach of this non-circumvention and non-solicitation provision would cause irreparable harm to the Aragon Advertising. Furthermore, Affiliate agrees that it will not solicit to hire or employ any employee, contractor, publisher, affiliate, marketer, mailer, agent, or vendor of Aragon Advertising without Aragon Advertising’s prior written approval, which may be withheld in our discretion. Affiliate acknowledges and agrees that in the event of any breach of this non-circumvention and non-solicitation provision, Aragon Advertising may seek an immediate injunction against any actual or threatened breach of this provision without the necessity of posting a bond. Aragon Advertising also reserves the right to seek as monetary damages all amounts equal to the greater of what Aragon Advertising would otherwise have earned, or equal to the amounts that Affiliate has wrongfully earned, had this section not been violated.
This Agreement constituted the entire Agreement between the parties and supersedes all prior Agreements or understandings between the parties.
This Agreement shall be governed by the laws of the United States and the State of New York without respect to choice of law rules. The parties consent to having all disputes regarding this Agreement resolved by binding arbitration before the American Arbitration Association, Commercial Division. The parties agree to conduct the arbitration in New York, New York (USA) and each party shall bear the costs of such arbitration. The parties specifically waive any international treaties or other international law which may govern the court or location of resolution of any dispute between them. This provision was a bargained for relinquishment of both parties rights to jurisdiction in their respective states or countries. The parties waive the personal service of any process upon them and agree that service may be completed by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement. If Aragon is adjudicated the substantially prevailing party in any arbitration, it shall be entitled to an award of attorney fees and costs for such arbitration. Nothing contained in the Agreement shall be construed to limit any legal remedies available to Aragon Advertising.
No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.
This Agreement 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.
In the event that any provision of this Agreement is found invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be deemed to apply only to the maximum extent permitted by law, and the remainder of the terms of this Agreement shall remain valid and enforceable according to its terms.
The parties agree that they shall be considered independent contractors and that their relationship shall not constitute a partnership, joint venture or agency. Neither Aragon Advertising nor any of its employees or agents (collectively “Employees”): (a) is an employee, agent or legal representative of Affiliate; or (b) shall have any authority to represent Affiliate or to enter into any contracts or assume any liabilities on behalf of Affiliate. Aragon Advertising retains all the rights and privileges of sole employer of its Employees, including, without limitation, the right to control, hire, discipline, compensate and terminate such Employees.
Affiliate may not make any mention of Aragon Advertising or any Aragon Advertising Client in any publicity materials advertising or otherwise presenting information on Aragon Advertising in reference to Affiliate’s services, including without limitation listing Aragon Advertising or any of its Clients in Affiliate’s customer lists, without the prior written consent of Aragon Advertising, whose consent may be withheld for any reason or for no reason.
Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified email; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested, or by nationally-recognized overnight courier service to: (a) Affiliate at the address provided on its web site, in the registration, or on any IO or other Agreement entered into between the parties; and (b) Aragon Advertising LLC at 213 W 35th St. Suite 806 New York, NY 10001, firstname.lastname@example.org.
Any and all provisions which are reasonably intended to survive expiration or termination of this Agreement, shall so survive. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.
This Agreement constitutes the entire Agreement of the parties and supersedes any other Agreement, understanding, whether written or verbal, that may have been made or entered into with regard to the subject matter thereof.
Aragon Advertising may modify any of the terms and conditions of this Agreement at any time by providing you with a notification as set forth herein. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Affiliate Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, Aragon Advertising may change, suspend or discontinue any aspect of an Offer or Campaign Materials or remove, alter, or modify any tags, text, graphic or banner ad in connection with same. Affiliate agrees to promptly implement any request from Aragon Advertising to remove, alter or modify any Campaign Materials that are being used by Affiliate as part of the Affiliate Program.
15. Electronic Signature.
Affiliate acknowledges and agrees that by accessing this Agreement via, without limitation, at http://publishers.aragon-advertising.com/terms, that Affiliate expressly assents to the terms hereof electronically by clicking on the checkbox, the button labeled “I AGREE” or such similar labels as may be designated by Aragon Advertising to accept this Agreement. Affiliate acknowledges and agrees that by doing so, it is affixing its electronic signature, it is submitting a legally binding electronic signature and it is entering into a legally binding contract. Affiliate acknowledges that Affiliate’s electronic submissions constitute Affiliate’s agreement and intent to be bound by the Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, AFFILIATE HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SERVICES OFFERED BY ARAGON ADVERTISING.
Aragon Advertising and Affiliate hereby confirm their mutual agreement to the terms and conditions set forth in this Agreement, effective as of the last date set forth below/the date upon which electronic assent was provided.