This Publisher Agreement (“Agreement”) is entered into by and between AffWorks Network, LLC (“AffWorks”) and you, the Publisher (“you” or “Publisher”), to establish the terms and conditions by which you may market advertisements for products and/or services through the placement of Ads (defined below) on behalf of AffWorks or its Advertisers. In consideration of the mutual promises and covenants set forth herein, AffWorks and Publisher agree to be legally bound as follows:
“Ad” or “Creative” means the graphic or text file(s) made available to Publisher in connection with its performance under this Agreement. Ads or Creative may be in the form of banners, text links, transactional ads, email, or other electronic promotions approved by AffWorks. “Advertiser” means AffWorks and/or the advertiser or advertising agency providing Ads to AffWorks for use by Publisher. “Click” or “Click-Through” means the activation of a hyperlink using a mouse or other input device as measured by AffWorks. “Flight Dates” means the time period, and associated start and end dates, over which an Ad runs. “AffWorks Code” means code, links, tags, pixels or other computer code provided by AffWorks for use by Publisher. “IP” means the Ads, AffWorks Code and/or other intellectual property made available to Publisher in connection with its performance under this Agreement. “Publisher Media” means the website(s), search engine(s) or other electronic media on which Publisher or a Sub-Publisher places Ads. “Unit” means a User’s completion of the act requested by AffWorks or its Advertiser, as measured by AffWorks. If a User is directly compensated for completing such required action, such action is not considered a Unit. “User” means any person accessing Publisher’s Media.
2. AffWorks’s Network.
AffWorks reserves the right to (i) refuse service to any new or existing Publisher, and/or (ii) reject, omit or exclude any Publisher or Publisher Media for any reason at any time with or without notice in its sole discretion and without liability. Publisher Networks. Any Publisher that consists of an aggregation of publishing affiliates (collectively, a “Publisher Network,” representing one or more “Sub-Publishers”), hereby agrees to the following terms and conditions: (a) Publisher Network shall report to AffWorks a unique sub-ID for each Sub-Publisher, which shall not be rotated, altered or reused by Publisher Network in any way; (b) In the event of a dispute, complaint, or legal or regulatory issue, Publisher Network shall provide AffWorks with contact information that includes without limitation, contact name, mailing address, telephone number, and email address, for any Sub-Publisher within 24 hours of AffWorks’s request; (c) Within 24 hours of AffWorks’s request, Publisher Network shall remove any Sub-Publisher from AffWorks’s and/or its Advertisers’ campaign(s) and ensure that the Sub-Publisher(s) does not obtain any Ad from or through Publisher Network in the future; and (d) Publisher Network shall be responsible and liable for each Sub-Publisher’s conduct and compliance under this Agreement. Nothing in AffWorks’s permission to engage Sub-Publishers shall be construed as extending to any Sub-Publisher the status of third party beneficiary of any agreement between AffWorks and Publisher, including without limitation this Agreement. During the term of this Agreement and for one (1) year thereafter, Publisher and its Sub-Publishers shall not knowingly solicit any Advertiser, Publisher, or email provider that works with AffWorks or is a part of AffWorks’s network. In the event Publisher does so, the parties agree that monetary damages may not be adequate and that AffWorks shall be entitled to seek injunctive relief without the necessity of post a bond or other security. Sharing of Publisher Information. AffWorks may provide Publisher and/or Sub-Publisher information, including but not limited to application information, contact information, account information, Unit information, and statistics to: (a) Advertisers in response to their request or in the event of a dispute; (b) law enforcement officials or governmental agencies in response to their request, when permitted or required by law or to establish AffWorks’s compliance with applicable laws, rules, regulations, or guidelines; and/or (c) third parties when trying to protect against or prevent actual or potential fraud or unauthorized transactions, investigating fraud that has already taken place, enforcing or applying existing terms and conditions and/or other agreements, protecting the rights, property or safety of AffWorks, Users or others, or responding to subpoenas, court orders or legal process, or to establish or exercise legal rights or defend against legal claims.
3. Publisher Requirements.
AffWorks hereby grants to Publisher a nonexclusive, nontransferable, limited, revocable license to use and display the Ads, AffWorks Code and IP solely for the purpose of performing its obligations under this Agreement and subject to the terms of this Agreement. Except for the limited license expressly granted in this Section, nothing in this Agreement shall be construed as AffWorks granting Publisher or any Sub-Publisher any right, title or interest in any Ad, AffWorks Code or IP. Publisher acknowledges and agrees that AffWorks and/or its Advertiser owns all right, title and interest in and to the Ads, AffWorks Code and IP and all related intellectual and proprietary rights of any kind anywhere in the world.
AffWorks reserves the right to set campaign rates, which vary with market conditions. Publisher will be paid as set forth in a AffWorks Insertion Order, an email to Publisher, or online within the AffWorks publisher portal. Payment will be made by AffWorks to Publisher within thirty (30) days from the end of each month or as otherwise provided in a AffWorks Insertion Order. All billing will be based on AffWorks’s calculations. Invoices must be received by AffWorks within ninety (90) days after the commencement of the activity to which such invoice relates. AffWorks will not be held responsible for invoices received past such date. Invoices must be emailed to email@example.com. All accounts will be settled in U.S. dollars. No payment will be issued for any amount less than $50. If, in AffWorks’s opinion, Publisher violates this Agreement, refuses to fulfill its responsibilities or commits fraudulent activity, AffWorks reserves the right to withhold payment and/or take appropriate legal action. AffWorks will not compensate Publisher for Units or data that have been determined by AffWorks or an Advertiser, in their sole discretion, to be subject to rejection for any reason, including but not limited to duplicates, invalid data, incomplete data, data of low quality, fraudulent data, or data generated by unapproved placements or traffic sources. In the event that Publisher has already received payment for such Units or data, AffWorks reserves the right to seek credit or remedy from future earnings or to demand reimbursement from Publisher. Publisher and AffWorks acknowledge that any Units or data rejected may be retained and marketed to by the Advertiser and/or AffWorks, to the extent possible. Calculation of Publisher earnings shall be in AffWorks’s sole discretion. In the event Publisher disagrees with any such calculation, Publisher shall, within fifteen (15) days of receipt of such calculation, send a written request to AffWorks detailing, with specificity, Publisher’s concerns. Thereafter, AffWorks will provide Publisher with an explanation or, if such calculation is determined by AffWorks to be incorrect, an adjustment. In all cases, AffWorks’s calculations shall be final and binding.
6. Data Ownership; Audit.
Publisher understands and agrees that all Units and data, including but not limited to personally identifiable information provided by Users in response to an Ad and any and all reports, results, and/or information created, compiled, analyzed, or derived by AffWorks from such data is the sole and exclusive property of Advertiser and/or AffWorks and is considered Confidential Information (as defined below) pursuant to this Agreement. Publisher shall not make any use of, copy, make derivative works from, sell, transfer, lease, license, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such information, or any portion thereof, to any third party. Publisher agrees that at all times during the term of this Agreement and for one (1) year thereafter, it shall maintain accurate books and records relating to its performance under this Agreement, including books and records relating to its Sub-Publishers. Publisher agrees that AffWorks, or any designee of AffWorks, shall have the right, once per each six (6) month period, at AffWorks’s sole cost and expense, to examine, inspect, audit, review and copy (an “Audit”) and make extracts from all such books, records and any source documents used in the preparation thereof, during normal business hours upon written notice to Publisher at least five (5) business days prior to the commencement of an Audit.
The terms of this Agreement, each AffWorks Insertion Order, and any information that is either identified by a party as confidential at the time of disclosure or should be understood by a reasonable person under the circumstances to be confidential in nature, shall be deemed to be that disclosing party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information shall include, but is not limited to: Units, User information, pay out rates, AffWorks Code, IP, test results, statistics, and other information which is proprietary in nature. Neither party shall at any time disclose any of the terms of this Agreement, nor any Confidential Information shared pursuant hereto, to any third party except to the legal advisors of either party, investors or financing sources, or as may be requested by a government agency or otherwise required by applicable law. The foregoing confidentiality provisions shall not apply where the receiving party can demonstrate that the information: (i) was previously known to the receiving party at the time of disclosure, free of any obligation to keep it confidential; (ii) became publicly known through no wrongful act of the receiving party; (iii) was rightfully received from a third party who was not bound under any confidentiality provisions; (iv) was disclosed pursuant to judicial order, subpoena, requirement or request of a governmental agency, or by operation of law; or (v) is independently developed by a party without use of or reliance upon the disclosing party’s Confidential Information. The parties agree that monetary damages for breach of these restrictive covenants may not be adequate and that the non-breaching party shall be further entitled to seek injunctive relief without the necessity of post a bond or other security.
8. Representations and Warranties.
Between AffWorks and Publisher, Publisher is solely responsible for any legal liability arising out of or relating to: (a) the Publisher Media; (b) any material to which Users can link through the Publisher Media; (c) the acts and/or omissions of Publisher; (d) the acts and/or omissions of its Sub-Publishers; and (e) any consumer and/or governmental/regulatory complaint or inquiry arising out of Publisher’s and/or its Sub-Publishers’ distribution of the Ads. Publisher shall defend, indemnify and hold harmless AffWorks and its officers, directors, shareholders, employees, agents, representatives, affiliates, and Advertisers (collectively “AffWorks Parties”) from and against any and all liabilities, losses, expenses, damages, costs, penalties, and obligations (including without limitation reasonable attorneys’ fees) (collectively “Losses”) that may at any time be incurred by, or imposed or asserted against, the AffWorks Parties by reason of any demand, claim, suit, inquiry, investigation, or proceeding for: (a) slander, libel, defamation, violation of rights of privacy or publicity, violation of intellectual property rights, fraud, false advertising, misrepresentation, unfair or deceptive acts or practices, product liability, or violation of any law, statute, ordinance, rule, or regulation throughout the world in connection with the Publisher Media and/or Publisher’s performance under this Agreement, including the acts and/or omissions of any Sub-Publisher; (b) any breach by Publisher of any obligation, duty, representation, or warranty under this Agreement; (c) a contaminated file, virus, worm, or Trojan horse originating from the Publisher Media; or (d) negligence, misconduct or any act or omission by Publisher or any Sub-Publisher.
10. Limitations of Warranties and Liability.
ALL SERVICES PROVIDED BY AFFWORKS ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, AFFWORKS MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. AFFWORKS IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. THE TERMS OF THIS AGREEMENT ARE SUBJECT TO THE LIMITATIONS OF AFFWORKS HARDWARE, SOFTWARE AND BANDWIDTH. AFFWORKS’S FAILURE TO DELIVER THE SERVICES BECAUSE OF TECHNICAL DIFFICULTIES DOES NOT AMOUNT TO A FAILURE TO MEET THE OBLIGATIONS OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL AFFWORKS BE LIABLE TO PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF AFFWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THIS AGREEMENT OR ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL AFFWORK’S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE AMOUNT PAID TO PUBLISHER FOR THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR TEN THOUSAND U.S. DOLLARS ($10,000.00). NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST AFFWORKS MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
11. Term & Termination.
This Agreement applies to Publisher for as long as Publisher distributes Ads for AffWorks. AffWorks reserves the right to terminate this Agreement immediately with or without notice to Publisher and remove any Publisher or sub-ID from AffWorks’s network at any time, with or without cause. Upon termination, Publisher agrees to immediately remove from the Publisher Media any and all AffWorks Code and IP. Publisher will be paid, in the next scheduled payment cycle following termination, all amounts due up to the time of termination as calculated by AffWorks in its sole discretion.
12. Entire Agreement; Modification.
This Agreement represents the entire understanding and agreement between the parties hereto and supersedes all prior agreements, understandings, conversations, and negotiations. This Agreement may not be amended by Publisher except by a writing signed by AffWorks. No online or click-through terms, conditions, policies, or documents offered by Publisher (“Publisher Online Terms & Conditions”) shall be deemed to have modified this Agreement, notwithstanding the fact that AffWorks may have affirmatively accepted such Publisher Online Terms & Conditions as a condition of accessing an online service. The terms of each party’s participation will be governed by this Agreement, any applicable AffWorks Insertion Orders, and any subsequent updates to this Agreement posted by AffWorks on its publisher portal.
This Agreement shall be governed by the laws of the State of Delaware without respect to choice of law rules. The parties hereby consent to exclusive jurisdiction and venue in the state and federal courts located in New Castle County, Delaware. All notices, requests, demands, and other communications hereunder to AffWorks shall be in writing and shall be deemed given at the time such communication is delivered personally, by registered or certified mail (return receipt requested) or recognized national overnight courier service, addressed as follows: AffWorks Network, LLC, Attn: Shaan Patel, 651 N Broad St Suite 205 #5748 Middletown, DE 19709. All notices, requests, demands, and other communications hereunder to Publisher shall be deemed given at the time such communication is sent to the email address listed on Publisher’s AffWorks account or the most recent Insertion Order, or delivered personally, by registered or certified mail (return receipt requested) or recognized national overnight courier service, to the address set forth on Publisher’s AffWorks account or the most recent Insertion Order. Publisher may not assign this Agreement without the express prior written consent of AffWorks. Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument, including the signing by online means. Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening. In the event any portion of this Agreement is declared invalid by a court of competent jurisdiction, such portion shall be severed from this Agreement and the remaining parts shall remain in full force and effect.
BY CLICKING THE “I AGREE” OR “SEND” BUTTON, YOU HEREBY AGREE THAT YOU HAVE READ AND UNDERSTAND, AND AGREE TO BE BOUND BY, THE TERMS AND CONDITIONS OF THIS PUBLISHER AGREEMENT. AFFWORKS NETWORK’S EXECUTION OF THIS AGREEMENT IS CONDITIONED ON YOUR AGREEMENT THAT ANY TERMS DIFFERENT FROM OR IN ADDITION TO THE TERMS OF THIS AGREEMENT, WHETHER COMMUNICATED ORALLY OR CONTAINED IN ANY INSERTION ORDER, INVOICE, ACKNOWLEDGEMENT, RELEASE, ACCEPTANCE OR OTHER WRITTEN CORRESPONDENCE, IRRESPECTIVE OF THE TIMING, SHALL NOT FORM A PART OF THIS AGREEMENT, EVEN IF YOU PURPORT TO CONDITION YOUR ACCEPTANCE OF THIS AGREEMENT ON AFFWORKS NETWORK’S AGREEMENT TO SUCH DIFFERENT OR ADDITIONAL TERMS.