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This Publisher Agreement (this “Agreement”) is made by and between Atrinsic, Inc., a Delaware corporation, located at 469 Seventh Avenue, Tenth Floor, New York, New York, 10018 ("Atrinsic"), and the counterparty hereto ("You"). The date of this Agreement shall be the date that You acknowledge your agreement to its terms as reflected in Atrinsic’s records.
RECITALS
Atrinsic offers technology and services to facilitate marketing links between websites providing products, property or services over the Web (the persons or entities owning or operating such websites, “Merchants”) and other websites carrying offers and links for Merchants (the persons or entities owning or operating such websites, “Publishers”). Atrinsic also operates a network that includes members that are Merchants (“Network Advertisers”) and members that are potential Publishers for Network Advertisers (“Network Publishers”).
In consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
1 Defined Terms
1.1 The following terms have the meanings indicated:
“Affiliate Network” means the brand user interface program operated by Atrinsic (currently under the service name Atrinsic Affiliate Network) that is open for membership by Merchants and Publishers generally, as distinct from other programs now or hereafter operated by Atrinsic that are “private label” or otherwise restrict membership or access on either the Merchant or the Publisher side.
“Affiliate Network Site” means the English-language website used by Atrinsic for the Affiliate Network.
"Advertiser Engagement" means any type of agreement or arrangement between a Network Advertiser and any Network Publisher or between Atrinsic and any Network Publisher that can be performed on or in relation to the Internet, including affiliate marketing, performance-based linking, insertion order, or any other type of agreement or arrangement.
“Affiliates” means, as to the person or Entity in question, any other person or Entity that controls, is controlled by, or is under common control with, the person or Entity in question; and the term “control” means possession of the power to direct or cause the direction of the management and policies of a person or Entity whether through ownership of voting securities, by contract, or otherwise.
“Content” means information, data, text, documents, software, music, sound, photographs, graphics and video.
“End User” means an actual or potential consumer, customer or other natural person.
“Engagement” means either an Advertiser Engagement or a Publisher Engagement.
“Entity” means a corporation, partnership, limited liability company, trust, government agency or instrumentality or other entity recognized by Law as a legal person separate from its owners.
"Intellectual Property Rights" means technologies, templates, designs, Sites, methodologies, processes, names, strategies, marks, trade dress, logos, Content, documentation, training manuals, and other materials, as well as any and all patents, trade secrets, trademarks, copyrights and other intellectual property and proprietary rights therein and thereto.
“Laws” means all foreign, federal, state and local laws, rules, regulations and ordinances, including, without limitation, the CAN-SPAM Act of 2003, the Children’s On-Line Privacy Protection Act, EU Directives on privacy, federal and/or state laws regulating privacy and spyware/adware, all as they relate to this Agreement and the transactions contemplated hereby and as they may be modified or amended from time to time
"Link" means any software, software code, programming or other technology or method (or any combination of the foregoing) that (a) creates a hyperlink between two Sites, or (b) otherwise causes a Web access device to display to its user a "banner," "button," text-mention, word, phrase, logo or other textual or graphical material that, when activated by a user, results in a Site being served to such user or such user being able to electronically access, receive or obtain Content, products, services or other offerings from the linked Site.
“Network Offerings” means Network Advertiser offerings made available for dissemination through the Affiliate Network.
"Publisher Engagement" means any type of agreement or arrangement between Atrinsic and any Network Publisher that can be performed on or in relation to the Internet, including affiliate marketing, performance-based linking, insertion order, or any other type of agreement or arrangement.
"Qualifying Link" means any type or format of Link that is provided or authorized by Atrinsic or a Network Advertiser to be displayed, distributed or placed on or by a Site pursuant to either an Advertiser Engagement or a Publisher Engagement and which, through addition and/or use of any technology and/or methodology, can be tracked so that such Atrinsic or a Network Advertiser can monitor the impressions, click-throughs and/or other tracked activities achieved by the display, distribution and/or placement of such Link. The term “Qualifying Link” shall also refer to any equivalent Link, mechanism or technology that, upon being activated, causes the same result as clicking on a Qualifying Link.
"Site" means, as the context requires, either (a) one or more Web pages, databases, computer files, emails, scripts, software or other applications, or other destinations, together with supporting files and programming, that are on, provided or accessible through the Web or works on or in relation to the Web, or (b) a person or Entity owning or operating any such Site, or (c) both. A person or Entity that owns or operates a Site may have offline businesses which would not preclude it from being a Site for the purposes of this Agreement.
"Tracked Activity" means any type of pre-agreed or predefined activity or result that is sought by a Merchant in relation to a Qualifying Link. The kinds of Tracked Activities that a Merchant may seek to promote through such arrangements may include, by way of example, impressions, click-throughs, the sale of products or services, the downloading of software, files or other items, the completion of an application, registration or other form, the opening of an account, membership enrollment, or any other kind of action, transaction or activity that can be tracked and reported upon.
"Web" or "Internet" or "online" means the global computer network currently referred to as the Internet, including the World Wide Web, and any and all successor networks, irrespective of what wired, wireless or otherwise connected device, platform or technology is used to access it.
2 Registration, etc.
2.1 Registration. To use (or continue to use) the Affiliate Network as a Network Publisher, You shall provide Atrinsic with truthful, accurate and complete registration information. . If any such information changes, You must immediately update Your registration information.
2.2 Verification. Atrinsic has the right to confirm or otherwise verify or check, in its sole determination, the truth and accuracy of any registration information at any time.
Please note that the verification of Your registration information, specifically, your name, address and tax identification number, against a third party database may be considered under certain Laws to constitute a "credit check.” Notwithstanding that, Your participation in the Affiliate Network as a Network Publisher does not depend on Your credit worthiness or financial stability. Atrinsic is not making as part of the registration process, and will not otherwise make, any type of inquiry to any third party regarding any individual’s credit history and personal financial information without first obtaining such individual’s express prior authorization to do so.
Please be advised that if any information is determined in good faith by Atrinsic to be misleading, inaccurate or untruthful, Atrinsic may restrict, deny or terminate Your account, Your access and use of, and/or any benefits derived from Your participation on, the Affiliate Network; Atrinsic may also withhold payment of any commissions and/or other fees that may be or become due or payable to You, and may assess charges against such amounts for Atrinsic’s activities in connection with the investigation and/or verification of such information and/or otherwise in accordance with this Agreement.
2.3 Participation. To join the Affiliate Network, You must be an individual who is at least eighteen (18) years old or an Entity, and must provide at Your expense Your own computer equipment and Internet access.
2.4 Use of the Network. You may use the Affiliate Network only for business purposes and not for personal, household or family purposes.
3 Participation; Your Business
3.1. Participation.
(a) Acceptance by Network Advertiser. During the term of this Agreement You may apply to one or more Network Advertisers to participate in their respective advertising programs for the opportunity to earn payments (“Payouts”) by promoting the offerings of such Network Advertisers. If You elect to participate in such programs, You shall so participate in compliance with both the terms of such program and the terms of this Agreement. Upon approval by any Network Advertiser of your participation in its program, You may display (and remove) Links to such Network Advertiser's Web site or Web site Content in accordance with the terms of the Network Advertiser's program and this Agreement. A Network Advertiser's approval of Your participation in its program extends only to the person or Entity that enters into this Agreement with Atrinsic.
(b) Program Terms. The specific terms and conditions of a Network Advertiser's program shall be available through the Affiliate Network Site. Tracked Activities qualifying for a Payout are defined by the Network Advertiser. Network Advertisers may change any Payout rate upon no less than seven (7) days written notice through the Affiliate Network Site with effect on a
nd after the eighth (8th) day following the posting of such notice on the Affiliate Network Site (or such later date as specified by the Network Advertiser).
(c) Additional Terms. Network Publishers and Network Advertisers may enter into direct contractual relationships through the apply-to-join process in the form of a click-through agreement hosted by Atrinsic (“Click-through Agreement”) or in the form of an offer made to You by Network Advertiser via the members' area on the Affiliate Network Site.
(d) Prohibited Uses of Links.
(i) Locations. You may not place Links to a Network Advertiser's Web site or Web site Content in third party newsgroups, message boards, blogs, unsolicited email and other types of spam, link farms, counters, chatrooms, or guestbooks. Network Publishers using Internet relay chat channels, instant messages or similar Internet resources must designate their program as special requiring manual review and acceptance by the Network Advertiser.
(ii) Non-Bona Fide Transactions. You must promote Network Offerings in manner that will not mislead the End Users, and in a manner that will cause the Links to deliver bona fide Tracked Activities by the End-User to Network Advertiser from the Link. You shall not cause any Tracked Activity to be made that are not in good faith, including, but not limited to, using any device, program, robot, Iframes, or hidden frames. You may not be compensated for Tracked Activities where You or Your agents are the End User, in the applicable Network Advertiser’s discretion. Multiple leads from the same individual, Entity or IP address may be considered non-bona fide Tracked Activities, in the applicable Network Advertiser’s discretion. You shall not earn Payouts for non-bona fide Tracked Activities. Atrinsic shall determine in its sole discretion whether a Tracked Activity is bona-fide or not.
(iii) No Infringement. You hereby represent and warrant to Atrinsic that none of Your promotional activities shall infringe the rights (including proprietary rights and Intellectual Property Rights) of any party, including any Network Advertiser, Atrinsic or any third party.
(e) Usage and Security of Account. You shall be responsible for all usage and activity on Your account and for all losses, theft or unauthorized disclosures of Your password. You shall provide Atrinsic with prompt written notification of any known or suspected unauthorized use of Your Account or breach of the security of Your Account.
3.2 Voluntary Participation. Your participation in any one or more Network Advertiser programs is as a Network Publisher. Your participation is purely voluntarily and You may terminate Your participation at any time. Neither Atrinsic nor any Network Advertiser shall be construed or deemed as having solicited, requested or procured You or Your services to promote Atrinsic or any Network Advertiser or its respective trade or business, or goods, products, property, or services.
3.3 Not a Supplier, etc. You are not and shall not, at any time, be deemed to be a vendor, supplier or provider of goods or services to Atrinsic, and neither Your participation on the Affiliate Network, use or promotion of any Network Offerings or receipt of payment of any compensation with respect to any Tracked Activity shall be construed or be deemed to be an inducement for, solicitation of You to provide any products or services to Atrinsic.
4 Engagements; Qualifying Links.
4.1 Use of Qualifying Links. Each Qualifying Link used by You in relation to any Advertiser Engagement or Publisher Agreement must include, in unaltered form, the special "tagged" link codes and/or other transaction tracking codes in the manner and format made available or otherwise required by Atrinsic that, among other things, associate such Qualifying Link with the applicable Advertiser Engagement or Publisher Engagement.
4.2 Valid Referrals Only. You will place or use Qualified Links only with the intention of delivering valid sales, leads, applications, accounts, clicks or other specified Tracked Activities. You may not, or permit any person or Entity to, activate a Qualifying Link or inflate the amount of any sought-after or resulting Tracked Activities through any method or technology that does not actually deliver an End User to the destination Site associated with such Qualifying Link.
4.3 Atrinsic’s Determination Final and Binding. All determinations of Qualifying Links and the compensation due to You that are made by Atrinsic shall be final and binding on You. Atrinsic is under no obligation to investigate or resolve any claim or dispute involving You and any Network Advertiser or other third party. Notwithstanding any provision herein to the contrary, You acknowledge and agree that Atrinsic’s sole responsibility in respect of any payments that may be due to You from any Network Advertiser shall be limited to receiving such payments from such Network Advertiser and remitting such payment to You. Your entitlement to any such payments shall be governed by the terms of Your agreement with such Network Advertiser, and Atrinsic shall have no responsibility for any Network Advertiser’s failure to pay amounts owed to you or any other breaches of such agreement. If Atrinsic, in its sole discretion, elects to investigate or otherwise become involved in any claim or dispute involving You and a Network Advertiser, it shall not thereby undertake, assume or have any duty, obligation or liability to You or any other party to the claim or dispute.
4.4 Advertisers’ Terms and Conditions; Additional Atrinsic Terms and Conditions. In addition to and without limiting Your obligations under this Agreement, Your participation in the Affiliate Network may require that You enter into additional agreements with Atrinsic and/or with the Network Advertisers in whose programs you participate. In such events, the terms and conditions of this Agreement and such additional agreements shall govern Your relationship with the applicable Network Advertiser, including Your use of the Qualifying Links associated with such Network Advertiser, the Tracked Activities sought, the compensation that might become payable, and any limitations or restrictions that may apply to Your promotion of such Network Advertiser or its Qualifying Links. Notwithstanding any provision herein to the contrary, Atrinsic shall have no obligation or liability to review, endorse, police or enforce any agreement between You and any Network Advertiser. In addition, Your participation in specific Network Offerings may also be governed by additional terms and conditions established by Atrinsic.
4.5 Distribution of Qualifying Links. If You currently distribute, or plan to distribute, Qualifying Links on, to or through Sites other than those owned or operated by You and registered with Atrinsic, You hereby agree that upon Atrinsic’s request from time to time, You will provide to Atrinsic a list of Sites that are not owned or operated by You (together with any reasonably requested information about any such Sites) where Qualifying Links (and associated materials) have been, or are planned to be distributed and/or used, and (ii) You agree to provide prompt and reasonable cooperation to Atrinsic in responding to any requests, complaints, claims or other issues raised by any Network Advertiser regarding where and how such Network Advertiser’s Qualifying Links are distributed and/or used, including ceasing further distribution of such Qualifying Links (and associated materials) as appropriate.
4.6 No Modification. etc. of Qualifying Links. You will not modify, circumvent, impair, disable or otherwise interfere with any tracking codes and/or other technology and/or methodology required or made available by Atrinsic and/or the Network Advertiser to be used in connection with any Qualifying Link so that it may be properly tracked by the Affiliate Network.
4.7 Termination of Qualifying Links. Atrinsic or the applicable Network Advertiser may terminate any Qualifying Link associated with any Atrinsic-tracked Engagement with which You have entered into with such Network Advertiser. Atrinsic may also terminate any Qualifying Link associated with any Engagement with which You have entered into directly with Atrinsic. You must remove any Qualifying Link after any termination of the corresponding Engagements, including due to termination or expiration of a relevant Network Advertiser’s participation. If Qualifying Links are not so removed, Atrinsic may redirect such Links as it determines in its sole discretion, with or without compensation to You.
4.8 No Modification of Content. You may not modify, resize, reformat, edit or otherwise alter any Content provided by any Network Advertiser, unless specifically permitted to do so by such Network Advertiser. In such event, any such modifications shall be strictly limited in accordance with such Network Advertiser’s specific authorization.
4.9 Discontinuing Use of Qualifying Links. You may at any time discontinue use of Qualifying Links by removing such Qualifying Links from Your Site, with or without notice to Atrinsic or, subject to the terms of Your Engagement with the relevant Network Advertiser, such Network Advertiser; provided, however, that You shall remain subject to such Engagement and this Agreement until you separately terminate such Engagement or this Agreement.
4.10 Atrinsic as Neutral Host. Participation in the Affiliate Network is not an endorsement by Atrinsic of any Network Advertiser or Network Publisher. Atrinsic operates the Affiliate Network and/or provides the Network Offerings as a neutral host, and Atrinsic does not regularly or proactively monitor, regulate or police the usage thereof by any of its participants. Atrinsic is not responsible or liable for the acts, omissions, agreements or promises of or by any Network Advertiser, Network Publisher or other Site using Affiliate Network offerings to enter into any arrangement or otherwise work with any other person or Entity.
4.11 Independent Contractors. Atrinsic is the host of the Affiliate Network. Network Advertisers and Network Publishers are independent parties, and Atrinsic does not and shall not have any responsibility or liability for the acts, omissions, promotions, Content, Qualifying Links or other Links of any Network Advertiser, Network Publisher or other third party, including breaches of Engagements by Network Advertisers, or for screening or policing the Sites or actions of Network Advertisers or Network Publishers. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties hereto. Neither party hereto has the authority to bind the other or incur any obligation on its behalf.
5 Provision of Information
5.1 Reports; Revisions. You acknowledge and agree that each Network Advertiser whose program You join shall receive reports from Atrinsic that identify You and may include data about You and Your Qualifying Links with such Network Advertiser. If Atrinsic is notified by a Network Advertiser that it believes that its reports about its relationship with You contain an error or omission or otherwise require adjustment, Atrinsic may elect to revise those reports as requested by the Network Advertiser and make corresponding changes to Your Reports. Since the reports Atrinsic provides You and such Network Advertiser are the bases for calculating the compensation, if any, due to You from that Network Advertiser, any such adjustment may affect the amount of compensation to which You are entitled.
5.2 Data Furnished by Network Advertisers. In providing Network Offerings, including giving You reports on Your activities in respect of the Affiliate Network, Atrinsic relies on data provided by Network Advertisers. Atrinsic is not obligated to confirm, and does not warrant or guarantee, the accuracy, truth or completeness of any data provided by Network Advertisers.
5.3 Errors. Any dispute between You and a Network Advertiser about any error You report must be resolved by You and that Network Advertiser. You agree that Atrinsic shall have no obligations and shall not be liable to You in connection with any such dispute. You acknowledge that even if you do not have a contractual relationship with a Network Advertiser, the data presented to You is based on data provided to Atrinsic by such Network Advertiser. Atrinsic is not liable for any errors in the data provided to Atrinsic by such Network Advertisers.
5.4 No Personal End User Data. In connection with many of the Network Offerings, Atrinsic does not require to be provided, and does not capture any personally-identifiable information about any End User who undertakes or completes any Tracked Activities in relation to You or any Network Advertiser. Atrinsic has no obligation or liability to You, any End User or any other person or Entity if You, any Network Advertiser or other person or Entity should provide such information, for whatever reason, to Atrinsic. In the Affiliate Network, Atrinsic may require You to deliver, or may otherwise collect, personally identifiable information about End Users who undertake or complete Tracked Activities in relation to You or any Network Advertiser. Atrinsic’s treatment of such information is between Atrinsic and such End Users, and Atrinsic has no obligation or liability to You in connection with its use of such information.
5.5 Privacy Policy. You will ensure that any and all Sites employed by You in connection with Your participation in the Affiliate Network or any Engagement will feature a privacy policy that properly discloses the collection and use of any information You provide or may provide to Atrinsic and to any Network Advertiser or other Sites or persons or Entities with which You have any Engagement or other arrangement in relation thereto. As to Your personal information, Atrinsic may use Your personal information in any manner or for any purpose that it determines to be appropriate or necessary in its sole discretion in connection with conducting any activities of or on the Affiliate Network and in relation to Atrinsic’s business.
5.6 Backing Up Data and Other Precautions. Data transfer, conversion, processing and storage are subject to the likelihood of human and machine errors, delays, interruptions and losses. Atrinsic is not liable for any such events or their consequences. You are solely responsible for adopting measures to limit the impact of such events, including backing up any reports or data provided to You. Atrinsic may, from time to time, with or without notice, change the time period covered, type and/or scope of current or historical data stored by Atrinsic and/or to which it provides You with access.
6 Your Obligations
6.1 No Poaching. You may not use the Affiliate Network in connection with aggregating, soliciting or recruiting Network Advertisers, Network Publishers, other Sites or other persons or Entities to form or join affiliate marketing, advertising or similar network.
6.2 No Sublicense, etc. You may not sublicense, rent, lease, sell, resell, outsource or service bureau the Affiliate Network, and any attempt to do so shall be null and void.
6.3 No Reverse Engineering. You will not make unauthorized modifications, reverse engineer, disassemble, decompile or attempt to derive source code of the Affiliate Network.
6.4 No Hacking, etc. You agree not to hack, abuse, adversely interfere with, infect with viruses, worms or other malicious or destructive code, or use or cause to be used in extraordinary and unreasonable or inappropriate ways or amounts, the Affiliate Network, including any servers, bandwidth supply, equipment, software and other technological resources provided by Atrinsic.
6.5 No Spam. You may not use any Qualifying Links in any electronic message unless (a) You have received the express written authorization of Atrinsic or the Network Advertiser to use email or other electronic messages to promote it or its Qualifying Link and (b) any and all such electronic messages comply in all respects with this Agreement, the Network Advertiser’s terms and conditions, and any and all applicable Laws. Further, no electronic message initiated or sent by You or on Your behalf may identify Atrinsic or, except as expressly authorized by an individual Network Advertiser, any Network Advertiser as a sender or sponsor of such electronic message.
6.6 No Interference. You may not, through downloadable or other technology, replace, intercept, redirect, block, alter or otherwise interfere with the full functioning and intended actions of any Qualifying Link that has been placed or distributed by another Network Publisher including any action that would in any way prevent the behavior or result that would occur or would have occurred had an End User activated such Qualifying Link without Your interference.
6.7 No Infringing Uses. You shall not use any name, trademark, service mark, domain name or other Intellectual Property Rights of any third party in connection with Your use of any Qualifying Links within the Affiliate Network in any way or for any purpose that infringes or violates any Intellectual Property Rights or other rights of such third party, whether for the purpose of increasing the levels of Tracked Activities attributable to Your Qualifying Link or for any other purpose.
6.8 Fraud, Abuse, etc. You shall not, and shall not permit other persons or Entities to, engage in any fraudulent, abusive or illegal activity in connection with Your participation on the Affiliate Network or in connection with any Network Advertiser's program or Engagement within the Affiliate Network.
6.9 Dormant Accounts. If a Network Publisher has not been credited with a valid, compensable Tracked Activity that has not been charged-back during any rolling, six (6) consecutive calendar month period (“Dormant Account”), a dormant account fee at Atrinsic's then-current rate shall be applied to the Network Publisher each calendar month that such Network Publisher’s account remains an open yet Dormant Account or until Your Account balance reaches a zero balance, at which time the Account shall become deactivated. Tracked Activity will not be counted if the Tracked Activity subsequently becomes a charge-back.
6.10 Negative Accounts. You may have a negative balance if Your Account is debited amounts equivalent to previous Payouts for charge-backs and You do not have an adequate Account balance to cover the charge-back amounts. When You have a negative balance, You must immediately remit payment to Atrinsic in an amount sufficient to bring Your account to a zero balance, or Your account is subject to one and one-half percent (1.5%) interest per month (or, if lower, the highest interest rate permitted by Law), compounded monthly.
7 Grant of License to You
7.1 Your Use of the Affiliate Network. In connection with Your participation in the Affiliate Network, and for no other purpose, and for so long as You are a participant in the Affiliate Network in good standing, Atrinsic grants You a personal, non-exclusive, non-transferable, non-sublicenseable, revocable and limited license and right, subject to the terms of this Agreement, to:
(a) participate in the Affiliate Network for which You have registered as a Network Publisher;
(b) access the areas of the relevant Network Publisher Account Area necessary for Your participation in such Affiliate Network as a Network Publisher;
(c) solely for Your use in connection with Your participation in such Affiliate Network, download any reports made available to You by Atrinsic;
(d) use any software code or other Content that is provided by Atrinsic solely for the purpose of creating and maintaining Qualifying Links in accordance with this Agreement and Your Engagements, for such purpose, and no other purpose, but only in the form so provided.
All other use of the Affiliate Network, Network Publisher Account Area, any reports made available to You by Atrinsic on the Affiliate Network Site and such software code or Content, including modification, publication, transmission, transfer or sale of, reproduction, creation of derivative works, distribution, performance, display, incorporation into another Site is strictly prohibited.
Atrinsic may change the form and/or content of any report at any time without notice to You.
7.2 Use of the Atrinsic Name. Notwithstanding any provision herein to the contrary, this Agreement does not grant to You any license or right to use Atrinsic's name or any of its logos or trade or service names or marks, except to the extent required to be used in connection with an URL used by You in the exercise of Your rights and performance of Your obligations hereunder. Any press release or other public announcement by You regarding this Agreement or the Affiliate Network or that mentions Atrinsic shall require the prior written approval of Atrinsic. You agree that You shall not disparage Atrinsic or the Affiliate Network or any other participants thereof.
7.3 Duration of License Rights; Reservation. The above licenses with respect to the Affiliate Network are valid only while You remain a member of such Affiliate Network as a Network Publisher in good standing and comply with this Agreement. Atrinsic may revoke any such license at any time by giving You notice by e-mail or in writing. Atrinsic reserves all rights that are not specifically granted to You by this Agreement.
8 Grant of Licenses to Atrinsic
8.1 Use of Your Content. Other than as provided below, in order to participate in the Affiliate Network, You are not required to provide Atrinsic with any Content or other materials. If You provide Atrinsic with any Content or other materials, by way of uploading, delivering or otherwise making available to Atrinsic any Content and/or other materials (including any Intellectual Property Rights therein and thereto), You agree to grant, and hereby grant, to Atrinsic a non-exclusive, worldwide, royalty-free, transferable, sublicenseable, perpetual license to use and store such Content and materials, including in relation to conducting Atrinsic’s business or performing any services in relation to the Affiliate Network. This Section will survive any termination.
8.2 Use of Your Name. Atrinsic shall have the right to refer to You by Your name in connection with the Affiliate Network and/or the performance or provision of any Network Offerings, including in communications sent to actual or prospective participants of the Affiliate Network.
8.3 Disclosure of Business Relationship. Nothing in this Agreement shall prevent Atrinsic from making any public or private statements about Your business relationship with Atrinsic and/or any Network Advertiser and/or Your participation in the Affiliate Network.
8.4 Use of Your Logo. Except as expressly provided above, Atrinsic shall not use any of Your logos and/or other trademarks without Your prior written approval. Any and all uses of Your logos and/or other trademarks shall be in accordance with Your specified usage guidelines.
9 Representations and Warranties
9.1 You represent, warrant and covenant to and with Atrinsic as follows:
(a) This Agreement has been duly and validly authorized, accepted, executed and delivered by You and constitutes Your legal, valid and binding obligation which is fully enforceable against You in accordance with its terms. If You are an Entity, the person executing and delivering this Agreement on Your behalf represents and warrants to Atrinsic that he or she has been duly authorized by You to execute and deliver this Agreement on Your behalf.
(b) You have the legal right to conduct any business conducted by You including in respect of any Site(s) participating in the Affiliate Network. You are duly licensed, authorized and certified by all applicable governmental and regulatory authorities to exercise Your rights and perform Your duties hereunder.
(c) You understand and agree that Atrinsic will enter into similar agreements with other Network Publishers in direct competition with you.
(d) Any and all information provided by You in connection with Your registration to participate in the Affiliate Network or otherwise shall be true, complete and correct in all respects, irrespective of any independent verification or other determination made by Atrinsic;
(e) You understand and agree that you have independently evaluated the desirability of participating in the Affiliate Network and that you have not relied on any representation and/or warranty other than those expressly set forth herein.
(f) The execution, delivery and performance by You of this Agreement will not conflict with or violate: (a) any provision of Law to which You are subject; (b) any order, judgment or decree applicable to You; (c) if You are an Entity, any provision of Your corporate charter or by-laws (or similar governing documents); or (d) any agreement or other instrument to which You are a party or bound or which affects any of Your assets.
(g) Your performance under this Agreement will not: (a) be fraudulent, deceptive and/or misleading; (b) invade the right of privacy or publicity of any third person; and/or (c) otherwise infringe upon the rights of any third parties including, without limitation, those of copyright, patent, trademark, trade secret or other Intellectual Property Right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory Law, or any other right of any person or Entity.
(h) You shall not engage in any activity that is or constitutes, or that involves, facilitates, advocates or promotes, one or more of the following: (i) discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability; (ii) libelous, defamatory, threatening, harassing, tortious, or similarly abusive activities; (iii) obscene, pornographic, sexually explicit or similar activities; (iv) gambling; (v) sale, export or use of illegal substances; (vi) terrorism, sedition or other illegal activities; (vii) MP3, MPEG and/or other proprietary materials for download, sale or otherwise, in any case without the permission of the owner of the associated Intellectual Property rights (viii) a conflict or violation of any Law or any intellectual property rights or other Rights of any person or Entity; (ix) harm to minors in any way; or (x) impersonation of any person, including any Atrinsic representative, or misrepresentation of affiliation with any person or Entity.
(i) There is no pending or, to your knowledge, threatened claim, action or proceeding against you.
(j) You will be solely responsible for the development, operation and maintenance of Your Site(s) and for any and all materials that appear on such Site(s). Such responsibilities include, without limitation: (a) the technical operation of such Site(s) and all related equipment; (b) creating and posting Content, descriptions and references on such Site(s); (c) the accuracy and propriety of materials posted on such Site(s); (d) ensuring that materials posted on such Site(s) do not violate or infringe upon the rights of any third party and are not defamatory, obscene, libelous, harmful, illegal or otherwise offensive; and (e) ensuring that such Site(s) comply with all Laws.
10 Non-Disclosure
10.1 Confidential Information. You acknowledge that in connection with Your participation in the Affiliate Network and/or Engagements with one or more Network Advertisers, You will be provided with confidential and proprietary data and information from time to time. Such confidential and proprietary data and information may be owned variously by Atrinsic or Network Advertisers and/or their respective suppliers or contractors.
10.2 Duty of Care. You will keep all reports, data and other confidential information provided to You through the Network Publisher Account Area or otherwise strictly confidential. Without Atrinsic’s prior written consent, You will not disclose any such confidential information to any third party or use any such confidential information other than solely as and to the extent required for You to exercise Your rights and perform Your obligations under this Agreement and/or Your Engagements with Atrinsic or any Network Advertisers.
10.3 Need to Know Basis. You may disclose any such confidential information only to Your employees, officers and directors who need to know such information in order for you to exercise Your rights and perform Your duties hereunder; provided that each such person has a legal or contractual obligation to maintain the confidentiality of such information.
10.4 Legally Required Disclosures. If You receive any document request, interrogatory, subpoena or other legal process (“Request”) that would, by its terms, require the disclosure of any Confidential Information protected by this Agreement, then promptly upon receipt thereof, and prior to making any response thereto, You will notify Atrinsic in writing of Your receipt of such Request, and shall provide Atrinsic with a copy thereof. Upon receipt of such notice, Atrinsic may seek to intervene in the matter in which the Request was issued to seek protection of the confidentiality provided for by this Section. Absent written agreement signed by Atrinsic, You may not make such disclosure absent an order or directive from the tribunal from which a Request was issued. Atrinsic will be entitled to seek and obtain injunctive relief preventing any breach of Your obligations under this Section, without the need to show irreparable harm, and without the need to post a bond or undertaking.
11 Payment; Fees
11.1 Network Advertiser Responsible for Payment. You acknowledge and agree that the Network Advertisers with which you enter Engagements or other agreements are solely responsible for any and all payments that may be due to You from time to time pursuant to the terms of such Engagements or agreements. Your entitlement to any compensation reported with respect to any Tracked Activity is solely a function of the terms of such Engagements and agreements. Atrinsic shall not be responsible for the payment or collection of any amounts due to You from any Network Advertiser. Atrinsic’s sole responsibility is to remit to You amounts actually received by Atrinsic from Network Advertisers in payment for services rendered by You under the applicable Engagement or other agreement. If Atrinsic undertakes to collect an amount due to You from a Network Advertiser, any and all costs incurred by Atrinsic in connection with such collection shall be paid out of the amount so collected. You further acknowledge that, Your entitlement to any compensation reported with respect to any Tracked Activity is subject to, and will be distributed subsequent to, Atrinsic’s receipt of funds from the Network Advertiser associated with the applicable Engagement giving rise to the purported compensation.
11.2 Payment Terms. The fact that a compensation amount is reported for any Tracked Activity does not necessarily mean that a payment is due to You from the applicable Network Advertiser or from Atrinsic, since payment may be subject to conditions established by that Network Advertiser and/or Atrinsic, including policies regarding order cancellation, returned merchandise, receipt of pending credit card authorizations and/or chargebacks and minimums for earned compensation before payment is made. Further, Atrinsic reserves the right to deduct for direct and indirect fees and expenses incurred arising out of precluded activities in its sole discretion.
11.3 Atrinsic’s Right to Assess Fees. Atrinsic may, at any time upon prior written notice to You as described below, commence charging or assessing fees in relation to any or all Network Offerings made available to You including Your participation on the Affiliate Network(s). Except as otherwise expressly provided in this Agreement, in the event Atrinsic elects to charge or assess fees, You will be notified at least one (1) month in advance in writing by email or posting through the Network Publisher Account Area. You may elect not to pay any such fees by discontinuing Your participation in all Network Offerings prior to the commencement of such fees. Any and all fees or other charges may be offset against or debited from any amounts that might be held in account for You by Atrinsic or Atrinsic Related Parties including any amounts that may be due, payable or paid to You by any Network Advertisers, by Atrinsic, or by other third parties.
11.4 Tax. You agree that You are solely responsible for any and all tax obligations, if any, due to all taxing authorities arising from or in connection with Your participation in the Affiliate Network, any Network Advertiser Engagement or Publisher Engagement.
12 Compliance with Laws
12.1 You and Your affiliates, officers, directors, employees, consultants, agents and representatives, and the conduct of Your business, Your performance under any Advertiser Engagements or Publisher Engagements , and/or Your use of the Affiliate Network and/or Network Offerings shall comply in all respects at all times with all applicable Laws
13 Termination of Network Advertisers
13.1 Any Network Advertiser's participation in the Affiliate Network may end or be suspended at any time, for any or no reason, , and You shall not necessarily receive any prior notice that such Network Advertiser's participation is ending.
13.2 If a Network Advertiser's participation in the Affiliate Network ends or is suspended, its program conducted through such Atrinsic Network shall end or be suspended and Atrinsic may, without notice to You, terminate or suspend all Qualifying Links that You have with that Network Advertiser immediately or, in Atrinsic's discretion, at any time thereafter. Atrinsic shall have no obligation or liability to You because of any such termination or suspension of any Network Advertiser.
14 DISCLAIMER OF WARRANTIES; LIMITATION ON LIABILITY.
14.1 EACH AFFILIATE NETWORK AND AFFILIATE NETWORK SITE ARE PROVIDED "AS IS, WHERE IS" AND "AS AVAILABLE", AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, ARE DISCLAIMED IN ALL RESPECTS (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE AFFILIATE NETWORK, THE AFFILIATE NETWORK SITE AND ANY CONTENT PROVIDED BY ATRINSIC, A NETWORK ADVERTISER OR OTHER THIRD PARTY MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. ATRINSIC AND THE ATRINSIC RELATED PARTIES SHALL HAVE NO LIABILITY, WHATSOEVER, TO YOU OR ANY THIRD PARTY, FOR YOUR USE OF, OR INABILITY TO USE, THE AFFILIATE NETWORK, AFFILIATE NETWORK SITE AND SUCH CONTENT. IN PARTICULAR, BUT NOT AS A LIMITATION OF THE OTHER PROVISIONS OF THIS SECTION, ATRINSIC AND THE ATRINSIC RELATED PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED IN BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN ATRINSIC AND YOU. THE AFFILIATE NETWORK, THE AFFILIATE NETWORK SITE AND ANY CONTENT PROVIDED BY ATRINSIC, A NETWORK ADVERTISER OR OTHER THIRD PARTY WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. ATRINSIC MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE AFFILIATE NETWORK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE AFFILIATE NETWORK, THE AFFILIATE NETWORK SITE AND ANY CONTENT PROVIDED BY ATRINSIC, A NETWORK ADVERTISER OR OTHER THIRD PARTY SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
14.2 ALL RESPONSIBILITY AND/OR LIABILITY FOR ANY AND ALL DAMAGES CAUSED BY, AND/OR THROUGH, THE AFFILIATE NETWORK, THE AFFILIATE NETWORK SITE AND ANY CONTENT PROVIDED BY ATRINSIC, A NETWORK ADVERTISER OR OTHER THIRD PARTY IS EXPRESSLY DISCLAIMED. YOU UNDERSTAND AND AGREE THAT PARTICIPATION IN THE AFFILIATE NETWORK AND ACCESS AND/OR USE OF THE AFFILIATE NETWORK SITE AND SUCH CONTENT IS DONE SOLELY AT YOUR OWN DISCRETION AND AT YOUR OWN RISK. YOU ARE ALSO SOLELY RESPONSIBLE FOR ANY USE, OR ALLEGED USE, OF THE AFFILIATE NETWORK, THE AFFILIATE NETWORK SITE AND ANY CONTENT PROVIDED BY ATRINSIC, A NETWORK ADVERTISER OR OTHER THIRD PARTY THAT MAY INFRINGE UPON A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
14.3 UNDER NO CIRCUMSTANCES SHALL ATRINSIC AND THE ATRINSIC RELATED PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY END USERS OBTAINING SERVICES THROUGH YOUR MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM YOUR PARTICIPATION IN THE AFFILIATE NETWORK. IF, NOTWITHSTANDING THE ABOVE, LIABILITY IS IMPOSED ON ATRINSIC OR ATRINSIC RELATED PARTIES, THEN YOU AGREE THAT THE TOTAL LIABILITY OF ATRINSIC AND ATRINSIC RELATED PARTIES, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBCONTRACTORS AND REPRESENTATIVES, TO YOU WILL NOT EXCEED TWENTY-FIVE DOLLARS ($25.00). YOU RECOGNIZE AND ACKNOWLEDGE THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE, IN LIGHT OF THE FACT THAT ATRINSIC IS PERMITTING YOU TO PARTICIPATE IN THE AFFILIATE NETWORK AT NO CHARGE TO YOU.
14.4 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF CERTAIN LIABILITIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF THIS SECTION 14 MAY NOT APPLY TO YOU.
15 Indemnification
15.1 You agree to defend, indemnify and hold harmless Atrinsic, its Affiliates and each of their respective shareholders, members, directors, managers, officers, employee, contractors, representatives and agents and (collectively, the “Atrinsic Related Parties”), for and against any and all claims, actions, demands, liabilities, losses, damages, penalties, interest, judgments, settlements, costs and expenses (including reasonable attorneys' fees) that directly or indirectly arise out of or are based on:
(a) any misrepresentation or breach of any representation, warranty, or covenant made by You in this Agreement,
(b) any conduct, or activity, error or omission by You, including in relation to Your participation on the Affiliate Network or otherwise,
(c) any violation by You of any Law,
(d) Your use of any Network Offerings, and/or
(e) any actual or alleged infringement by You of any Intellectual Property Rights or other rights of any person.
15.2 Atrinsic may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by You. Atrinsic may participate in the defense of all claims as to which it does not assume defense and control, and You shall not settle any such claim without Atrinsic's prior written consent.
16 Amendments
16.1 Amendments. Upon prior written notice, Atrinsic may, at any time, add to, remove or otherwise amend any or all terms, conditions and/or other provisions of this Agreement.
16.2 Changes in Service. Upon prior written notice, Atrinsic may add, remove, suspend or discontinue any aspect of the Affiliate Network.
16.3 YOUR CONTINUED USE OF THE AFFILIATE NETWORK AND/OR AFFILIATE NETWORK SITE AFTER NOTICE IS GIVEN (AND AFTER EXPIRATION OF ANY APPLICABLE PRIOR NOTICE PERIOD) SHALL CONSTITUTE YOUR BINDING AND LEGALLY ENFORCEABLE AGREEMENT TO SUCH CHANGE. IF YOU DO NOT WISH TO ACCEPT ANY SUCH CHANGE, THEN YOU MUST TERMINATE YOUR ACCOUNT WITH SUCH AFFILIATE NETWORK AND CEASE USING SUCH AFFILIATE NETWORK.
17 Termination, etc.
17.1 Termination. You or Atrinsic may, at any time, with or without cause, terminate this Agreement and Your participation on the Affiliate Network. Either party hereto may affect such termination by written notice delivered to non-terminating party in accordance with this Agreement; provided that any notice given to Atrinsic shall not be effective until actually received by Atrinsic.
17.2 Restricted Use. Alternatively, Atrinsic may, in its sole discretion, at any time and from time to time, without notice, suspend, limit, restrict, condition or deny You access to or use of all or any part of the Affiliate Network.
18 Effects of Termination
18.1 Upon any termination of this Agreement and/or Your participation on the Affiliate Network:
(a) You shall immediately cease to use and remove from any and all Site(s), whether or not owned or operated by You, any and all Qualifying Links and all other Content or materials provided to You in connection with Your participation on the Affiliate Network.
(b) Any and all licenses and rights granted to You under this Agreement shall immediately cease and terminate.
(c) Atrinsic may terminate or, in its sole discretion, direct or redirect to any destination Site any and all Qualifying Links continued to be used by You without Atrinsic or any Network Advertiser incurring any further liability or obligation to You.
(d) Any and all confidential or proprietary information of Atrinsic (including as applicable any confidential or proprietary information of Network Advertisers as and to the extent originally provided by Atrinsic) that is in Your possession or control must be immediately returned or destroyed. If requested, You will certify in a writing signed by You or an authorized officer as to the return or destruction of all such confidential or proprietary information.
18.2 Atrinsic may withhold and offset against any and all compensation and/or other fees that are then unpaid to You. Following assessment of any fees or other charges owing to Atrinsic, and subject to Atrinsic holding any amount it determines in its sole discretion to be needed to support any of Your indemnification and/or other obligations and/or liabilities under this Agreement, Atrinsic may refund any remaining monies to any of the Network Advertisers with which You had entered into an Engagement. Such withholding of such compensation and/or other fees is in addition to any other rights and remedies that Atrinsic or any Network Advertiser may have in contract, at law or in equity.
18.3 All rights or remedies arising out of a breach of any terms of this Agreement shall survive any such termination of this Agreement.
18.4 Sections 18 and 19, and any provision which by its terms are intended to survive any expiration or termination of this Agreement, will survive any expiration or termination of this Agreement. Your representations and warranties in this Agreement shall survive execution, delivery, acceptance, performance, expiration or termination of this Agreement.
19 Miscellaneous
19.1 Force Majeure. Atrinsic shall not be liable to You by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, interruptions in telecommunications services or Internet facilities, or any other cause which is beyond the reasonable control of Atrinsic, whether or not similar to the foregoing.
19.2Assignability. You shall not assign or delegate any of the rights or obligations under this Agreement, and any such attempted assignment or delegation shall be void. Subject to the preceding sentence, this Agreement is binding on and inures to the benefit of the respective successors, heirs and assigns of each party hereto.
19.3 Severability. If any portion of this Agreement is held by a court with jurisdiction to be invalid or unenforceable, the remaining portions hereof, shall remain in full force and effect. If any provision of this Agreement shall be judicially unenforceable in any jurisdiction, such provision shall not be affected with respect to any other jurisdiction.
19.4 Governing Law; Consent to Jurisdiction; Jury Trial Waiver. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, U.S.A., without regard to its conflicts of law principles. You hereby consent to the personal and exclusive jurisdiction of the U.S. federal and New York State courts sitting in New York County, New York, U.S.A. EACH PARTY HEREBY WAIVES ITS RIGHTS TO TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT. The U.N. Convention on the International Sale of Goods shall not apply to this Agreement.
19.5 Entire Agreement; Third Party Beneficiaries. This Agreement is the entire agreement between the parties hereto pertaining to its subject matter, and supersedes all prior written or oral agreements (including prior versions of this Agreement and any conflicting confidentiality agreements), representations, warranties or covenants between the parties hereto with respect to such subject matter. There are no third party beneficiaries of this Agreement. The headings of sections or other subdivisions of this Agreement will not affect in any way the meaning or interpretation of this Agreement.
19.6 Notices. Atrinsic may provide notices to You by posting notices or links to notices on the Affiliate Network Site. Notices to You also may be made via e-mail, regular mail, overnight courier or facsimile at your contact addresses of record for the Affiliate Network. If you provide notice to Atrinsic, such notice shall be sent, postage prepaid by U.S. registered or certified mail or by international or domestic overnight courier, to: Atrinsic, Inc., 469 Seventh Avenue, 10th Floor, New York, NY 10018, Attn: Affiliate Network General Counsel. Notices sent by email or telecopy, with or without electronic confirmation, will not be deemed to be valid unless actual receipt is acknowledged in writing by an authorized personnel member of Atrinsic.
19.7 Language. The English language version of this Agreement is the controlling document that governs the relationship of the parties hereto with respect to the subject matter hereof. All support and other inquiries regarding Your use of the Affiliate Network must be submitted to Atrinsic in English, and Atrinsic will communicate in English only.
19.8 Government Restricted Rights. With respect to any acquisition or use of the Affiliate Network by or for any unit or agency of the United States government (the "Government"), such items shall be classified as "commercial computer software" as that term is defined in the applicable provisions of the Federal Acquisition Regulation (the "FAR") and supplements thereto, including the Department of Defense (DoD) FAR Supplement (the "DFARS"). The Affiliate Network was developed entirely at private expense, and no part of the Affiliate Network was first produced in the performance of a Government contract.
19.9 Interpretation. As used herein “including” shall be deemed to be followed by “including, without limitation,” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. As used herein, words such as “herein,” “hereinafter,” “hereof,” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires.
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