This agreement (the “Agreement”) is entered
into by and between ATM Interactive, a Kentucky Limited Liability Company with
offices at 9900 Corporate Campus Dr, Ste 3000, Louisville, KY 40223 (“ATM” or
the “Company”) and you (“Affiliate”), the user of the ATM Website, and sets
forth the parties’ respective rights and obligations with respect to the
above-referenced affiliate program (the “Affiliate Program”). Notwithstanding
the effective date of this Agreement, Company shall have sole discretion to
determine the date that the Affiliate Program begins. Please be advised
that this Agreement is subject to change at any time, in Company’s sole
discretion. Changes may include, without limitation, changes in the payout
structure, payment procedures and other Affiliate Program-related policies.
The continued participation by Affiliate in the Affiliate Program
constitutes agreement by the Affiliate to any and all changes to this
Agreement in effect at that time. Affiliate’s continued use of the ATM
Website after such modification and notification thereof constitutes
Affiliate’s consent to such changes.
Term
and Termination: The term of this Agreement will begin upon
Company’s written acceptance of the Affiliate Application and will end when
terminated by either party upon three (3) days prior written notice to the
non-terminating party. Company may terminate Affiliate’s participation in the
Affiliate Program at any time and for any reason, in Company’s sole discretion
including, without limitation: i) where Company believes that Affiliate is in
any way in breach of this Agreement; ii) where Company believes that the
Affiliate website (“Affiliate Website”) or the Affiliate e-mail database
(“Affiliate Database”) is unsuitable for the Affiliate Program for any reason
including, without limitation, that the Affiliate Website contains material
that could be considered unlawful, harmful, threatening, defamatory, obscene,
harassing or otherwise objectionable; iii) where Company believes that
Affiliate is not, in any fashion, conducting permission-based e-mail marketing
that fully complies with: a) all applicable international, federal and state
laws, rules and regulations; or b) the applicable published rules or
guidelines of the Internet access service (“IAS”) network, domain or e-mail
servers to which it is transmitting commercial e-mail. For the purposes of
this Agreement, Internet access service shall have the same meaning as set
forth in the CAN-SPAM Act of 2003, as amended from time to time (“CAN-SPAM”);
and/or iv) upon the dissolution or insolvency of either party. Affiliate is
only eligible to earn “Commissions,” as defined hereinbelow, on billings
generated during the term of this Agreement. Upon the termination of this
Agreement, any and all licenses granted hereunder shall immediately expire.
License: Company hereby grants Affiliate a non-exclusive,
non-transferable, revocable and limited license to market the Affiliate
Program products and/or services in accordance with this Agreement (the
“Affiliate Campaign”). Company may use Affiliate’s personal
information in any manner consistent with the ATM Privacy Policy, which is
hereby incorporated into, and made part of, this Agreement. For additional
information regarding the Company’s usage of Affiliate information collected,
please refer to the ATM Privacy Policy located at
http://www.atminteractive.com (the “ATM Website”). ATM shall be
responsible for providing the information necessary to allow Affiliate to
carry out its rights and duties pursuant to this Agreement and shall be
responsible for placing advertisements received from ATM Advertisers
(“Advertisers”) on the ATM Website.
Payments: ATM shall pay commissions according to the payment terms
of the Affiliate Program (“Commissions”) as indicated hereinabove and/or on
the ATM Website. Company shall pay Affiliate Commissions approximately
fifteen (15) days after the last day of a given calendar month, for
Commissions earned in that month. ATM, in its sole discretion, may withhold
any and all payments due and owing to Affiliate until such time as Advertiser
has paid ATM for any Advertising Campaign. ATM reserves the right to reduce
any and all payments owed to Affiliate where Advertiser has offset payments
owed to ATM. ATM shall compile, calculate and post on the ATM Website data
that ATM has used to determine Affiliate’s billing and the associated
Commissions due to Affiliate (the “Data”). Any questions or disputes
regarding the Data must be submitted in writing to ATM within five (5)
business days of the date that the Data is posted on the ATM Website;
otherwise, the information contained therein will be deemed accurate and
accepted by Affiliate. ATM will investigate and resolve any Data-related
questions or disputes in its sole discretion. ATM shall not be responsible to
pay Affiliate on any eligible Commissions where: i) leads are from e-mail
recipients that have previously registered for, opted-in to and/or are already
an Advertiser website member and/or applicable campaign customer, as the case
may be; and/or ii) the subject e-mail recipient did not opt-in to receiving
e-mail marketing from Advertiser. Notwithstanding anything contained herein
to the contrary, no Commission payments will be issued to an Affiliate for any
amounts that are, in the aggregate, less than One hundred US Dollars ($100.00)
(the "Payment Threshold"). All such amounts below the Payment Threshold shall
be held, aggregated and paid to Affiliate only when the Payment Threshold has
been reached. ATM will not pay Commissions on any billings: a) that occur
before Affiliate is accepted into the Affiliate Program; b) that occur after
termination of this Agreement; and/or c) if Affiliate is in breach of any term
contained in this Agreement. Affiliate agrees that the Commissions due and
payable to it shall be based solely on the Data posted on the ATM Website.
ATM will not pay any Commissions to Affiliate unless Company has documentation
to support such Commissions within the Company database and Data. ATM may
require Affiliate to provide a W-9, or similar tax identification information,
as a condition precedent to receiving any Commission payments. ATM reserves
the right to withhold and/or cancel Commission payments due and owing to
Affiliate at any time, in its sole discretion, when Company believes that
Affiliate is in breach of any term of this Agreement. Customers that buy
products and/or services through the Affiliate Program shall not be deemed to
be the customers of ATM. All Commission payments due to Affiliate will be
paid in US dollars.
CONTENT: Company will make available to Affiliate certain
marketing pieces created by Advertiser and/or ATM for use in the Affiliate
Program. In particular, ATM will post creatives (“Creatives”), text links
and/or banner advertisements (“Banner Ads”) (collectively, the "Content") on
the ATM Website for download, use and publication by Affiliates. The Content
shall contain unique Affiliate-specific identifiers/code that will enable ATM
to track Affiliate generated click-throughs. ATM may change or revise the
Content that is prepared by ATM at any time, in its sole discretion, and
Affiliate agrees to use only the most recent version of the Content that is
prepared by ATM and posted on the ATM Website. Affiliate may not alter,
modify or otherwise change the Content in any manner, whatsoever. Company may
terminate Affiliate’s right to use the Content for any reason at any time, in
its sole discretion. Affiliate may only use Content that is supplied by ATM
and that is posted on the ATM Website. Use, or the attempted use, of any
other marketing materials and/or Content in connection with the Affiliate
Program will result in the immediate termination of this Agreement, without
notice. Each Affiliate agrees that ATM may, in its sole discretion, direct
the placement of the Content on the ATM Website. Affiliate may NOT use
brand names and/or trademarks of another party (e.g., Milton Bradley or Apple)
in the "subject" or "from" lines or body of any commercial e-mail
transmission. Affiliate agrees and acknowledges that it shall not: i)
incentivize offers or create the appearance of incentivizing offers; ii) place
any statement in close proximity to the Content requesting that e-mail
recipients “click” on the Content (e.g., “Please click here”); iii) place
misleading statements in close proximity to the Content; and/or iv) redirect
traffic to a website other than the website listed by the particular
Advertiser. Prior to the sending of any commercial e-mail in connection with
the Affiliate Program, Affiliate shall provide ATM with a list of Internet
protocol (“IP”) addresses and domain names that it, or its Sub-Affiliates (as
that term is defined hereinbelow), intends to use in connection with the
particular Affiliate Campaign. Should Affiliate market any Affiliate Campaign
to its users, Affiliate must, upon the request of ATM, be able to produce the
name, date, time, IP address and referral uniform resource locator (“URL”)
where the consumer granted the Affiliate affirmative consent, as defined by
applicable law (“Affirmative Consent”), to send such e-mail marketing
messages. Affiliate is solely responsible for all consumer complaints
relating to e-mail campaigns conducted by Affiliate. Affiliate represents and
warrants that it will respond to all consumer complaints within forty-eight
(48) hours of notification. In addition to all other available remedies, ATM
may withhold and suspend Commission payment until any and all outstanding
consumer complaints are resolved. All costs associated with such required
actions shall be deducted from the Affiliate Commission.
SUB-AFFILIATES: For purposes of this
section, any business partners or associates of Affiliate that participate in
or perform any activities for Affiliate as a part of the Affiliate Program
shall be deemed to be a “Sub-Affiliates.” Any and all Sub-Affiliates must be
pre-approved by Company. Company reserves the right to withhold or refuse
approval of any Sub-Affiliate for any reason whatsoever, and Company may
revoke its approval of a Sub-Affiliate at any time for any reason whatsoever.
All Sub-Affiliates must meet the same criteria for approval and must comply
with the same terms and conditions as the Affiliate as set for in this
Agreement. Affiliate is responsible for the acts and/or omissions of its
Sub-Affiliates, and Company may revoke approval of the Affiliate Campaign
based on the acts or omissions of that Affiliate’s Sub-Affiliates. Company
reserves the right to use all legal measures necessary in order to ensure that
Affiliate and its Sub-Affiliates are in compliance with this Agreement.
Affiliate shall fully and unconditionally indemnify Company for any and all
actions of any Sub-Affiliate including, but not limited to, payment of legal
fees and costs if necessary.
E-mail Marketing
Policy/CAN-SPAM Compliance: Affiliate represents and warrants
that, at all times, it will comply with all applicable state and federal laws,
rules and Federal Trade Commission implementing regulations (including, but
not limited to, CAN-SPAM and any international laws, rules and regulations),
as well as any published rules or guidelines of the IAS networks, domains
and/or e-mail service providers, with respect to its e-mail marketing.
Affiliate acknowledges that any failure to comply with this Section may, in
Company’s sole discretion, result in the immediate termination of this
Agreement and the forfeiture of any and all rights to any Commissions
otherwise owed to Affiliate by ATM. When performing e-mail marketing of any
kind and on behalf of any Advertiser, Affiliate represents and warrants that
Affiliate shall transmit commercial e-mail only to those recipients that have
given Affiliate Affirmative Consent to receive e-mail advertising from
Affiliate and have not revoked such consent as of the date that the commercial
e-mail was transmitted to such recipient. Affiliate must: i) refrain from
falsifying e-mail header and transmission information (including, without
limitation, source, destination and routing information); ii) not use any
subject or from line that is materially false or misleading; iii) refrain from
seeking or obtaining unauthorized access to computers for the purpose of
sending any and all commercial e-mail; iv) include within all commercial
e-mail sent: a) a valid street address for both Affiliate and the Advertiser
(if any); b) a clear and conspicuous opt-out notice and functional opt-out
mechanism; and c) process unsubscribe requests within three (3) days; v)
comply with all legal obligations and best practices with respect to
unsubscribing consumers from Affiliate’s e-mail mailing lists; vi) at least
once a week, scrub the Affiliate Database against the Advertiser suppression
list and ATM suppression list (collectively, the “Suppression List”) as same
will be made available on the ATM Website, subject to the provisions contained
hereinbelow; and vii) immediately notify ATM in the event that any complaint,
investigation and/or litigation ensues concerning Affiliate’s or any
Sub-Affiliate’s e-mail practices (whether or not such complaint, investigation
and/or litigation relates to Affiliate’s relationship with ATM).
Suppression Lists: With respect to any suppression list generated
through the Affiliate Program, Affiliate agrees to: i) use such Suppression
List, and the individual customer records contained therein, solely for the
suppression purposes set forth herein, even after any termination of this
Agreement; ii) regularly use such Suppression List to remove any and all
e-mail addresses or domains contained therein from future commercial e-mail
mailings; iii) not use the Suppression List for purposes of e-mail marketing
(or provide the Suppression List to any third party for said purposes) and not
send, or cause to be sent, any commercial e-mail messages to an e-mail address
or domain appearing on any Suppression List; iv) not use any Suppression List
for purposes of e-mail appending in any manner whatsoever; v) hold any
Suppression List in trust and confidence and use same solely for the
suppression purposes set forth herein; vi) not retain a copy of any
Suppression List following termination of this Agreement; and vii) not
disclose any Suppression List to any employee, consultant, subcontractor or
third party individual, corporation or entity without first ensuring said
party’s written agreement to be bound by the terms of this Agreement. Such
agreement shall be immediately forwarded to ATM, upon request. ATM reserves
the right to withhold its consent to such disclosure and may, within its
discretion, accordingly bar the disclosure of any and all Suppression Lists.
Affiliate further agrees and acknowledges that: a)
it has downloaded and removed the domains located on the Federal
Communications Commissions (“FCC’s”) wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html)
from any and all current data used in ATM mailings; and b) any and all new
data that it acquires, regardless of its source, will be scrubbed against the
FCC’s wireless domain names list and that the domain names contained therein
will be removed before sending any ATM mailings.
COVENANTS, Representations and Warranties: Affiliate hereby
represents and warrants that: i) this Agreement has been duly and validly
executed and delivered by Affiliate and constitutes Affiliate’s legal, valid
and binding obligation which is fully enforceable against it in accordance
with its terms; ii) Affiliate will only transmit commercial e-mail to those
recipients that have given Affiliate Affirmative Consent to receive e-mail
advertising from Affiliate, and have not revoked such consent as of the date
that the commercial e-mail was transmitted to such recipient; iii) Affiliate
will comply with all applicable state and federal laws, rules and Federal
Trade Commission implementing regulations (including, but not limited to,
CAN-SPAM), international laws, rules and regulations, as well as IAS network,
domain and e-mail service provider guidelines, with respect to the Affiliate
Program; and iv) Affiliate understands and agrees that ATM will enter into
similar agreements with other ATM affiliates in direct competition with
Affiliate. Affiliate will be solely responsible for the development,
operation and maintenance of the Affiliate Website, Affiliate Database and for
any and all materials that appear on the Affiliate Website. Such
responsibilities include, without limitation: a) the technical operation of
the Affiliate Website and all related equipment; b) creating and posting
content, descriptions and references on the Affiliate Website; c) the accuracy
and propriety of materials posted on the Affiliate Website; d) ensuring that
materials posted on the Affiliate Website do not violate or infringe upon the
rights of any third party and are not defamatory, obscene, libelous, harmful,
illegal or otherwise offensive; e) ensuring that the Affiliate Website
complies with all applicable laws, rules and regulations; f) Affiliate’s use
of the Affiliate Database will comply with all applicable privacy, data
protection, credit and any other laws, statutes and governmental regulations
including, without limitation, CAN-SPAM, state e-mail, deceptive marketing and
privacy laws, the Fair Credit Reporting Act and the Children’s Online Privacy
Protection Act; and g) ensuring compliance by any Sub-Affiliates with the
terms of this Agreement including, without limitation, compliance with
CAN-SPAM, e-mail marketing policy, suppression list usage and privacy terms.
Disclaimers/Limitation of Liability: THE AFFILIATE PROGRAM, ATM
WEBSITE AND CONTENT ARE PROVIDED ON AN "AS IS” AND "AS AVAILABLE" BASIS AND
ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT
LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY,
NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR
PURPOSE). THE AFFILIATE PROGRAM, ATM WEBSITE AND CONTENT MAY CONTAIN BUGS,
ERRORS, PROBLEMS OR OTHER LIMITATIONS. ATM HAS NO LIABILITY, WHATSOEVER, TO
AFFILIATE OR ANY THIRD PARTY, FOR AFFILIATE’S USE OF, OR INABILITY TO USE, THE
AFFILIATE PROGRAM, THE ATM WEBSITE AND/OR CONTENT. IN PARTICULAR, BUT NOT AS
A LIMITATION THEREOF, ATM IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF
PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON 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 HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN
ATM AND AFFILIATE. THE AFFILIATE PROGRAM, ATM WEBSITE AND CONTENT WOULD NOT
BE PROVIDED TO AFFILIATE WITHOUT SUCH LIMITATIONS. ATM MAKES NO
REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE
AFFILIATE PROGRAM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN,
OBTAINED BY AFFILIATE FROM ATM THROUGH THE AFFILIATE PROGRAM, ATM WEBSITE, OR
CONTENT SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT
EXPRESSLY STATED IN THIS AGREEMENT. ALL RESPONSIBILITY AND/OR LIABILITY FOR
ANY AND ALL DAMAGES CAUSED BY, AND/OR THROUGH, THE AFFILIATE PROGRAM, ATM
WEBSITE AND CONTENT IS EXPRESSLY DISCLAIMED. AFFILIATE UNDERSTANDS AND AGREES
THAT PARTICIPATION IN THE AFFILIATE PROGRAM AND ACCESS AND/OR USE OF THE ATM
WEBSITE AND CONTENT IS DONE SOLELY AT AFFILIATE’S OWN DISCRETION AND AT
AFFILIATE’S OWN RISK. AFFILIATE IS ALSO SOLELY RESPONSIBLE FOR ANY USE, OR
ALLEGED USE, OF THE AFFILIATE PROGRAM, ATM WEBSITE AND CONTENT THAT MAY
INFRINGE UPON A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. UNDER NO
CIRCUMSTANCES SHALL ATM BE LIABLE TO AFFILIATE OR ANY THIRD PARTY (INCLUDING,
WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH AFFILIATE’S MARKETING
EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM AFFILIATE’S PARTICIPATION IN
THE AFFILIATE PROGRAM. COMPANY’S MAXIMUM AGGREGATE LIABILITY TO AFFILIATE AND
ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE EQUAL TO THE PRICE
THAT AFFILIATE HAS PAID TO PARTICIPATE IN THE AFFILIATE PROGRAM.
Proprietary Rights: The organization, graphics, design,
compilation, magnetic translation, digital conversion, software and other
matters related to the Affiliate Program, Content, and the ATM Website are
protected under applicable copyright, trademark and other proprietary
(including, without limitation, intellectual property) rights. The usage,
copying, redistribution and/or publication by Affiliate of any part of the
Affiliate Program, Content, and the ATM Website, other than as contemplated
hereunder, are strictly prohibited. Affiliate does not acquire any ownership
rights to the Affiliate Program, Content, and/or the ATM Website. The
availability of the Affiliate Program, Content, and the ATM Website does not
constitute a waiver of any rights related thereto.
Publicity/confidentiality/NON DISCLOSURE: Affiliate agrees that
ATM may use Affiliate’s name, company name, and/or likeness, the Affiliate
Website address and any associated information in Company’s marketing
materials and press releases, without compensating Affiliate. Affiliate shall
not create, publish, distribute or permit any written material that makes
reference to ATM without first submitting such material to Company and
receiving Company’s prior written consent, which Company may withhold in its
sole discretion. The terms and conditions of this
Agreement shall be held confidential by both parties at all times. This
Section shall survive any termination of this Agreement for a period of two
(2) years thereafter. Notwithstanding anything contained herein to the
contrary, a duty of non-disclosure and confidentiality shall not apply where
either party can demonstrate with clear evidence that the information: (i) was
previously known at the time of disclosure, free of any obligation to keep it
confidential; (ii) became publicly known through no wrongful act of either
party; (iii) was rightfully received by either party from a third party who
was not bound under any confidentiality provisions; or (iv) was disclosed
pursuant to judicial order, requirement of a governmental agency or by
operation of law.
Indemnification: Affiliate agrees to indemnify, defend and hold
harmless Company, its parents, affiliates and/or subsidiaries, and each of
their respective officers, partners, members, managers, employees, agents and
attorneys, from and against any and all liabilities, claims, actions, suits,
proceedings, judgments, fines, damages, costs, losses and expenses (including
reasonable attorneys’ fees, court costs and/or settlement costs) arising from
or related to: i) Affiliate’s, or a Sub-Affiliate’s, breach of this Agreement
and/or any representation or warranty contained herein; ii) Affiliate’s
participation in the Affiliate Program, in any manner whatsoever; and iii) any
allegation that Affiliate or a Sub-Affiliate has infringed upon the trademark,
trade name, service mark, copyright, license, intellectual property or other
proprietary right of any third party. In addition, Affiliate agrees to
indemnify, defend and hold ATM, its parents, affiliates and/or subsidiaries,
and each of their respective officers, partners, members, managers, employees,
agents and attorneys, harmless from and against any and all liabilities,
claims, actions, suits, proceedings, judgments, fines, damages, costs, losses
and expenses (including reasonable attorneys’ fees, court costs and/or
settlement costs) arising from any third party claim related to the Affiliate
Website (or a Sub-Affiliate Website) and/or Affiliate’s e-mail marketing
practices (or a Sub-Affiliate’s e-mail marketing practices).
Force Majeure: Affiliate agrees that ATM will not be liable, or be
considered to be in breach of this Agreement, on account of Company’s delay or
failure to perform as required under the terms of this Agreement as a result
of any causes or conditions that are beyond Company’s reasonable control and
that Company is unable to overcome through the exercise of commercially
reasonable diligence (a “Force Majeure Event”). If any such Force Majeure
Event occurs including, without limitation, acts of God, fires, explosions,
telecommunications or network failure, results of vandalism or computer
hacking, storm or other natural occurrences, national emergencies, acts of
terrorism, insurrections, riots, wars, strikes or other labor difficulties, or
any act or omission of any other person or entity, Company will give Affiliate
notice and will use commercially reasonable efforts to minimize the impact of
any such event.
Miscellaneous: This Agreement shall be treated as though it were
executed and performed in Kentucky, Kentucky and shall be governed by and
construed in accordance with the laws of the State of Kentucky (without regard
to conflict of law principles). Should a dispute arise concerning the terms
of this Agreement, or the breach of same by either party hereto, the parties
agree that the exclusive jurisdiction and venue of any action with respect to
this Agreement shall be in the state and federal courts located in Kentucky,
Kentucky, and each of the parties hereby submits to the exclusive jurisdiction
and venue of such courts for the purpose of such action. Should any part of
this Agreement be held invalid or unenforceable, that portion shall be
construed consistent with applicable law and the remaining portions shall
remain in full force and effect. Affiliate agrees that any unauthorized
and/or unlawful use of the Affiliate Program would result in irreparable
injury to ATM for which monetary damages would be inadequate. In such event,
ATM shall have the right, in addition to other remedies available to it
pursuant to this Agreement, to immediate injunctive relief against Affiliate
without the need to post a bond. Nothing contained in this Agreement shall be
construed to limit any legal remedies available to ATM. ATM and Affiliate are
independent contractors, and nothing in this Agreement will create any
partnership, joint venture, agency, franchise, sales representative or
employment relationship between the parties. Company’s failure to enforce any
provision of this Agreement shall not be deemed a waiver of such provision nor
of the right to enforce such provision. Any attempt by any individual,
whether or not an Affiliate, to damage, destroy, tamper with, vandalize and/or
otherwise interfere with the operation of the Affiliate Program, is a
violation of both criminal and civil law and ATM will diligently pursue any
and all remedies in this regard against any offending individual or entity to
the fullest extent permissible by law and in equity. This Agreement will be
binding on, inure to the benefit of and be enforceable against the parties and
ATM’s successors and assigns. Affiliate is not permitted to transfer any
rights and obligations pursuant to this Agreement. Any attempt to do so will
result in the immediate termination of this Agreement. For technical/general
questions, please contact: info@atminteractive.com
Acknowledged and Agreed by:
