This ADVERTISING AGREEMENT is between us, AML Network Limited (“the Company”) located at Suite 18, 29th Floor, Metropole Square, 2 On Yiu Street, Shatin, Hong Kong and You, as an approved advertiser of the Company (“Advertiser”).
By your participation in our advertising program, the Company and Advertiser agree to be bound by the following terms and conditions with respect to the creation, placement and delivery of advertising campaigns by affiliates of the Company for the benefit of the Advertiser.
“Action” means the completion of all necessary steps by the consumer, as deemed by the Advertiser, so that the Advertiser may acquire the consumer's business, as a direct result of the actions of the Affiliate (defined below).
“Confidential Information" means any information, technical data, or know-how, including, but not limited to, that which relates to research, business plans, marketing plans, contract terms, budgets, product plans, products, services, customers, vendors, markets, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, and marketing or finances of the disclosing party whether communicated in writing, orally, or through electronic means. Confidential information does not include information which was already in the possession of the recipient; information that is in the public domain; or information which recipient becomes aware of through a third party that is not related to the disclosing party.
“CPA” or “Cost Per Action” is a means of measuring the cost for the Company sending advertisements via email to consumers where the cost is measured per Action taken by a consumer and includes Cost-Per-Click (“CPC”), Cost-Per-Lead (“CPL”), and Cost-Per-Sale (“CPS”), Cost-Per-Install(“CPI”).
“Publisher” or “Affiliate” means the person, persons or company that holds an account with the Company to distribute the Advertisers’ offers via online channels to consumers.
TERMS & CONDITIONS
1. INSERTION ORDER.
The specific terms of each advertising campaign provided by Advertiser to Company may be outlined on a separate Insertion Order. In the event of any conflict of terms between the terms written on the Insertion Order and this Agreement, the terms of the Insertion Order shall prevail. The above “Definitions” will apply to the Insertion Order.
This Agreement shall remain in full force and effect while you continue to advertise on the Network.
This agreement may be terminated by either party at any time by providing written notice of its intent to terminate at least two (2) business days prior to the termination. Advertiser will pay for all work performed by Company under this Agreement up to and including the termination date and time. Where applicable, Company shall retain all rights to any creatives, advertisement graphics and/or links created for Advertiser.
4. TRACKING AND PAYMENT.
Advertiser agrees to pay Company for all compensable advertising traffic provided by Company’s Affiliates. Advertiser will provide Company with reporting and tracking of compensable traffic in real time or as otherwise specified on an Insertion Order. As Company will also provide tracking, Advertiser agrees not to modify, disable or re-direct links provided to Company or in any way impede or impair the Company’s ability to track the amount of payable actions. If requested, Company will invoice Advertiser monthly for traffic from the preceding month. Payments must be made on a net fifteen (15) day basis unless other payment terms are specified on the applicable Insertion Order. A deposit, where applicable, will be specified in the Insertion Order. All late payments will accrue interest at the rate of 1.5% per month or the maximum allowable interest, whichever is greater. Advertiser will have seven (7) days from the close of the month in which the action was made in order to dispute its validity, including any credit card charge-backs or fraudulent credit card activity; any dispute must be provided to Company in writing along with documentation of the disputed actions. Documentation must include evidence sufficient to support Advertiser’s dispute including, but not limited to, a fraudulent unit report which must include the following data fields: date, time stamp, IP, Sub Id, user name or email, referring URL, and the reason for rejection. The Parties agree in good faith to discuss any disputes and attempt to reach a mutually acceptable agreement however in the event an agreement cannot be reach the Company’s decision will be final. Company reserves the right to audit the books and records of Advertiser, upon ten (10) business day notice, during the term of this Agreement.
5. ADVERTISING CONTENT AND TESTING.
Advertiser agrees to accept sole responsible for any liability arising out of or relating to (1) the advertisement(s), (2) any claims made in the advertisements, (3) any products or services advertised and/or (4) any material to which users can link through any of the advertisement(s) and to indemnify Company from any such liability as described more fully below. Advertiser agrees to review and confirm that the advertisement, and subsequent modifications, pixel placement and any conditions set forth in the Insertion Order are properly functioning, that proper creatives and information are displayed and every other expectation of Advertiser regarding the Insertion Order is satisfied. If Advertiser discovers any problems after review then Advertiser agrees to provide written notice to Company. If there are any subsequent changes in the advertising campaign Advertiser will review again according to the above procedure. If Advertiser chooses not to review the advertising campaign or fails to provide timely written notice to Company then all payable actions will be deemed valid. The payable actions generated as a result of improper pixel placement will be charged at an hourly rate equal to the highest actual “click to conversion” rate during the preceding seven (7) day period during the Campaign, or if an actual “click to conversion” rate is unavailable, then a reasonable “click to conversion” rate.
6.COMPANY REPRESENTATIONS AND WARRANTIES.
If approved, as set forth above, Company agrees to post Advertiser’s advertisement on the Network and make the advertisement materials available to its Affiliates so that the Affiliates may send the Advertiser’s advertisement to their lists of consumers. Company represents and warrants that its Affiliates have all contracted and agreed to provisions no less restrictive than those contained herein, including the Affiliate’s obligation to comply with all applicable laws, including specifically the CAN SPAM Act of 2003, as amended, and the obligation to maintain confidentiality. We will provide a copy of the relevant Affiliate Agreement for your reference when you become one of our approved Advertisers. Advertiser acknowledges and agrees that Company is not responsible for the conduct of its Affiliates’, the content of their data lists, or any claims by Advertiser, a third-party or government entity that a Affiliate has violated any law, regulation or right of a third-party, as any such claim must be made directly against Affiliate and Advertiser specifically waives its right to pursue any action against Company that is based on or derived from the action or inaction of a Affiliate of Company.
7.CHANGES TO ADVERTISEMENT.
Advertiser agrees to provide at least seven (7) day notice to Company of any scheduled website maintenance or downtime, or of any change in the advertisement creatives, payouts, links, websites or other advertising content. This notice period is necessary in order to allow Company enough time to cancel the current running advertisement and notify their affiliates of the cancellation. If the Advertiser’s website or links are inoperable and Company has not been properly notified then Advertiser agrees to pay an hourly rate equal to the highest actual “click to conversion” rate during the seven (7) day period during the Campaign, or if an actual “click to conversion” rate is unavailable, then a reasonable “click to conversion” rate, any rate determination under this section will be at Company’s sole discretion. For CPM drops Advertiser will be charged for the entire CPM campaign.
8.ADVERTISER REPRESENTATIONS AND WARRANTIES.
Advertiser represents and warrants that: 1) it will not use or attempt to use the Services for any purpose that is in violation of these limitations or that violates any law or regulation; 2) it will not use the Services to disseminate material, including, but not limited to, that which is illegal, obscene, pornographic, shows nudity, indecent, offensive to the average reasonable person, threatening, abusive, libelous, defamatory, discriminatory, promotes racism, bigotry or hatred; infringes on any intellectual property or is in violation of any copyright or trademark law; in violation of any right of privacy; that promotes harmful, unlawful, seditious, or criminal activity; that could give rise to civil liability; that contains viruses, worms, Trojan Horse or other harmful files; or that appears or purports to be from someone other than the Advertiser or that impersonates another person or entity; 3) a reasonable basis exists for any claims made and Advertiser has documentation and proof to support any claims made in the advertisements; 4) that the advertisement and advertised product complies with all laws and regulations, including truth in advertisement laws and those regarding endorsements; 5) that Advertiser holds the necessary rights to permit the use of the advertisement and link for the purpose of this Agreement and that the use, reproduction, distribution, or transmission of the advertisement will not violate any laws or any rights of third parties; 6) the advertisement is not directed at children under thirteen (13) years of age; 7) the links contained in the advertisement are directed to the intended destination and will not be changed without prior notice to Company; 8) all suppression lists provided to Company are current and accurate; and 9) Advertiser will indemnify the Company for any claims, including actual attorney’s fees and costs, that their advertisement or the advertised product or service violates any law, regulation, or right of a third party and/or for any breach of the terms contained herein; and that they will promptly notify Company of any claim that may give rise to indemnification.
Company grants Advertiser a nonexclusive, nontransferable, limited right and license to access and make use of the Company’s network website, the software and material provided thereon in order to post advertisements and/or pull reporting statistics, provided that the Advertiser fully complies with this Agreement. The Advertiser agrees not to download (other than page caching) or modify this website or software or any portion of it. The network website or any portion of the network website or its content may not be reproduced, duplicated, copied, sold, or resold. Advertiser agrees not to frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including, without limitation, images, text, page layout, or form) of the Company, or its affiliates without its or their respective express, written consent. Advertiser agrees not to disclose to any third party any website content contained in any section of the network website that requires a user name and password with which to access it. Advertiser agrees they are responsible for maintaining the confidentiality of their account and password, and agree to accept responsibility for all activities that occur under their account or password.
Both parties acknowledge that in the course of dealing with each other they will be exposed to “Confidential Information,” as defined above, of the other party, its customers, providers, and vendors, and that maintaining the confidentiality of that information, both during and after the termination of this Agreement, is a critical part of their relationship. Both parties acknowledge that any use of that information, except to promote the best interests of the other party and its customers, providers and vendors, or the unauthorized disclosure of Confidential Information to third parties, would cause serious harm and would be a breach of this Agreement. Both parties specifically agree to keep confidential the terms of this Agreement, payment amounts, payment terms and all other aspects of their relationship. The parties agree to safeguard and protect the confidentiality of the each other’s confidential information and to follow appropriate procedures when sharing any information with outside accounting firms, legal counsel, state and federal tax services, or other necessary persons for the daily operation of their respective businesses. The parties agree to give prior notification before releasing any information of the other, to any government or law enforcement agency that requests such information or in response to any subpoena’s or other legal process.
Both parties acknowledge and agree that any breach of this confidentiality provision would cause irreparable harm to the other and both parties agree that the non-breaching party may seek an immediate injunction against any actual or threatened breach of this provision without the necessity of posting a bond.
Upon termination of this relationship both parties agree to immediately return or destroy all confidential information of the other that is in their possession. This Agreement to maintain confidentiality will survive the termination of this Agreement for a period of one (1) year.
During the term of this Agreement and for a period of six (6) months following the termination of this Agreement, Advertiser agrees not, directly or indirectly, for themselves or any other individual or entity, to solicit to hire or employ any employee, contractor, affiliate, affiliate, marketer, mailer, agent, or vender of the Company without the Company’s prior written approval, which may be withheld in Company’s discretion, this section will only apply to individuals or companies that Advertiser learned of through its relationship with Company. Advertiser acknowledges and agrees that any breach of this non-solicitation provision would cause irreparable harm to the Company and that the Company may seek an immediate injunction against any actual or threatened breach of this provision without the necessity of posting a bond.
12.DISCLAIMER OF WARRANTY.
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, OTHER THAN AS SET-FORTH ABOVE, COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. COMPANY DOES NOT MAKE ANY WARRANTY THAT THE MARKETING SERVICES WILL MEET ADVERTISER’S REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; COMPANY DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH USE OF THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ADVERTISER FROM COMPANY OR THE COMPANY'S REPRESENTATIVES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO ADVERTISER.
13.LIMITATION OF LIABILITY.
IN NO EVENT WILL THE COMPANY BE LIABLE FOR (a) LOSS OF ANTICIPATED PROFITS, BUSINESS, REVENUE, GOODWILL OR OTHER LOSSES INCURRED IN CONNECTION WITH THE SERVICES PROVIDED HEREUNDER OR THE FAILURE OF SUCH SERVICES, SUCH CLAIMS BEING EXPRESSLY WAIVED; (b) FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, DIRECTLY OR INDIRECTLY ARISING FROM THE PROVISION OF THESE SERVICES; (c) ACTIONS OR INACTIONS OF IT’S AFFILIATES OR ANY CLAIMS THAT ITS AFFILIATES HAVE VIOLATED ANY LAW, REGULATION OR RIGHTS OF THIRD PARTIES, ADVERTISER’S SOLE REMEDY BEING AN ACTION AGAINST THAT AFFILIATE; OR (D) FAILURE IN PERFORMANCE OF THIS AGREEMENT DUE TO CAUSES BEYOND ITS CONTROL INCLUDING , BUT NOT LIMITED TO, WORK STOPPAGES, FIRES, CIVIL DISOBEDIENCE, RIOTS, REBELLIONS, ACTS OF GOD, WEATHER, LAWS, REGULATIONS, ACTS OF THE GOVERNMENT, ACTS OF OTHER THIRD PARTIES, AND SIMILAR OCCURRENCES. In the event of any breach of this Contract by the Company, or of any losses or injuries to the Advertiser arising out of this Contract for which the Company is liable, the Company’s total cumulative liability for such breaches, losses, and injuries will be the actual value of the damages or losses caused to the Advertiser but in no event will this amount exceed the total amount paid by Advertiser to Company under this Agreement.
14.ENTIRE AGREEMENT AND AMENDMENTS.
The terms and conditions of this Agreement is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade will be relevant to supplement or explain any term used in this Agreement. No amendment or extension of this Agreement will be binding unless in writing and signed by both parties. Whenever a term defined by the Uniform Commercial Code is used in this Agreement, the definition contained in the code is to control. If either party is required to agree to online terms and conditions in order to access the other’s website in order to access a tracking platform, downloading creative materials or any other purpose, the terms of this Agreement shall supersede any online agreement entered into between the parties and the terms of such online agreement shall not apply.
Failure to invoke any right, condition, or covenant in this Agreement by either party will not be deemed to imply or constitute a waiver of any rights, condition, or covenant and neither party may rely on such failure. No claim or right arising out of the breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of such claim or right unless the waiver or renunciation is in writing signed by the aggrieved party.
16.ASSIGNMENT AND BINDING AFFECT.
The Advertiser will not assign its rights and obligations hereunder without the prior written consent of the Company. Advertiser represents that it will not take any action such as liquidation, dissolution, or merger to avoid its obligations hereunder. This Agreement will inure to the benefit of and be binding upon the Advertiser and to its respective successors, assigns, heirs, executors, legal representatives and administrators.
If any action must be brought by Company to enforce any provision of this Agreement, including Advertiser’s payment obligations, the Advertiser shall pay the Company’s reasonable attorney fees and costs.
18.GOVERNING LAW AND VENUE.
This Agreement and all rights and obligations hereunder, including matters of construction, validity, and performance, will be governed by and construed according to the laws of the Hong Kong Special Administrative Region. Any action under this Agreement will be brought in a court of competent jurisdiction in Hong Kong Special Administrative Region and in no other jurisdiction.