This Silk Route Affiliate Network Advertiser Agreement ("Advertiser Agreement"), shall govern the relationship between Silk Route Affiliate Network ("Silk Route Affiliate Network" or "we") and the Advertiser ("Advertiser"), whereby Advertiser may obtain access to the Affiliate Network ("Silk Route Affiliate Network") of registered third party affiliates ("Affiliates") and publishers ("Publishers"), and related technology and software ("Silk Route Affiliate Network Ad Server"), to market customized advertisements and links provided by Advertiser and/or Silk Route Affiliate Network ("Ads," as further defined below). The Silk Route Affiliate Network, as well as the services provided by Silk Route Affiliate Network in connection therewith ("Services"), are further described in the Insertion Order ("IO") attached hereto and incorporated herein by reference (the IO, together with this Advertiser Agreement, the "Agreement"). The terms of the IO shall supersede all contrary terms set forth in this Advertiser Agreement, unless expressly set forth to the contrary. In any instance where Advertiser is an agency entering into the Agreement on behalf of a client, any reference to "Advertiser" shall refer jointly to Advertiser as well as the applicable underlying client.
Advertiser agrees to accept and pay for, and Silk Route Affiliate Network agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, Silk Route Affiliate Network shall undertake marketing campaigns with Advertiser (each an "Ad Campaign") whereby Silk Route Affiliate Network will distribute Advertiser's proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and similar online media (collectively, "Advertiser Ads") and/or, where applicable, Silk Route Affiliate Network Ads (as defined below) through the Silk Route Affiliate Network either:
Upon the execution of the Agreement, Advertiser must register on the Silk Route Affiliate Network website and create a unique, password-protected account ("Account"). Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsibility for any and all actions taken under Advertiser's Account, whether authorized by Advertiser or not. Advertiser must immediately notify Silk Route Affiliate Network of any unauthorized use of Advertiser's Account. Advertiser is responsible for keeping its Account information current, complete and accurate, and Advertiser acknowledges and agrees that Silk Route Affiliate Network will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.
Advertiser shall develop all aspects of the Advertiser Ads, other than where the parties agree that Silk Route Affiliate Network shall assist in the development of Ads. The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Ads; other than those portions that Silk Route Affiliate Network prepares on Advertiser's behalf (such portions hereinafter referred to as, the "Silk Route Affiliate Network Ads" and together with the Advertiser Ads, the "Ads"). The parties understand and agree that Silk Route Affiliate Network is the sole owner of any and all intellectual property rights associated with the Silk Route Affiliate Network Ads, other than Advertiser's trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the Silk Route Affiliate Network Ads. Under no circumstances shall Silk Route Affiliate Network be authorized to use the Ads other than in connection with Advertiser's Ad Campaigns as set forth in the IO(s). Advertiser shall submit all Advertiser Ads to Silk Route Affiliate Network for approval prior to the commencement of the subject Ad Campaign set forth in the applicable IO. Advertiser shall not alter, modify or otherwise change the Ads, or any other Ads-related feature, in any manner whatsoever, without obtaining Silk Route Affiliate Network's prior express written consent, after the applicable Ad has been approved by Silk Route Affiliate Network. Notwithstanding the foregoing, Silk Route Affiliate Network shall have sole discretion with respect to the creation of the "subject" and "from" lines used in its e-mailing of any Ads. Silk Route Affiliate Network reserves the right, in its sole discretion and without liability, to: change any of its Ad Guidelines at any time; and to reject, omit, exclude or terminate any Ad for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad was previously acknowledged, accepted or published by Silk Route Affiliate Network. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where Silk Route Affiliate Network deems, in its sole discretion, that the Ads, including the applicable products and/or services promoted by such Ads ("Advertiser Products"), and any website linked to from such Ads, are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon Silk Route Affiliate Network or any of its Publishers and/or Affiliates. Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and Silk Route Affiliate Network shall, subject to the provisions set forth herein, comply with such request as soon as practical but in no event later than three (3) business days after its receipt thereof. Advertiser may cancel or suspend a CPM-based Ad Campaign, or an Ad associated with such a CPM-based Ad Campaign, effective within approximately twenty-four (24) business hours of Silk Route Affiliate Network's receipt of Advertiser's cancellation notice, which Advertiser can deliver by logging into its Account and following the instructions on the applicable menu.
The positioning, placement, frequency and other editorial decisions related to Ads shall be made by Silk Route Affiliate Network and/or its Affiliates and Publishers, as applicable, in their respective sole discretion. The applicable IO may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable IO or, in cases where "Run of Affiliate Network" or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distribution that Silk Route Affiliate Network and/or its Affiliates and Publishers may determine, in their respective sole discretion.
Unless otherwise stated in writing by Silk Route Affiliate Network, each Ad used by Silk Route Affiliate Network in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by Silk Route Affiliate Network ("Ad Codes"). Advertiser will not knowingly modify, circumvent, impair, disable or otherwise interfere with any Ad Codes and/or other technology and/or methodology required or made available by Silk Route Affiliate Network to be used in connection with any and all Ads. In connection with CPA-based Ad Campaigns, Advertiser agrees to pay Silk Route Affiliate Network a default payment of Fifty Cents ($0.50) CPM on a net thirty (30) day basis in instances where conversion data cannot be supplied due to a failure of the Ad Codes and Advertiser's inability to provide such information, in the alternative. All determinations made by Silk Route Affiliate Network in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, Silk Route Affiliate Network's Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Affiliate or other third party.
The following terms apply to all Ad Campaigns transmitted via e-mail by Silk Route Affiliate Network's Affiliates on behalf of Advertiser. Any and all e-mail based Ads:
The rates for Actions shall be set forth in the applicable IO(s). Silk Route Affiliate Network will invoice Advertiser twice monthly. Unless otherwise set forth in the applicable IO, payment will be due to Silk Route Affiliate Network within thirty (30) days of the date appearing on each invoice. If payment is not made in a timely manner, Silk Route Affiliate Network may, at its option, immediately terminate the Agreement and/or any applicable IO(s). Interest will accrue on any past due amounts at the rate equal to the lesser of one and one half percent (1.5 per month or the maximum amount permitted by law. In addition, Advertiser shall be liable to Silk Route Affiliate Network for all attorneys' fees and other costs of collection incurred in collecting such unpaid amounts. Advertiser agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by Silk Route Affiliate Network and/or any of its Publishers or Affiliates pursuant to Chapter 57 of the Laws of 2008 amending the New York State Tax Law.
In connection with Leads and CPA-based Ad Campaigns, Advertiser will pay Silk Route Affiliate Network for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that:
The Agreement shall continue for the term set forth in any underlying IO, provided that either party may terminate the Agreement and/or any IO at any time, upon five (5) business days' prior written notice. Upon termination or expiration of the Agreement for any reason:
The Silk Route affiliate network, services, Silk Route affiliate network ads, ad guidelines, actions and ad codes provided by Silk Route affiliate network under the agreement and/or any applicable io are supplied on an "as is" and "as available" basis. To the fullest extent of the law, Silk Route affiliate network makes no warranties (including implied warranties of purpose and non-infringement), guarantees, representations, express, implied, oral or otherwise. Without limiting the generality of the foregoing, Silk Route affiliate network does not warrant or guaranty actions, conversion rates and/or response rates. The Silk Route affiliate network, services, Silk Route affiliate network ads, ad guidelines, actions and/or ad codes may contain bugs, errors, problems or other limitations. Silk Route affiliate network has no liability, whatsoever, to advertiser or any third party, for any other party's security methods and privacy protection procedures and Silk Route affiliate network disclaims any and all warranties, express and implied, that any other party's security methods and privacy protection procedures will be uninterrupted or error-free. Silk Route affiliate network has no liability for advertiser's use of, or inability to use, the ad guidelines or applicable actions and Silk Route affiliate network disclaims any and all warranties, express and/or implied, that advertiser's use of the Silk Route affiliate network, services, Silk Route affiliate network ads, ad guidelines and/or actions will be uninterrupted or error-free. Silk Route affiliate network makes no guarantees, and accepts no resulting liability, for failure to meet scheduled delivery dates. In no event shall Silk Route affiliate network be responsible for any consequential, special, punitive or other indirect damages including, without limitation, lost revenue or profits, even if Silk Route affiliate network has been advised of the possibility of such damages. Silk Route affiliate network will not be liable, or considered in breach of the agreement, on account of a delay or failure to perform under the agreement and/or any io as a result of causes or conditions that are beyond Silk Route affiliate network's control. Notwithstanding anything contained herein to the contrary, Silk Route affiliate network's liability under any cause of action shall be limited to the amounts paid to Silk Route affiliate network by advertiser during the prior six (6) month period pursuant to the agreement. Silk Route affiliate network shall not be held liable or responsible for any actions or inactions of publishers and/or affiliates.
Advertiser represents and warrants that:
Advertiser shall irrevocably defend, indemnify and hold Silk Route Affiliate Network, its Publishers, Affiliates and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys' fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving:
For purposes of the Agreement, "Confidential Information" shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party ("Disclosing Party") to the other party ("Receiving Party"), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:
Advertiser recognizes that Silk Route Affiliate Network has proprietary relationships with its Publishers and Affiliates. Advertiser agrees not to circumvent Silk Route Affiliate Network's relationship with such Publishers and Affiliates, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by Silk Route Affiliate Network hereunder from any Publisher and/or Affiliate that is known, or should reasonably be known, by Advertiser to have such a relationship with Silk Route Affiliate Network, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers and Affiliates already provided such services to Advertiser prior to the date of the first IO executed by the parties, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that Silk Route Affiliate Network shall be entitled to:
Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party'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 such party's reasonable control and that such party 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, Internet or Affiliate 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, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
Assignment. Neither party may assign, transfer or delegate any of its rights or obligations under the Agreement or any IO without the prior written consent of the other party, and any attempts to do so shall be null and void; provided, however, that either party may assign the Agreement, any IO or any portion hereof/thereof, to:
IN WITNESS WHEREOF, Silk Route Affiliate Network and Advertiser have caused this Advertiser Agreement to be executed by their duly authorized representatives.