DOT818 LLC. Affiliate Agreement
Last Updated: February 2018
This DOT818 LLC. Affiliate Agreement (“Agreement”) is entered into by and between DOT818 LLC., with its principal business location at 1111 N. Brand Blvd., Suite 401, Glendale, CA 91202 (“DOT818”), and you, the company or the individual, as an affiliate (“Affiliate” or “You”) in connection with your use of the affiliate network owned and operated by www.dot818.com and your participation in the DOT818 Affiliate Program (together, “Network” and “Program” to be used interchangeably). The Network can be accessed at www.dot818.com (the “Site”). This Affiliate Agreement is subject to change at any time, without prior notice, in DOT818’s sole discretion, notwithstanding the effective date of this Agreement. Changes may include without limitation, payout structure, payout amount, affiliate marketing policies, etc.
The latest version of this Agreement will be posted on www.dot818.com. You should review this Agreement prior to using www.dot818.com and/or the Program. Your continued use of www.dot818.com and/or your continued participation in the Program after such modification constitutes your consent to such modifications.
By clicking “Create Account,” you further agree: (A) to the terms and conditions of this Agreement; (B) to be bound by this Agreement; (C) Acknowledge and agree that you have independently evaluated the desirability of participation in the Program and are not relying on any representation or statement other than that which is expressly set forth in this Agreement; (D) represent and warrant that you are lawfully able to enter into Agreements (i.e. you are not a minor); (E) you are and will remain in compliance with the terms of this Agreement and with all state and federal laws; and (F) if you are entering this Agreement on behalf of a legal entity, then you are authorized (i.e. as an agent of legal entity) and lawfully able to bind the legal entity.
I. Network and Program.
Affiliate agrees to provide the services identified and set forth in this Agreement (“Services”). In connection with the Services, DOT818 shall grant to Affiliate a nonexclusive, non-transferable, revocable and limited license to: (i) participate in marketing campaigns offered through the Network (“Campaigns”); and (ii) use, distribute, display, perform, copy, transmit, and market all the Creative Materials (as defined herein below) made available via the Network solely and exclusively in connection with Affiliate’s efforts to generate consumer information leads (“Leads”), valid sales, or other compensable activities (“Compensable Transactions”) in connection with such Campaigns. Affiliate may also have the opportunity to earn bonus payments for individuals that Affiliate refers to the Network that also become affiliates, which shall be at the sole and complete discretion of DOT818.
II. Creative Material.
(A) Use of Creative Material. DOT818 may provide Affiliate with access to three (3) forms of advertisements on the Site for download, use, and publication by Affiliate, subject to the license set forth above and the other provisions of this Agreement. The three (3) forms of advertisements are: (i) a registration form with fields tailored to each Campaign (“iFrame Creative”); (ii) text links, banner ads, pop-ups, and other material (“Banner Ads”); and (iii) a pre-designed web page to be used with Affiliate’s chosen uniform resource locator (“URL”) (“Private Feed” and together with the iFrame Creative and Banner Ads “Creative Material”). As set forth below, DOT818 may terminate Affiliate’s license to use the Creative Material at any time, with or without notice, for any reason or no reason at all, in its sole discretion. Affiliate must obtain DOT818’s prior express written consent before publishing a Private Feed. DOT818 may change or revise the Creative Material that is made available hereunder at any time, in its sole discretion, and Affiliate agrees to use only the most recent version of the Creative Material that is posted on the Site. Affiliate may not alter, modify or otherwise change the iFrame Creative in any manner, whatsoever. Affiliate may not alter, modify the Banner Ads and Private Feed, or use other Creative Material than that which is supplied by DOT818, unless Affiliate has obtained DOT818’s prior express written consent. Any such actual or attempted alteration, modification, or use without consent from DOT818 will result in the immediate termination of this Agreement, without notice. DOT818 retains full and sole right, ownership, and interest in all Creative Material, and in any copyright, trademark, or other intellectual property rights in the Creative Materials and other information developed by DOT818 and supplied to Affiliate from time to time in connection with this Agreement. In the event that Affiliate alters or modifies the Creative Material, Affiliate shall be liable for any and all claims arising therefrom.
(B) Placement. Affiliate agrees that DOT818 may, in its sole discretion, direct the placement of Creative Material. Unless such direction is given, and subject to the terms and conditions of this Agreement, the applicable Campaign, and all applicable laws, rules, and regulations, Affiliate may display the iFrame Creative and Banner Ads: (i) as often and in as many areas of the websites owned, operated or controlled by Affiliate (“Affiliate Websites”); and/or (ii) in creative for distribution to those e-mail addresses listed in the e-mail databases owned, operated or controlled by Affiliate (“Affiliate Databases”). Affiliate must place or use Creative Material only with the intention of delivering valid Leads and/or Compensable Transactions. Notwithstanding the foregoing, Affiliate must immediately comply with any and all directions by DOT818 to modify, alter, or otherwise adjust the placement, frequency, and/or other editorial decisions related to the Creative Material. Affiliate must immediately remove Creative Material upon receiving notice from DOT818 or upon the termination or expiration of this Agreement or any applicable Campaign.
(C) Restrictions. Affiliate is solely responsible for the development, operation, and maintenance of Affiliate Websites and all materials that appear thereon that is not provided by DOT818 (“Affiliate Content”). In connection with or arising from Affiliate’s performance hereunder, Affiliate shall not knowingly or negligently (nor permit any person or entity to): (i) inflate the amount of Compensable Transactions through any deceptive or misleading practice, method, or technology (including, without limitation, through the use of any spyware, adware, device, program, robot, redirects, spiders, computer script or other automated, artificial, or fraudulent methods designed to appear like an individual, real live person performing a Compensable Transaction); (ii) accept Compensable Transactions generated from public or open proxy servers, IP addresses that have bot activity, or from pay-per-view or pay-per-surf programs; (iii) take control of a user's computer by delivering advertisements that a user of a computer cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; (iv) install or execute on another's computer one or more additional software program(s) without consent of the user, or if such program(s) are installed with the consent of the user, Affiliate must clearly provide instructions to disable the software, such that the software is easily identifiable and the removal can be performed without undue effort or knowledge by the user of the computer; (v) violate or infringe any intellectual property or proprietary right of any third party (e.g., trademarks, service marks, brand names, copyrights, etc.); or (vi) promote any Creative Material that: (a) contains pornographic or other sexual material; (b) promotes hate-speech in any form (e.g., racial, political, ethnic, etc.); (c) contains gratuitous displays of violence or obscenity; (d) defames, misrepresents, abuses, or threatens physical harm to others; (e) contains incentivized offers (or the appearance thereof) that induce or attempt to induce users to click on any Creative Material; (f) promotes any type of illegal substance or activity; (g) is unfair, deceptive, misleading, or otherwise fraudulent; or (h) misrepresent an affiliation with a person/entity, including, without limitation, an affiliation with a credit union, or government agency. Affiliate represents and warrants that it possesses all authorizations, approvals, consents, licenses, permits, certificates, intellectual property rights or other rights and permissions necessary to display any Affiliate Content. Further, Affiliate represents and warrants that Affiliate Content will be in compliance with all applicable state and federal laws, rules and regulations, and will not include any deceptive or misleading content, and that the broadcasting, advertising, marketing, and selling of the Affiliate Content shall not violate the rights of any person or entity, nor violate any law, rule, or regulation.
(D) Affiliate Content Requirements. All marketing materials must: (a) use plain and intelligible language; (b) be easily legible (or, in the case of any information given orally, clearly audible); (c) specify the name of the advertiser; (d) be factually accurate; (e) easily legible (fonts and colors); (f) must include the name and postal address of the Affiliate; (f) must represent actual loans; and (g) not contain any potential misrepresentations. Where an advertisement includes a rate of interest or an amount relating to the cost of the credit whether expressed as a sum of money or a proportion of a specified amount, the advertisement also must: (d) include a representative example (including (i) the rate of interest, whether fixed, variable or both; (ii) the nature and amount of any other charge included in the total charge for credit; (iii) the total amount of credit; (iv) the representative APR; (v) the duration of the agreement (unless open-ended); and (vi) the total amount payable by the debtor and the amount of each repayment of credit (unless open ended)); and (e) specify a postal address at which the credit broker or advertiser may be contacted. Any direct marketing campaigns should only be made if the intended recipients likely to qualify for the product or service and reasonably able to obtain: (i) the products or services advertised, (ii) the interest rates advertised, (iii) other loan features offered. All advertising materials must clearly, prominently, and accurately describe any related services that are either optional or required to obtain certain terms.
DOT818 shall include in each of the Creative Materials a special transaction tracking code (the “Transaction Tracking Code”). Affiliate shall not modify, circumvent, impair, disable, or otherwise interfere with any Transaction Tracking Code and/or other technology or methodology required or made available by DOT818 to be used in connection with any and all Creative Materials. All determinations made by DOT818 in connection with the Creative Materials and Compensable Transactions shall be final and binding on Affiliate. DOT818 expressly reserves the right to seed applicable data in order to monitor Affiliate’s compliance with the terms of this Agreement and applicable laws, rules, and regulations.
IV. Additional Requirements.
Affiliate will provide DOT818 with information DOT818 requires to verify Affiliate’s compliance with this Agreement or any requirements of the Program or Network. In addition to any other rights or remedies available to DOT818, Affiliate agrees that DOT818 may terminate this Agreement or withhold any outstanding fees payable to Affiliate under this Agreement, or both where DOT818 determines that Affiliate or its affiliate third parties has not complied with any provision described in this Agreement or incorporated by reference. In addition, Affiliate hereby consents to receiving email communications about the Program from DOT818, to monitoring, recording, and disclosing information about Affiliate, its site(s), and visitors; and to monitoring, crawling, or otherwise investigating your site to verify compliance with this Agreement.
(A) Calculation. DOT818 shall pay Commissions to Affiliate according to the payment terms of the applicable Campaign. DOT818 shall calculate Affiliate Commissions based on Compensable Transactions recorded by the Transaction Tracking Codes. DOT818 shall compile, calculate, and post on the Site data derived from the Transaction Tracking Codes and supplementary sources used by DOT818 to determine Commissions owed to Affiliate (“Payment Data”). All determinations made by DOT818 in connection with the Transaction Tracking Codes, Compensable Transactions, Projected Compensable Transactions, and any associated Commissions due to Affiliate shall be final and binding on Affiliate. Any disputes or questions regarding Commissions and/or Payment Data must be submitted to DOT818 within seven (7) business days of the date the Data is posted on the Site; otherwise, the Data will be deemed accurate and accepted by Affiliate. DOT818 will investigate and resolve any Payment Datarelated questions or disputes in its sole discretion. If, for any reason (including, without limitation, impairment of the Transaction Tracking Codes), DOT818 is unable or fails to provide Affiliate with accurate and/or complete Data, DOT818 shall calculate Compensable Transactions (“Projected Compensable Transactions”), based upon: (i) Affiliate’s average bi-monthly Compensable Transactions recorded by DOT818 for the applicable Campaign, prorated for any shorter or longer period of time, where Data needed to calculate such a bi-monthly average is available; or (ii) where Data needed to calculate such bi-monthly average is unavailable, such amount that DOT818 reasonably determines is due and owing, in its sole discretion. Affiliate and DOT818 agree that each shall attempt to resolve Payment Data disputes which may arise under this Agreement through good faith negotiations. Where the parties fail to resolve a Commissions dispute, the aggrieved party can bring a cause of action before an American Arbitration Association arbitration tribunal (“AAA”) in Los Angeles, California, in accordance with the rules of the AAA in effect.
(B) Payment. DOT818 shall pay Commissions approximately fifteen (15) days after the fifteenth (15th) day and last day of a given calendar month for Commissions earned during the prior fifteen (15) day period. Such payments shall only be made to Affiliate once the Affiliate account has reached a minimum of one-hundred United States Dollars ($100.00 USD) (“Payment Threshold”) in accrued Commissions. Where an affiliate account has not reached the Payment Threshold, the amount due will be paid the following month wherein the Payment Threshold is met. DOT818 may require Affiliate to provide a W-9, or similar tax identification information, as a condition precedent to receiving any Commission payments. DOT818 may, in its sole discretion, withhold payments until such time as an applicable Advertiser (i.e. third party lender or finance provider or servicing company) has paid DOT818 for a corresponding Campaign. DOT818 reserves the right to reduce any and all payments owed to Affiliate where an Advertiser has offset payments owed to DOT818. DOT818 shall not be obligated to pay Affiliate for Commissions where, in DOT818’s sole discretion, DOT818 believes that Affiliate: (i) is in breach of this Agreement; (ii) has violated any applicable law, rule, or regulation in connection with or arising from performance hereunder; (iii) has generated leads using fraud, incentivized marketing, or other means in violation of the provisions contained in this Agreement; or (iv) in email marketing campaigns, where the recipient of the email did not opt-in to receive the email communication. Upon termination of this Agreement, DOT818 shall pay Affiliate Commissions, including amounts below the Payment Threshold, during the next payment period, subject to DOT818’s right to withhold and/or cancel Commission payments to Affiliate as set forth in the provisions of this Agreement. DOT818 will not pay Affiliate any Commissions that arise: (i) before Affiliate is accepted into the Network or participates in the Program; or, (ii) after termination of this Agreement or any applicable Campaign. DOT818 reserves the right to seek credit or a refund from Affiliate on any and all Leads that DOT818’s third party lenders or finance providers claim as being fraudulent (i.e. containing fraudulent Lead data). Affiliate agrees to credit or refund DOT818 for its reasonable requests for credit or refund on any and all fraudulent Leads.
(C) Referral Revenue. Affiliate shall receive payments (“Referral Revenue”) for each individual that Affiliate refers to DOT818 who also becomes an active Affiliate participating in the Network (“Referral”). The Referral Revenue shall be equal to three percent (3%) of the gross revenue DOT818 collects from Advertisers as a result of the applicable Referral’s participation in the Network as an Affiliate as calculated by DOT818 in its sole discretion. To qualify as a Referral, the individual referred by Affiliate: (i) must not have previously registered, or attempted to register, with DOT818 as either an Affiliate or Advertiser; (ii) must not provide a fraudulent, incomplete, and/or duplicate Application; (iii) must identify Affiliate as the party that referred him or her to DOT818 at the time that the prospective Referral registers with DOT818; (iv) must complete an Application; (v) must be a separate and independent entity from any current Affiliate; and (vi) must have the Application accepted by DOT818. DOT818 will verify and approve all Referrals in accordance with its standard verification procedures. Where Affiliate is found tampering with or engaging in fraud in connection with this Referral program, Affiliate will be: (i) disqualified from receiving any associated Referral Revenue; (ii) terminated from the Network; and (iii) subject to any and all remedies available to DOT818 at law and in equity resulting from such fraud. DOT818 may terminate and/or modify the Referral program at any time in its sole discretion. All determinations made by DOT818 in connection with Referrals and Referral Revenue shall be final and binding on Affiliate.
VI. Data Ownership and License.
DOT818 shall have sole ownership of and full right to use any and all Leads and data generated by Affiliate in connection with this Agreement, throughout the term of this Agreement and beyond. Affiliate transfers full ownership and a proprietary interest in all Leads that are purchased and paid for by DOT818. Affiliate shall have no rights to any Leads. Affiliate shall have no right to use Leads other than as expressly stated in this Agreement or as expressly authorized by DOT818 in writing. Affiliate shall refrain from disclosing, selling, or otherwise distributing Leads purchased by DOT818 to any third parties. Without limiting the foregoing, Affiliate shall not: (i) transfer, export, display, forward, or otherwise share any such Leads to or with any third party; or, (ii) use any such Leads on Affiliate’s own behalf in any manner not expressly authorized by DOT818.
For purposes of this Agreement, any partner, associate, contractor, representative, or agent of Affiliate that participates in or performs any activities for Affiliate as a part of the Network shall be deemed a “Sub-Affiliate.” Any and all Sub-Affiliates must be preapproved by DOT818. Without limiting the foregoing, any Sub-Affiliate is prohibited from using DOT818’s Creative Material on any website unless given prior written approval by DOT818. DOT818 reserves the right to withhold or refuse approval of any Sub-Affiliate for any reason or no reason at all, and DOT818 may revoke its approval of any SubAffiliate at any time, with or without notice, for any reason or no reason at all. All SubAffiliates must meet the same criteria for approval and must comply with the same obligations as required of the Affiliate under this Agreement. Affiliate shall be responsible for the acts and/or omissions of its Sub-Affiliates. Affiliate agrees to indemnify, defend and hold harmless DOT818 and its directors, officers, shareholders, employees, agents and publishers from and against any and all third party claims, actions, and suits, including reasonable attorneys’ fees and costs arising out of or related to the acts, errors, or omissions of the Affiliate, its Sub-Affiliates, and any of Affiliates or Sub-Affiliate’s directors, officers, employees, and agents.
VIII. Consumer Privacy.
IX. Telephone Consumer Protection Act (“TCPA”).
Affiliate shall comply with the most updated version of the federal TCPA and as thereafter amended, as applicable to Affiliate’s marketing activities that involves telemarketing calls, text messages, SMS messages, or other activities as governed by the TCPA. It is Affiliate’s responsibility to fully understand and comply with TCPA and its regulations. Additionally, Affiliate will obtain prior express written consent from consumers stating that the consumer accepts telemarketing calls and SMS or text marketing messages from DOT818.com and its third party Advertisers. Affiliate must also display on its advertisements that consent is not a condition of a purchase. Affiliate’s advertisements and websites must make show: i) clear and conspicuous disclosure that the consumer agrees to telemarketing calls and/or SMS or text messages from DOT818 and/or its Advertisers; and ii) that the consumer unambiguously consents to receive telemarketing calls and/or SMS or text messages to the number provided by the consumer. Upon DOT818’s request, Affiliate must provide DOT818 with its advertisement and/or websites’ TCPA consent language, the consumer’s IP address, and the timestamp (date and time) that the consumer provided his consent.
X. E-mail Marketing.
E-mail marketing campaigns by or on behalf of Affiliate in connection with this Agreement may only be undertaken with DOT818’s prior express written consent. Prior to the sending of any commercial e-mail by or on behalf of Affiliate, Affiliate shall provide DOT818 with a list of Internet Protocol (“IP”) addresses and domain names that Affiliate intends to use in connection with the given Campaign. Affiliate must, upon the request of DOT818, be able to produce the name, date, time, IP address, and referral URL where applicable consumers granted Affiliate consent, as defined by applicable laws, rules, and regulations (“Consent”) to receive commercial e-mails. Affiliate represents and warrants that any and all commercial e-mails sent by or on behalf of Affiliate in connection with this Agreement will: (i) at all times, comply with all applicable laws, rules and regulations, including without limitation, laws and regulations governing consumer protection (including without limitation, those relating to false advertising or unfair competition, the CAN-SPAM Act of 2003, the Privacy and Electronic Communications Regulations 2003, the Telephone Consumer Protection Act, and the Federal Trade Commission’s Telemarketing Sales Rule, and industry standards (i.e.; the Online Lenders Alliance); and other standards that may be added with the prior written consent of both parties; (ii) only be sent to those recipients who have given Consent to receive such commercial e-mails and who have not revoked such Consent as of the date any such commercial e-mail is sent. Without limiting the generality of the foregoing, Affiliate must: (i) not falsify e-mail header and/or transmission information (including, without limitation, source, destination, and routing information); (ii) not use any “subject” or “from” line that is materially false, misleading, or deceptive; (iii) clearly and conspicuously identify the message in the body as an advertisement or solicitation; (iv) include a valid physical postal address; (v) clearly and conspicuously explain how recipients can opt out of receipt of further e-mails; (vi) include a functional opt-out mechanism that will remain active for at least thirty (30) days from the date that the subject e-mail was sent out; (vii) process opt-out requests within ten (10) business days; (viii) not use proxies or relays to send commercial e-mails; (ix) not seek or obtain unauthorized access to computers for the purpose of sending commercial e-mail; (x) regularly scrub Affiliate’s mailing list against DOT818’s suppression list (“Suppression List”) as set forth elsewhere herein; (xi) and immediately notify DOT818 of any complaint, investigation, and/or litigation concerning Affiliate’s e-mail marketing practices (whether or not any such complaint, investigation, or litigation relates to Affiliate’s relationship with DOT818). Affiliate is solely responsible and liable for any and all consumer complaints relating to e-mail campaigns conducted by or on behalf of Affiliate, including all costs for responding to such complaints whether incurred by Affiliate or DOT818. Affiliate shall respond to all consumer complaints within forty-eight (48) hours of notification. Affiliate must inform DOT818 of the complaint. In addition to all other available remedies, DOT818 retains the right to withhold and/or cancel Commission payments unless and until any and all such consumer complaints are resolved to DOT818’s satisfaction. In the event that any applicable law, rule, or regulation is enacted or amended after the effective date of this Agreement setting forth standards more restrictive than those set forth herein, the more restrictive standards contained in any such enacted or amended law, rule, or regulation shall apply, with or without notice from DOT818. Affiliate acknowledges that any failure to comply with this section may, in DOT818’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 DOT818.
XI. Suppression Lists.
With respect to any Suppression List generated in connection with, or made available by and through the Network, Affiliate shall: (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, telephone numbers, or domains contained therein from future commercial e-mails or SMS messages; (iii) not use the Suppression List for purposes of e-mail or SMS message marketing, or provide the Suppression List to any third party for any purpose, and not send, or cause to be sent, any commercial e-mail or SMS messages to an e-mail address, telephone number, or domain appearing on any Suppression List; (iv) ; hold any Suppression List made available by DOT818 in trust and confidence and use same solely for the suppression purposes set forth herein and treat any Suppression Lists as Confidential Information, as defined herein; (vi) not retain a copy of any Suppression List made available by DOT818 following termination of this Agreement; and (vii) not disclose any Suppression List made available by DOT818 to any employee, consultant, subcontractor, third party individual, corporation or entity without DOT818’s written agreement. DOT818 reserves the right to withhold its consent to such disclosure and may, within its sole discretion, bar the disclosure of any and all Suppression Lists made available by DOT818 or any Advertiser. Affiliate further agrees and acknowledges that: (i) Affiliate has downloaded and removed the domains located on the Federal Communications Commission’s (“FCC”) wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all current data used in any commercial e-mail or SMS message marketing campaigns in connection with this Agreement; and (ii) any and all new data that Affiliate 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 commercial e-mail or SMS message marketing campaigns in connection with this Agreement. Affiliate shall maintain electronic or tangible records evidencing the removal of any email addresses or telephone number from Affiliate’s lists for verification by DOT818 as required or requested. At DOT818’s request, Affiliate will allow DOT818 to audit and verify Affiliate’s compliance with the provisions set forth in this section and any applicable laws, rules, and regulations, related to, but not limited to, data privacy and security.
XII. Term and Termination.
The term of this Agreement will begin upon DOT818’s written acceptance, in DOT818’s sole discretion, of Affiliate’s Application to join the Network and will end when terminated by either party as set forth herein. Affiliate may terminate this Agreement at any time, upon three (3) business days’ prior written notice to DOT818. DOT818 may suspend and/or terminate Affiliate’s participation in the Network and/or this Agreement at any time, with or without notice, for any reason or no reason at all, in DOT818’s sole discretion. Grounds for suspension and/or termination shall include, without limitation, the failure to adhere to state and federal laws, rules, regulations including, but not limited to false advertising, trademark infringement, unlawfully modifying ad copy, misrepresentation of affiliation with person/entity, and/or representing an affiliation with a credit union. Upon suspension and/or termination of this Agreement for any reason: (i) Affiliate shall immediately cease to use and remove from the Affiliate websites any and all Creative Material and/or other materials made available to Affiliate in connection with Affiliate’s participation in the Network; (ii) Affiliate shall immediately cease transmitting or causing to transmit any and all e-mails and SMS messages in connection with any Campaign; (iii) any and all licenses and rights granted to Affiliate in connection with this Agreement shall immediately cease and terminate; and (iv) any and all Confidential Information (as defined herein below), Creative Material, or proprietary information of DOT818 that is in Affiliate’s possession or control must be immediately returned or destroyed. If requested, Affiliate or an authorized officer of Affiliate shall certify in signed writing that all such confidential and/or proprietary information has been returned or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive suspension/termination of the Agreement shall survive and remain in effect in accordance with their terms, including all recordkeeping and indemnification obligations otherwise applicable to Affiliate.
XIII. Representations and Warranties.
Affiliate hereby represents and warrants that: (i) Affiliate has the power and authority to enter into and perform Affiliate’s obligations under this Agreement; (ii) 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; (iii) Affiliate’s performance hereunder will comply with the terms of this Agreement and all applicable laws, rules and regulations including, without limitation, where applicable, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, Consumer Financial Protection Act, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, the California Financial Privacy Act, and state laws regulating unfair and deceptive practices (collectively, “Laws”); (iv) Affiliate will not engage in any short messaging service (“SMS”) marketing campaigns in connection with this Agreement; (v) Affiliate’s performance hereunder will not violate or infringe any intellectual property or proprietary right of any third party; (vi) Affiliate shall implement such administrative, physical, and technical security measures as required by applicable Laws and/or as necessary, to ensure the secure handling, transmission, storage, and disposal of any personal information of Consumers which Affiliate holds or handles and to protect against any threats or hazards to the security and integrity of such non-public personal information; and (vii) Affiliate understands and agrees that DOT818’s relationship with Affiliate is not an exclusive one (i.e. DOT818 has and will enter into similar agreements with other affiliates).
XIV. DISCLAIMERS/LIMITATION OF LIABILITY.
THE NETWORK, SITE, CREATIVE MATERIALS, DATA, SUPPRESSION LISTS, AND TRANSACTION TRACKING CODES, ARE PROVIDED ON AN "AS IS” AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT OF THE LAW, DOT818 AND ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, MEMBERS, MANAGERS, SUCCESSORS AND ASSIGNS MAKE NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE, NON-INFRINGEMENT, AND MERCHANTABILITY), REPRESENTATIONS, OR GUARANTEES; EXPRESS, IMPLIED, VERBAL, OR OTHERWISE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY AFFILIATE FROM DOT818 SHALL CREATE ANY WARRANTY, REPRESENTATION, AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. DOT818 HAS NO LIABILITY, WHATSOEVER, TO AFFILIATE OR ANY THIRD PARTY, FOR AFFILIATE’S USE OF, OR INABILITY TO USE, THE NETWORK, SITE, CREATIVE MATERIALS, DATA, SUPPRESSION LISTS, AND/OR TRANSACTION TRACKING CODES. DOT818 DOES NOT WARRANT OR GUARANTEE THE SECURITY METHODS OR PRIVACY PROTECTION PROCEDURES OF ANY THIRD PARTY, OR THAT SUCH SECURITY METHODS OR PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERRORFREE. IN NO EVENT SHALL DOT818 BE RESPONSIBLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), BY WHOMSOEVER CAUSED, TO THE PERSON OR PROPERTY OF ANYONE ELSE INCLUDING THE AFFILIATE, OR ITS RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, MANAGERS, MEMBERS, SUCCESSORS, OR ASSIGNS, ARISING OUT OF OR RESULTING FROM THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE, EVEN IF DOT818 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL BASIS OF THE BARGAIN BETWEEN DOT818 AND AFFILIATE. THE NETWORK, SITE, CREATIVE MATERIALS, DATA, SUPPRESSION LISTS, AND TRANSACTION TRACKING CODES WOULD NOT BE PROVIDED TO AFFILIATE WITHOUT SUCH ABOVE STATED LIMITATIONS. UNDER NO CIRCUMSTANCES SHALL DOT818 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 NETWORK. DOT818’S MAXIMUM AGGREGATE LIABILITY TO AFFILIATE AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE EQUAL TO THE COMMISSIONS PAID BY DOT818 TO AFFILIATE DURING THE THREE (3) MONTHS PRECEEDING THE EVENT GIVING RISE TO THE CLAIM AND/OR DAMAGES.
Affiliate agrees to indemnify, defend, and hold harmless DOT818, its parents, affiliates and/or subsidiaries, and each of their respective officers, directors, partners, members, managers, employees, shareholders, contractors, representatives, agents and attorneys (collectively, the “Indemnified Parties”) from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs, or settlement costs) arising from or related to: (i) Affiliate’s participation in the Network and/or Program; (ii) any breach or alleged breach of this Agreement, or any representation or warranty contained herein by Affiliate, its Sub-Affiliates, or each of their respective officers, directors, partners, members, managers, employees, agents and attorneys; or (iii) any violation or alleged violation of any applicable law, rule, or regulation by Affiliate, its Sub-Affiliates, or each of their respective officers, directors, partners, members, managers, employees, agents and attorneys. DOT818 shall promptly notify the Affiliate in writing of any such claim. Failure of DOT818 to provide such notice shall not relieve the Affiliate of its liability or obligation hereunder. Affiliate shall have reasonable control of the defense and settlement of any such claim and the Indemnified Parties shall cooperate with all reasonable requests of the Affiliate (at the Affiliate’s expense) in defending or settling a claim. Subject to the foregoing clause, DOT818 may join in the defense or settlement of any such claim with counsel of its choice, at its own expense. Affiliate shall bear any and all costs and expenses incurred by the Affiliate in providing the foregoing indemnification.
For purposes of this Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of this 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: (a) either party’s proprietary information; (b) information marked or designated by either party as confidential; (c) information otherwise disclosed by either party in a manner consistent with its confidential nature; (d) the terms and conditions of this Agreement, the Network and related Campaigns; (e) either party’s information that is conveyed to the other party, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by the other party to be treated as confidential; (f) a party’s business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, verbal, recorded on tapes or in any other media or format; and (g) with respect to DOT818, all Leads, either purchased or denied by DOT818.. The parties acknowledge that, as a result of the provision of services pursuant to this Agreement, the Disclosing Party may disclose Confidential Information to the Receiving Party. Therefore, the Receiving Party agrees that it will make no disclosure of the Disclosing Party's Confidential Information without obtaining the Disclosing Party’s prior written consent. Additionally, the Receiving Party shall not use such Confidential Information for any purpose other than as expressly set forth in this Agreement and shall restrict disclosure of Confidential Information to its employee(s), authorized agent(s) and/or independent contractors to whom disclosure is reasonably required, and such employee(s), authorized agent(s) and/or independent contractor(s) shall be explicitly bound by these confidentiality obligations and will use reasonable care, but not less care than they use with respect to their own information of similar character, to prevent disclosure of any Confidential Information, and who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. The Receiving Party agrees that monetary damages for breach of this provision may not be adequate and that the Disclosing Party shall be further entitled to injunctive relief, without the requirement to post bond. This Section shall survive termination of this Agreement by either Party for any reason for the longer of either a period of five (5) years or as is required by California state law.
Affiliate recognizes that DOT818 has proprietary relationships with affiliates, Advertisers, and other third-parties that participate in the Network. Affiliate agrees not to circumvent DOT818’s relationship with such affiliates, Advertisers, and third-parties, or otherwise offer, make available, provide, contract for, or perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by affiliates in the Network for any affiliate, Advertiser, or third-party publisher that is known, or should reasonably be known, by Affiliate to participate in the Network, during the term of this Agreement and for the six (6) month period following termination or expiration of this Agreement. Notwithstanding the foregoing, to the extent that Affiliate can show that any such affiliate, Advertiser, or third-party already obtained such services from Affiliate prior to the date of this Agreement, Affiliate shall not be prohibited from continuing such relationship. Affiliate agrees that monetary damages for its breach, or threatened breach, of this section will not be adequate and that DOT818 shall be entitled to: (i) injunctive relief, including temporary and preliminary relief, without the requirement to post a bond; (ii) liquidated damages from Affiliate in the amount equal to one hundred percent (100%) of the fees paid to Affiliate for the prior twelve (12) month period; and/or (iii) any and all other remedies available to DOT818 at law or in equity.
XVIII. Other Provisions.
(A) Force Majeure. Affiliate agrees that DOT818 will not be liable, or be considered to be in breach of this Agreement, on account of DOT818’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 DOT818’s reasonable control which DOT818 is unable to overcome through the exercise of commercially reasonable diligence (“Force Majeure Event”). Force Majeure Events may include, without limitation: acts of God, fires, explosions, telecommunications, Internet 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. If any such Force Majeure Event was to occur, DOT818 will give Affiliate notice and will use commercially reasonable efforts to mitigate the impact of any such event as promptly as possible.
(B) Non-Exclusive/Assignment. You acknowledge and agree that DOT818 and its other affiliates may at any time (directly or indirectly) solicit Program and Network participants on terms that may differ from those contained in this Agreement or operate sites that are similar to or compete with you. Affiliate may not assign, transfer, or delegate any of its rights or obligations under this Agreement without the prior written consent of DOT818, and any attempts to do so shall be null and void. Subject to the foregoing limitation, the Agreement will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns.
(C) Disputes; Choice of Law/Venue. The Agreement shall be treated as though it were executed and performed in Los Angeles, California and shall be governed by and construed in accordance with the laws of the State of California without giving effect to any choice of law or conflict of laws rules or provisions. Any controversy, claim, or dispute between the parties to this Agreement arising out of, in connection with, or in relation to the interpretation, validity, performance or breach of this Agreement shall be resolved to the exclusion of a court of law by binding arbitration in Los Angeles, California, in accordance with the rules of the American Arbitration Association then in effect. Any award rendered shall be final and conclusive, and a judgment thereon may be entered in any court of competent jurisdiction. Nothing contained herein shall be construed to preclude DOT818 from seeking injunctive relief in order to protect its rights pending an outcome in arbitration. Any award rendered shall be final and conclusive, and a judgment thereon may be entered in any court of competent jurisdiction. Nothing contained herein shall be construed to preclude DOT818 from seeking injunctive relief in order to protect its rights pending an outcome in arbitration, nor limit any legal remedies available to DOT818. Notwithstanding anything herein to the contrary, DOT818 may, in its sole discretion, elect to file an action in any court of competent jurisdiction in Los Angeles County, California, in lieu of and despite the alternative dispute resolution provision above. DOT818 shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding in connection with, arising out of, or under the Agreement. Any claim under this Agreement, other than for indemnity and defense, must be filed within one (1) year of the time such claim arose, regardless of any law to the contrary, otherwise such claim will be forever barred.
Nothing in this Agreement, either express or implied, is intended to or shall confer upon any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. To the extent permitted by law, Affiliate agrees that Affiliate will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that Affiliate may have against DOT818 and/or its employees, officers, directors, members, representatives and assigns. Affiliate agrees to the entry of injunctive relief to stop such a lawsuit or to remove Affiliate as a participant in the suit. Affiliate agrees to pay the attorney's fees and court costs that DOT818 incurs in seeking such relief.
(D) Modification. This Agreement represents the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements between the parties, whether written or verbal.
(E) Non-Waiver. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
(F) Severability. If any provision contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law by a court or arbitrator of competent jurisdiction, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
(G) Status of the Parties. DOT818 and Affiliate are independent contractors. This Agreement shall not be construed to create any employment, partnership, joint venture, agency, franchise, or sales representative relationship between the Parties. Affiliate shall have no authority to bind DOT818 into any agreement, nor shall Affiliate be considered to be an agent of DOT818 in any respect.
(H) Record Keeping; Audit Rights. Affiliate shall maintain true and correct books containing a record of all information pertinent to its participation in the Network during the term of this Agreement and for a period of one (1) year thereafter. DOT818 or its agent shall be entitled to review, at DOT818’s expense, during regular business hours and upon not less than five (5) days’ written notice, such relevant books and records for the purpose of verifying Affiliate’s compliance with the terms of this Agreement and all applicable laws, rules, and regulations. If DOT818 discovers any breach of this Agreement or violation of any applicable laws, rules, or regulations, then the audit shall be at the sole cost and expense of Affiliate and DOT818 may terminate this Agreement.
(I) Rights of Parties. Unless otherwise specified, the rights and remedies granted to a Party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity.
(J) Headings. The inclusion of headings in this Agreement is for convenience of reference only and shall not affect the construction or interpretation hereof.
(K) Notices. Any notices under this Agreement shall be sent to the addresses set forth in the Insertion Order (or in a separate writing agreed to in writing by the parties) by facsimile, electronic mail, U.S. mail (registered or certified) or express delivery service; and shall be deemed given upon transmission.