Affiliate Program Operating Agreement This Affiliate Program Operating Agreement (the "Agreement") is made and entered into by and between CPX a brand created by ITCAN FZ LLE ("CPX" or "we"), and you, ("you" or "Affiliate" or “Publisher”) the party submitting an application to become a CPX affiliate). The terms and conditions contained in this Agreement apply to your participation with join.cpxaffiliate.com ("Affiliate Program"). Each Affiliate Program offer (an "Offer") may be for any offering by CPX or a third party (each such third party a "Client") and may link to a specific web site for that particular Offer ("Program Web Site"). Furthermore, each Offer may have additional terms and conditions on pages within the Affiliate Program and are incorporated as part of this Agreement. By submitting an application or participating in an Offer, you expressly consent to all the terms and conditions of this Agreement.
This CPX Advertiser Agreement ("Advertiser Agreement") governs the relationship between CPX a brand created by ITCAN FZ LLE ("CPX" and/or "we" and/or “cpx”) and the entity accepting these terms ("Advertiser"), whereby Advertiser may obtain access to registered third party partners ("Partners") and publishers ("Publishers"), and related technology and software ("Ad Server"), to market customized advertisements and links provided by Advertiser and/or CPX ("Ads," as further defined below). The CPX, as well as the services provided by CPX in connection therewith (collectively "Services"), are further described in the Insertion Order ("IO") 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.
In connection with the Services set forth in the Agreement, CPX shall undertake marketing campaigns with Advertiser (each an "Ad Campaign") whereby CPX 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, CPX Ads (as defined below) through the CPX either:
Upon the execution of the Agreement, Advertiser must register on the CPX website and create a unique, password-protected account ("Account"). Advertisers will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsible for any and all actions taken under Advertiser's Account , whether authorized by Advertiser or not. Advertisers must immediately notify CPX 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 CPX will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.
Unless stated otherwise in an IO, Advertiser shall develop all aspects of the Advertiser Ads, other than where the parties agree that CPX 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 CPX prepares on Advertiser's behalf (such portions hereinafter referred to as, the "CPX Ads" and together with the Advertiser Ads, the "Ads"). The parties understand and agree that CPX is the sole owner of any and all intellectual property rights associated with the CPX Ads, other than Advertiser's trademarks , logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the CPX Ads.
Under no circumstances shall CPX 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 CPX for approval prior to the commencement of the subject Ad Campaign set forth in the applicable IO. After the applicable Ad has been approved by CPX, Advertiser shall not alter, modify or otherwise change the Ads, or any other Ads-related feature, in any manner whatsoever, without obtaining CPX's prior express written consent. Notwithstanding the foregoing, CPX shall have sole discretion with respect to the creation of the "subject" and "from" lines used in its e-mailing of any Ads.
CPX reserves the right, in its sole discretion and without liability, to:
Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and CPX 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 CPX'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 CPX and/or its Partners 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 Partner Network" or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distribution that CPX and/or its Partners and Publishers may determine, in their respective sole discretion.
Unless otherwise stated in writing by CPX, each Ad used by CPX in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by or to CPX ("Ad Codes"). Advertisers 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 CPX to be used in connection with any and all Ads. All determinations made by CPX in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, CPX's Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Partner or other third party.
The following terms apply to all Ad Campaigns transmitted via e-mail by CPX's Partners and Publishers on behalf of Advertiser. Advertiser will ensure that any and all e-mail based Ads:
The rates for Actions shall be set forth in the applicable IO(s). Unless otherwise set forth in the applicable IO, (i) CPX will invoice Advertiser monthly, and (ii) payment will be due to CPX within thirty (30) days of the date appearing on each invoice. If payment is not made in a timely manner, CPX 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 year or the maximum amount permitted by law. In addition, Advertiser shall be liable to CPX 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 CPX and/or any of its Publishers or Partners.
In connection with Leads and CPA-based Ad Campaigns, Advertiser will pay CPX for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that:
Without limiting the generality of the confidentiality obligations set forth herein, Advertiser agrees that it:
The Agreement shall continue until terminated. Each IO shall continue for the term set forth the IO. Either party may terminate the Agreement and/or any IO at any time with five (5) business days' prior written notice. Upon termination or expiration of the Agreement for any reason:
Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.
THE CPX AFFILIATE NETWORK, SERVICES, CPX AFFILIATE NETWORK ADS, ACTIONS AND AD CODES PROVIDED BY CPX 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, CPX 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, CPX AFFILIATE NETWORK DOES NOT WARRANT OR GUARANTEE ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. THE CPX AFFILIATE NETWORK, SERVICES, CPX AFFILIATE NETWORK ADS, ACTIONS AND/OR AD CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. CPX AFFILIATE NETWORK HAS NO LIABILITY, WHATSOEVER TO ADVERTISER OR ANY THIRD PARTY FOR ANY OTHER PARTY'S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES, AND CPX 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. CPX AFFILIATE NETWORK MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES. IN NO EVENT SHALL CPX AFFILIATE NETWORK BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF CPX AFFILIATE NETWORK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CPX 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 CPX AFFILIATE NETWORK'S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, CPX AFFILIATE NETWORK'S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO CPX AFFILIATE NETWORK BY ADVERTISER DURING THE PRIOR SIX (6) MONTH PERIOD PURSUANT TO THE AGREEMENT. CPX AFFILIATE NETWORK SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF PUBLISHERS AND/OR AFFILIATES.
The parties agree to the terms in the General Data Protection Regulation Data Processing Addendum, which is incorporated into this Agreement.
Advertiser represents and warrants that:
Advertiser shall irrevocably defend, indemnify and hold CPX, its Publishers, Partners 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:
The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers:
Confidential information shall not include any information that the Receiving Party can verify with substantial proof that:
The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.
Advertiser recognizes that CPX has proprietary relationships with its Publishers and Partners. Advertiser agrees not to circumvent CPX's relationship with such Publishers and Partners, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by CPX hereunder from any Publisher and/or Partner that is known, or should reasonably be known, by Advertiser to have such a relationship with CPX, during the term of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers and Partners 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 CPX 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 Partner 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.
IN WITNESS WHEREOF, CPX and Advertiser have caused this Advertiser Agreement to be executed by their duly authorized representatives.
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