Bringing power to the people
Bringing power to the people
1.1 This ”Master Campaign Agreement” (or “Agreement”) is between each content publisher (CP) and ArzuDioce, Inc. ("AD, Inc."). (each a “Party” and collectively the “Parties”) that enters into a service relationship using the epe Media Platform ("Platform") owned and operated by AD, Inc. and hosted from the URL, www.epemedia.com (and associated URL redirects). Schedule 1 attached hereto or as amended by written agreement of the Parties and each “epe” (as defined below) are fully-incorporated into the terms of this Agreement. In order to use the epe Platform, associated programmatic referalls and pathwalks, upload or download features, the Content Publisher must scroll down, read and agree to all the Terms and Conditions in this Agreement. Use of the platform constitutes acceptance of all the Terms and Conditions
1.2 The Agreement is a framework agreement and does not commit either the AD,Inc. or the CPs to any specific terms of performance. Unless the Parties supersede or modify Schedule 1 (General Terms and Conditions), Schedule 1 shall also apply between the Parties. As used herein, Schedule 1 shall refer to the template Schedule 1 attached or (as applicable) its replacement. Each CP and any modified Schedule 1 must contain commercially reasonable and industry standard terms, and terms that can be accommodated by the functionalities and capabilities of the Platform from time to time.
1.3 The Parties shall agree to the specific terms of engagement in each individual embedded product experience (“epe”) creation. epe's contain any and all of the supplemental terms and conditions agreed between the Content Publisher and AD,Inc. as established via the epe Media platform (application) and are created using the “epe creation” function of the Platform. The CPs shall specify the “Actions” and qualifying parameters that entitle AD,Inc. to "Payouts" from the downstream Affiliates. “Payouts” to CPs are clearly differentiated from those paid by Affiliates and occur directly and only from AD,Inc. to CPs and not from Affiliates to CPs, and only to qualifying Content Publishers. Qualification is earned by the proper identifying attributes of the CP in order to allow "Payouts" in compliance with all applicable regulations, including but not limited to banking information, Know-Your-Customer (KYC), and Anti-Money Laundering (AML) requirements. Sufficient information will also be required to report "Payouts" to the Internal Revenue Service, as applicable by Law. The terms of the epe's "Payout" potential are strictly between AD,Inc. and Content Publishers and lend no claim to any other parties. Each executed epe, in the form of a unique hyperlink pathwalk generation, together with the Agreement and Schedule 1 will constitute a separate contract between the AD,Inc. and the Content Publisher. These contracts represent unrealized "Payouts" and as such lend no claim to the Content Publisher over AD, Inc. for unearned (non-converged) epe's. The only claim to "Payouts" by Content Publishers is for those epe's that materialize in the convergence of a sale to our downstream Affiliate partners, minus applicable service fees and commissions extracted by AD,Inc. for services rendered, and as periodically communicated and updated by AD.Inc.. There will be times, such as when you submit an auto lead request to a dealer or fill out our contact form, when we will need to obtain personally identifiable information from you or about you. Such personally identifiable information may include your name, address, e-mail address, telephone number and identification number(s) as they pertain to complying with all applicable Laws. Failure to provide said information will result in the escrowing of any earned "Payouts" with AD,Inc. until such time that the Terms and Conditions of this contract can be fulfilled with full compliance. Please print a copy of these documents for future reference.
1.4 Entry into an Agreement, Schedule 1 and epe's is subject to AD,Inc. and the CP each being and continuing to be a party to a contract, with AD,Inc. permitting the CP to use the Platform. Failure to honor the terms and conditions of the platform may subject to CP to being denied further access to the platform. Denial of access does not invalidate any pre-existing epe contracts and entitles the CP to receive any and all future revenues derived from the direct convergence of an epe at an affiliate point of sale. Denial of access does negate further creation of epe's under the platforms terms and conditions from the moment of loss of access.
2.1 Upon execution and convergence of an epe, resulting in a return to AD,Inc. by an Affiliate, AD,Inc. will effect the Payout of funds due to CP as soon as practically possible for affecting the transaction. The Parties acknowledge and agree that: either Party may propose an epe be created or retired in the “epe creation” section of the epe Media Platform interface and that the Platform’s functionality may then be used by the Parties to decline, retract or further modify an epe before acceptance. epe's become legally enforceable rights and obligations on the Parties upon acceptance, but confer payouts only after convergence. An epe may only subsequently be varied or modified by mutual agreement of the Parties. If the Parties utilize the epe Media platform, Schedule 1 must reflect the Parties ability to do so and the Parties are responsible for implementing the appropriate settings on the Platform to conform with such agreed upon terms. Modification of epe's outside of the epe Media Platform for the benefit of the CP with the intent to circumvent AD,Inc. is considered a violation of the terms of service and may result in suspension from further use of the platform.
2.2 AD, Inc. makes no guarantee or representation that the Services will generate any Action(s) and makes no guarantee or representation that the CP will be successful in earning any Payouts under any epe where the terms are contingent upon pay-for-convergence.
3.1 epe's: Each individual epe shall continue until the earlier of: (a) a CP terminating the epe using the epe Media Platform interface; (b) Affiliate terminating an epe for convenience pursuant to the terms of an epe including notification requirements using the Platform interface (expiration of Affiliate payouts for certain products); (c) either Party terminating this Agreement or an epe for breach by the other Party; (d) a Party terminating an epe during the ‘Change Notification Period’ if the Party does not agree to the other Party’s proposed changes; (e) the date of expiration specified in the epe (if at all); (f) Affiliate removes AD,Inc. and the epe Media Partner Affiliate relationship or terminates the epe; or (h) a Party is no longer eligible to use the Platform. An terminated epe for any of the above causes does not require notification prior to termination and can occur any time prior to convergence. epe's may be terminated after convergence however any Payouts accumulated up to the point of termination shall be due and payable to the CP.
3.2 Consequences of Termination: On the expiration or earlier termination of each epe: (a) AD, Inc., via either the epe Media Platform or direct form, shall enact Payouts to the CP on any monies due in relation to converged epe obligations, minus applicable service and transmission fees; (b) AD, Inc. shall remain obligated to compensate the CP for Payouts earned prior to expiration or termination of the epe; (c) the CP shall immediately discontinue the provision of the Services offered by the epe Media platform as it relates to terminated epe's and use of all software and material provided by AD,Inc. for use in connection with epes for the management and removal of expired epe's should the process not yet be automated; (d) license to the CP for the terminated epe's shall terminate; nothwithstanding any other valid non-expired epe's.
4.1 Force Majeure: "Force Majeure" means circumstances beyond the reasonable control of a party, including but not limited to acts of God, war, terrorist action, fire, flood, governmental act Internet or other telecommunications failure. Neither party shall be liable to the other party for any failure or delay in performing any of its obligations hereunder if such failure or delay is caused by the occurrence of an event of Force Majeure. If a party becomes aware of a Force Majeure event, such party shall immediately notify the other party in writing. If the event of Force Majeure continues period in excess of three (3) weeks, then either party may terminate this Agreement by written notice to the other party with immediate effect.
4.2 Entire Agreement: This Agreement represents the entire understanding and constitutes the entire agreement between the Parties in relation to their subject matter, supersede any previous agreement between the Parties as to such subject matter, and may be amended only in writing and executed by both parties (which may be pursuant to Section 4.3). Each of the Parties shall acknowledge and agrees that it has not relied on any representation or warranty other than those expressly set out in this Agreement, Schedule 1 and each epe.
4.3 Electronic Signatures: You acknowledge and agree that by clicking-through acceptance of this Agreement, epes, and other click-through offers from the Platform; You are submitting a legally binding electronic signature and are entering into a legally binding contract. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PLATFORM. Further, You hereby waive any rights or requirements under any applicable statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
4.4 Severability: If any provision in this Agreement, Schedule 1 or an epe is, in whole or in part, held by a court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable under any enactment or rule of law then that provision or part shall be deemed not to form part of this Agreement and the enforceability and validity of the remainder of this User Agreement shall not be affected. The parties shall in good faith attempt to modify any invalidated provision or part to carry out the parties' stated intentions.
4.5 Survival: All provisions that by their sense and context are intended to survive the termination or expiration of this Agreement, including any rights arising out of a breach of this Agreement, shall survive the termination or expiration of this Agreement.
4.6 Relationship of the Parties: The relationship of the CP Parties is that of independent sub-contractors to AD,Inc., of which AD,Inc. is providing a platform service for the benefit of the CP and partner Affiliates, and this Agreement does not create any association, partnership, joint venture or agency relationship between them. Neither Party shall have the power to bind the other or to create a liability against the other in any way.
Schedule 1
General Terms and Conditions
This Schedule 1 applies as between ArzuDIOCE,Inc. and the Content Publisher unless superseded in whole or part by written agreement of the Parties.
1. General Terms.
1.1 Any defined terms used in each epe shall (unless otherwise stated) have the same meaning as set out in the Agreement or this Schedule 1.
2. Intellectual Property and Confidential Information
2.1 License. For the purposes only of AD, Inc. providing its Services to CPs via the epe Media Platform, AD,Inc. grants to the CP(and its permitted users) for the duration of each epe a non exclusive, non-transferable, world-wide, royalty-free license to use the generated hyperlink pathwalks (“epe's”) supplied by the Platform application to the extent necessary only for the CP to perform its obligations under each epe contract, namely the accurate representation of products, goods and services contextually identified within content created by the CP.
2.2 Promotional Methods. The responsibility for any and all promotions of the CP and associated epe's on various online social networks is entirely with the CP. AD, Inc. carries no liability or responsibility for the dissemination of epe's to platforms and accounts under management by the CPs and is engaged in a technologically facilitated service only. The CP, using only those methods approved or prescribed by AD,Inc. under the mechanisms of the epe Media Platform, must ensure the accuracy of the individual epe contract at all times. The CP shall not promote an inaccurate representation of associated products nor attempt to circumvent the representation of said products, goods and services by an of the following means: (a) provision of leads obtained other than through intended consumer (“End User”) action (e.g. through the use of phone books, or similar such compilations of personal data); (b) use of fake redirects, automated software, or other mechanisms to generate Actions; or (c) Actions that are caused that are not in good faith, such as those using any device, robot, Iframes or hidden frames. If CPs intend to use incentives to promote content consumer behavior and procure clicks outside of the intended venues (social networks, content delivery networks, etc.) as programmed by the epe Media Platform, the CP is required to notify AD,Inc. prior to deploying an epe, and the CP’s use of incentives must be in a bona fide way. Extra-platform incentives are the sole responsibility of the CP with no bearing or amendmentment to the responsibilities of AD, Inc. as delineated herein.
2.3 Misuse of Creative: The Parties acknowledge and agree that if AD,Inc. notifies a CP of misuse of its Creative by the CP then the CP shall take immediate corrective action.
2.4 Intellectual Property: “Intellectual Property” means trade marks (whether registered or unregistered together with all goodwill in connection thereto), unregistered and registered designs, copyright, database rights, rights in computer software, domain names, rights in confidential information and all other intellectual property rights (whether now subsisting or in the future created) both in the USA and all other countries of the world for the full period of those rights (including any extensions and renewals). All Intellectual Property existing prior to the commencement date of each epe shall belong to the Party that owned such rights immediately prior to such date. Each Party acknowledges and agrees that it shall not acquire or claim any title to the other Party’s Intellectual Property.
2.5 Confidential Information. "Confidential Information" means all confidential information and data of whatever nature, whether in tangible or intangible form such as trade secrets, financial, and technical information, customers, prices, discounts, and margins. A party receiving Confidential Information ("Receiving Party") from the other party ("Disclosing Party") agrees to agrees to (a) hold all Confidential Information in confidence and protect it with the same degree of care with which the party protects its own Confidential Information; (b) use such Confidential Information only for the purposes of this Agreement and as permitted by this Agreement; (c) not copy or otherwise duplicate such Confidential Information, except for the purpose of this Agreement; and (d) restrict disclosure of such Confidential Information solely to those employees and agents with a need to know such Confidential Information for the purposes of this Agreement, who are told of its confidentiality and who are bound in writing to protect the same. The foregoing obligations shall not apply to any information designated as confidential if, prior to any release of such information, such Confidential Information: was already known to it, free of any obligation to keep it confidential; is or becomes publicly known through no wrongful act of the Receiving Party; was received from a third party without any restriction on confidentiality; was disclosed to third parties by the Disclosing Party without any obligation of confidentiality; or is approved for release by prior written authorization of the Disclosing Party. If the Receiving Party receives a request pursuant to a court order, governmental body request or other legal process to disclose the Disclosing Party's Confidential Information, the Receiving Party shall promptly notify the Disclosing Party and reasonably assist the Disclosing Party in obtaining a protective order requiring that any portion of the Confidential Information required to be disclosed be used only for the purpose for which a court issues an order or as otherwise required by law. Each party shall bear its own legal expenses in connection therewith.
3. Payouts
3.1 Tracking Actions and Calculating Payouts: Unless an epe states otherwise, all tracking and payment processing facilities in relation to the tracking of Actions and calculation of Payouts shall be provided by AD,Inc. to the CP via the epe Media Platform. AD,Inc. shall aggregate payments due from Affiliates to AD,Inc., minus commission and applicable service fees, and make payments to the CP in accordance with each epe an associated affiliate return percentage. If tracking is disabled as a result of the CP’s acts or omissions and the CP continues to receive traffic from the epe Media Platform then the AD,Inc. shall be obliged to pay Payouts on a fair and reasonable basis taking into account appropriate factors (Affiliate payment cycle, normal business hours, system limitations on payments, etc.).
3.2 Chargebacks: An epe can be cancelled or returned by AD,Inc. (“Chargeback”) if: (a) the original convergence of the epe is reversed by a downstream affiliate for product returns or defects; (b) if a customer (consumer) has cancelled or returns an Action; (c) if the Action has been made fraudulently or in an otherwise non-bona fide manner; (d) if the Action is carried out by a person who is outside the area serviced by AD,Inc.; or (e) if an Affiliate associated with AD,Inc. is unable to ship goods to a customer in relation to the Action. Each epe shall state the period of time as presently "unlimited" within which the Advertiser may apply a Chargeback so long as the aforementioned conditions are met. Chargebacks will first be attempted on funds due an a CPs account balance with AD,Inc. in order to offset prior invalidated payments.
3.3 Payment Schedule: Payment for converged epe's from AD,Inc. to a CP will occur on the following normal schedule:
Affiliate Payment Frequency + 14 days
For example, if the Affiliate pays AD,Inc. for all converged epe's on a 4-month schedule then the Payouts to CP's will occur no later than 4-months + 14 days from the day of payment by the Affiliate to AD,Inc. In order to improve on the quality of service to CPs, AD,Inc. may occassionally exercise the right to enact Payouts to CPs in advance of the aforementioned schedule. Such early Payouts will be subject solely to the discretion of AD,Inc. and will not constitute a precedent or new obligation moving forward should AD,Inc. choose to resume the normal Payout schedule quoted herein. The 14 days built in to the Payout schedule affords AD,Inc. under normal course of business a reasonable window of time for the processing and delivery of payments to CPs without extraordinary efforts.
4. Representations, Disclaimers and Indemnification
4.1 Representations and Warranties: (a) Each Party warrants, represents and undertakes to the other Party in relation to each epe that: (i) it has the full power and authority to carry out the actions contemplated under each epe; (ii) its entry into and performance of its obligations under the terms of the epe shall not infringe the rights of any third party or cause it to be in breach of any obligations to a third party; (iii) in relation to all epe's and at all times in using the Platform it shall comply fully with any and all applicable Laws. (b) The CP represents and warrants to AD,Inc. that the use of supplied Platform Services shall be performed in a professional manner and with reasonable skill and care.
4.2 Indemnification: Subject to Section 4.3, each party ("Indemnitor") shall defend, indemnify and hold the other party and its respective shareholders, directors, officers, employees, subcontractors and agents ("Indemnitee") harmless against all claims, suits, costs, damages liabilities, expenses (including court costs and reasonable attorney's fees), settlements and judgments incurred, claimed or sustained by third parties (“Claims”) for the Indemnitor's breach of this Agreement and for breach of a third party's Intellectual Property rights, provided that: (a) Indemnitee notifies Indemnitor in writing within a commercially reasonable time after its receipt of notice of any Claim; (b) Indemnitor has sole control of the defense and all related settlement negotiations (except that the Indemnitor shall not settle any Claim in any manner which would admit fault by the Indemnitee without Indemnitee’s reasonable consent); and (c) Indemnitee provides Indemnitor with reasonable assistance, information and authority necessary to perform its obligations under this Section. Indemnitee may participate in the defense of a Claim at Indemnitee’s expense, and such participation shall not waive or reduce any obligations on the Indemnitor under this Section.
4.3 Limitations of Liability:
(a) Nothing below shall operate to exclude or limit liability for which liability cannot be excluded or limited under law (together the "Excluded Losses"). (b) Except in respect of the Excluded Losses, the liability of each Party to any other Party in contract, tort (including negligence or breach of statutory duty, misrepresentation or otherwise) or for any other common law or statutory cause of action or otherwise arising by reason of or in connection with this Agreement and each epe shall be limited to the Payouts fees paid by AD,Inc. to the CP via the epe Media Platform pursuant to epe's having converged into a sale at a downstream Affiliate.(c) Except in respect of the Excluded Losses, neither Party shall be liable to the other in contract, tort (including negligence) or otherwise for any: any loss of actual or potential profits, contracts or customers; loss of data and undertaking data or other restoration; loss of reputation; any other indirect, consequential, special, punitive, exemplary damages whether arising from negligence, breach of contract or otherwise.
5. General
5.1 Waiver of Remedies: No forbearance or delay by either Party in exercising or enforcing the provisions of this Agreement or an epe shall prejudice or restrict the rights (whether provided by this Agreement, an epe or by law) of that Party nor shall any waiver of its rights operate as a waiver of any subsequent breach. No right, power or remedy herein conferred upon or reserved for either Party or available by law is exclusive of any other right, power or remedy available to that Party (whether under this Agreement, an epe or at law) and each such right, power or remedy shall be cumulative.
5.2 Assignment: Either Party may assign any or all of its rights under this Agreement or an epe, or transfer or sub-contract any or all of its obligations under this Agreement or an epe, upon notification to the other Party, subject to the non-assigning Party’s right to terminate.
5.3 Audit rights: Each Party agrees to maintain adequate books and records relating to its compliance with the terms of this Agreement during the term of this Agreement and for a period of one (1) year thereafter. Copies of such records shall be made available to the other party upon written request. An officer of the party supplying the records shall certify the authenticity of the copies.
5.4 Notices: All notices which are required to be given under this Agreement shall be in writing. Notices of termination of an epe by AD,Inc. for convenience shall be made via the epe Media Platform or in writing to the CP, at the discretion of AD,Inc. All other notices shall be sent to the postal address or facsimile number of the Party as provided via the Platform, as such address may be updated from time to time. Any such notice may be delivered personally or by first class pre-paid letter (or by air-mail if overseas) or by facsimile transmission, and shall be deemed received, when delivered (if by hand); or if by mail 5 (five) days after deposit in mail, if by facsimile transmission, when successfully dispatched in full.
5.5 Governing Law and Venue: Unless the Parties mutually agree otherwise in writing, this Agreement, Schedule 1 and each epe shall be governed by the laws of the state where an action is filed by either party to adjudicate or interpret this Agreement, on the condition that such an action is brought in an appropriate venue and forum. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys' fees and costs.
END OF SCHEDULE 1 TERMS & CONDITIONS