Master Agreement

 

The following terms and conditions (the “Master Agreement”) is an agreement between DMO Global, Inc. (“Company”) and you (“You” or “Your” or “Publisher”), the user of advertising programs (“Programs”) sponsored by Company or its advertiser clients (“Advertisers”).  You and Company may also be individually referred to herein as a “Party” and collectively as “Parties.”  You agree to use the Programs and any additional services offered by Company in the future only in accordance with this Master Agreement.  Company reserves the right to make changes to the Programs and the terms and conditions of this Master Agreement at any time.  Your continued use of the Programs after any such modification and notification thereof shall constitute your consent to such modification.

 

Overview of the Use of the Programs

This Master Agreement grants Company the transferable, irrevocable right to post Program offers on your media properties, such as your website, affiliated websites, or email distribution lists (“Media”).  The Programs will specify the amount and terms under which you will receive payment (“Payment”) when the Program's requirements are fulfilled.  Payments are generated from a specified event (“Event”) identified in a Program, such as clicks, click-throughs, sales, registrations, impressions and leads.  The definition of the Event associated with a Program is set forth in the Program's specifications, and such definition shall govern this Master Agreement.  If you accept a Program, you agree to place that Program's advertising creative (the “Creative”), in accordance with the terms of the accepted Program.  Company may change a Program at any time upon reasonable notice to you unless otherwise specified.  Similarly, you may terminate previously accepted Programs as provided in the Termination Section below unless otherwise specified.  Company is responsible for displaying and administrating all active Programs and tracking the payments owed.  Company shall compile, calculate and electronically deliver data required to determine your billing and compensation.  Company's figures and calculations shall be final and binding.  Any questions regarding the data provided by Company must be submitted in writing within ten (10) days of receipt, otherwise the information will be deemed accurate and accepted as such.

 

Eligibility Requirements and License

All websites, newsletters, companies, or individuals need official approval from Company before they can become an affiliate partner (“Affiliate”).  Only websites, affiliated websites and email distribution lists that have been reviewed and approved are permitted to use the Programs.  Company reserves the right to withhold or refuse approval for any reason, whatsoever.

 

1.      Unless otherwise expressly agreed to by Company in writing, in order to be eligible to become an  Affiliate or to utilize Creative or Program(s), all websites, affiliated websites and email distribution lists must meet the following criteria:

a.       Be content-based, not simply a list of links or advertisements, nor can the site be centered exclusively  on being compensated by our Advertisers;

b.      Have a top-level domain name; 

c.       Not offer incentives to users to click on ads; incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.;

d.      Be fully functional at all levels; no “under construction” sites or sections; and

e.       Exclude spawning process pop-ups and exit pop-ups.

 

All determinations regarding eligibility are within the sole discretion of Company.

 

2.      Prohibited Content.  The content of the Media cannot include prohibited content, including without limitation:

a.       Indecent, obscene, pornographic, racial, ethnic, political, hate-mongering or otherwise objectionable content;

b.      Investment, money-making opportunities or advice not permitted under law;

c.       Gratuitous violence or profanity;

d.      Material that defames, abuses, or threatens physical harm to others;

e.       Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.;

f.       Any illegal subject matter or any other content that does not meet Company's network quality standards as in effect from time to time; and

g.       In addition, Publisher’s Media shall not infringe on any personal, intellectual property, including without limitation, copyrights and trademarks of any third parties.

 

3.      Prohibited Activities.  Further, Publisher shall not undertake any Prohibited Activities, including without limitation:

a.       Inducing persons to click on Creative based on incentives without the prior written approval of Company; 

b.      Serving Creative, or driving traffic to such Creative, using any downloadable applications without the prior written approval of Company, which, if provided, is subject in each case to the following condition: Creative delivered in approved downloadable applications may be shown once per user session when the application is active, enabled and clearly recognizable by the end user as being active and enabled.  Serving Creative at any time when the downloaded application is not active is strictly prohibited and grounds for immediate termination without pay; and 

c.       In addition, the following methods of generating visitor interest in the Media or Creative are prohibited and may be grounds for immediate termination, in addition to other remedies available to Company:  sending emails to persons other than those persons who have expressly requested or agreed to receive such emails (i.e., spamming); use of unsolicited email or inappropriate newsgroup postings to promote the Media or Creative; auto-spawning of browsers; automatic redirecting of visitors; blind text links; misleading links (for example, using one advertiser's Creative with a different advertiser's contextual link); forced clicks (a person should never be forced to click on a Creative because his/her browser has been hijacked, or because a Creative has been altered so that it is impossible to close without clicking it); or any other method that may lead to artificially high numbers of delivered clicks; purchasing keywords from a search engine service provider that include the trademark, service mark, or brand name of the advertising client to which the applicable Creative relates, or any derivative of any such trademark, service mark, or brand name (“Advertiser Marks”); or purchasing online advertising inventory for purposes of running advertisements that include Advertiser Marks on Web Sites or within emails.

 

Limited License

Provided that You are not in breach of the Master Agreement ,Company grants You a revocable, non-transferable, non-exclusive limited license, if approved, to use the Programs and any data, reports, information or analyses arising out of such use, subject to the terms and conditions set forth herein.  You acknowledge and agree that you do not have, nor will claim any right, title or interest in the Program software, applications, data, and methods of doing business or any elements thereof.  You may only access the Program via web browser, email or in a manner approved by Company.  Program integration tags must NOT be altered.  Altering tags may preclude payment for Events.

 


Fraud

In the event Company detects fraud or the possibility of fraud Your account will be made inactive pending further investigation.  If You fraudulently add leads or clicks or inflate leads or clicks by fraudulent traffic generation (as determined by Company in Company's sole discretion, such as pre-population of forms or mechanisms not approved by Company), and You fail to demonstrate otherwise, You will forfeit your entire commission for all programs and Your account will be terminated.  Company's determinations regarding fraud shall be final and binding.

 

It is the Affiliate's OBLIGATION to be vigilant in preventing and not committing fraud.  Company SHALL HAVE THE RIGHT to withhold Your payment pending a thorough investigation and resolution of questionable circumstances, including but not limited to, the following:

 

1.      The existence of click-through rates that are much higher than industry averages and where actual justification is not evident;

2.      The existence of ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks reported;

3.      A demonstration of fraudulent leads as determined by Company or its Advertisers; and

4.      The use of fake redirects, automated software, and/or fraud to generate clicks or leads from our Programs.

 

Payment

You will be paid per the occurrence of an Event.  Every Publisher account must have a unique, valid taxpayer identification number (TIN) or valid Social Security number or equivalent taxpayer identification number.  Each party agrees to be responsible and fully liable for the payment of all taxes applicable to compensation provided for herein and further agrees to indemnify and hold the other harmless for any lack of compliance with tax obligations related to the compensation.  All payments are based on actual figures as defined, accounted and audited by Company and/or Advertiser.  Company will facilitate payment by disbursing the earned portion of lump sum aggregate payments to individual Publishers upon receipt of payment from Advertiser.

 

Payment to Publisher shall be based on Company's statistics.  Subject to Publisher's compliance with the terms of the Agreement, including, for example, the “Prohibited Activities” Section above, payments shall be made by Company on or about the 30th day after the end of the month in which revenue associated with the Event is collected by Company.  No checks will be issued for any amounts less than $50 U.S.D and all un-issued earnings will rollover to the next pay period.  For the avoidance of doubt, and as further provided in the  Master Agreement and/or Insertion Order, it is acknowledged and agreed that Publisher shall not be paid by Company pursuant to the Master Agreement, and waives any claim pursuant thereto, in the event that Company is not paid by the related Advertiser.  PLEASE NOTE, in addition to all other available remedies, Company reserves the absolute right to withhold payment to a Publisher in the event that Company determines in its sole and absolute discretion that Publisher has not complied with the Parties' agreements by (for illustrative purposes only) undertaking or participating in a Prohibited Activity or involving Prohibited Content as defined above.

 

Termination

This Master Agreement shall commence upon Your acceptance and remain in effect until terminated.  This Master Agreement may be terminated by either Party upon one (1) day’s notice.  Provided however, in addition to any and all available legal and equitable remedies, DMO Global reserves the right, in its sole and absolute discretion, to terminate immediately in the event of a material breach, including without limitation, its determination of the possibility of or existence of fraudulent activity such as inflated or fraudulent actions, leads or clicks, credit card fraud or other electronic payment related fraud.  Further, this Master Agreement shall terminate immediately upon the dissolution or insolvency of either Party.  Notwithstanding the foregoing, Company reserves the right, in its sole and absolute discretion, to substitute a specific Program at any time for any reason, upon notice to the Publisher.  

 

Termination notice may be provided via e-mail.  All monies due to Affiliate will be paid during the next billing cycle.   The representations, warranties and obligations contained herein shall remain in full force and effect after termination of this Master Agreement.  All payment obligations accruing prior to the termination date shall survive until fully performed.

 

Representations and Warranties

You represent and warrant that:

1.      Your Media is in compliance with all applicable laws and does not contain or promote, nor links to another website that contains, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content;

2.      You will not send unsolicited commercial email and, further you expressly agree to comply with all terms, conditions and requirements of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “Can-Spam Act”). You will not post any specific messages to newsgroups, chat rooms, bulletin boards or any other places unless expressly approved in writing from Company.  You will solely post messages which are generic in nature and not mention any Company client or offer, unless such are expressly approved in writing by Company;

3.      You will not promote via website or link to websites containing any pornographic, racial, ethnic, political, software pirating or hacking, hate-mongering, or otherwise objectionable content;

4.      You will abide by all applicable laws;

5.      You own or have the legal right to use and distribute all content, copyrighted material, products, and services displayed on your Media; you will not use deceit when marketing Advertiser's offers or presenting these offers to consumers; you have the right, power, and authority to enter into this Master Agreement and grant the rights specified herein;

6.      You will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Program tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service (“Program Data”);

7.      If instructed to do so by Company and/or if this Master Agreement terminates, You will immediately remove and discontinue the use of any Program Data;

8.      You acknowledge and understand that Company does not represent, warrant, or make any specific or implied promises as to the successful outcome of any Programs;

9.      Unless otherwise expressly agreed in writing, You will display the Creative exactly as it appears on the Program and will not alter any Creative that has been submitted in the context of the Program; and

10.  You are responsible for all associated costs and legal fees resulting from any fraudulent activities occurring on your Media.

 

Customer Information; Non-Disclosure

All information submitted by end-user customers pursuant to a Program is proprietary (“Proprietary Information”) and exclusively owned by Company or its Affiliates.  Company shall retain the sole and exclusive right to use all data derived from the campaign provided that Publisher may use and disclose the anonymous visitors’ data (other than personally identifiable information) (i.e. any data or information that specifically identifies an individual end user or DMO Global or from which an individual end user or DMO Global may be discovered is removed, and such aggregated data is combined with aggregate data of other Publisher clients) for internal business purposes and to disclose such aggregated data for (1) Publisher’s reporting purposes consisting of compilation of aggregated statistics about its services (e.g., the aggregate number of messages delivered) that may be provided to customers, potential customers and the general public, and (2) if required by court order, law or government, provided that in such event, only to the extent required to be disclosed and provided Publisher notifies DMO Global and DMO Global has the opportunity to challenge or seek a protective order for such data.  All Proprietary Information is protected by copyright, trademark and other intellectual property law.  You agree not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary information in any manner.  These non-disclosure obligations shall also survive the termination of this Master Agreement.

 

Limitation of Liability; Disclaimer of Warranty

IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF OR OPERATION OF A PROGRAM, OR YOUR DISPLAY OF ANY PROGRAM CREATIVE ON YOUR MEDIA, INCLUDING BUT NOT LIMITED TO BROKEN IMAGES, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  FURTHER, IN NO EVENT SHALL COMPANY'S LIABILITY HEREUNDER EXCEED PAYMENTS (AS DEFINED HEREIN) OWED TO PUBLISHER BY COMPANY PURSUANT TO THE MASTER AGREEMENT DURING THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD.  FURTHER, EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY’S CUMULATIVE LIABILITY FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, SHALL BE LIMITED TO AND SHALL NOT EXCEED THE AMOUNTS PAID OR PAYBALE BY COMPANY UNDER THIS AGREEMENT DURING THE MOST RECENT TWELVE (12) MONTH PERIOD. THE INFORMATION, CONTENT AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITH NO WARRANTY.  YOU USE AND RUN PROGRAMS AT YOUR OWN RISK.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE OPERATION OF THE INFORMATION, SERVICES, AND CONTENT PROVIDED BY COMPANY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  COMPANY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION PROVIDED BY COMPANY IS ACCURATE, COMPLETE OR CURRENT.

 

Indemnity

Publisher is solely responsible for any and all liability arising out of or relating to (i) the content and other material set forth on the Media (other than through a Creative supplied by Company, unless such Creative was modified by Publisher without the express written consent of Company); and (ii) any content or material to which visitors can link through the Media (other than through a Creative supplied by Company, unless such Creative was modified by Publisher without the express written consent of Company).  Publisher hereby agrees to indemnify, defend and hold harmless Company and its officers, directors, agents, affiliates and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings (a) for libel, defamation, violation of right of privacy or publicity, breach of contract, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with your Media (except for Creative supplied by Company, unless such Creative was modified by Publisher without the express written consent of Company); (b) arising out of any breach by Publisher of any duty, representation or warranty under this or any other agreement with Company; or (c) relating to a contaminated file, virus, worm, or Trojan horse originating from the Media (other than through a Creative supplied by Company, unless such Creative was modified by Publisher without the express written consent of Company).  Company hereby agrees to indemnify, defend and hold harmless Publisher and its officers, directors, agents, affiliates and employees from and against all third party claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings arising out of a breach by Company of any duty, representation or warranty under this Master Agreement.

 

Non-Circumvention Agreement

Publisher agrees that it shall not, during the term hereof or within six (6) months after termination of the campaign (the “Non-Circumvention Period”), directly or indirectly, enter into any business relationship or contract with a media partner of DMO Global associated with this Master Agreement for the purposes of referring, or in any way soliciting such client for, or on behalf of Publisher or related entity.  The parties agree that a breach of this Section will cause DMO Global to suffer irreparable harm and that monetary damages would be inadequate to compensate for such damage.  As such, the parties agree that in such event, DMO Global will, in addition to all other remedies, be entitled to injunctive relief (including costs and attorneys’ fees) to prevent a breach or threatened breach of this Section without the necessity of proving actual damages or posting a bond.  Further, in the event that it is determined that Publisher has breached this Section, Publisher also agrees to pay DMO Global the sum of 25% of the monies (or the equivalent) paid to Publisher by media partner during the Non-Circumvention Period.

 

Assignment and Jurisdiction

Company may assign this Master Agreement to a subsidiary or business successor.   Publisher may not assign this Master Agreement without the prior written consent of Company, which shall not be unreasonably withheld.  This Agreement shall be construed and governed by the law of the state of California.  You expressly consent to the exclusive venue and personal jurisdiction of the state and federal courts located in Oakland, California for any actions arising from or relating to this Master Agreement.

 

Severability

If any provision of this Master Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Master Agreement, and this Master Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.

 

Force Majeure

Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters, interruption in internet service or any other cause which is beyond the reasonable control of such Party.

 

Attorneys’ Fees

The prevailing party shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding arising out of this Master Agreement.

 

Miscellaneous

This Master Agreement contains the sole and entire agreement and understanding between the Parties relating to the subject matter herein, and merges all prior discussions, whether through officers, directors, salespersons, employees or consultants.  Each Party is an independent contractor and not a partner, joint venture or employee of the other.  All notices shall be sent to the addresses submitted by you when signing up for the service by certified mail, fax, email or courier.