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Address: Address for Notices: Company Name: Analog Analytics, Inc.. Contact Name: Oliver Gratry, CFO Contact Telephone Number: 858-509-4796 Contact Facsimile Number: 858-225-0366 Contact Email Address: firstname.lastname@example.org Address for Notices: 420 Stevens Avenue, Suite 350 Solana Beach, CA 92075
Type of Customer (Check the Box) YES NO Source Distributor Affiliate
Customer Properties: Websites Mobile Applications Other Delivery Mechanisms
This Agreement consists of this Cover Page and the attached Terms and Conditions. This Agreement is dated and effective as of April __, 2011 (the “Effective Date”). Customer and Company may each be individually referred to herein as a “Party”, and collectively, as the “Parties”. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date above. Analog Analytics, Inc. By: ________________________________ Print Name: _________________________ Title: _______________________________ Customer By: ____________________________________ Print Name: _____________________________ Title: ___________________________________
1 AA6.3 Proprietary and Confidential
maintain. Distributor may establish and/or maintain commercial relationships with another member of the Network.SYNDICATION TERMS AND CONDITIONS DESCRIPTION OF SERVICES. As an Affiliate.3 Proprietary and Confidential written notice to Distributor this Agreement may be terminated. If Distributor does not select and offer on the pre-specified dates the foregoing number of National Deals. and that it will not offer. Distributor shall be responsible for formatting the Qualifying Link between the Distributor Website and the Company Property. such Promotions will be deducted from Commissions remitted to Distributor. or otherwise sell any Deals or Similar Deals sourced directly from any Source member of the Network. from time to time. or an Affiliate. update and make the Qualifying Link publicly available. PRESENTATION OF COMPANY CONTENT. notify Distributor of National Deals offered for use in Distributor’s area. As a Distributor Distributor will approve the design of Deals and offer the Deals to Consumers through a Distributor Property. if and when available. provided that the relationship was not initiated as a result of information gained from the Network and that the intent of the relationship is not to bypass or circumvent the Network. verifying that Merchant Agreement has appropriate indemnifications in place so that Customer and Deal conform with this Agreement. posting. Distributor is responsible for providing the server(s) and related software necessary to host. As a Source Source is responsible for signing the Merchant Agreement. Distributors may offer Promotions to Consumers. with the exception that an Affiliate does not influence the graphic design of Deals. promote. A Consumer is required to create an account with Distributor in order to purchase any Deal and receive a Voucher. Subject to the foregoing. Notwithstanding the above. promote. then. Affiliate agrees that Deals offered through the Network will be sourced exclusively through the Network. Distributor shall offer at least six (6) National Deals on Distributor Properties each month. Affiliates refer Consumers to Source Properties. and that it will not offer. or otherwise sell any Deals or Similar Deals sourced directly from any Source member of the Network. Company may. support. Duties of Customer. Furthermore. Consumers who purchase Deals from a Distributor over the Company Property shall be deemed customers of Distributor and all agreements relating to any sale shall be between the Consumer and Distributor. and for Consumer complaints arising against Merchant. provided that the relationship was not initiated as a result of information gained from the Network and that the intent of the relationship is not to bypass or circumvent the Network. layout. a Distributor. Source is . Beginning on the Effective Date. manage. ensuring that the Merchant honors the Merchant Agreement. and maintenance of the Qualifying Link on the Distributor Property. and any Data received from Consumers shall become the property of Distributor. Distributor may promote Deals through its Distributor Property. supplying all necessary Deal information to the Company Property. Affiliate may establish and/or maintain commercial relationships with another member of the Network. Duties of an Affiliate are identical to those of a Distributor. verifying that the Merchant Agreement is signed by a signatory with authority to sign the Merchant Agreement. in Company’s sole determination upon Company’s 2 AA6. including adequate security and integrity measures that help prevent fraudulent activities of any kind. timeliness. the Parties will work together in good faith so that Customer may (at its option) serve as a Source. does not sell or distribute Deals on its own Properties. verifying that Merchant has the necessary infrastructure and insurance to service the Deal. does not own or have rights to Consumer Data and cannot offer Promotions or discounts to Consumers. Notwithstanding the above. Distributor agrees that Deals offered through the Network will be sourced exclusively through the Network. operate. Distributor will be responsible for the integration.
or rejection. or otherwise. however. Refunds and chargebacks are subject to regulations under credit card industry standards as well as state and federal law. upon written request. XML. If any Merchant refuses to honor a Voucher that was previously paid for by a Consumer. provided. irrespective of the amount or timing of Merchant Commission remitted by Company. reversal. Once Source has published a Deal to Company Property. Company reserves the right to withhold for 90 days payment equivalent to 3% of gross transaction revenue generated in the 90 days prior to termination. As used herein. In any case. and without latency or packet loss in excess of industry norms. Company is responsible for providing the server(s) and related software necessary to host. whether by a bank. Guaranteed Server up Time: 99.3 Proprietary and Confidential Consumer Refunds: Company shall offset the amount refunded to the Consumer on a pro-rata basis against the Commissions of Company. update the Company Content and make the Company Content available to Customer through the Deals API. Company reserves the right to invoice Customer for the difference. the term “Uptime” means that the Company Syndication Network and Company Property will be available without material faults or errors. as applicable. Customer shall not enter into discussions or enter into any agreement with any Merchant or Source for a Similar Deal. or otherwise sell any Deals or Similar Deals directly through any Affiliate or Distributor member of the Network. maintain. and specifically to honor the minimum chargeback periods specified therein by not limiting the refund time period on any Deal or voucher to less than 6 months. or re-distributes Deals per above. then Company shall have the right to offset the amount paid by the Consumer against future amounts payable from the Company to the Source. in Company’s sole determination upon Company’s written notice to Customer this Agreement may be terminated. Distributor. In All Cases The Parties acknowledge that multiple sales forces working in the same market may make sales calls upon the same merchants in the normal course of business. except with respect to any fees owed to Source as set forth herein. If Customer offers a Deal or Similar Deal directly through another member of the Network by bypassing Network.9% Uptime 7 days a week. Specifically. Upon receipt of approval from Source (which will customarily be via email). uses Network as a prospecting tool to find merchant leads. In the event that the offset amount is greater than Commissions due. Customer is responsible for. Customer shall not re-distribute or resell Deals or provide others with access to Network and/or Deals from Network via API. “Scheduled Maintenance” means maintenance that results in or is reasonably likely to result in downtime. then. support. Consumer action. or comparable technology unless specifically authorized in writing by the Company. promote. Customer agrees to abide by these regulations. chargeback. refund. Scheduled Maintenance will be scheduled between 12:00 am and 5:00 am EST. Notwithstanding this provision. In the event that either party terminates this Agreement. immediately refunding and/or repaying to Company any payment made to Customer under this Agreement that is later subject to a return. Customer shall not use Network as a prospecting tool to find merchant leads or engage the merchants of other publishers. 3 AA6.responsible for paying Merchant according to the Merchant Agreement. Company shall have the right to offset the amount refunded to Consumer against future amounts payable to Customer. manage. then Company shall have no liability to Source resulting from such Deal including without limitation claims that the Deal was inaccurate or that the maximum number of deals published in the Deal did not match the Merchant Agreement. operate. 52 weeks a year (2 hrs a month of scheduled maintenance = 24 hours of scheduled down time per year). Source. Customer acknowledges that Company is not liable for any refunds or chargebacks. Duties of Company. then Company shall provide to Source a mockup of the applicable Deal for Source’s review and approval. and that it will not offer. or such longer period as may be required by applicable law. Company will notify Customer at least two (2) days in advance of any Scheduled Maintenance that . Furthermore. Source agrees that Deals offered through the Network will be offered exclusively through the Network. and/or Affiliate. adjustment. offers a Similar Deal. that the Merchant was not previously known to Customer. which Customer shall pay.
Company shall remit to Customer. based on the following per-Deal Gross Revenue Commission Percentage: Source may determine the commission percentages for Source and Distributor on a deal-by-deal basis. However. any unpaid orders or credit card reversals. and it shall not count against the uptime described above. emergency condition. and (ii) to Customer or Merchant for any payment or other obligation due to Customer or Merchant from a Consumer. unless otherwise specified. and that Company shall have no liability (i) to any Consumer of any Voucher for any payment or other obligation due to such Consumer if the applicable Merchant refuses to honor the Voucher. without any advance notice to Customer. REPORTING. The following are the default percentages: • As Distributor or Affiliate: 20%. unless otherwise specified plus Merchant Commission.requires downtime. non-exclusive license to use. Customer is aware that any form of spam is forbidden. reproduce. Company is responsible for handling all Consumer inquiries. is transmitting or is otherwise connected with any spam or other unsolicited bulk email. and collection of money. as determined solely in the good faith discretion of the Company.3 Proprietary and Confidential Customer account which it believes. comprehensive and updated regularly. irrevocable. and distribute the Data. to the extent permitted by law. a flat credit card fee of 3. Source is responsible for payment of Merchant Commission to Merchant. Distributor exclusively owns the Consumer Data from each Deal sold through its Property. . unless otherwise specified by Source of Selected Deal As Source: 30% of Net Revenue. Company reserves the right to terminate. fulfilling purchases. riot. in the event Company discontinues or otherwise makes any changes to Deals currently in use by Customer. PAYMENT PROCEDURE. and in consideration of the Purchases made by Consumers through the Qualifying Link. Source may pass these fees through to Merchant as desired. Notwithstanding the foregoing. including without limitation strike. For clarity. without limitation. Data. Company shall remit to Customer. Notwithstanding the foregoing. Merchant Commission. Gross Revenue Commission and. natural disaster. fire. on a monthly basis. collect Data. Company may. if applicable. and as soon as practicable in the event of any emergency maintenance. • As Source: 15% plus 50% Merchant Commission. flood. Customer will own Data for Deals sourced by others that it sells. Payments. Spam. Company will use its reasonable commercial efforts to ensure that the Company Content is accurate. unless otherwise specified by Source. including for analysis and optimization. Customer acknowledges that with respect to all Deals Company is not acting as a principal or guarantor. • • For clarity. Unless otherwise specified. During the Term of this Agreement. including. Source is responsible for payment of Merchant Commission to Merchant. for any reasons outside of the reasonable control of Company. Company shall not be liable for. sub-licensable. Net Revenue Commission based on the following per-Deal Net Revenue Commission Percentage: Source may determine the commission percentages for Source and Distributor on a deal-by-deal basis. power outages or other inoperability of the Internet. The following are the default percentages: • • As Distributor or as Affiliate: 40% of Net Revenue. Company will immediately terminate any 4 AA6. as specified. Data for Deals sourced by Customer and sold through the Network will be owned by the Distributors of those Deals. in its sole reasonable discretion. discontinue or change the terms under which Deals are offered at any time. Company shall notify Customer as soon as reasonably practicable.3% will be charged to Source as a deduction from Commissions. Company retains a perpetual. Company will track Qualifying Sales that occur through the Qualifying Link from Customer Property and provide reports of the Commissions from Qualifying Sales due as a result thereof. Company shall receive 15% of Gross Revenue Commission. PAYMENT TERMS. If Source indicates on Company Property that Selected Deal is only available to Distributors and Affiliates for Net Revenue Commission. as applicable.
TERM & TERMINATION. Effect of Termination. Subject to the terms and conditions of this Agreement. Company shall receive 30% of Net Revenue Unless otherwise specified. to audit. Term. transmitting. Payment Procedure. In the event the Audit discloses that a party underpaid or overpaid. at the party that is conducting the audit’s sole cost and expense and not more than once per annum. Termination. as applicable. Grant of Licenses by Company. Customer shall provide Company with Customer’s tax identification number or social security number. and shall immediately destroy all copies of the Company’s data and any Company Content hereunder or shall return such data or Company Content to the Company. the other party’s records. within thirty (30) days following the end of a calendar month. and (ii) nothing in this Agreement shall confer on Customer any right of ownership in the Company Content. in case of the Company. Merchant Agreements. Any termination pursuant to this Agreement shall be without any liability or obligation of the terminating party. displaying. RESERVATION OF RIGHTS. Audit. license to use.3% will be charged to Source as a deduction from Commissions. Each of Company and Customer shall maintain all necessary records during the term of this Agreement and for a period of two (2) years thereafter to permit the Company. however. and the Customer. GRANT OF LICENSE. Company owns all right. Company hereby grants Customer: A non-exclusive non-transferable (except in connection with a permitted assignment of this Agreement). for the purpose of determining compliance with this section of this Agreement (the “Audit”). The party conducting the audit shall provide reasonable advance notice of an Audit. This Agreement will automatically renew for additional one year terms on the date it would otherwise expire unless either party notifies the other party of its intent not to renew at least sixty (60) days prior to the end of the thenAA6. and Customer on the other. PERMITTED USE. Upon termination or expiration of this Agreement in accordance herewith. and. as applicable. Either Party may terminate this Agreement by written notice to the other Party upon the occurrence of any of the following events: (a) the other Party commits a material breach of this Agreement and such breach remains uncured for thirty (30) days following written notice of breach by the terminating Party. a flat credit card fee of 3. current term. in case of the Customer. then the cure period for such breach shall be extended to the extent necessary for the party to cure the breach using its best efforts up to a maximum cure period of ninety (90) days from notice of breach. Provided Customer is in good standing with Company. As a condition of payment of any Customer Revenue from Company.3 Proprietary and Confidential . in addition to immediately correcting any underpaid amounts. Source may pass these fees through to Merchant as desired. and/or distributing Company Content hereunder. The provisions below and all payment obligations incurred prior to termination or expiration shall survive any termination or expiration of this Agreement. Customer acknowledges and agrees that: (i) as between Company on the one hand. or (b) a petition for relief under any bankruptcy legislation is filed by or against the other Party or the other Party makes an assignment for the benefit of creditors or a receiver is appointed for all or substantially all of the other Party’s assets. reproduce. such party shall. Company shall remit to Customer the Commissions earned by Customer on Qualifying Sales during such calendar month and remit to the Source for each Deal the Merchant Commission earned on Qualifying Sales during such calendar month. Company shall have the right to audit the Merchant Agreement for any Deal with Net Revenue Commission terms. as applicable. title and interest in the Company Content. 5 As described in “Audit” section.• • For clarity. Such records shall be Confidential Information. modify. provided. the other party for Commissions in excess of ten percent (10%). reimburse the other party for reasonable costs and expenses associated with such Audit. Customer shall cease and desist from using. if the nature of the breach is not curable using best efforts within thirty (30) days from notice of breach. This Agreement may be terminated by either party upon ninety (90) days prior written notice. other than with respect to any breach of this Agreement prior to termination. The term of this Agreement shall commence on the Effective Date and shall continue for two (2) calendar years thereafter.
Source Indemnity. Customer is not authorized to (a) create any derivative works of the Company Content. A non-exclusive license to use. during the Term. claim. or performance. resell. and Distributor harmless from any damages or settlement amount (including reasonable attorney fees) incurred in connection with any Claim related to the validity. dealing. COMPLIANCE connection with any such Claim. SUCH AS. Customer shall include Company logo on all Company Content. copyright. or any implied warranties arising out of a course of performance. or lack of performance.3 Proprietary and Confidential . or Customer Properties hosted by Company. (b) merge or commingle Company Content with Customer content (c) use. INDEMNIFICATION AND WITH APPLICABLE LAWS. Customer shall not resell. infringes any valid and issued U. Company makes no representation that the operation of the Deals API will be uninterrupted or error-free. or trade usage). and Customer hereby agrees not to. its officers. directors and employees against any third party suit. including any Consumer claim based upon the applicable Merchant refusing to honor or comply with the terms of the Voucher. accuracy. indemnify and hold Company. directors and employees against any Claim alleging that any deliverable as modified by Customer or any deliverable that was developed or customized at the request of Customer infringes any valid and issued U. availability. and (ii) in connection with the marketing and promotion of the Customer Properties. in an unmodified form as originally delivered by Company. its officers. copy. or trademark of a third party. action or demand (a “Claim”) alleging that any deliverable. of any Deal or other product offered on the Network by or through Customer or any of its affiliates in all respects. resyndicate or otherwise distribute the Company Content except as specifically permitted under the terms of this Agreement. & LIMITATION OF EXCEPT AS SET FORTH IN THIS AGREEMENT. distribute. SPECIAL OR EXEMPLARY DAMAGES ARISING FROM THIS AGREEMENT. When acting as Source. license. INCIDENTAL. In addition. relicense or otherwise distribute the Company Content. or trademark of a third party. and Company will not be liable for the consequences of any interruptions or errors. and (ii) indemnify and hold Customer harmless from any final award of damages or settlement amount (including reasonable attorney fees). Customer further agrees to defend.S. arising in AA6. EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. arising in connection with any such Claim. non-infringement. relicense. modify or otherwise use on any non-approved Customer Property any data contained in the Deals API.distribute. Except for the rights and licenses expressly granted herein. or (e) use the Company Content following the expiration or earlier termination of this Agreement or. The foregoing licenses do not permit Customer to. No indemnity with respect to any other product is provided by Company to Customer hereunder. patent. UNDER NO CIRCUMSTANCES SHALL COMPANY OR CUSTOMER OR THEIR RESPECTIVE AFFILIATES BE LIABLE TO EACH OTHER FOR INDIRECT. Customer shall (i) defend Company. without limitation. (ii) indemnify and hold Company harmless from any final award of damages or settlement amount (including reasonable attorney fees). patent. DISCLAIMERS LIABILITY. warranties of fitness. or to use or reproduce the Company Content for the purpose of extracting factual information therefrom. Reservation of Rights.S. for any purpose other than as contemplated by this Agreement. copyright. Company makes no express or implied warranties or representations with respect to any Deals presented through the Company Content or Company Property or Network (including. display and transmit the Company Content in electronic form through the Customer Property solely for the purpose of performing its obligations hereunder and solely in the manner set forth herein. Company shall: (i) defend Customer. merchantability. 6 Infringement Indemnity. EXCEPT AS PROVIDED IN THIS AGREEMENT WITH RESPECT TO THIRD-PARTY CLAIMS OR DAMAGES ARISING FROM A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS AS PROVIDED IN THIS AGREEMENT. CONSEQUENTIAL. Company Property. Customer’s license to modify the Company Content shall be limited to modifying the Company Content to fit the format and look and feel of the Customer Property. Affiliate. reproduce and display the Company Marks: (i) in connection with the presentation of the Company Content on the Customer Properties. (d) use the Company Content or the Deals API to send unsolicited commercial e-mails or similar correspondence.
S. neither Party will make any written public statement. however. without the prior written approval of the other Party. in marketing materials or press releases. tariffs. federal tax credits) within sixty (60) days of such remittance. include any information which (i) was available in the public domain prior to the time of disclosure. that Company shall have the right to publish Customer’s name on the Company Property as a member of the Network. MISCELLANEOUS PROVISIONS. Internal Revenue Service so that Company can claim applicable U. Taxes. reproduction. or referring to this Agreement or the relationship created hereunder. (iv) is obtained by the receiving Party from a third party without a breach of such third party’s obligations of confidentiality to the disclosing Party. in addition to all other remedies available at law. license and other fees shall be payable by Customer in addition to the stated payments to Company. or in lieu thereof. as shown by documented evidence. state. provided. or is or should be reasonably understood to be confidential or proprietary to the disclosing party. Customer shall provide a tax exemption certificate acceptable to the taxing authorities. The Parties agree that. without the receiving Party breaching any duty of confidentiality hereunder. Publicity. levies and similar assessments. EACH PARTY’S LIABILITY FOR ANY BREACH OF THIS AGREEMENT SHALL BE LIMITED TO THE PAYMENT(S) RECEIVED OR DUE HEREUNDER FOR THE IMMEDIATELY PRECEDING SIX (6) CALENDAR MONTH(S). using the other Party’s name or trademarks. shall timely remit such foreign withholding taxes to the appropriate taxing authority. All payments required by this Agreement are exclusive of federal. (iii) was already in the possession of the receiving Party at the time of disclosure. and shall deliver to Company proof of each such remittance (in a form acceptable to the U. shall be paid by Customer. or use of the Confidential Information and that monetary damages will be inadequate to compensate for such breach.BUT NOT LIMITED TO. however. each Party shall destroy or return to the other Party any Confidential Information provided by the other Party to such Party under this Agreement. If Company is required to withhold any foreign withholding taxes from amounts payable to Company. directly or indirectly. (ii) is available in the public domain after disclosure. Customer shall advise Company of such requirement prior to signing Agreement.S. or (v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information. as shown by the receiving Party’s files and records. EXCEPT AS PROVIDED IN THIS AGREEMENT WITH RESPECT TO THIRD-PARTY CLAIMS OR DAMAGES ARISING FROM A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS AS PROVIDED IN THIS AGREEMENT. or in any other form. all required import/export duties. and Customer agrees to bear and be responsible for the payment of all such applicable charges imposed on the use by Customer. in whole or in part. use or value added and similar transaction taxes. Merchant or the Company regarding any Deal or service provided by Company. other than taxes based on the income of Company and any foreign withholding taxes. The terms of this Agreement are confidential.” Confidential Information shall not. at or before the time of disclosure. CONFIDENTIALITY ANNOUNCEMENTS. or refers or relates to the methods by which the Company Content is generated. local and foreign taxes.3 Proprietary and Confidential . LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. Customer acknowledges that Company is acting solely as a commissioned transaction facilitator. On transactions occurring outside the United States. Upon termination of this Agreement. orally. the Disclosing Party shall be entitled. Confidential Information means any and all information disclosed by either Party to the other Party. Any tax Company may be required to collect or pay upon the transactions contemplated by this Agreement. electronically. duties. AND PUBLIC comply by the Receiving Party. that is designated. that refers or relates to either Party’s sales or revenues. The parties each recognize that irreparable harm can be occasioned to the other party by the unauthorized disclosure. including without limitation. and/or otherwise is designated in writing as “Confidential. excluding taxes based upon Company’s net income. in writing. including any sales. The parties agree that in the event of such failure to 7 AA6. with the exception of the issuance of a jointly approved press release within 30 days of the Effective Date. to seek an injunction restraining such future breaches without having to post any security or to prove the inadequacy of available remedies at law. as confidential or proprietary.
A waiver of a party’s breach of any provision of this Agreement will not operate as or be deemed to be a waiver of that party’s prior. successors and assigns. regarding such subject matter. Customer shall not distribute or supply or allow access to the deliverables to any person or entity if there is reason to believe that such person or entity intends to export or re-export or otherwise to take the deliverables or to use the deliverables outside of the United States in violation of applicable export control laws and regulations. by any acts of God. and this Agreement supersedes all prior agreements or representations. Force Majeure. Governing Law. extraordinary Internet system-wide congestion. Any notice or communication shall be deemed to have been duly given (i) immediately (if given or made in person or by facsimile confirmed by mailing a copy thereof to the recipient on the date of such facsimile). Unless otherwise specified herein. or (iii) five (5) days after mailing registered mail. or facsimile to the intended 8 AA6. Notice by any other means shall be deemed made when actually received by the party to which notice is provided. consolidation. acts of civil or military authorities. or diversion of certain products and technologies to certain countries. civil disturbances. This Agreement may be executed in two or more counterparts. The provisions of this Agreement constitute the entire agreement between the parties with respect to the subject matter hereof and thereof. Any attempt to assign other than in accordance with this provision shall be null and void. however. Neither Party shall be liable to the other for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused. either Party may assign this Agreement without such consent in connection with (i) any merger.Independent Contractors. or breach thereof. other catastrophes or any other cause beyond such Party’s control. Customer shall in all respects comply with all applicable United States export control laws and regulations. to which jurisdiction and forum the parties irrevocably consent. Customer acknowledges that Deals may be subject to the export and re-export control laws and regulations of the United States of America. directly or indirectly. Neither Party shall have. (ii) any other transaction in which more than fifty percent (50%) of such Party’s voting securities are transferred to the acquiring entity other than in connection with an equity financing of Company. or represent itself as having.S. Notices. master and servant. provided. Assignment. transportation contingencies. sale or other transfer of all or substantially all of such Party’s assets or business. Notwithstanding the foregoing. Neither Party may assign this Agreement without the prior written consent of the other Party. expressly or by implication. Such online terms and conditions shall supersede and replace this Agreement for all subsequent Deals. it is agreed that the same shall be submitted only to the jurisdiction and forum of any state or federal court located in the County of San Diego in the State of California. Export Control. . In the event of any dispute under or relating to this Agreement. (ii) on the second (2nd) business day after delivery to a recognized overnight express courier service. all notices may be made via registered U. any authority to make contracts or enter into any agreement in the name of the other Party. All terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective permitted transferees. Customers or joint venturers. This Agreement shall be governed by the laws of the State of California without regard to its conflict of law principles. Entire Agreement. A Party may change the address to which notices or other communications to such Party shall be delivered or mailed by giving notice thereof to the other Party hereto in the manner provided herein. each of which will be deemed an original and all of which together will constitute one and the same instrument Waiver. or to obligate or bind the other Party in any manner. Counterparts. acquisition. oral or written. Company may subsequently provide for online terms and conditions. overnight courier. concurrent or subsequent breach of that or any other provision of this Agreement. which prohibit export. strikes or other labor disputes. and any attempted assignment without such consent shall be void. acts of terrorism. wars. The Parties acknowledge that the relationship is that of independent contractors and that nothing contained in this Agreement shall be construed to place the Parties in the relationship of principal and agent. mail.3 Proprietary and Confidential recipient thereof at such Party’s address or facsimile number as indicated on the Cover Sheet to this Agreement.
3 Proprietary and Confidential .9 AA6.
including the Company Marks.analoganalytics. the Consumer is deemed to be a customer of the Merchant and is subject to the Voucher’s terms and conditions as well as the Merchant’s policies and procedures when redeeming the Voucher. the proprietary user interface to access the Network. “Confidential Information” shall have the meaning set forth in “Confidentiality and Public Announcements” “Consumer” means a consumer who uses the Company Property to purchase a Voucher for Merchant products and/or services. does not sell or distribute Deals on its own Properties and cannot offer Promotions or discounts to consumers. After purchasing the Voucher. “Commission Percentage” means the Deal-specific percentage used to calculate Commissions.3 Proprietary and Confidential and/or distribute Deals to and from the Network per the terms of this Agreement. The Customer may source 10 AA6. “Company Marks” means the Company trademarks and logos provided to Customer for use hereunder. “Commissions” means Gross Revenue Commissions or Net Revenue Commissions. less refunds. “Merchant” means a business which has agreed to promote its product and/or services via the Company Property and has agreed to accept Vouchers from Consumers based upon the redemption conditions for each Deal in the Merchant Agreement. “Affiliate” is a member of the Network that lists Deals from Source publishers on its Properties. “Data” means data and information collected by Company from Consumers. The Deal offers Consumers a discounted price on the Merchant product or services through purchase of a Voucher. as negotiated between Merchant and the Source. subject to change from time to time. “Deal” means the product or service being promoted by the Merchant and sold by the Merchant to Consumers. “Company Content” means the content licensed hereunder. “Company” means Analog Analytics and its subsidiaries and affiliated corporations. “Gross Revenue” means the total revenue Company receives from Consumers from Qualifying Sales. Merchant promotional information. if applicable. “Customer” is the member of the Network that is a Party to this Agreement. and that processes the request and returns an XML response that includes all or a portion of the Company Content.com. Consumers create an opt-in account with a Distributor prior to any Purchase on a Distributor Property. “Gross Revenue Commissions” means a percentage of the Gross Revenue remitted by Company to Customer for Qualifying Sales. returns and cancellations. “Agreement” means the Cover Sheet and these Terms and Conditions. “Distributor” is a member of the Network who distributes or sells a Deal from the Network through its own Properties. and the hosted site(s) which display details about a Deal and provide the facility for Consumers to complete the Purchase of a Deal. “Deals API” means the Company search application program interface that allows Customer to interface with the Company database by making real-time HTTP requests for Merchant information and promotional information. less Promotions for Distributors. Merchant information. and all other information and data. . An Affiliate does not influence the graphic design of Deals. “Merchant Commission” means the percentage of Gross Revenue due to the Merchant by the Source. “Merchant Agreement” means the agreed upon terms and conditions between the Merchant and the Source of the Deal for a) the promotion of Merchant goods and/or services and b) the distribution of the Voucher to a Consumer via the Company Property.DEFINITIONS. and then redirects the Consumers for each Deal on its Properties to the respective Deal’s Source to transact a Purchase. attracts Consumers to its Properties with this third party content. “Company Property” means the website located at www. The amount is determined by the total Gross Revenue of each Deal that is received directly through the Customer Property times the Gross Revenue Commission Percentage defined in this Agreement.
Certain Deals listed by Sources on the Network may require payment based on Net Revenue Commission. “Source” is a member of the Network who sources Deals through its own direct means and provides a Deal to the Network. mobile applications. The Qualifying Link shall be the only direct link to the Company Property that Consumer uses when the sale of a product or service occurs. “Party” or “Parties” means each of the Customer and Company. For clarity. “Net Revenue Commissions” means a percentage of the Net Revenue remitted by Company to Customer for Qualifying Sales. Customer is not required to distribute or sell any specific Deals. and that will be distributed in at least four (4) cities worldwide. “Property” or “Properties” shall mean the websites. members of the Network are prohibited from entering into discussions or entering into any agreement with any Merchant. “Similar Deal” means a Deal that is substantially similar to a Deal already on the Network. “Promotions” means promotional codes or discounts offered by the Distributor to incent Consumers to make a Purchase. Commissions due to Distributor will be calculated as Gross Revenue Commissions or Net revenue Commissions. “Qualifying Sales” means a Purchase of a Deal which is made via the Qualifying Link in the day to day business of Company. “National Deal” means a deal that is identified on Company Property as a National Deal. fees due to Company shall be calculated before the deduction of Promotions. that must be run on a pre-specified date. Pursuant to the payment terms in the Payment section of Agreement. and other information delivery mechanisms owned or hosted by the Affiliate. “Purchase” means a Deal that has been sold to a Consumer and for which Consumer is charged the price of the Deal and a Voucher is delivered. coupon or certificate purchased by a Consumer via the Company Property that can be redeemed for the Merchants’ goods or services at a discount and are activated only in accordance with the associated Merchant Agreement.The amount is determined by the Merchant Commission Percentage entered by the Source into the Company Property for each Deal times Gross Revenue of each Deal that is received directly through the Customer Property. “Selected Deal” means a Deal that a Distributor or Affiliate selects from the Network to distribute or sell to Consumers through its own Properties. Company remits the Merchant Commission to the Source for each Deal. “Vouchers” means a deal. whether sold through Network or elsewhere. less Merchant Commission. less refunds. if applicable. The amount is determined by the total Net Revenue of each Deal that is received directly through the Customer Property times the Net Revenue Commission Percentage defined in this Agreement. Customer. less Promotions. and pursuant to a Purchase which Company elects to process. or other sourcing entity for a deal with substantially similar terms to the Deals as displayed on the Network and/or obtained from Company. either individually or collectively. .3 Proprietary and Confidential “Qualifying Link” means a uniform resource locator (URL) designed and provided by Company for use by Customer on the Customer Property. The Source is responsible for the relationship with the Merchant. For clarity. Source or Distributor. these Deals are opt-in only. 11 AA6. “Network” is a proprietary network of publishers and broadcasters who source and distribute Deals using Company Property and other proprietary technology owned by Company. In order to prevent the use of Network as a source of sales leads. Source. and for Consumer complaints arising against the Merchant. for ensuring that the Merchant honors the Merchant Agreement. returns and cancellations. as applicable. less Promotions. voucher. including those designated on the Cover Sheet to this Agreement. “Net Revenue” means the total revenue Company receives from Consumers from Qualifying Sales.
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