Mogek Network ADVERTISER TERMS AND CONDITIONS
These Mogek Network Advertiser Terms and Conditions(these “Terms”), together with the Insertion Order(s) and/or Addendum(collectively referred to as the “Agreement”), shall govern the relationship between The Mogek Network, LLC, a Delaware limited liability company(“Mogek Network”) and boththe Advertiser and Guarantor, as identified herein,whose signatures appear below.
- Welcome. Mogek Network is a technology-based network exchange platform that serves as a broker and marketplace through which third party businesses/advertisers agree to purchase online traffic, clicks, calls, views, actions, leads, sales, or conversions, depending on the type of campaign and billing model, that are generated for the advertisers by various independent third-party media publishers and affiliates. By participating in the Network, advertisers promote their products or services to those consumers users the publishers and communicate directly with consumers generated from their advertising campaign, but advertisers and publishers are at all times required to abide by Mogek Network’s terms and conditions, and all applicable laws in order to participate in the Network. The Advertiser entering into Mogek Network’s Insertion Order(s) wishes to acquire, and Mogek Network wishes to provide, the Services (as defined herein), subject to Advertiser’s and Guarantor’s agreement to be bound by these Terms, the Insertion Order(s), and any further terms to which the parties may agree. Accordingly, theParties agree as follows:
- Definitions. The following terms identified in these Terms and the Insertion Order(s) shall have the following definitions:
- “Ad, “Ad Content,” “Advertisement,” “Creatives,” or “Advertising Content” means any and all creative and substantive materials or contentof the Advertiser, which may include, but is not limited to, text, images, websites, landing pages, checkout pages, terms and conditions of its products or services,and product and service information and descriptions.
- “Addendum” means any addendum that accompanies these Terms and/or Insertion Order(s) depending on the billing program selected by an Advertiser, such as the Mogek Network Data Share Addendum and/or Individual Personal Guaranty Addendum, which shall be incorporated into and be governed by these Terms.
- “Advertiser” “You” or “Your” means the individual or entity that has entered into these Terms and theInsertion Order(s) with Mogek Network, including its affiliated entities, that seeks to drive online sales, users or consumers to its website(s) or application(s).
- “Advertiser” “You” or “Your” means the individual or entity that has entered into these Terms and theInsertion Order(s) with Mogek Network, including its affiliated entities, that seeks to drive online sales, users or consumers to its website(s) or application(s).
- “Mogek Network” means The Mogek Network, Inc., which is the entity identified in this Agreement that is providing the Services to Advertiser.
- “Agreement” means collectively these Mogek Network Advertiser Terms and Conditions, together with all Insertion Order(s) submitted and executed by Advertiser.
- “Cap” means any agreed upon limit placed on the Services, including, but not limited to, the limit of the number of conversions, actions, clicks, leads, calls, views, or sales generated.
- “Click-Thru” means when an internet user clicks on an Advertiser’s Ad banner, coupon redemption, link, or action directing him/her to a landing page or website.
- “Commission” or “Payout” means the amount due to Mogek Network by the Advertiser for the Services, pursuant to the specific payment terms set forth in the Insertion Order(s).
- “Conversion” means each independent click, sale, registration, transaction, lead, conversion, call, view, or action, depending on the billing program of the Campaign, as set forth in the applicable Insertion Order(s).
- “Co-Registration” or “Co-Reg” means the process of collecting orders, authorizations, opt-ins, or acceptances for multiple offers, products, services, subscriptions, or marketing communications from a customer in a single registration event.
- “Cost-Per-Action” or “CPA”means a type of billing program for a Campaign involving a fee for all leads or conversions delivered by Mogek Network or an authorized Publisher. Such fees will be based on the number of leads or conversions received from the Campaign, multiplied by the cost per lead or conversion as identified in the Insertion Order(s), which shall be computed according to these Terms and the Insertion Order(s).
- “Cost-Per-Click” or “CPC”means a type of billing program for a Campaign involving a fee for all Click-Thru’s related tothe Advertiser’s Campaign. Such fees will be based on the number of Click-Thru’s on the Ads, multiplied by the cost of each of theClick-Thru’s as identified in the Insertion Order(s), which shall be computed according to these Terms and the Insertion Order(s).
- “Cost-Per-Milli” or “CPM” means a type of billing program for a Campaign involving afee for every 1,000 impressions generated from a traffic source as identified in the Insertion Order(s), which shall be computed according to these Terms and the Insertion Order(s).
- “Data Share” means a type of billing program for a Campaign where there is an allocation of profits from a Campaign between the Advertiser and Mogek Network, which shall be computed in accordance with the Data Share Addendum that accompanies and is incorporated into these Terms. In a Data Share billing program, an Advertiser provides certain data, such as leads to Mogek Network and third-party Publishers, for use in the Campaign.
- “Display Banner” or “Display” means a banner advertisement placed on the internet, an application, a website, or social media. The location of the banner on a website can either be purchased for a limited time (media buys) or owned outright by the publisher (content sites belonging to the publisher).
- “E-mail” means a form of digital advertising that involves sending offers to prospective online users and/or consumers via electronic mail or message (such as short message service (SMS) or text messaging), whether in HTML or text format, that will direct prospective online users or consumers to an Advertiser’s landing page or website.
- “Guarantor” means the individual principal, officer, member, partner, director, or authorized representativeof the Advertiser that is identified in this Agreement as the personal guarantor of the payment obligations of the Advertiser with respect to the amounts due to Mogek Network for the Services provided pursuant to this Agreement and Insertion Order(s).
- “Incentivized” means a form of digital advertising or marketing by which an online user or consumer is offered something of value, such as a monetary reward, cash, gift card, online or virtual currency, or tangible gift or compensation, in exchange for completing an online offer, or registering or purchasing a product or services.
- “Insertion Order(s)”or “IO” means thewritten Advertiser Insertion Order(s) form that has been executed and submitted by Advertiser to Mogek Network that is incorporated into and governed by these Terms.Advertiser acknowledges that it may submit more than one Insertion Order(s) to Mogek Network, and that each and every Insertion Order(s) shall be governed by these Terms.
- “Messaging” means any form of marketing that involves placing or sending any form of communication, telephone call (including robocalls), and/or SMS/text messages to consumers to advertise a brand’s goods or services.
- “Network” means Mogek Network’s private affiliate network that allows it to carry out the Services, as well as all associated Network systems and content, including, without limitation, all text, information, images, applications, templates software and other information, services, and materials owned by Mogek Network.
- “Offer” or “Campaign” means the Advertiser’s advertising offer, campaignor program aimed at selling, marketing, or promoting Advertiser’s own products or Services as more specifically described in eachInsertion Order(s), and which serves as the basis to drive prospective online users and/or consumers to its landing page, website(s), or applications.
- “Parties”means, collectively each of the parties to this Agreement, that is,Mogek Network, Advertiser, and Guarantor, as defined herein. The parties may also be individually referred to as a “party.”
- “Pay Per View” or “PPV”means a type of billing program for a Campaign involving traffic generated when a user views or visits a website, which can appear via pop up, pop under, banner advertising, display and contextual advertising, as described in the Insertion Order(s), which shall be computed according to these Terms and the Insertion Order(s).
- “Pay Per Call”or “PPC” is defined as the fee for traffic that goes through to an offer via a telephone call or any digital voice chat or action,as described in theInsertion Order(s), which shall be computed according to Mogek Network’s rules applicable to the program that an Advertiserselects as stated in these Terms and the Insertion Order(s).
- “Program” means the digital advertising and affiliate marketing program and billing model selected in the Insertion Order(s) to be used in an Advertiser’s Campaign.
- “Publisher” means each individual or company that serves as an internet advertising publisher or affiliate, which maintains a proprietary relationship with Mogek Network, and owns internet advertising space, links, newsletters, websites, and/or opt-in email lists for the purpose of completing digital advertising or affiliate marketing campaigns for the benefit of Advertiser using Advertiser’s Ad Content.
- “Rebill”means the instance when the Advertiser bills and collects payment from a consumer at the second cycle of its trial program or campaign (also known as a negative option or continuity program or plan). In trial programs, the second cycle is the first full billing transaction after the first cycle, i.e.,initial sale for shipping/handling charges. The Rebill Rate, also known as “Retention Rate,” refers to the percentage of transactions that rebilled in that second cycle, that is by taking the total number of rebills and dividing it by the total number of first cycle/initial trial saletransactions.
- “Revenue Share” means a type of billing program where there is an allocation of profits from a Campaign between the Advertiserand Mogek Network, which shall be computed according to these Terms and the Insertion Order(s).
- “Search” meansbuying traffic on a pay-per-click basis from a search engine by bidding on keywords relevant to a given Offer. Traffic can be driven either directly to the Offer landing page, or through a landing page controlled by the Publisher (which thenlinks to the Offer’s landing page).
- “Services” means the affiliate marketing services offered by Mogek Network, that is, Mogek Network, shall act solely as a broker and exchange platform that connects advertisers with certain publishers who will promote an advertiser’s Campaign in accordance with terms of the Insertion Order(s). Mogek Network does not create nor conduct advertising, market nor sell any products or services to consumers, and does not create nor disseminate consumer-directed advertisements. Mogek Network does not conduct media buying or placements associated with any consumer-directed advertisements for itself or on behalf of any advertisers or publishers.
- “Social Media” means any advertisement or display banner on a social networking website or application, such as Facebook.
- “Step” or “Steps” means certain stages of the sales process, including any upsale of an additional product, by which an Advertiser and Network can agree on certain commissions per each Step.
- “Survey” means a method of digital advertising or marketing that contains an online survey and questions aimed at gathering information from an online user or consumer, used to direct an online user or consumer to an Advertiser’s Offer or webpage solely in exchange for completing the survey or questions. However, “Survey” is not a form of “Incentivized” advertising unless it also satisfies that defined term under this Agreement.
- “Terms” means these Mogek Network Advertiser Terms and Conditions.
- “Testimonial” includes, without limitation, consumer endorsements or testimonials, celebrity or expert endorsements, verbal statements, demonstrations, photos or other depictions of the name, signature likes or other identifying person characteristics of an individual or the name, logo, or seal of an organization.
- “Traffic” means online data sent, transmitted, or received by users or visitors to a landing page or website, whether derived from computers, mobile devices or any other physical or electronic device or application.
- “Trial Offer,” “Trial Program,” “Continuity Program,” “Negative Options,” or “Negative Option Plans” means a marketing program in which an Advertiser offers consumers a trial of a product or service for free or at a nominal price for an introductory period (such as shipping and handling), then the consumer incurs a charge or pays a greater amount if they do not take cancel, reject, or return the good or service before the end of the trial period or in accordance with the Advertiser’s terms of its trial offer.
- Commissions and Programs. As set forth in each Insertion Order(s), Advertiser has agreed to one of the following digital advertising and affiliate marketing Programs:
- In a Cost-Per-Action (CPA) model, the Advertiser shall pay a fee for all leads, actions, or conversions delivered by Mogek Network or an authorized Publisher. Such fees will be based on the number of leads or conversions delivered to Advertiser, multiplied by the cost per lead, action, or conversion, which shall be computed according to Mogek Network’s rules applicable to the program that the Advertiser selected, as stated in these Terms or in any Insertion Order(s).
- In a Cost-Per-Click (CPC) model, the Advertiser shall pay a fee for all Click-Thru’s related tothe Advertiser’s Campaign. Such fees will be based on the number of Click-Thru’s on all theAds, multiplied by the cost of each of theClick-Thru’s as identified in the Insertion Order(s), which shall be computed according to Mogek Network’s rules applicable to the program that the Advertiserselected, as stated in these Terms or in any Insertion Order(s).
- In a Cost-Per-Milli (CPM) model, the Advertiser shall pay a fee for each 1,000 impressions on the Advertiser’sAds. Such fees will be based on each 1,000 impressions, multiplied by the cost per 1,000 impressions as identified in the Insertion Order(s), which shall be computed according to Mogek Network’s rules applicable to the program that the Advertiser selected, as stated in these Terms or in any Insertion Order(s).
- In a Pay Per View (PPV) model, the Advertiser shall pay a fee for traffic generated when a user views or visits a website, and can appear via pop up, pop under, banner advertising, display and contextual advertising, as described in the Insertion Order(s), which shall be computed according to Mogek Network’s rules applicable to the program that the Advertiser selected as stated in these Terms or in any Insertion Order(s).
- In a Pay Per Call (PPC) model, the Advertiser shall pay a fee for traffic that goes through to an Offer via a telephone call or any digital voice chat or action,as described in the Insertion Order(s), which shall be computed according to Mogek Network’s rules applicable to the program that the Advertiser selected as stated in these Terms or in any Insertion Order(s).
- In a Revenue Share (RevS) model, the Advertiser shall pay a fee for the Campaignbased on the performance of the Campaign (such as a contingent commission based on sales, which shall be computed according to Mogek Network’s rules and conditions set forth in the Insertion Order(s) and these Terms.
- In a Data Share (DataS) model, there is an allocation of profits arising from the Campaign between the Advertiser and Mogek Network, which is computed in accordance with the Data Share Addendum executed together with these Terms that is incorporated into and governed by these Terms. In a Data Share billing program, an Advertiser provides certain data, such as marketing leads that an Advertiser has the rights to use, share and/or sell to Mogek Network and third-party Publishers, for use for generating sales in the Advertiser’s Campaign.
- Computation of Commissions/Payouts. Advertiser shall timely pay Mogek Network the designated Commission for the applicable Program set forth in Section 3(a) above and as described in the Insertion Order(s) and/or Addendum, for each applicable Conversion delivered by thePublishers. The total fees will be based on the number of each applicable Conversion delivered to Advertiser, multiplied by the applicable commissionor payout rate, which will be described and set forth in Mogek Network’s Insertion Order and Invoices.
- Tracking and Reporting by Advertiser. Although Mogek Network will track all applicable Conversions, Advertiser shall accurately track all applicableConversions through its own applications or customer relationship management (CRM) software andshall make such tracking records available to Mogek Network upon request at any time, including after the termination of the Services. Advertiser understands and agrees that Mogek Network shall invoice Advertiser using the higher of the numbers tracked by Mogek Network or tracked by Advertiser, and Advertiser agrees to pay for all such amounts.Within five (5) days after the end of each traffic period, Advertiser shall provide Mogek Network with the total number of Conversions that are applicable to the Advertiser’s Offer or Campaign, generated by the Publishers in the previous traffic period.
- Cap or Limitation of Services. If applicable to Advertiser’sCampaign, Mogek Networkmay cap or limit the Services, including, but not limited to, the number of conversions, actions, clicks, leads, calls, views, or sales generated (“Cap”). The amount of such Cap shall be set forth in the Insertion Order(s) and may be requested by the Advertiser or set forth by Mogek Network, in its sole discretion. If Advertiser wishes to modify or lift the agreed upon Cap after the execution of the Insertion Order(s), Advertiser shall notify Mogek Network of its desire to lift or modify such Cap in writing, and the parties shall execute a new Insertion Order specifying the new Cap in order for the Cap to become effective on the campaign. If no Cap is set forth in the Insertion Order(s), then there shall be no limit on the Services,including, but not limited to, the number of Conversionsgenerated to be provided by Mogek Network under this Agreement. Notwithstanding the foregoing, as set forth in Section 4 herein, Mogek Network shall have the sole discretion and right to suspend the Advertiser’s Campaign, in addition to its right to place a Cap on the Services under this provision.
- Commissions and Programs. As set forth in each Insertion Order(s), Advertiser has agreed to one of the following digital advertising and affiliate marketing Programs:
- Payment, Claims or Disputes, Refunds, and Credit, Debit, and Electronic Payments.
- Payment and Invoicing. Advertiser shall timely submit payment or prepayment for all amounts due to Mogek Network for the Services in accordance with the Insertion Order(s) and these Terms. Unless otherwise stated in the Insertion Order(s), Mogek Network shall issue invoices to Advertiser each week, and Advertiser shall pay all such amounts invoiced to Mogek Network within five (5) days of the date listed on each invoice. Advertiser shall make all payments hereunder by cash, cash equivalents, wire transfer, check, or by any other payment method agreed to by the parties in writing, and in US dollars. Advertiser shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly as permissible under applicable law. Advertiser shall reimburse Mogek Network for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Mogek Network does not waive by the exercise of any rights hereunder), Mogek Network shall be entitled to immediately suspend or pause the performance of any Services without notice if Advertiser fails to pay any amounts when due hereunder. In the event Advertiser requests that Mogek Network’s invoices be sent to or directed to another party, Advertiser acknowledges and agrees that Mogek Network may do so in its sole discretion, but such redirection of any invoice shall not relieve Advertiser and/or Guarantor of their respective obligations under this Agreement. Mogek Network may, at any time, also request that Advertiser prepay all or any portion of the amounts due to Mogek Network hereunder for Services, and Advertiser agrees to submit such prepayments upon request.
- Claims or Disputes. Advertiser acknowledges that Mogek Network and the Publishers incur great expense to carry out the Services on behalf of Advertiser. Publishers maintaining a relationship with the Mogek Network have agreed to carry and complete advertising Offers or Campaigns on internet advertising space, links, newsletters, websites, and/or opt-in email or message lists and are paid a commission by Mogek Network for all marketing generated on behalf of the Advertiser’s Campaign(s). Accordingly, Advertiser shall timely submit via email, written notice to [email protected] any claims or disputes it may have with respect to the Services provided or any charge to Advertiser’s account, to Mogek Network at within twenty-one (21) days of the date of such claim or dispute arose, or the date of such charge or invoice, whichever occurs first (the “Dispute Period”).Advertiser shall then allow Mogek Network thirty (30) days from the date on which Mogek Network receives Advertiser’s timely written notice to investigate and if applicable, address and resolve such claim or dispute. If Mogek Network determines after its investigation, in its sole discretion, that any amount in dispute is not warranted, Advertiser shall remit payment for any such amounts not previously paid within five (5) days of Mogek Network’s decision. However, if Advertiser does not timely submit in writing notice of any claims or disputes with respect to the Serviceswithin the Dispute Period, Advertiser shall be deemed to have waived any such claim or dispute, and such charge or invoice will be final and not subject to any dispute, credit, claim or refund.Unless any amounts invoiced are subject to a timely dispute,Advertiser shall not at any time withhold payment of any amounts by reason of any set-off of any claim or dispute with Mogek Network, whether relating to Mogek Network’s alleged or actual breach, nonperformance, or otherwise. Therefore, all Services not timely disputed under the terms herein may not be withheld for any reason by Advertiser. Additionally, unless expressly set forth in writing in an Insertion Order, Advertiser understands and acknowledges that Advertiser’s obligations to pay Commissions to Mogek Network for the Services are not contingent upon retention rates, rebill rates, charge backs, refunds, fraud, fulfillment of goods or services by Advertiser, or the overall success of the Advertiser’s Ad campaign or marketing program.
- Refunds. All funds paid or due to Mogek Network by Advertiser for the Services are nonrefundable and not subject to adjustment to reduce amounts due by Advertiser absent written agreement of the parties.
- Credit, Debit, and Electronic Payments. Advertiser agrees that it shall not initiate any chargeback, dispute, claim, or bank reversal related to any charges Advertiser pays to Mogek Network by credit, debit, or electronic payment or an electronic transfer of funds, or otherwise initiate chargeback proceedings if such dispute or chargeback would cause Advertiser to be in violation of the terms of this Agreement. In the event that Advertiser wrongfully initiates any form of a chargeback, dispute, claim, or bank reversal for any credit, debit, electronic payment or electronic transfer of funds to Mogek Network due for its Services under this Agreement, Advertiser shall be deemed to be in default of this Agreement, Mogek Network may immediately suspend or pause the performance of the Services without notice, and Mogek Network impose a fee of 10% of the total sum wrongfully disputed as reasonable liquidated damages, and not as a penalty, for Mogek Network’s loss of the bargain, in addition to all other remedies available to Mogek Network at law or in equity to recover all amounts due to Mogek Network under this Agreement. Advertiser shall also be responsible for any and all expenses, costs,and legal fees incurred by Mogek Network in disputing and/or resolving any such chargebacks, claims, and bank reversals.
- Fraud. Advertiser acknowledges that there is a potential for fraud by third parties, including consumers, which is outside the control of Mogek Network. Advertiser further understands Mogek Network implements policies and procedures to reduce and combat against fraud, and that should Mogek Network discover any fraud, it reserves the right to immediately terminate the Services and this Agreement, if necessary, in addition to pursuing any additional legal remedies available under applicable law. Mogek Network enforces strict processes to help avoid and combat fraud, such as credentialing its Publishers however, without sufficient proof of fraud, as determined by Mogek Network, Advertiser shall remain obligated to pay Mogek Network in full for all Services performed under this Agreement, notwithstanding any alleged, potential, or actual fraud committed by any third parties. In the event Advertiser claims, or discovers, any fraud conducted in the Campaign, Advertiser shall immediately provide written notice to Mogek Network and supply Mogek Network with sufficient documentation demonstrating any such fraud, so that Mogek Network may investigate any potential fraud committed on its Network.
- Advertiser’s Responsibilities, Representations, Warranties, and Covenants.
- Submission of Ads. Advertiser is responsible for all Ads and Ad Content used and created by Advertiser, which includes, but is not limited to, its websites, landing pages, checkout pages, terms and conditions related to its websites, checkout pages, and products, and content and/or images related to its products and/or services. In the event Advertiser requests that the Publishers create Ad Content, Advertiser shall remain solely responsible for such content and in that case, Advertiser may request in writing that the Publisher produce to Advertiser the Ads and Ad Content for Advertiser’s approval. Mogek Network shall not be responsible for Advertiser’s websites, landing pages, checkout pages, or applications including, but not limited to, maintenance of Advertiser’swebsites, landing pages, checkout pages, applications, order entry, customer Services, payment processing, shipping, fulfillment of orders, cancellations or returns. Mogek Network may, in its discretion, reject any Ads and Ad Content that is not in accordance with its policies or specifications, or which it offensive or violates any law.Neither Advertiser, nor the Ads or Ad Content shall violate any and all rights of any third party with respect to the Ads or Ad Content, including any intellectual property rights, copyrights, marks, names, or brands.Ads or Ad Content shall not include content that is deceptive, misleading, untruthful, unsubstantiated, or otherwise fails to comply with applicable federal and state consumer protection laws, regulations, and guidelines.
- Compliance. At all times Advertisershall comply with all applicable laws, statutes, ordinances, regulations, and legal guidelines (collectively, “Laws”) including, without limitation, those Laws governing false or deceptive advertising, cybersquatting, intellectual property, privacy, and publicity rightsincluding CCPA& GDPRregulations & guidelines, the Federal Trade Commission Act (“FTC Act”), Federal Trade Commission (“FTC”) regulations and guidelines implementing the FTC Act,Restore Online Shopper’s Confidence Act (ROSCA),all state and local counterparts to the FTC Act and associated regulations in every jurisdiction in which Advertiserconductsbusiness, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, the FTC’s Telemarketing Sales Rule, the Federal Reserve Board’s Regulation E, Federal Communications Commission regulations and guidelines, including Mobile Marketing Association guidelines, and FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, all as amended from time to time.
- Trial Offers andNegative Options. Certain Advertisers may be in the business of providing TrialOffers or Negative Option Plans, also called continuity programs. In the event Advertiser participates in the Network by engaging in any type ofTrial Offer or Negative Option Plan, Advertisers, who exclusively control and are solely responsible for the various components of their businessand Trial Offer/Negative Option Plan, including without limitation, the Advertiser’s Ads, creatives, images, landing and checkout pages, method and mode of disclosure of the Trial Offer or Negative Option Plan, websites, payment portals, Advertiser’s products, Advertiser’s terms/conditions,customer service and cancelation procedures, chargeback/refund mitigation, shipping/fulfillment of orders., must at all times:
- Clearly and conspicuously disclose all material terms of its Trial Offer or Negative Option Plan, before getting consumers’ billing information;
- Obtain consumers’ express informed consent to the material terms of its Trial Offer or Negative Option Plan before charging the consumers’ credit cards or accounts;
- Offer simple and clear ways for consumers to cancel or stop the recurring charges in the Advertiser’s Trial Offer or Negative Option Plan; and
- Refrain from misrepresenting any of the material terms of its Trial Offer or Negative Option Plan and present all such terms in a truthful and non-deceptive manner at the appropriate stage of the transaction, websites, landing pages, ordering pages or payment portals.
- In no event shall Affiliati be responsible, nor provide any oversight or advice, related to the compliance or management of Advertiser’sAds, creatives,images,landing and checkout pages, method,and mode of disclosure of the Trial Offer or Negative Option Plan, websites, payment portals,Advertiser’s products, Advertiser’s terms/conditions,customerserviceand cancelation procedures, chargeback/refundmitigation, shipping/fulfillment of orders
- E-mail and Messaging Campaigns. Advertiser may publish E-mail or Messaging advertising campaigns only to addressees or recipients who have agreed in advance to opt-in and receive such transmissions at the e-mail/message contact/address to which the e-mail/messageis sent. Immediately upon Mogek Network’s request, Advertiser shall provide to Mogek Network the name, date, time, and IP address of a recipient of an offer in an E-mail/Messaging advertising campaign. Advertiser is solely responsible for all complaints, claims, or losses related to E-mail/Messagingcampaigns and Advertiser shall respond to all such complaints within forty-eight (48) hours of notification from anyrecipientor other party on the recipient’s behalf.
- Suppression List. Advertiser shall update Advertiser’s suppression list no less than two (2) times per week during the E-mail/Messagingcampaign. Advertiser additionally agrees to: (a) use the suppression list solely for the suppression purposes set forth herein; (b) use the suppression list to remove any and all e-mail addresses contained therein from receiving future commercial e-mail/messages; (c) follow all procedures set forth in this Agreement with regard to the suppression list; and (d) not use the suppression list for any purpose related to or in connection with e-mail marketing or appending, except pursuant to the terms and conditions specifically contained in this Agreement.
- Delivery of E-mail. Advertiser will ensure that “subject” and “from” lines used in any Messagingcommunications are truthful and non-misleading and do not otherwise violate the CAN-SPAM Act or any other federal and state consumer protection laws and regulations and do not infringe on the intellectual property rights of any third party. Advertiser shall disclose in all E-mail campaigns that the subject e-mails are commercial transmissions. Advertiser additionally agrees that it shall not do any of the following in connection with the delivery of any E-mail/Messagingcampaign hereunder: (a) engage in any conduct to circumvent or attempt to circumvent spam filters or blacklists; (b) forge, falsify or use unrelated or deceptive content in any part of the header or body in any manner; (c) make use of false registrations, invalid domains and IP addresses for e-mail accounts; (d) use third party brand names, trademarks, copyrights or other intellectual property in any part of the header or body; or (e) relay or retransmit e-mail for any purpose from a computer or computer network that was accessed without authorization.
- Opt-Out. Advertiser agrees that: (a) Advertiser will ensure that each E-mail/Message includes (i) clear and conspicuous notice of the recipient’s right to opt-out of receiving future commercial messages from the Advertiser; and (ii) a functional electronic mechanism that the recipient can use to make such an opt-out request, in compliance with the requirements of all applicable laws and regulations, including, but not limited to,CAN-SPAM Act and Federal Trade Commission regulations and guidelines implementing the CAN-SPAM Act;(b) the recipient shall not be required to make any payment or submit any personal information in order to opt-out; and (c) in the event that Mogek Network receives a complaint from any recipient of any e-mail sent by Advertiser, upon Mogek Network’s request, Advertiser shall immediately provide Mogek Network with appropriatePage 9of 16and sufficient records to verify such recipient’s consent to receive E-mailmessagesfrom Advertiser.
- Search Campaign. An Advertiser who operates a Search campaign shall not: (a) use any Mogek Network trademarks, brand names, websiteaddresses, or any variation thereof in the display URL; (b) mask Mogek Network’s URL’s with a different URL; (c) bid on any term set forth in the Search campaign supplemental list provided by Mogek Network; (d) use language such as “Official Site”or “Official Store” in keyword descriptions; (e) use the registered trademark symbol unless authorized in writing by Mogek Networkor the owner of such symbols; (f) engage in search engine spam, masking, doorway pages, cloaking or direct linking; (g) use terms that reflect negatively on Mogek Network brands or marks (e.g., “Cheap”, “Bargains”, “Wholesale”, “Discount”, etc.); (h) utilize pop-up or pop-under technology to promote Company products without prior written authorization; (i) make any representations, warranties, claims, or other statements concerning Mogek Network or any of Mogek Network’s Offers, products, Servicesor policies except as approved or provided by Company; or (j) use any third party brand names, trademarks, copyrightsor other intellectual property in the search campaignwithout express and written authorizationof such third party, which must be provided together with the Insertion Order(s) prior to initiating any advertising campaign with Mogek Network.
- Exclusivity. If the Insertion Order(s) is marked“Exclusive,” then Advertiser agrees that Mogek Network shall be the exclusive affiliate network(and provider of marketing)for that campaign, offer, or program and Advertiser shall not contract for affiliate marketing with any other digital advertising and affiliate marketing servicefor that campaign, offer, or program.
- Authority. Advertiser represents and warrants that Advertiser is qualified and licensed to do business and is in good standing in every jurisdiction where such qualification and licensing is required for purposes of this Agreement; Advertiser has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder; Advertiser has taken all necessary corporate action(s)to authorize the execution of this Agreement by its representative whose signature is set forth at the end hereof and who is authorized to bind Advertiser to all terms of this Agreement; and when executed and delivered by Advertiser and/orAdvertiser’s representative, this Agreement will constitute the legal, valid and binding obligation of Advertiserand Guarantorenforceable against it in accordance with its terms.
- Prohibited Uses. Advertiser shall not use Mogek Network’s Servicesor the Network in any way to:Advertiser shallonly use the Servicesfor lawful purposes, in compliance with all applicable laws, regulations, ordinances, orders, rulings, findings, guidelines, procedures, and all other applicable requirements, including, but not limited to those issued by the Federal Trade Commissionand its state and local equivalents,CAN-SPAM Act, The Uniform Deceptive Trade Practices Act, Telephone Consumer Protection Act (TCPA),or other similar legislation that is in effect in every jurisdiction in which the Advertiserdoesbusiness, copyright, trademark, obscenity and defamation laws. Unlawful activities may include (without limit) deceptive advertising, storing, distributing,or transmitting any unlawful material, attempting to compromise the security of any networked account or site, or making direct threats of physical harm. Advertiserhereby agreesto defend, indemnify,and hold Mogek Network harmless against any claim or action that arises from Advertiser’suse of the Servicesor Networkin an unlawful manner or in any manner inconsistent with the restrictions and policies stated herein. Except as may be expressly provided elsewhere in this Agreement or except to the extent applicable law precludes such activities from being prohibited by contract, Advertisershall not: decompile, reverse engineer, disassemble or otherwise determine or attempt to determine source code or the executable code of the Servicesor create any derivative works based upon the Services, or authorize any third party to do so; rent, lease, distribute, or resell the Services, or attempt to do any of the foregoing; or obfuscate, remove or alter any of the logos, trademarks, internet links, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Servicesor the related documentationthat is not the property of Advertiser. The Advertisershall not and shall not allow anyone working on Advertiser’sbehalf to (i) perform any technical security integrity review, penetration test, load Page 11of 16test, simulation,or vulnerability scan without Mogek Network’s prior written consent, or (ii) attempt to access the data of another Mogek Network customer, publisher,or advertiser.
- offer points, rewards, cash, prizes, contest entries, or other incentives to consumers in return for their response to any Advertisement;
- use any method to generate impressions, clicks, or transactions that are not initiatedby the affirmative action of the consumer;
- run any Advertisement containing Co-Registration;
- transmit any fraudulent, deceptive, misleading, unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene,or otherwise objectionable materialof any kind, as determined by Mogek Network;
- transmit any materialwhich contains, promotes, or has links to profanity, sexually explicit materials, hate material, libelous or defamatory material, or material that promotes promote violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other material deemed by Mogek Network to be unsuitable or harmful to the reputation of Mogek Network;
- promote or reference illegal activities including, without limitation, the promotion of gambling, illegal substances, software piracy, or hacking;
- run any Advertisement where Advertiser is labeled as an “official site” or similar designation or include any other designation indicating the Ad is an “official” advertisement or web site of the Advertiser;
- violate or infringe the personal rights, trademarks, copyrights, patent rights, services marks, trade dress, logos, publicity rights, or any other intellectual property right of any third party;
- send spamming, chain letters, junk mail or distribution lists to contact any person who has not given specific permission to be included in such;
- send communications to a wireless device via text message;
- send Advertisements via facsimile or telemarketing (including, without limitation, by use of prerecorded or artificial voice messages);
- use any false, fake, unsubstantiated, untruthful Testimonials, endorsements, reviews, news reports or articles, scientific evidence, medical opinions, findings, or experiences;
- include in any Ad content any “worm,” “virus” or other device that could impair or injure any person, entity, or equipment;
- include in any Ad Content any Testimonial unless either (i) the Testimonialis truthful, non-misleading, and substantiated, reflects the honest opinions, findings, and/or experiences of the person providing the Testimonial, and otherwise complies with current Federal Trade Commission Guidelines concerning the use of endorsements and testimonials in advertising, or (ii) Publisher clearly and conspicuously discloses, in close proximity to the Testimonial, that the Testimonialis fictitious and not based on the actual opinions, findings, and/or experiences of any person;
- include a photo or other image of any celebrityendorsementand/or testimonials purporting to have been made by a celebrityor other individuals without having their express written consent
- Termination. Other than as specified in this Agreement, either party may terminate this Agreement,and/or any Insertion Order(s),at any timeby delivering to the other forty-eight (48)hours advance written notice of such party’s intent to terminate.No termination shall be effective, and this Agreement shall remain in full force and effect,until forty-eight (48) hoursafter the other party receives the terminatingparty’s notice of termination. Advertiser shallcontinue to be obligated to pay for all Servicesprovided to Advertiser until the end of the termination period of forty-eight (48) hours.Upon termination or expiration of this Agreement,for any reason,Advertiser shall:
- Pay Mogek Network for all outstanding amounts then due and owing in accordance with these Terms; and.
- Continue to perform its obligations under Sections 10, 11,12, 20, and any other provisions of the Agreement which are to expressly survive, or that may reasonably be expected to survive, or until termination or expiration of thisAgreement.
- Ownership of Website, Services, and Intellectual Property.
- Advertiser Content. Advertiser and its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to the Ads and Ad Content,including all Intellectual Property Rights therein. Advertiser hereby grants thePublishers, a limited, irrevocable, fully paid-up, royalty-free, non-transferable, non-sublicenseable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell and otherwise exploit any of the Ads and AdContent solely to the extent reasonably required in connection with Advertiser’s receipt or use of the Servicesdescribed herein. All other rights in and to the Ads and AdContent are expressly reserved by Advertiser.Upon termination or expiration of this Agreement or the Servicesof Mogek Network, for any reason, this license shall automatically and immediately cease.
- Approval of Advertiser Content. Mogek Network reserves the right to approve, omit, or edit, for content or reject any Ads or Ad Contentfor any reason at any time. In addition, we reserve the right, at any time to remove any Ad Contentif we determine, in our sole discretion, that theAds orAd Contentor any portion thereof, violates any of our policies or may result in liability to us. In addition, Mogek Network shall have the absolute right to reject any URL link embodied within any Ador Ad Content. Mogek Network’s failure to reject, cancel, approve, omit, edit, or modify any Ads or Ad Contentshall not be construed as an acceptance of the Ads or Ad Content,nor would this negate other parts of this Agreement, specifically with respect to liability.
- Ownership of Servicesand Network. Mogek Network retains all ownership, right, and interest in the website, Network, Servicesand Intellectual Property of Mogek Network. Mogek Network’s Servicesare being licensed to the Advertiser, not sold, for the Advertiser’suse in accordancewith the terms and conditions set forth in this Agreement. All marks, graphics, logos, product names, Servicesmarks, domain names, trademarks, trade dressandnames, in connection with Mogek Network’s websites or Services, are the sole property of Mogek Network. Advertiser is strictly prohibited from using, modifying, copying,or misappropriating any of Mogek Network’s intellectual property.Upon termination or expiration of this Agreement or the Servicesof Mogek Network, for any reason, this license shall automatically and immediately cease.
- Non-Disclosureand Confidentiality.
- Non-Disclosure. As an advertiser with Mogek Network,itis anticipated that Mogek Networkmay disclose or deliver to Advertisercertain trade secrets, and/or Confidential Information, as defined herein, belonging to Mogek Networkand/or its clients, Publishers.“Confidential Information” includes, but is not limited to, all proprietary or business-sensitive information, whether oral, written, graphic, machine-readable or tangible form, and whether or not registered, and including all notes, plans, records, documents, computer programs and software and other evidence thereof, including without limitation all: methods, know-how, strategies, patents, patent applications, copyrights, trademarks, trade names, Servicesmarks, customer or client lists, pricing policies, operational methods, marketing plans or strategies, procurement and sales activities or methods, promotion and pricing techniques, credit and financial data, and other information, data and documents now existing or to be created by Mogek Network, regardless of whether any of such information, data or documents qualify as a “trade secret” under applicable federal or state law.Mogek Networkwishes to ensure that the information so exchanged is treated by its advertisers in the strictest confidence, and Advertiseragreesto treat all informationAdvertiserreceivesfrom Mogek Networkin the strictest confidence.Advertiser shall hold the Confidential Information in the strictest confidence and shall not disclose the Confidential Information to any third party without Mogek Network’s written consent. Advertiseragreesnot to disclose any Confidential Information to any unauthorized person and promise not to use any Confidential Information for any purpose other than in connection with the subject matter contained inthis Agreement. Upon termination or expiration of this Agreement for any reason, with or without cause, Advertisershall immediately surrender and turn over to Mogek Networkall proprietary and Confidential Information in the Advertiser’spossession.
- Procedure. If Advertiserbecomeslegally compelled to disclose any Confidential Information, Advertisershall provide to Mogek Network: (1) prompt written notice of such requirement so that Mogek Networkmay seek, at its sole cost and expense, a protective order or other remedy; and (2) reasonable assistance, at Mogek Network’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, Advertiserremainsrequired by law to disclose any Confidential Information, Advertisershall disclose no more than that portion of the Confidential Information which, on the advice of Advertiser’slegal counsel, Advertiserislegally required to disclose, and, upon Mogek Network’s request, Advertisershall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
- Injunctive Relief. The Parties recognize that each Party has legitimate business interests to protect and as a consequence, each Party, and its principals, agree to the restrictions contained in this Agreement because they further each Party’s legitimate business interests. The Parties acknowledge and agree that damages in the event of a breach or threatened breach of the covenants contained above in this Agreement will be difficult to determine and the non-breaching Party will not have an adequate remedy at law, and therefore the Parties agree that they may, in addition to seeking actual damages, seek specific enforcement of the covenants set forth in this Agreement in any court of competent jurisdiction, including, without limitation, by the issuance of a temporary or permanent injunction, without notice and without the necessity of a bond. The Parties agree that the covenants in this Agreement are reasonable, including without limitation the period of time, scope, and geographical area. However, should any court determine that any provision is unreasonable, the Parties agree that the covenants should be interpreted and enforced to the maximum extent such court deems reasonable under applicable law.The Parties’ obligations contained in this Section 10shall survive the termination of this Agreement for any reason.
- Non-Circumvent.Advertiser recognizes that Mogek Networkhas proprietary relationships with its Publishers. Advertiser agrees not to circumvent mogektwork’s relationship with such Publishers, or to otherwise solicit, purchase, contract for or obtain Servicessimilar to the Servicesperformed by mogektwork hereunder from any Publisher that is known, or should reasonably be known, by Advertiser to have such a relationship with mogektwork. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers already provided such Servicesto Advertiser prior to the date of the first Insertion Order(s)and/or Addendum 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 Section11 will not be adequate and that mogektwork shall be entitled toinjunctive relief (including temporary and preliminary relief) without the requirement to post a bond, in additional to any other availablelegal remedies or damages.
- Indemnification. Advertiser agrees to defend, indemnity and hold harmless Mogek Network and its respective directors, officers, employees, and agents from any and all losses, damages, demands, claims, assessments, actions, deficiencies, penalties, interest, reasonable attorneys’ fees (including without limitation those incurred to enforce this indemnity), and other costs and expenses(collectively “Losses”), related to orincurred as a result of Advertiser’s actions, inactions, negligence, Advertisements, Ad Content, Campaign, and/orAdvertiser’s breach of any portion of this Agreement or applicable Insertion Order(s)and/or Addendum. If any action is brought against Mogek Network with respect to any allegation for which indemnity may be sought from Advertiser, Mogek Networkwill promptly notify Advertiserof any such claim of which it becomes aware and will (i) provide reasonable cooperation to Advertiserat Advertiser’sexpense in connection with the defense or settlement of any such claim and (ii) be entitled to participate at its own expense in the defense of any such claim. Advertisershallnot acquiesce to any judgment or enter into any settlement that adversely affectsMogek Network’s rights or interests without the prior written consent of Mogek Network
- Insurance Requirements.Prior to entering into these Terms, Advertisershall secure proper insurance coverage for its own respective businesses and maintain such insurance through the duration of this Agreement, which includes, Commercial General & Contractual Liability Insurance, Professional Liability Insurance, Workers Compensation Insurance,Cyber Insurance, Advertising Insurance, Business Interruption Insurance,and Commercial Automobile Liability Insurance coverage, as well as sufficient coverage for TCPA claims should advertiser engage in any telemarketing or SMS marketing.Mogek Networkshall be identified as an additional named insured in each policy of insurance. All insurance shall be adequate to protect Mogek Networkfrom any claims or damages for any accident, incident, personal injury or death which may arise from Advertiser’s use of the Services under these Terms. Upon request by Mogek Network, Advertiser shall provide Mogek Network with proof of securing all such required insurance.
- DISCLAIMER OF WARRANTIES.Mogek NetworkPROVIDES ITS SERVICESON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY OF THE SERVICES.IN THE EVENT OF INTERRUPTION OF ANY OF Mogek Network’S SERVICES,Mogek Network’S SOLE OBLIGATION WILL BE TO RESTORE THE SERVICESAS SOON AS PRACTICABLE. Mogek NetworkDISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL Mogek NetworkBE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARYOR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTION OF BUSINESS, LOSS OF USE, LOST BUSINESS, LOST PROFITS, LOSS OF INFORMATION OR DATA, OR THE LIKE(EVEN IF Mogek NetworkWAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENTOR INSERTION ORDER(S), OR THE ADVERTISER’SUSE OF Mogek Network’S SERVICES. UNDER NO CIRCUMSTANCES SHALL Mogek NetworkBE LIABLE TO THE ADVERTISER OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED BY Mogek NetworkFROM ADVERTISERUNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO LIABILITY. Mogek NetworkSHALL NOT BE RESPONSIBLE FOR ANY CONDUCT OR FRAUD OF THE ADVERTISER, PUBLISHER(S), ONLINE USERSOR CONSUMERS, OR ANY OTHER THIRD PARTIES.
- Notices. Unless otherwise set forth herein, all notices shall be sent to the addresses submitted by Advertiserwhen enrolling, registering, or creating an account with Mogek Network, or when using Mogek Network’s Website, Network,or Services, by certified mail, facsimile, electronic mail (e-mail) or courier. Mogek Network’s Servicesare conducted andprovided electronically. Therefore, Advertiseragreesthat Mogek Networkmay communicate electronically with the Advertiserwith respect to any and all matters relating to the Servicesand/or these Terms. Advertiserfurther agrees that any notice or other communication that is sentelectronicallyto Advertiser’s contact information provided within the Insertion Order(s), unless subsequently updated in writing by Advertiser,will satisfy and constitute valid notice under these Terms,andwill constitute valid noticeunder Chapter 682, Florida Statutes (Revised Florida Arbitration Code)inany arbitration proceeding brought pursuant to Section 19of these Terms.
- Survival. Each provision of this Agreement reasonably intended by its terms to survive termination or expiration of this Agreement shall so survive.
- Attorneys’ Fees.If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret any provision or provisions of this Agreement, the prevailing party will be entitled toits/his/herreasonable attorneys’ fees in addition toall other costs associated with the action or appealwhether or not the action advances to judgment,including any and all costs for expert witnesses,in addition to any other relief to which that party may be entitled.
- Arbitration.Any controversy or claim arising out of or relating to this Agreement(including any Insertion Order(s) and/or Addendum), or the breach thereof, in which the total amount in controversy of the action, including any claim, counterclaim, and/or third party claim, exceeds $150,000.00 (exclusive of interest, fees, and costs) shall be settled by binding arbitration administered by the American Arbitration Association (AAA) in Miami, Florida, in accordance with the AAA’s Commercial Arbitration Rules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. All claims shall be heard by a single arbitrator and the arbitration shall be governed by the laws of the State of Florida. Pursuant to the notice provisions of Section 16 of thisAgreement, Advertiser agrees that notice of the initiation of the arbitration and all other notices in any such proceeding may be provided electronically, including via e-mail or by instant message, to Advertiser’s contact information provided when enrolling, registering, or creating an account with Mogek Network, which shall satisfy the notice requirements of Fla. Stat. §682.032. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. The prevailing party in any such arbitration shall be entitled to an award of its reasonable attorney’s fees and costs. The award of the arbitrators shall be accompanied by a reasoned opinion. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness(es). In such event, the other party shall be required to present evidenceand legal argument as the arbitrator may require for the making of an award.
- Miscellaneous. This Agreement will be governed and construed in accordance with the laws of the state of Florida without giving effect to conflict of laws principles, and all federal law. In the event of any dispute between the parties’ arising from this Agreement, including the Insertion Order(s)or any Addendum, the Advertiseragreesto submit to exclusive jurisdiction and venue inMiami-Dade County, Florida. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by the Advertiser and/or Guarantor (whether by operation of law or otherwise) without the prior written consent of Mogek Network. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture,or employee-employer relationship is intended or created by this Agreement. This Agreement, including any active Insertion Order(s)or any Addendumbetween the parties, sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Except as otherwise set forth herein, only a writing signed by both parties may change this Agreement or any Insertion Order(s)or Addendum. In the event the terms of any Insertion Order(s) or Addendum and these Terms conflict, the InsertionOrder(s) and/or Addendum will govern only with respect to the duration of the Services, fees,billing,invoicing and payment terms, otherwise these Terms shall govern and control. Mogek Network’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.
- WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED UPON THIS AGREEMENT OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE INSERTION ORDER(S), ADDENDUM, OR ANY OTHER AGREEMENT CONTEMPLATED AND EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF DEALING, COURSE OF CONDUCT, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO.
- Personal Guaranty. As consideration for this Agreement and the Servicesprovided by mogektwork, the Guarantor, intending to be legally bound, personally, irrevocably, and unconditionally guarantees payment and performance of, and as a primary debtor agrees to be jointly liable for (without becoming entitled to the benefits of) all terms and conditions of this Agreement and all of Advertiser’s obligations hereunder, until all of Advertiser’s obligations under this Agreement are satisfied, including payment of collection costs and attorney’sfees. Mogek Network may first proceed against the Guarantor without resorting to other remedies, and Guarantor waives any statutory or other right to require otherwise. Guarantor waives subrogation rights; waives defenses and rights relating to impairment, invalidity, modification, extension of this Agreement, or relating to substitution, dishonor, release, or compromise of the Advertiser; waives demand, protest, and presentment; and waives all notices relating to the foregoing. The liability of Guarantor is continuing and relates to any obligations to mogektwork incurred by Advertiser, including those arising under successive transactions which shall either continue the Guarantor’s indebtedness to Mogek Network or from time to time renew it after it has been satisfied. This guaranty is cumulative anddoes not supersede any other outstanding guaranties, and the liability of Guarantor under this guaranty is exclusive of Guarantor’s liability under any other guaranties signed by Guarantor.This guaranty shall be governed by the laws of the State of Florida, and Guarantor consents to the personal jurisdiction and exclusive venue of federal and state courts in Miami-Dade County Florida as specifically identified in these Terms.
Approved and accepted by:
|ADVERTISER Signature||GUARANTOR Signature|
|____________________________________ Printed Name Title Date:______________________________||______________________________________ Printed Name Title Date:______________________________|
|THE Mogek Network LLC|
|Signature Printed Name Title||Date:______________________________|
INDIVIDUAL PERSONAL GUARANTY
THE UNDERSIGNED,_____________________________________________(“GUARANTOR”), in consideration of the extension of
credit to ________________________________________________________(“Advertiser”) by THE Mogek Network, LLC (“Affiliati”) hereby agrees and covenants to Section 22 of Mogek Network ADVERTISER TERMS AND CONDITIONS
IN WITNESS WHEREOF, this Guaranty is executed as of _______________________