TERMS AND CONDITIONS Updated on 06/20/2024
The following terms and conditions (this “Agreement”) is a legal agreement between The Amici Group and Affiliate. Affiliate and The Amici Group may also be individually referred to herein as the “Party” and collectively as “Parties”. If there is any conflict between this Agreement and the insertion order(s) (“Insertion Order”), the Insertion Order(s) shall control.
Network Description; Use of the Network. The Amici Group may make available certain materials to the Affiliate or Affiliate may create its own materials subject to the compliance requirements set forth herein (collectively, “Materials”) for placement on or distribution through Affiliate’s media properties for the purpose of generating a Commissionable Action (as defined in Section 5 below) for the benefit of The Amici Group’s clients (“Advertiser(s)”).
If Affiliate contracts with or otherwise engages or arranges for other parties (“Sub-Affiliates”) to distribute Materials, Affiliate (a) must require each Sub-Affiliate to agree in writing to terms and conditions substantially similar to the terms and conditions stated in Section 7 of this Agreement and Exhibit A – Affiliate Responsibilities, and (b) remain solely responsible and liable to The Amici Group and/or Advertiser(s), as applicable, for all of the actions (or failure to act) of any such Sub-Affiliates or any other parties working with, for, or under such Sub-Affiliates. Affiliate must keep records of all Sub-Affiliates and Materials distributed by Sub-Affiliates during the term that this Agreement remains effective and for a period of one (1) year thereafter. Affiliate must immediately comply with any demand made by The Amici Group to terminate any Sub-Affiliate from distributing Materials; failure to comply immediately with this demand may result in Affiliate’s termination from The Amici Group, loss of Affiliate Fees, and/or any other remedy available to The Amici Group at its discretion.
Payout. Subject to other provisions in this Agreement and unless otherwise stated in an Insertion Order, all tracking and payment of fees shall be provided through The Amici Group in accordance with the payout rate identified by The Amici Group (“Affiliate Fees”). The Amici Group shall have no obligation to make payment of any Affiliate Fees that are not Qualified Leads. All Affiliate Fees will be paid in US Dollars ($US).
Payment Terms. Affiliate will invoice The Amici Group on a monthly basis at the payout rates reflected in the Insert Order. The invoice will reflect delivery of Commissionable Actions that are based upon numbers reported by The Amici Group. The Amici Group shall make all payments to Affiliate within thirty (30) days of the invoice date. All payments made to Affiliate do not include, and Affiliate shall pay, any sales, use or similar tax associated with such payment.
SEQUENTIAL LIABILITY. ALL PAYMENT TO AFFILIATE BY THE AMICI GROUP IS CONTINGENT UPON THE AMICI GROUP RECEIVING PAYMENT FROM THE APPLICABLE ADVERTISER. IN THE EVENT THE AMICI GROUP FAILS TO RECEIVE PAYMENT FROM ADVERTISER, THE AMICI GROUP SHALL HAVE NO PAYMENT OBLIGATION TO AFFILIATE.
Commissionable Action Validation Procedure. Because what constitutes a “Commissionable Action” for purposes of this Agreement may vary depending on the Advertiser, The Amici Group shall identify what constitutes a Commissionable Action as to a particular Advertiser through the Insertion Order or otherwise in writing to Affiliate. Subject to the foregoing, examples of a Commissionable Action may include an Affiliate’s action which results in a consumer’s click or conversion, an advertisment’s impression or display to a consumer, or a consumer’s input of valid and unique data in fields specified through The Amici Group. In the case of any dispute between the parties as to what constitutes a Commissionable Action or the number of Commissionable Actions, The Amici Group’s determination will control.
Audit Rights. The Amici Group shall have the right to perform an audit to ensure Affiliate’s compliance with this Agreement, including Exhibit A, the Insertion Order, and any other instruction provided to the Affiliate. The Amici Group shall bear the expense of any audit conducted, except in the event the audit determines non-compliance, breach or engagement by the Affiliate. In such an event, The Amici Group reserves the right to withhold payment, and/or immediately terminate this Agreement and Affiliate will bear the costs of the audit and shall pay any amount owed according to the audit, plus interest.
Fraud. The Amici Group reserves the right to terminate this Agreement and investigate Affiliate for any activity that The Amici Group suspects as fraudulent, at its sole discretion. “Fraudulent Activity” for the purposes of this Agreement includes, but is not limited to, activity that:
places links on incentivized websites without The Amici Group’s prior written consent; generates multiple leads using proxy servers; generates traffic in a manner other than as set forth in the Insertion Order; uses fake redirects, automated software, or fraud to generate clicks or leads; uses bots to automatically create conversions; or artificially inflates revenues or disadvantages The Amici Group or an Advertiser in any way.
If The Amici Group determines that Affiliate has engaged in Fraudulent Activity, Affiliate shall forfeit all Affiliate Fees under this Agreement. In addition, in the event that Affiliate has already received payment resulting from any Fraudulent Activity, The Amici Group reserves the right to seek credit from future earnings, to demand full refund from Affiliate for all such payments, or to seek further damages.
Advertising Guidelines. With respect to the Materials provided by it, The Amici Group grants to Affiliate a non-exclusive, transferable, revocable, sub-licensable right and license to use, reproduce, display, transmit, and distribute the Materials for the purposes of performance of this Agreement. Affiliate shall not alter, cut, crop, resize, modify, or make any other change to the Materials without The Amici Group’s prior consent. Materials include, but are not limited to, text ads, graphic ads, from and subject line, any copy associated with the campaign. Nothing contained within this Agreement grants Affiliate any intellectual property or ownership right to the Materials, and Affiliate may not copy, reproduce or create derivative works of the Materials for any purpose outside of this Agreement without The Amici Group’s prior consent. Any changes to Materials without prior written permission will result in the loss of payment for Affiliate Fees.
Termination. Either party may terminate this Agreement by providing the other party with two (2) business day’s prior written notice. If Affiliate breaches any of its obligations under this Agreement, it shall forfeit any and all payments under this Agreement. Upon termination of this Agreement, any license granted under this Agreement shall be revoked, and Affiliate shall immediately remove and discontinue the use of any Materials provided by The Amici Group and cease conducting campaigns on behalf of The Amici Group. Any provisions of this Agreement that may reasonably be expected to survive termination or expiration of the Agreement shall survive and remain in effect in accordance with their terms.
Confidentiality. All non-public information, data and reports received from The Amici Group hereunder or as part of the services hereunder is proprietary to and owned by The Amici Group. (“Confidential Information”). Affiliate agrees not to disclose the terms of this Agreement, including the commission value, to any third party without the express written consent of The Amici Group, and that such constitutes Confidential Information. All Confidential Information is or may be protected by copyright, trademark, trade secret and other intellectual property law, as appropriate. Affiliate agrees not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary or Confidential Information in any manner. These non-disclosure obligations shall survive the termination of this Agreement for a period of five (5) years. This section does not bind The Amici Group or Affiliate in the event such information is required to be disclosed by operation of law. If a request is made of Affiliate to disclose such information, Affiliate must immediately inform The Amici Group via written notice sufficiently promptly to allow The Amici Group to seek a protective order prior to the time commanded to produce or disclose such Confidential Information, and Affiliate agrees to cooperate in whatever way The Amici Group requests to attempt to protect that information from disclosure by operation of law. Subject to prior approval by Affiliate, The Amici Group may publicly announce its contractual relationship with Affiliate, which includes being on a listing of The Amici Group affiliates in general corporate materials and in industry standard press releases.
The Amici Group Representations and Warranties. Affiliate represents and warrants that it will at all times comply with the materials obligations imposed on it under this Agreement, including but not limited to the requirements listed in Exhibit A of this Agreement. The failure to comply with any material obligation of this Agreement shall result in the loss of payment of Affiliate Fees, in addition to any other remedy available to The Amici Group at law or in equity. Affiliate acknowledges that The Amici Group makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement; and that:
the information provided by is Affiliate is accurate, truthful and complete; Affiliate has the full corporate right, power, and authority to enter into this Agreement, to grant the rights and licenses granted and to perform the acts required of it; the execution of this Agreement by Affiliate, and the performance by Affiliate of its obligations and duties, do not and will not violate: any agreement to which Affiliate is a party or by which it is otherwise bound, any applicable governmental law or regulation to which it is subject, or any trademark, copyright, intellectual property, or other third party right; when executed and delivered by Affiliate, this Agreement will constitute the legal, valid, and binding obligation of such Party in accordance with its terms; Affiliate will abide by the terms and conditions set forth in this Agreement; and Affiliate has obtained all licenses, authorizations, approvals, consents or permits required to perform its obligations under this Agreement and to conduct its business.
Indemnity. Affiliate agrees to indemnify, defend, and hold harmless The Amici Group, its affiliates, subsidiaries, agents, affiliates, publishers, employees, and officers from and against any and all third party losses, liabilities, claims, damages, costs, and attorneys’ fees arising out of or related to Affiliate’s breach of this Agreement (including but not limited to, Exhibit A) and/or the Insertion Orders.
Limitations of Liability. In no event shall The Amici Group be liable for any special, indirect, incidental or consequential damages (including, without limitation, for breach of contract, warranty, negligence or strict liability), or for interrupted communications, loss of use, lost business, lost data or lost profits, arising out of or in connection with this Agreement. Under no circumstances shall The Amici Group be liable to Affiliate or any third parties for an amount greater than the amounts paid by The Amici Group to Affiliate during the prior three months.
Damages. In the event of breach or non-compliance of this Agreement by Affiliate, Affiliate shall be liable to pay the greater of: (i) $100,000 in liquidated damages plus refund all payments made related to breach; or (ii) The Amici Group’s actual and consequential damages, including lost profits, plus refund of all payments made related to breach or non-compliance. Affiliate agrees that the liquidated damages constitutes compensation and are not construed as a penalty, that actual and consequential damages may be difficult to estimate, and liquidated damages are a reasonable estimate of the anticipated actual damages. Affiliate agrees that The Amici Group’s actual and consequential damages include, in the event Affiliate’s breach or non-compliance causes a customer, client or network advertiser to cease its relationship with The Amici Group, three (3) times the average monthly revenue previously generated by The Amici Group through such customer, client or network advertiser. The Amici Group shall be entitled to an award of its reasonable costs and expenses, including attorneys’ fees, in any action or proceeding arising out of this Agreement.
Injunctive Relief. The Affiliate acknowledges and agrees that, due to the unique nature of intellectual property, licenses, and The Amici Group Confidential Information, there may be no adequate remedy at law for The Amici Group as a result of any breach of the Affiliate’s obligations hereunder, that any such breach may allow the Affiliate or third parties to unfairly compete with The Amici Group resulting in irreparable harm to The Amici Group, and therefore, that upon any such breach or any threat thereof, The Amici Group shall be entitled to seek appropriate equitable relief, without the requirement of posting a bond or other security, in addition to whatever remedies it might have under this Agreement or at law.
Assignment. Affiliate may not assign or transfer any of its rights under this Agreement without the prior written consent of The Amici Group. The Amici Group may transfer The Amici Group’s rights under this Agreement without the prior written consent of Affiliate.
Independent Contractors. The parties hereto are independent contractors without the authority to bind the other party or incur any obligation on its behalf. There is no relationship of partnership, joint venture, agency, employment, or franchise relationship between the parties as a result of this Agreement.
Non-Waiver/Severability/Cumulative. The failure to enforce any performance by the other party of any provision of this Agreement or to exercise its right under this Agreement shall not be deemed a waiver or relinquishment of such right, and no breach shall be considered excused unless such waiver is in writing. If any portion of this Agreement is ruled to be unenforceable, the remaining portions of the Agreement shall remain in full force and effect. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or later be available at law, in equity, by statute, in any other agreement between the parties, or otherwise.
Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of Florida without regard to its conflict of laws principles. The parties submit to the exclusive jurisdiction of the federal or state courts in Florida, and Affiliate consents to the personal jurisdiction in those courts.
Notices. All notices under this Agreement from one party to the other will be sent in writing and transmitted via certified mail, courier, or email to the addresses provided in connection with this Agreement, or any other address as designated by Affiliate and The Amici Group. A copy of any notice of a legal nature sent to The Amici Group hereunder shall also be sent via email to sal@theamicigroup.com.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document and delivered to the other by means of electronic transmission.
Entire Agreement. This Agreement, including all related Insertion Orders, is the entire agreement between the parties relating to the subject matter herein and supersedes all prior or contemporaneous oral or written agreements and representations between the parties.
EXHIBIT A Affiliate Responsibilities
The following responsibilities apply to all affiliates participating in The Amici Group’s program.
Compliance with Applicable Law. Affiliate is solely responsible for ensuring that it complies and will comply with all applicable international, federal, and state laws, rules, and regulations including (without limitation) with respect to advertising practices, marketing and telemarketing practices, consumer data, privacy, consumer protection, and/or intellectual property, as well as all administrative orders and guidance promulgated by international, federal, and state regulatory agencies as applicable, including (without limitation) the Federal Trade Commission, Federal Communications Commission, the Consumer Financial Protection Bureau, the Securities and Exchange Commission, and/or the Federal Food and Drug Administration.
Prohibited Content. Unless The Amici Group provides prior written consent, any websites, emails, advertisements, links, or other media properties used by Affiliate must meet the following requirements:
not include content that is deceptive or misleading or otherwise fails to comply with applicable federal and state consumer protection laws;
not infringe upon the personal rights, trademark, trade name, logo, publicity right, copyright, or other intellectual property of any third party;
not contain content that is an invasion of privacy, degrading, libelous, unlawful, deceptive, profane, obscene, violent, discriminatory, pornographic, hate speech, tends to ridicule or embarrass, or is in bad taste, at the sole discretion of The Amici Group;
not offer incentives, points, rewards, cash, or prizes to consumers in return for their response to the advertisement;
not spawn malicious, false, or deceptive pop-ups or exit pop-ups;
not serve advertisements, or drive traffic to advertisements, using any spyware or similar downloadable application;
not use any methods to generate leads or sales that are not initiated by the affirmative action of a consumer;
not constitute any advertising via facsimile or telemarketing (including, without limitation, by use of prerecorded or artificial voice messages);
not constitute any advertising to wireless devices or portable electronic devices by text messaging in any form (including without limitation SMS, Smart Messaging, EMS, and MMS, unless with prior written approval;
not promote any illegal activity including without limitation the promotion of gambling, illegal substances, software piracy, or hacking;
not contain malware or adware;
not spoof, or redirect, traffic to or from any adult-oriented websites or any other websites not specifically designated by The Amici Group as a landing page.
Compliance with Email Marketing Requirements.
Affiliate shall send only permission-based email, meaning that all recipients of Affiliate’s email must have provided affirmative consent (opt-in) to receiving communications from Affiliate. Upon request, Affiliate shall provide The Amici Group with evidence of a user’s affirmative consent to Affiliate’s emails, including: (i) the date and time of sign up; (ii) the IP address of the recipient; (iii) the email address, first name, and last name of the recipient; and (iv) the website of sign up.
Links within emails must direct to the links provided by The Amici Group and may not be redirected to any other site. Emails must use only “subject” and “from” lines provided by The Amici Group or approved by The Amici Group in writing. Affiliate is prohibited from removing or altering any “subject” and “from” lines once approved by The Amici Group.
Affiliate may only use its own properly registered domain names and IP addresses, subject to The Amici Group’s approval, to disseminate emails. Affiliate may not misrepresent or use deceptive practices in order to conceal Affiliate’s identity or to send emails from a forged sender address. The use of an originating email domain name that is privately registered, or registered with information that is false, fails to identify the person or entity who transmitted the email message, or fails to provide accurate contact information for the person who transmitted the email message is prohibited.
Affiliate shall submit proposed opt-out language to The Amici Group for review prior to utilizing any opt-out language on behalf of The Amici Group. Upon approval, Affiliate agrees to conspicuously display the opt-out language in accordance with applicable laws. The Amici Group may request a change in the language at any time and for any reason.
Text Messaging Requirements.
Affiliate shall obtain written consent from all individuals to be contacted. Such consent shall conform with the TCPA and applicable laws, including at a minimum: (i) consent by an individual to receive correspondence via an automatic telephone dialing system; (ii) confirmation that the Affiliate may contact the individual for telemarketing purposes; (iii) confirmation that the individual does not need to provide consent in order to receive services; and (iv) confirmation of individual’s phone number.
Affiliate shall submit proposed consent language to The Amici Group for review and approval. Upon approval, Affiliate agrees to conspicuously display the consent language in accordance with applicable law. The Amici Group may request a change in the language at any time and for any reason.
Affiliate shall store records of consent by individuals for four (4) years from the date consent was provided. Such records shall include information regarding the individuals IP address, timestamp, a screenshot of the consent, corresponding form data, and the material shown to the individual. Upon written request, Affiliate shall provide to The Amici Group such records confirming consent by an individual to receive telephone solicitations, along with the applicable disclaimer.
