Terms & Conditions
NETWORK SERVICES AGREEMENT via CASH4Trafik.com
THIS NETWORK SERVICES AGREEMENT (“Agreement”) is entered into as of the day of terms accepted online via clickwrap by and between Aspira Networks, Inc., a Delaware corporation (“Aspira”) and the network operator that submitted acceptance of clickwrap agreement. (“Network Operator”), referred to herein jointly as the parties (“Parties”; each, a “Party”).
WHEREAS, Aspira is in the business of deploying proprietary ecommerce technologies in connection with public and private networks to enable Network Operators and Network Providers to track and monetize consumer transactions conducted over such network, when such transactions are consummated with third parties that affiliate with Aspira (“Aspira Network Services”);
WHEREAS, Network Operator provides a wired or wireless internet network that its customers, including Network Providers and their End Users, may access at discrete locations according to certain terms and conditions it has established; and
WHEREAS, Network Operator wishes to deploy Aspira’s Network Services on its network and its customers’ networks, including Network Providers’ networks,
NOW THEREFORE, in consideration of the foregoing and the mutual promises and covenants set forth herein, the Parties agree to be legally bound as follows:
1.1 “Advertiser” means any website with which Aspira has an approved agreement relating to transactions consummated by End Users on the Network, and which has agreed to pay commissions in connection with such transactions.
1.2 “Affiliate Network” any network of Advertisers with which Aspira has a signed agreement relating to transactions with End Users on the Network.
1.3 “Aspira Networks” means Aspira Networks, Inc., a Delaware corporation.
1.4 “Aspira Intellectual Property” means the Intellectual Property (as defined in Section 4.1) owned by Aspira, including without limitation the Intellectual Property relating to or included within the Aspira Technology.
1.5 “Aspira Technology” means the proprietary ecommerce technologies developed by Aspira to track individual ecommerce transactions over a Network, and which are used to facilitate revenue sharing arrangements with Aspira and Network Operator, when deployed on the Network pursuant to this Agreement.
1.6 “End User” means any person accessing the Network.
1.7 The “Network” means the specific network provided to End Users by the Network Provider or Network Operator.
1.8 “Network Operator” means entity mentioned above excuting agreement.
1.9 “Network Provider” means the party that owns or manages the location where Network Operator is providing internet connectivity services to End Users on a Network; Network Provider may be an affiliate of Network Operator or may in some cases be Network Operator itself.
1.11 “Qualifying Transaction” means any transaction consummated by an End User on the Network, which results in a payment from an Advertiser or Affiliate Network to Aspira.
1.12 The “Services” or the “Aspira Network Services” means Aspira’s deployment of the Aspira Technology on the Network pursuant to this Agreement, including any installation, modifications and enhancements thereto.
1.13 “Project Schedule” means the agreed upon timeframe for installation and deployment of the Aspira Technology on the Network, including the target installation date, and any other relevant deadlines and terms agreed upon by the Parties and set forth in the schedule signed by both Parties and attached to this Agreement as Exhibit “A”.
2. ASPIRA NETWORK SERVICES
2.1 Deployment of Aspira Technology. Subject to the terms and conditions of this Agreement, immediately following execution of this Agreement and the Project Schedule, Aspira will deploy the Aspira Technology on the Network or Networks and the Parties will cooperate to commence the installation and launch of the Aspira Services on the Network. Network Operator will grant access to Aspira equipment via secure shell (SSH) from the Internet using a dedicated public IP address, domain name, or any other solution as agreed to between the parties. All hardware and other equipment provided by Aspira in connection with deployment of the Aspira Technology and providing the Services will remain the property of Aspira and shall be leased to Network Operator at no cost during the term of this Agreement.
2.2 Launch of Services. The Services will be made available when reasonably practicable following the execution of this Agreement, but not later than the date agreed upon in the Project Schedule. Aspira will respond to written notice of any interruption or disruption of service, including any notice of malfunction of equipment, within 48 hours of such notice, and will make efforts to repair or replace equipment as may be reasonably practicable.
2.3 Payment of Commissions. Aspira will track transactions back to specific properties where the Qualifying Transactions originated and attribute those Qualifying Transactions to Network Operator in accordance with Section 2.3. In some instances Advertisers do not provide the ability to track Qualifying Transactions to specific properties due to limitations of Advertiser’s affiliate tracking system, in which case a proportionate share of commissions will be attributed to Network Operator based on the traffic delivered from Network Operator locations to Advertiser sites. Aspira will calculate the amount of commissions that may have been generated and then become due to Network Operator, in connection with any Qualifying Transactions each month during the term of this Agreement, and in accordance with Exhibit A. Aspira will provide Network Operator with monthly written notice of commissions that have accrued during the prior month and the Advertiser websites where Qualifying Transactions have occurred. Aspira makes no guarantees or warranties regarding the amount of commissions that may be paid or even that any commissions will be paid or will be available at any time during the term of this Agreement, and Aspira makes no representations or guarantees concerning the rates at which commissions may accrue. Commissions may accrue at different rates in connection with transactions consummated with different Advertisers. Network Operator, at its sole discretion, may share with Network Provider the Commissions it is paid by Aspira. Network Operator acknowledges that Aspira does not have a contractual relationship with Network Provider and that Aspira has no obligation to make Commission payments to Network Provider.
2.4 Timing of Payments. Accrued commissions, if any, will be paid to Network Operator within 15 days of Aspira’s receipt of commissions from the relevant Advertiser. All accounts will be settled in US dollars. No check will be issued for any amount that is less than $25.00 USD (“Minimum Payment Threshold”).
2.5 Disputed Payments. In the event Network Operator disagrees with any calculation by Aspira of the amount of commissions due, as set forth in notice provided by Aspira pursuant to Section 2.3, Network Operator shall, within thirty days of receipt of such notice, send a written request to Aspira detailing, with specificity, Network Operator’s concerns. Thereafter, Aspira will provide Network Operator with an explanation or, if such calculation is determined by Aspira to be incorrect, an adjustment. In all cases, Aspira’s calculations shall be final and binding.
2.6 Exclusions. Aspira will have no obligation to compensate Network Operator in connection with transactions consummated by End Users in violation of any of the restrictions, requirements or other terms and conditions set forth herein. Aspira’s obligation to submit payment to Network Operator is conditioned upon receipt of all required taxation documents from Network Operator (i.e. W-9 or W-8) and such payment amount being above the Minimum Payment Threshold. All unpaid amounts will rollover to the next pay period. As a condition to Aspira’s obligation to make payments hereunder to Network Operator, Network Operator must have on file with Aspira a completed and accurate W-9 (for US-based Network Operators) or a completed and accurate W-8 (for non-US-based Network Operators). Payments will be withheld until the appropriate taxation documents are received. Aspira reserves the absolute right to withhold payment from Network Operator’s account if Network Operator has violated any of the terms and conditions set forth herein. Aspira will determine, in its sole discretion, whether acts or omissions are deceptive, fraudulent or violate this Agreement.
2.7 Breach or Fraud. If Network Operator or Network Provider intentionally violates this Agreement, refuses to fulfill its responsibilities or commits fraudulent activity, Aspira reserves the right to withhold payment and take appropriate legal action and immediately terminate this Agreement. Network Operator expressly waives all rights, title and interest to any payments related to such breach or fraudulent activity.
3. TERM AND TERMINATION
3.1 Term of Agreement. This Agreement will be effective as of the date first set forth above in the preamble, it will be effective for a period of one year thereafter, and it will automatically renew for successive periods of 30 days thereafter, unless terminated by either Party under this Section 3.
3.2 Termination by Either Party. Either Party may terminate this Agreement on 30 days written notice to the other Party prior to the end of the initial term or any subsequent term.
3.5 Post-termination. Upon termination, Network Operator agrees to cooperate with Aspira immediately to remove from the Network all Aspira Technology and all Aspira Intellectual Property and return it to Aspira. In the event of a termination under Section 3.2, Network Operator will be paid in the next scheduled payment cycle following termination, all legitimate, non-fraudulently accrued, amounts due up to the time of termination. Network Operator will forfeit all rights to receive payment of commissions following the date of any termination pursuant to Section 3.4.
4. PROPRIETARY RIGHTS
4.1 Intellectual Property Ownership. Each party shall own and retain all right, title and interest in its trade names, logos, trademarks, service marks, trade dress, Internet domain names, URLs, copyrights, patents, trade secrets, testimonials, endorsements, know how, and proprietary technology, including without limitation those trade names, logos, trademarks, service marks, trade dress, Internet domain names, URLs copyrights, patents, trade secrets, testimonials, endorsements, know how, and proprietary technology currently used or which may be developed or used by it in the future (“Intellectual Property”) anywhere in the world. Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works, or otherwise use any of the Intellectual Property of the other party without the express prior written consent of such party. The intellectual property rights in the Aspira Technology and in any modifications, enhancements or customizations of the Aspira Technology shall be owned solely by Aspira. Network Operator shall not attempt to reverse engineer the Aspira Technology or in any way to modify, customize or alter the Aspira Technology without Aspira’s consent.
4.3 Data Ownership. All data, including but not limited to personally identifiable information provided by End Users in connection with a Qualifying Transaction, and any and all reports, results, or information created, compiled, analyzed, or derived by Aspira from such data is the sole and exclusive property of Advertiser or Aspira and is considered Confidential Information (as defined herein) pursuant to this Agreement. Aspira or Advertisers, in their sole discretion, shall have the right to market and re-market all such data, subject the terms of their respective privacy policies and subject to Section 4.2, above, without further obligation to Network Operator. Network Operator shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner whatsoever, such information, or any portion thereof, to any third-party.
5. NETWORK OPERATOR RESPONSIBILITIES; REPRESENTATIONS AND WARRANTIES
5.1 Maintaining the Network. Network Operator is solely responsible for maintaining the Network and providing Internet connectivity to End Users. Aspira will assist in trouble-shooting and responding to questions about the functionality of the hardware or software provided by Aspira, which is configured to deploy the Aspira Technology on the Network, but Aspira is not responsible for making the Network accessible to End Users.
5.3 Representations and Warranties.
(b) Network Operator further represents and warrants that (i) it operates the Network in compliance with all applicable laws and regulations; (ii) it does not collect, store or share with third parties the personally identifiable information pertaining to its customers without consent; and (iii) it has the authority to deploy third party software and solutions, such as the Aspira Network Services, at Network Providers’ locations.
6. DISCLAIMER OF FURTHER WARRANTIES; LIMITATIONS OF LIABILITIES
6.1 Disclaimer of further warranties by Aspira. THE ASPIRA TECHNOLOGY AND ALL SERVICES PROVIDED HEREUNDER BY ASPIRA ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ASPIRA EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED AND MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. ASPIRA IS NOT RESPONSIBLE FOR ANY FAILURE OF THE ASPIRA TECHNOLOGY TO FUNCTION DUE TO DELAYS OR INTERRUPTIONS TO NETWORK SERVICES CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY DUE TO ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL WHATSOEVER.
6.2 Disclaimer of Warranty of Continuous Operation of Network Services. Network Operator acknowledges that the Aspira Technology may be inaccessible, unavailable or inoperable for any reason whatsoever from time to time, including but not limited to: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that Aspira may undertake from time to time; or (iii) causes beyond the control of Aspira or that are not reasonably foreseeable by Aspira, including without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation or inaccessibility of websites or interfaces, network congestion, or other failures. While Aspira will attempt to make the Aspira Technology available over the Network on a continuous basis, Network Operator further acknowledges and agrees that (i) Aspira has no control over the availability or accessibility of the Network itself; (ii) Aspira is not responsible for the functionality of the Network or of any third-party website, including but not limited to those of Advertisers; (iii) Aspira’s failure to make the Aspira Technology available or accessible because of technical difficulties or for any reason out of its control does not amount to a failure to meet its obligations or result in breach of this Agreement and Network Operator expressly waives all rights, title and interest to dispute such failure.
6.3 Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL ASPIRA BE LIABLE TO NETWORK OPERATOR FOR ANY PUNITIVE DAMAGES, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES OR LOSSES, COSTS OR EXPENSES (EVEN IF ASPIRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL ASPIRA'S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE AMOUNT PAID TO ASPIRA IN COMMISSIONS RELATED TO QUALIFYING TRANSACTIONS OR ONE THOUSAND DOLLARS ($1,000.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST ASPIRA MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
6.4 Consideration. NETWORK OPERATOR ACKNOWLEDGES THAT ASPIRA HAS AGREED TO PROVIDE SERVICES IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. NETWORK OPERATOR AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO NETWORK OPERATOR.
7.1 Indemnification by Network Operator. Network Operator will indemnify, defend and hold harmless Aspira and its officers, directors, employees, subsidiaries, affiliates, agents, successors and assigns, and each of their respective officers, directors, employees, subsidiaries, affiliates, agents, successors and assigns (collectively “Aspira Indemnified Parties”) from and against any and all allegations, claims, actions, causes of action, lawsuits, inquiries, investigations, damages, liabilities, obligations, losses, orders, costs, and expenses (including without limitation reasonable attorneys' fees, court costs and witness fees) (collectively “Losses”) incurred by, or imposed or asserted against, the Aspira Indemnified Parties, which arise out of or relate to (a) the actions of the Network Operator’s agents, assigns and affiliates (b) any breach by Network Operator of any obligation, duty, representation, or warranty under this Agreement; (c) a contaminated file, virus, worm, or Trojan horse or similar technology that may reasonably be described as “malware” and that originates from the Network or from Network Operator’s websites; or (d) gross negligence or willful misconduct by Network Operator.
8. CONFIDENTIALITY, PUBLICITY AND NON-DISPARAGEMENT
8.1 Confidentiality. Network Operator acknowledges and agrees that Aspira may provide Network Operator with information that is confidential and proprietary to Aspira, Advertisers, affiliates or a third party, as is designated by Aspira or that is reasonably understood to be proprietary or confidential, including but not limited to (i) commission rates, (ii) the Aspira Technology (iii) Aspira’s proprietary business information including without limitation, information about Aspira’s operations, finances, strategy, customers, affiliates, advertisers, products, services, and any other information that has actual or potential economic value in whole or in part due to the fact that such information is not known to the general public; (iv) information otherwise disclosed by Aspira in a manner consistent with its confidential nature; (v) the terms and conditions of this Agreement, including pricing information; and (vi) Aspira information that is conveyed to Network Operator, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by Network Operator to be treated as confidential (collectively, “Confidential Information”). Network Operator shall not disclose the Confidential Information, orally or in writing, to any third-party without the prior written consent of Aspira. Network Operator may use Confidential Information received from Aspira only in connection with and to further the purposes of this Agreement. Confidential Information shall not be commingled with information or materials of others. Network Operator agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own confidential information, to maintain the confidentiality of and to protect the Confidential Information of Aspira. Upon termination of this Agreement, or upon written request by Aspira, Network Operator shall destroy or return to Aspira any Confidential Information provided by Aspira under this Agreement. If Network Operator destroys the Confidential Information, Network Operator shall attest to Aspira to such destruction of the Confidential Information in writing. Network Operator further agrees that if Network Operator breaches this confidentiality provision, Aspira will be irreparably harmed as a matter of law and will be entitled to immediate injunctive relief and its reasonable attorneys' fees (including without limitation witness fees and court costs) incurred in enforcing this provision. The obligations of confidentiality in this provision shall not be affected by the termination of this Agreement and shall survive termination.
8.2 Non-disparagement. Both parties to this Agreement agree (i) to refrain from any disparagement, defamation, libel, or slander of the other, or interference, tortuous or otherwise, with the contracts and relationships of the other party, as well as its officers, directors, agents, Advertisers and employees; and (ii) that if such party breaches this non-disparagement provision, the other party will be irreparably harmed as a matter of law and will be entitled to immediate injunctive relief and its reasonable attorneys' fees (including without limitation court costs and witness fees) incurred in enforcing this provision. The obligations of this provision shall not be affected by the termination of this Agreement.
8.3 Publicity. Aspira shall have the right to refer to its work for, and relationship with, Network Operator for marketing and promotional purposes, which includes use of Network Operator's trademarks and logos on Aspira's collateral, sales material and Websites and in press releases.
9.1 Governing Law, Jurisdiction and Venue. This Agreement and the Insertion Order(s) shall be construed in accordance with and governed by the laws of the State of Alabama, without regard to its choice of law or conflicts of law provisions The exclusive forum for any actions related to this Agreement shall be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in Jefferson County, Alabama. The parties agree to such venue and jurisdiction. The application of the United Nations Convention on the International Sale of Goods is expressly excluded.
9.2 Entire Agreement; Modification. This Agreement contains the entire understanding and agreement of the parties hereto and supersedes any agreements, either oral or written. No change, modification or amendment of any provision of this Agreement will be valid unless set forth in a written instrument signed by an executive of both parties with the corporate and binding authority to do so.
9.3 Notice. All notices, demands and other communications provided for or permitted under this Agreement shall be made in writing, sent by overnight mail delivery, certified mail, telecopier, or electronic mail and deemed received upon delivery to each party at the address set forth on the Signature Page attached hereto, or such other address as either party may substitute by written notice to the other party. The mailing address for notices will be Aspira Networks, Inc., 1000 N West Street, Suite 1200, Wilmington, Delaware 19801
9.4 Assignment. No rights or obligations under this Agreement may be assigned by Network Operator without the prior written consent of Aspira. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. Aspira and any of its subsequent assignees or successors may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties under this Agreement, to any party. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
9.5 Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
9.6 Survival; Severability. Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening, including without limitation, Sections 2.6, 2.7, 2.8, 3.5, 4.1, 4.3, 6.3, 7, 8, and 9. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement will continue in full force and effect without said provision; provided that no such severability will be effective if it materially changes the economic benefit of this Agreement to either Aspira or Network Operator.
9.7 Remedies and Waiver. Except as otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies that the party may possess at law or in equity. Failure of either party to require strict performance by the other party of any provision shall not affect the first party's right to require strict performance thereafter. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.
EXECUTED AND AGREED as of the date first set forth above via clickwrap agreement from CASH4Trafik.com.
ASPIRA NETWORKS, LLC
30% - Network Operator
70% - Aspira Networks