MARKETING AGREEMENT
Exhibit 6.4
This
Agreement (hereinafter “Agreement”) is made effective
as of the 25 day of
September, 2017
(the “Effective Date”) by and between Agora Financial,
LLC, a Maryland limited liability company (hereinafter
“LLC”), and Bitzumi Publishing LLC (collectively
referred to hereinafter as "Company"). LLC and Company shall be
individually referred to herein as a “Party” and
together as the “Parties.”
RECITALS
A.
LLC owns,
publishes, and markets newsletters, dietary supplements and
reports;
B.
Company runs a web platform that has a robust customer
list;
C.
LLC is interested
in reaching a broader audience and wishes to market its products to
Company’s Subscribers.
D.
The Parties are
interested in implementing an agreement under which LLC produces
content for Company to distribute and market to its Subscribers in
return for compensation as described below.
TERMS
1.
Confidentiality.
In
order to enable discussions to freely take place between LLC and
Company it may be necessary or desirable for each party to disclose
to the other certain proprietary or confidential information.
Accordingly, all such information which is exchanged between LLC
and Company during the term of this Agreement shall be used by the
receiving party only for evaluation in connection with discussions
with the other party hereto, and shall be protected by the
receiving party in accordance with the terms and conditions hereof.
Except as provided below, specifically prohibited is the use of
such proprietary information in any manner inconsistent with the
agreements herein. The Parties acknowledge and agree that
information and techniques obtained by it from the other in
fulfilling its obligations herein are proprietary and confidential,
and the Parties covenant not to provide such information and
techniques to any third party or use such information and
techniques on behalf of a third party or itself.
2. Company Responsibilities.
***Any violation of
these stipulations will result in an immediate shutdown of your
links, and you will be blacklisted across all entities affiliated
with LLC.***
a. Company represents
that it complies with all applicable regulations of the Federal
Trade Commission (FTC) related to advertising, including but not
limited to the CAN-SPAM Act.
b. LLC shall review
all marketing before it is distributed to Subscribers pursuant to
Section 3(e) below.
c. Company shall only
send LLC’s promotions to customer lists owned by Company, and
will not provide LLC’s offers or sublicense the content to
any third party without written permission from LLC.
d.
Company
shall not engage in spam practices.
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e. All copy, including
images, which have not been directly downloaded from LLC’s
platform, CAKE, or the offer landing page, must be run through the
Agora Financial’s legal team for approval.
f. Agora Financial
offers are not to be brokered out to other networks, NOR to any
directly enrolled affiliates without the written permission of LLC.
LLC must research and approve all future partnerships. In the event
Company refers a third party to LLC for the marketing of
LLC’s products and LLC approves of the partnership in its
sole discretion, Company shall be enrolled in LLC’s affiliate
referral program and will be eligible to receive a referral
fee.
g.
The
following activities are not permitted.
i.
Any placement of
creative in a "Desktop" advertising scheme. This includes any and
all third party advertising platforms that use a desktop
application to display ads in any form. Any display of a merchant
window that isn't the result of a direct click by the
end-user.
ii.
Fraud is a serious
offense, and will be treated as such. For purposes of this
Agreement, “Fraud” is defined as any action that
intentionally attempts to create sales, leads, or
“click-throughs” using robots, frames, iframes,
scripts, or manually "refreshing" of pages, for the sole purpose of
creating commissions.
iii.
The use of any
domain name, email address and/or other header information,
including an email’s “From,” “To,”
and “Reply-To,” routing information associated with
Agora Financial to send out email on Company’s
behalf.
iv.
Any promotion of
adult, hate, or other offensive content, in LLC’s sole
discretion, will not be tolerated and will be grounds for immediate
termination of this Agreement.
v.
Abuse of
LLC’s Second Tier Affiliate Program, including but not
limited to self-referral to the program, will be grounds for
termination or disqualification from the program. Company agrees
that any abuse, in LLC’s sole discretion, will be grounds for
the forfeiture of all future commissions.
vi.
Company shall not
cloak, conceal or otherwise hide their IP address(es).
vii.
Company
shall complete the Questionnaire contained in Attachment A and
return it to LLC as soon as practicable after execution of this
Agreement.
3.
LLC’s
Responsibilities:
a.
LLC will provide
Company with copy of marketing material it produces; articles,
special reports and marketing copy for LLC’s
products.
b.
LLC will work with
Company to maximize the lifetime value of LLC customers brought in
as a result of Company’s marketing effort.
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d.
LLC will
systematically and comprehensively record all sales of products
made by LLC (“Products”) as a result of Company’s
efforts.
e.
LLC shall have the
right to review and approve of Company’s use of LLC’s
marketing materials in Company’s marketing at least 48 hours
before it is published. To the extent Company has not received any
comments from LLC within 48 hours of providing such marketing
materials; such marketing materials shall be deemed approved by
LLC.
4.
Compensation.
Company will be compensated on a CPA
basis based on Net 30 terms.
5.
Fulfillment
Obligations.
LLC
shall be responsible for producing, fulfilling and servicing orders
for promotional campaigns in accordance with all legal
requirements.
6.
Representations and
Warranties.
The
Parties represent and warrant that they are duly organized entities
in good standing and have full power and authority to enter into
this Agreement, and carry out their respective obligations
herein.
7.
Intellectual Property.
Nothing
in this Agreement shall constitute a waiver as to the
Parties’ rights to their respective intellectual property,
which rights are reserved by each. All the materials, content,
graphics, copyrights and trademarks associated with the promotional
materials created by LLC and the Products (herein “LLC
IP”) shall remain the sole property of LLC, and nothing
herein shall be deemed a transfer of ownership of any LLC IP. LLC
represents and warrants to Company that LLC has the right to use
any LLC IP associated with the marketing material under this
Agreement, including, but not limited to, copyright, trademark,
trade dress and patents. LLC further represents and warrants that
the marketing material created by LLC and the use of LLC IP in
connection with the advertisement and sale of Products will not
violate or infringe upon any copyright(s); shall not contain
anything libelous or otherwise contrary to the law; will not
appropriate a third party’s name, image, photograph or
likeness in a manner that directly or indirectly implies that such
third party endorses the products and/or services that the
promotional campaigns are marketing unless such third party
consents to such use in writing; that the marketing material will
not use fictional testimonials (provided that the parties
understand and agree that Company may use fictional persona in
distributing marketing materials to Subscribers); and that the
marketing material will not contain materially false and/or
misleading facts.
8.
Assignment of
Agreement.
Each
Party’s services and functions are considered unique. This
Agreement and/or any rights or obligations herein may not be
assigned or otherwise transferred by a Party to a third party
without prior written consent. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
permitted assigns and successors in title or interest.
9.
Commencement and
Duration.
This
Agreement shall commence upon the date first written above and
remain in full force and effect for one year. At the end of the
term, this Agreement shall automatically renew. Either Party may
terminate this Agreement at any time for any reason by providing
thirty (30) days’ written notice to the other
Party.
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Upon
termination, no further compensation will be owed to Company.
Notwithstanding anything herein to the contrary, LLC may
immediately terminate this Agreement without further compensation
if at any time Company breaches any of the representations and
warranties set forth in this Agreement; commits any serious or
repeated breach or non-observance of any of the provisions of this
Agreement or neglects to comply with any reasonable and lawful
directions of LLC; or is guilty of any serious act or omission
affecting the business of LLC. If the Agreement is terminated for
any reason listed in Section 2(f) above, LLC may terminate
Company’s links immediately and Company will forfeit any
unpaid commissions. Company may be blacklisted across any entity
affiliated with LLC. Further, LLC may require the return of all
previous compensation as outlined in Section 4.
10.
Independent
Contractor.
LLC’s
relationship with respect to Company is that of an independent
contractor. Nothing herein shall be deemed to create a relationship
of agency or partnership or employee-employer
relationship.
11.
Interpretation.
Both
Parties participated in the drafting of this Agreement and were
presented with the opportunity to confer with counsel of their own
choosing. As a result, this Agreement shall not be construed more
strictly against one Party or in favor of any other
Party.
12.
Integration, Amendments &
Modifications.
This
Agreement embodies the entire agreement between the Parties hereto
with respect to the subject matter herein. This Agreement may not
be amended or modified except by a writing duly executed by the
Parties hereto. If any provision of this Agreement is found invalid
or unenforceable pursuant to judicial decree, such provision will
be enforced to the maximum extent permissible and the remainder of
this Agreement will remain in full force and effect according to
its terms.
13.
Choice of
Law.
This
Agreement shall be construed in accordance with and governed by the
internal laws of the State of Maryland regardless of any conflicts
of law. The forum shall be limited to courts within Maryland, and
the Parties consent to personal jurisdiction of Maryland courts. If
in the event any legal action is commenced as a result of this
Agreement, LLC agrees to reimburse Company for any reasonable
travel expenses incurred as a result of Company’s
participation in such action.
14.
Waiver.
The
failure of any Party to exercise the rights granted to such party
herein upon the occurrence of any of the contingencies set forth in
this Agreement shall not in any event constitute a waiver of any
such rights upon the occurrence of any additional such
contingencies.
15.
Counterparts.
This
Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together
shall be deemed to be one and the same instrument. Signatures that
are transmitted electronically or by facsimile will have the same
effect as original signatures.
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IN
WITNESS WHEREOF, the Parties have duly executed this Agreement as
of the day and year first set forth above.
Agora
Financial, LLC
|
By:
/s/
Xxxx Xxxxx
Name:
Xxxx
Xxxxx
Its:
Agora Financial, LLC
|
By:
/s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Its:
Bitzumi Publishing LLC
|
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Attachment A
Company
Questionnaire
Please
provide the following information. Failure to provide such
information or providing inaccurate or incomplete information may
result in the termination of this Agreement.
●
Company
Name:
●
Email list
name:
●
Working email
address and phone number:
●
W9 for US based
Affiliates/companies or W8 for non-US based
Affiliates/companies:
●
How long has the Company
operated?
●
Does Company
operate under any additional names or locations or has it done so
in the past?
●
How many names are
on Company’s email list?
●
Does Company own
this list or have written legal permission to use this
list?
●
How did you acquire
these names? Please list ALL sources:
●
When was the last
time the email addresses were mailed to?
●
Please forward at
least 3 examples of Company’s most recent email
broadcasts.
●
If Company is only
promoting on display, what display networks or native advertising
channels will you be promoting on?
●
Does Company know
the IP address(es) used for email marketing? If so, please provide
the IP address(es):
●
Has Company’s
domain or IP address ever appeared on a block list? What was the
reason given for the listing and how did Company address the
issue?
●
How old is
Company’s list?
●
Does Company remove
inactive people? If so, what criteria does Company
use?
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