SECTION 1 -‐ INTRODUCTION
SECTION 1 -‐ 1 -‐ Policies and Compensation Plan Incorporated into Affiliate Agreement
These Policies and Procedures, in their present form and as amended by Digital Marx Media (hereafter “Digital Marx Media” or the “Company”), are incorporated into, and form an integral part of, the Affiliate Agreement. It is the responsibility of each Affiliate to read, understand, adhere to, and insure that he or she is aware of and operating under the most current version of these Policies and Procedures. Throughout these Policies, when the term “Agreement” is used, it collectively refers to the Digital Marx Media Affiliate Agreement, these Policies and Procedures, and the Digital Marx Media Compensation Plan. These documents are incorporated by reference into the Digital Marx Media Affiliate Agreement (all in their current form and as amended by Digital Marx Media).
SECTION 1 -‐ 2 -‐ Changes to the Agreement
Digital Marx Media reserves the right to amend the Agreement and its prices in its sole and absolute discretion. By entering into the Affiliate Agreement, an Affiliate agrees to abide by all amendments or modifications that Digital Marx Media elects to make. Amendments shall be effective 30 days after publication of notice that the Agreement has been modified. Amendments shall not apply retroactively to conduct that occurred prior to the effective date of the amendment. Notification of amendments shall be published by one or more of the following methods: (1) posting on the Company’s official web site; (2) electronic mail (e-‐mail); (3) posting in Affiliates’ back-‐offices; (4) inclusion in Company periodicals; or (5) special mailings. The continuation of an Affiliate’s Digital Marx Media business, the acceptance of any benefits under the Agreement, or an Affiliate’s acceptance of commissions from the sale of Digital Marx Media products or services constitutes acceptance of all amendments.
Section 1 -‐ 3 Delays
Digital Marx Media shall not be responsible for delays or failures in performance of its obligations when performance is made commercially impracticable due to circumstances beyond its reasonable control. This includes, without limitation, strikes, labor difficulties, riot, war, fire, death, curtailment of a party’s source of supply, or government decrees or orders.
SECTION 1 -‐ 3 -‐ Policies and Provisions Severable
If any provision of the Agreement, in its current form or as may be amended, is found to be invalid or unenforceable for any reason, only the invalid portion(s) of the provision shall be severed and the remaining terms and provisions shall remain in full force and effect. The severed provision, or portion thereof, shall be reformed to reflect the purpose of the provision as closely as possible.
SECTION 1 -‐ 4 -‐ Waiver
The Company never gives up its right to insist on compliance with the Agreement and with the applicable laws governing the conduct of a business. No failure of Digital Marx Media to exercise any right or power under the Agreement or to insist upon strict compliance by an Affiliate with any obligation or provision of the Agreement, and no custom or practice of the parties at variance with the terms of the Agreement, shall constitute a waiver of Digital Marx Media’s right to demand exact compliance with the Agreement. The existence of any claim or cause of action of an Affiliate against Digital Marx Media shall not constitute a defense to Digital Marx Media’s enforcement of any term or provision of the Agreement.
SECTION 2 -‐ BECOMING AN AFFILIATE
SECTION 2 -‐ 1 -‐ Requirements to Become an Affiliate
To become an Digital Marx Media Affiliate, each applicant must:
Until such time as each of the above takes place, and Digital Marx Media has accepted the Affiliate Agreement, an applicant is not an Affiliate. Nonetheless, such an applicant remains bound by the terms and conditions of the Agreement and agrees to abide by them.
Digital Marx Media reserves the right to accept or reject any Affiliate Agreement for any reason or no reason.
SECTION 2 -‐ 2 -‐ No Product or Service Purchase Required
No person is required to purchase Digital Marx Media services, sales aids to become an Affiliate.
SECTION 2 -‐ 3 -‐ Affiliate Benefits
Once an Affiliate Agreement has been accepted by Digital Marx Media, and the requirements of Section 2.1 have been satisfied, the benefits of the Compensation Plan and the Affiliate Agreement are available to the new Affiliate. These benefits include the right to:
Digital Marx Media products and services, if eligible);
SECTION 2 -‐ 4 -‐ Term and Renewal of Your Independent Digital Marx Media Business
The term of the Affiliate Agreement is month to month from the date of its acceptance by Digital Marx Media (subject to prior termination or reclassification pursuant to Section 6), and shall automatically renew for successive terms unless either party notifies the other party that it does not wish to renew the Agreement.
Section 2 – 5 – Adherence to the Digital Marx Media Compensation Plan
Affiliate must adhere to the terms of the Digital Marx Media Pay and Benefits Package as set forth in official Digital Marx Media literature. Affiliate shall not offer the Digital Marx Media opportunity through, or in combination with, any other system, program, Co-‐op, leads, sales tools, or method of marketing other than that specifically set forth in official Digital Marx Media literature. Affiliate shall not require or encourage other current or prospective Affiliate to participate in Digital Marx Media in any manner that varies from the program as set forth in official Digital Marx Media literature. Affiliates shall not require or encourage other current or prospective customers or Affiliates to execute any agreement or contract other than official Digital Marx Media agreements and contracts in order to become an Digital Marx Media Affiliate. Similarly, Affiliate shall not require or encourage other current or prospective Customers or Affiliates to make any purchase from, or payment to, any individual or other entity to participate in the Compensation Plan other than those purchases or payments identified as recommended or required in official Digital Marx Media literature.
SECTION 3 -‐ OPERATING AN INDEPENDENT Digital Marx Media BUSINESS
SECTION 3 -‐ 1 -‐ Affiliate Marketing
Affiliates shall not require or encourage other current or prospective customers or Affiliates to execute any agreement or contract other than official Digital Marx Media agreements and contracts in order to subscribe to or purchase Digital Marx Media services or to become Digital Marx Media Affiliates. Similarly, Affiliates shall not require or encourage other current or prospective customers or Affiliates to make any purchase from, or payment to, any individual or other entity to participate in the Digital Marx Media Compensation Plan other than those purchases or payments identified as recommended or required in official Digital Marx Media literature.
SECTION 3 -‐ 2 -‐ Advertising
SECTION 3 -‐ 2 -‐ 1 -‐ General
All Affiliates shall safeguard and promote the good reputation of Digital Marx Media and its products. The marketing and promotion of Digital Marx Media, the Digital Marx Media opportunity, the Compensation Plan, and Digital Marx Media services must avoid all discourteous, deceptive, misleading, unethical or immoral conduct or practices.
Affiliates may develop their own advertising and promotional materials so long as Digital Marx Media properly authorizes such materials. It is the Affiliate’s obligation to ensure that his or her marketing activities are truthful, are not deceptive and do not mislead customers or potential Affiliates in any way. No income claims or representations may be included in such materials unless a copy of the Digital Marx Media Income Disclosure Statement is incorporated into the advertising or promotional material or the Internet address of the current Income Disclosure Statement is incorporated into the materials.
To promote both the platform and the opportunity Digital Marx Media has to offer, Affiliates must use the sales aids and support materials produced by Digital Marx Media. If Digital Marx Media Affiliates develop their own sales aids and promotional materials (which includes Internet advertising), notwithstanding Affiliates’ good intentions, they may unintentionally violate any number of statutes or regulations affecting the Digital Marx Media business. These violations, although they may be relatively few in number, could jeopardize the Digital Marx Media opportunity for all Affiliates. Accordingly, Affiliates must submit all written sales aids, promotional materials, advertisements, websites and other literature to the Company for Company’s approval prior to use. Unless the affiliate receives specific written approval to use the material, the request shall be deemed denied. The marketing and promotion of Digital Marx Media, the Digital Marx Media opportunity, the Compensation Plan, and the Digital Marx Media platform shall be consistent with the public interest, and must avoid all discourteous, deceptive, misleading, unethical or immoral conduct or practices. Affiliates will not make false or misleading statements about the sales opportunity. Affiliates may not sell sales aids to other Digital Marx Media Affiliates. Therefore, Affiliates who receives authorization from Digital Marx Media to produce their own sales aids may not sell such material to any other Digital Marx Media Affiliate. Digital Marx Media further reserves the right to rescind approval for any sales tools, promotional materials, advertisements, or other literature, and Affiliate waive all claims for damages or remuneration arising from or relating to such rescission.
SECTION 3 -‐ 2 -‐ 2 -‐ Trademarks and Copyrights
The name of Digital Marx Media and other names as may be adopted by Digital Marx Media are proprietary trade names, trademarks and service marks of Digital Marx Media (collectively “marks”). As such, these marks are of great value to Digital Marx Media and are supplied to Affiliates for their use only in an expressly authorized manner. Digital Marx Media will not allow the use of its trade names, trademarks, designs, or symbols, or any derivatives of such marks, by any person, including Digital Marx Media Affiliates, in any unauthorized manner.
Affiliates may not use or attempt to register any of Digital Marx Media’s trade names, trademarks, service names, service marks, product names, the Company’s name, or any derivative thereof, for any Internet domain name, e-‐mail address, or online alias. Additionally, an Affiliate cannot use or register domain names, email addresses, and/or online aliases that could cause confusion, or be misleading or deceptive, in that they cause individuals to believe or assume the communication is from, or is the property of Digital Marx Media.
The content of all Company sponsored events is copyrighted material. Affiliates may not produce for sale or distribution any recorded Company events, presentations, and speeches. Nor may Affiliates reproduce for sale or for personal use any recording of Company-‐produced audio or videotape presentations.
As an independent Affiliate, you may use the Digital Marx Media name in the following manner:
Independent Digital Marx Media Affiliate
Independent Digital Marx Media Affiliate
For example, an Affiliate may not secure the domain name www.digitalmarxmedia.co/com, nor may an Affiliate create an email address such as firstname.lastname@example.org/com. Additionally, an Affiliate may only use the phrase Independent Digital Marx Media Affiliate in telephone greetings or on an answering machine to clearly separate the Affiliate’s independent Digital Marx Media business from Digital Marx Media.
SECTION 3 -‐ 2 -‐ 3 -‐ Media and Media Inquiries
No press releases may be issued by anyone other than Digital Marx Media. No exceptions. Affiliates must not attempt to respond to media inquiries regarding Digital Marx Media, its products or services, or their independent Digital Marx Media business. All inquiries by any type of media must be immediately referred to the Legal Department at email@example.com. This policy is designed to assure that accurate and consistent information is provided to the public as well as a proper public image. Affiliates must not utilize radio or television media, including radio or television infomercials, for the advertising, distribution or promotion of the Digital Marx Media products or opportunity with the express consent of Digital Marx Media. In the unlikely event that Digital Marx Media does grant permission for the use of such media, Digital Marx Media reserves the right to have final authority and final approval before any releases of media, on every stage of the production process with full rights to all recordings.
SECTION 3 -‐ 2 -‐ 4 -‐ Unsolicited Email
Digital Marx Media does not permit Affiliates to send unsolicited commercial emails unless such emails strictly comply with applicable laws and regulations including, without limitation, the federal CAN SPAM Act. Any email sent by an Affiliate that promotes Digital Marx Media, the Digital Marx Media opportunity, or Digital Marx Media services must comply with the following:
Digital Marx Media may periodically send commercial emails on behalf of Affiliates. By entering into the Affiliate Agreement, Affiliate agrees that the Company may send such emails and that the Affiliate’s physical and email addresses will be included in such emails as outlined above. Affiliates shall honor opt-‐out requests generated as a result of such emails sent by the Company.
SECTION 3 -‐ 2 -‐ 5 -‐ Unsolicited Faxes
Except as provided in this section, Affiliates may not use or transmit unsolicited faxes in connection with their Digital Marx Media businesses. The term “unsolicited faxes” means the transmission via telephone facsimile or computer of any material or information advertising or promoting Digital Marx Media, its products, its compensation plan or any other aspect of the company which is transmitted to any person, except that these terms do not include a fax: (a) to any person with that person’s prior express invitation or permission; or (b) to any person with whom the Affiliate has an established business or personal relationship. The term “established business or personal relationship” means a prior or existing relationship formed by a voluntary two way communication between an Affiliate and a person, on the basis of: (a) an inquiry, application, purchase or transaction by the person regarding products offered by such Affiliate; or (b) a personal or familial relationship, which relationship has not been previously terminated by either party.
SECTION 3 -‐ 2 -‐ 6 -‐ Telephone Directory Listings
Affiliates may list themselves as an “Independent Digital Marx Media Affiliate” in the white or yellow pages of the telephone directory, or with online directories, under their own name. No Affiliate may place telephone or online directory display ads using Digital Marx Media’s name or logo. Affiliates may not answer the telephone by saying “Digital Marx Media”, “Digital Marx Media Incorporated”, or in any other manner that would lead the caller to believe that he or she has reached corporate offices of Digital Marx Media. If an Affiliate wishes to post his or her name in a telephone or online directory, it must be listed in the following format:
Independent Digital Marx Media Affiliate
SECTION 3 -‐ 2 -‐ 7 -‐ Television and Radio Advertising
Affiliates may not advertise on television or radio except with Digital Marx Media’s express written approval.
SECTION 3 -‐ 3 -‐ Online Conduct
If an Affiliate desires to utilize an Internet web page to promote his or her business, he or she may do so through the www.digitalmarxmedia.com replicated web site. Alternatively, Affiliates may develop their own web pages, however, any Affiliate who does so: (a) must use the text of the company’s official web site; (b) may not supplement the content of his or her web site with text from any source other than the company; and (c) may not promote or sell any non-‐Digital Marx Media products or opportunity.
The use of any other web site or web page (including without limitation auction sites such as eBay) to promote Digital Marx Media products or the Digital Marx Media opportunity is a material breach of these Policies and Procedures.
SECTION 3 -‐ 3 -‐ 1 -‐ Affiliate Web Sites
Affiliates may create their own websites to promote the Digital Marx Media opportunity and the Company’s platform, so long as the website and its content comply with the terms of the Agreement. It is the Affiliate’s obligation to ensure that his or her online marketing activities are truthful, are not deceptive and do not mislead customers or potential Affiliates in any way. Websites and web promotion activities and tactics that mislead or are deceptive, regardless of intent, will result in disciplinary action. Misleading tactics include, but are not limited to, spam linking (or blog spam), unethical search engine optimization (“SEO”) tactics, misleading click-‐through ads (i.e. having the display URL of a Pay-‐Per-‐Click (“PPC”) campaign appear to be directed to an official Digital Marx Media Corporate Site when it in fact goes elsewhere), deceptive or misleading banner ads, and deceptive or misleading press releases. Digital Marx Media will be the sole determinant of truthfulness and whether specific activities are misleading or deceptive.
If there are any income claims or representations contained within an Affiliate’s website, there must be a link to the Digital Marx Media Income Disclosure Statement immediately adjacent to any such claim or representation.
SECTION 3 -‐ 3 -‐ 2 -‐ Affiliate Website Content
Affiliates are solely responsible and liable for the content, messaging, claims, and information included in their websites and must ensure that it appropriately represents and enhances the Digital Marx Media brand and adheres to the terms of the Agreement. Additionally, such websites must not contain disingenuous popup ads or promotions or malicious code. Decisions and corrective actions in this area are at Digital Marx Media’s sole discretion. The content of any website that promotes the Digital Marx Media opportunity or Digital Marx Media’s platform must be suitable for viewing by all persons and age groups. Such websites may not contain any material that:
SECTION 3 -‐ 3 -‐ 3 -‐ Independent Affiliate Disclosure
To avoid confusion, each page of an Affiliate’s website must prominently disclose that the website is owned and operated by an Independent Digital Marx Media Affiliate and not by the Company. To avoid confusion the following two elements must be prominently displayed at the top of every page of an independent Digital Marx Media website developed by an Affiliate:
Although Digital Marx Media brand themes and images are desirable for consistency, anyone landing on any page of an Affiliate’s website must clearly understand that they are at an Independent Affiliate site, and not an Digital Marx Media Corporate page.
SECTION 3 -‐ 3 -‐ 4 -‐ Social Media and Digital Media
In addition to meeting all other requirements specified in these Policies and Procedures, should an Affiliate utilize any form of social media, including but not limited to: Facebook, Twitter, LinkedIn, YouTube, Pinterest, or the Affiliate agrees to each of the following:
Social Media may be used by Affiliates to share information about the Digital Marx Media business opportunity and Digital Marx Media services, provided such information complies with the terms of the Agreement. Profiles an Affiliate generates in any social community where Digital Marx Media is discussed or mentioned must clearly identify the Affiliate as an Independent Digital Marx Media Affiliate and not as an employee, agent, or corporate representative of the Company. Affiliates may not upload, submit or publish any content to (including but not limited to) Facebook, YouTube, Twitter or Pinterest any video, audio, presentations or any computer files received from Digital Marx Media or captured at official Digital Marx Media events or in buildings owned or operated by Digital Marx Media. No income claims or representations may be made when participating in a social networking site unless a link to the Company’s current Income Disclosure Statement is provided.
Affiliates may not use online classifieds (including Craigslist) to list, sell, or retail specific Digital Marx Media products. Affiliates may use online classifieds (including Craigslist) for prospecting, recruiting, sponsoring and informing the public about the Digital Marx Media business opportunity.
Digital Marx Media’s products may not be listed on Amazon, eBay or any other online auction sites. Nor may Affiliate’s enlist or knowingly allow a third party to sell products on Amazon, eBay or any other online auction sites.
SECTION 3 -‐ 4 -‐ Change of Sponsor
An Affiliate may only have one sponsor. Digital Marx Media prohibits changes of sponsorship to uphold the integrity of the Commission Structure and downline.
SECTION 3 -‐ 4 -‐ 1 -‐ Cancellation and Re-‐application
An Affiliate may only change his or her Sponsor by voluntarily canceling his or her Affiliate Agreement and remaining inactive (i.e., no promotion or sponsor of sales of Digital Marx Media products or services, no sponsoring, no attendance at any Digital Marx Media functions, no participation in any other form of Affiliate activity, no operation of any other Digital Marx Media business, and no income from the Digital Marx Media business) for six (6) full calendar months. Following the six-‐month period of inactivity, the former Affiliate may reapply under a new Sponsor. In that event, the former Affiliate’s Marketing Organization will remain in the original line of sponsorship and the former Affiliate will start back as a new Affiliate with no downline.
SECTION 3 -‐ 5 -‐ Waiver of Claims
In cases in which the appropriate sponsorship change procedures have not been followed, and a downline organization has been developed in the second business developed by an Affiliate, Digital Marx Media reserves the sole and exclusive right to determine the final disposition of the downline organization. Resolving conflicts over the proper placement of a downline that has developed under an organization that has improperly switched sponsors is often extremely difficult. Therefore, AFFILIATES WAIVE ANY AND ALL CLAIMS AGAINST Digital Marx Media, ITS OFFICERS, DIRECTORS, MANAGERS, MEMBERS, OWNERS, EMPLOYEES, AND AGENTS THAT RELATE TO OR ARISE FROM Digital Marx Media’S DECISION REGARDING THE DISPOSITION OF ANY DOWNLINE ORGANIZATION THAT DEVELOPS BELOW AN ORGANIZATION THAT HAS IMPROPERLY CHANGED LINES OF SPONSORSHIP.
SECTION 3 -‐ 6 -‐ Unauthorized Claims and Actions
SECTION 3 -‐ 6 -‐ 1 -‐ Indemnification
Digital Marx Media services and the Compensation Plan, which are not expressly contained, in official Digital Marx Media materials. This includes statements and representations made through all sources of communication media, whether person-‐to-‐person, in meetings, online, through Social Media, in print, or any other means of communication. Affiliates agree to indemnify Digital Marx Media and Digital Marx Media’s directors, officers, managers, members, employees, and agents, and hold them harmless from all liability including judgments, civil penalties, refunds, attorney fees, court costs, or lost business incurred by Digital Marx Media as a result of the Affiliate’s unauthorized representations or actions. This provision shall survive the termination of the Affiliate Agreement.
SECTION 3 -‐ 6 -‐ 2 -‐ Income Claims
An Affiliate, when presenting or discussing the Digital Marx Media opportunity or Compensation Plan to a prospective Affiliate, may not make income projections, income claims, or disclose his or her Digital Marx Media income (including the showing of checks, copies of checks, bank statements, or tax records) unless, at the time the presentation is made, the Affiliate provides a current copy of the Digital Marx Media Income Disclosure Statement (IDS) to the person(s) to whom he or she is making the presentation.
SECTION 3 -‐ 6 -‐ 3 – Opportunity Claims
When presenting or discussing the Digital Marx Media opportunity or the Digital Marx Media Compensation Plan, you must make it clear to prospects that financial success with Digital Marx Media requires commitment, effort, and sales skill. Conversely, you must never represent that one can be successful without diligently applying themselves. Examples of misrepresentations in this area include:
The above are just examples of improper representations about the Compensation Plan. It is important that you do not make these or any other representations that could lead a prospect to believe that they can be successful as an Digital Marx Media Affiliate without commitment, effort, and sales skill.
SECTION 3-‐6-‐4 – Tradeshows, Exhibitions and other Sales Forums
Affiliates may display and/or sell Digital Marx Media products or services at trade shows and professional expositions, provided the provisions of Section 3.2.2 are adhered to.
SECTION 3-‐6-‐5 -‐ Income Disclosure Statement
The Digital Marx Media Income Disclosure Statement (“IDS”) is designed to convey truthful, timely, and comprehensive information regarding the income that Digital Marx Media Affiliates earn. In order to accomplish this objective, a copy of the IDS must be presented to a prospective Affiliate (someone who presented or discussed, or any type of income claim or earnings representation is made.
The terms “income claim” and/or “earnings representation” (collectively “income claim”) include: (1) statements of actual earnings, (2) statements of projected earnings, (3) statements of earnings ranges, (4) income testimonials, (5) lifestyle claims, and (6) hypothetical claims.
A lifestyle income claim typically includes statements (or pictures) involving large homes, luxury cars, exotic vacations, or other items suggesting or implying wealth. They also consist of references to the achievement of one’s dreams, having everything one always wanted, and are phrased in terms of “opportunity” or “possibility” or “chance.” Claims such as “My Digital Marx Media income exceeded my salary after six months in the business,” or “Our Digital Marx Media business has allowed my wife to come home and be a full-‐time mom” also fall within the purview of “lifestyle” claims.
In any non-‐public meeting (e.g., a home meeting, one-‐on-‐one, regardless of venue) with a prospective Affiliate or Affiliates in which the Compensation Plan is discussed or any type of income claim is made, you must provide the prospect(s) with a copy of the IDS. In any meeting that is open to the public in which the Compensation Plan is discussed or any type of income claims is made, you must provide every prospective Affiliate with a copy of the. In any meeting in which any type of video display is utilized (e.g., monitor, television, projector, etc.) a slide of the IDS must be displayed continuously throughout the duration of any discussion of the Compensation Plan or the making of an income claim.
Copies of the IDS may be printed or downloaded without charge from the Affiliate Back Office. Affiliates who develop sales aids and tools in which the Compensation Plan or income claims are present must incorporate the IDS into each such sales aid or tool prior to distribution to prospective Affiliates.
SECTION 3 -‐ 7 -‐ Conflicts of Interest
SECTION 3 -‐ 7 -‐ 1 -‐ Non solicitation
Digital Marx Media Affiliates are free to participate in other affiliate, multilevel or network marketing business ventures or marketing opportunities. However, such Affiliates agree that they shall not, during the term of this Agreement and following its termination for any reason, use Digital Marx Media’s confidential or trade secret information to solicit or recruit any person or entity to participate in any such venture for a period of one year. Nor shall an Affiliate use any such confidential and proprietary trade secret information in any way in association with such Affiliate’s participation in any other affiliate, multilevel or network marketing venture.
SECTION 3.7.2 Affiliate Participation in Other Programs
If an Affiliate is engaged in other non-‐Digital Marx Media programs, it is the responsibility of the Affiliate’s to ensure that his or her Digital Marx Media business is operated entirely separate and apart from any other program. To this end, the following must be adhered to:
SECTION 3 -‐ 7 -‐ 2 -‐ Confidential Information
“Confidential Information” includes, but is not limited to, customer and Affiliate lists, the identities of Digital Marx Media customers and Affiliates, contact information of Digital Marx Media customers and Affiliates, and Affiliates’ personal and downline sales information. Confidential Information is, or may be available, to Affiliates in their respective back-‐offices. Affiliate access to such Confidential Information is password protected, is confidential, and constitutes proprietary information and business trade secrets belonging to Digital Marx Media. Such Confidential Information is provided to Affiliates in strictest confidence and is made available to Affiliates for the sole purpose of assisting Affiliates in working with their respective Marketing Organizations in the development of their Digital Marx Media business. Affiliates may not use any Confidential Information for any purpose other than for developing their independent Digital Marx Media businesses. When an Affiliate participates in other direct selling or multilevel marketing ventures, the Affiliate may not have access to certain Confidential Information, including, but not limited to, customer or Affiliate lists. Affiliates should use the Confidential Information to assist, motivate, and train their downline Affiliates, and for no other purpose. In so doing, an Affiliate may not disclose the Confidential Information to any third party, including, without limitation, his or her downline Affiliates. The Affiliate and Digital Marx Media agree that, but for this agreement of confidentiality and nondisclosure, Digital Marx Media would not provide Confidential Information to the Affiliate.
To protect the Confidential Information, an Affiliate shall not, on his or her own behalf, or on behalf of any other person, partnership, association, corporation or other entity:
The obligation of an Affiliate to not disclose any Confidential Information shall survive cancellation or termination of the Agreement, and shall remain effective and binding irrespective of whether an Affiliate’s Agreement has been terminated, or whether the Affiliate is or is not otherwise affiliated with the Company.
SECTION 3 -‐ 8 -‐ Recruiting and Soliciting Other Direct Sellers
When recruiting or soliciting participants in other direct selling ventures to either purchase Digital Marx Media services or to participate in the Digital Marx Media opportunity, Affiliates must not encourage such persons to terminate or violate any term or condition of any agreements that they may have with other direct selling companies. Should an Affiliate engage in such activity, the Affiliate bears the risk of being sued by the other direct sales company. If any lawsuit, arbitration or mediation is brought against an Affiliate alleging that he or she engaged in inappropriate recruiting activity of its sales force or customers, Digital Marx Media will not pay any of the Affiliate’s defense costs or legal fees, nor will Digital Marx Media indemnify the Affiliate for any judgment, award, or settlement.
SECTION 3 -‐ 9 -‐ Errors or Questions
If an Affiliate has questions about or believes any errors have been made regarding commissions, bonuses, downline activity reports, genealogy lists, or charges, the Affiliate must notify Digital Marx Media in writing within 60 days of the date of the purported error or incident in question. Digital Marx Media will not be responsible for any errors, omissions or problems not reported to the Company within 60 days.
SECTION 3 -‐ 10 -‐ Governmental Approval or Endorsement
Neither federal nor state regulatory agencies or officials approve or endorse any direct selling or network marketing companies or programs. Therefore, Affiliates shall not represent or imply that Digital Marx Media or its Compensation Plan have been “approved,” “endorsed” or otherwise sanctioned by any government agency.
SECTION 3 -‐ 11 -‐ Income Taxes
Each Affiliate is responsible for paying local, state, and federal taxes on any income generated as an Independent Affiliate. If an Affiliate’s Digital Marx Media business is tax exempt, the Federal tax identification number must be provided to Digital Marx Media. Every year, Digital Marx Media will provide an IRS Form 1099 MISC (Non-‐employee Compensation) earnings statement to each U.S. resident who: 1) Had earnings of over $600 in the previous calendar year; or 2) Made purchases during the previous calendar year in excess of $5,000.
Digital Marx Media cannot provide Affiliates with any personal tax advice. Affiliates should consult with their own tax accountant, tax attorney, or other tax professional.
SECTION 3 -‐ 12 -‐ Independent Contractor Status
Affiliates are independent contractors. The agreement between Digital Marx Media and its Affiliates does not create an employer/employee relationship, agency, partnership, or joint venture between the Company and the Affiliate. Affiliates shall not be treated as an employee for his or her services or for Federal or State tax purposes. All Affiliates are responsible for paying local, state, and federal taxes due from all compensation earned as an Affiliate of the Company. All Affiliates are responsible for paying local, state, and federal taxes due from all compensation earned as an Affiliate of the Company. Digital Marx Media is not responsible for withholding, and shall not withhold or deduct from a Representative’s bonuses and commissions, if any, FICA or taxes of any kind, unless withholding becomes legally required. The Affiliate has no authority (expressed or implied), to bind the company to any obligation. Affiliates are not authorized to and will not incur any debt, expense, obligation, or open any checking account or credit card on behalf of, for, or in the name of Digital Marx Media. Each Affiliate shall establish his or her own goals, hours, and methods of sale, so long as he or she complies with the terms of the Affiliate Agreement, these Policies and Procedures, and applicable laws. Each Affiliate shall be solely responsible for paying all expenses incurred, including but not limited to travel, food, lodging, secretarial, office, long distance telephone, and other expenses. Each Affiliate shall establish his or her own goals, hours, and methods of sales promotion, so long as he or she complies with the terms of the Affiliate Agreement, these Policies and Procedures, and applicable laws.
SECTION 3 -‐ 13 -‐ International Marketing
Affiliates are authorized to sponsor the sale of Digital Marx Media products or services, and enroll Affiliates only in the countries in which Digital Marx Media is authorized to conduct business, as announced in official Company literature. In addition, no Affiliate may, in any unauthorized country: (a) conduct sales,
enrollment or training meetings; (b) enroll or attempt to enroll potential customers or Affiliates; or (c) conduct any other activity for the purpose of sponsoring the sale of Digital Marx Media products or services, establishing a Marketing Organization, or promoting the Digital Marx Media opportunity.
SECTION 3 -‐ 14 -‐ Bonus Buying
All forms of Bonus buying are strictly prohibited. Bonus buying is strictly and absolutely prohibited. “Bonus buying” includes: (a) the enrollment of individuals or entities without the knowledge of and/or execution of an Independent Affiliate Application and Agreement by such individuals or entities; (b) the fraudulent enrollment of an individual or entity as a Affiliate or Customer; (c) the enrollment or attempted enrollment of nonexistent individuals or entities as Affiliate or Customers (“phantoms”); (d) the use of a credit card by or on behalf of a Affiliate or customer when the Affiliate or customer is not the account holder of such credit card; (3) Purchasing Digital Marx Media merchandise on behalf of another Affiliates or customer, or under another Affiliate ’s or Customer’s I.D. number, to qualify for commissions or bonuses. Therefore, Affiliates agree that they shall not purchase Digital Marx Media products or services for the sole purpose of qualifying for compensation under the Compensation Plan. Nor shall any Affiliate influence or attempt to influence any other Affiliate to do the same. Bonus buying also includes any mechanism or artifice to qualify for rank advancement, incentives, prizes, commissions or bonuses that is not driven by bona fide product or service purchases by end user consumers.
SECTION 3 -‐ 15 -‐ Adherence to Laws and Ordinances
Affiliates shall comply with all federal, state, and local laws and regulations in the conduct of their businesses. Many cities and counties have laws regulating certain home-‐based businesses. In most cases these ordinances are not applicable to Affiliates because of the nature of their business. However, Affiliates must obey those laws that do apply to them. If a city or county official tells an Affiliate that an ordinance applies to him or her, the Affiliate shall be polite and cooperative, and immediately send a copy of the ordinance to the Compliance Department of Digital Marx Media.
SECTION 3 -‐ 16 -‐ One Digital Marx Media Business Per Affiliate and Per Household
An Affiliate may operate or have an ownership interest, legal or equitable, as a sole proprietorship, partner, shareholder, trustee, or beneficiary, in only one Digital Marx Media business. No individual may have, operate or receive compensation from more than one Digital Marx Media business. Individuals of the same Household may not enter into or have an interest in more than one Digital Marx Media Business. A “Household” is defined as all individuals who are living at or doing business at the same address, and who are related by blood, marriage, domestic partnership, or adoption, or who are living together as a family unit or in a family-‐like setting.
In order to maintain the integrity of the Digital Marx Media Compensation Plan husbands and wives, domestic partnerships, or common-‐law couples (collectively referred to herein as “spouses”) who wish to become Digital Marx Media Affiliates must be jointly sponsored as one Digital Marx Media business. Spouses, regardless of whether one or both are signatories to the Affiliate Agreement, may not own or operate any other Digital Marx Media business, either individually or jointly, nor may they participate directly or indirectly (as a shareholder, partner, trustee, trust beneficiary, or have any other legal or equitable ownership) in the ownership or management of another Digital Marx Media business in any form.
An exception to the one business per Affiliate/Household rule will be considered on a case-‐by-‐case basis if two Affiliates get married or move in together, or in cases of an Affiliate receiving an interest in another business through inheritance. Requests for exceptions to policy must be submitted in writing to the Legal Department (firstname.lastname@example.org).
SECTION 3 -‐ 17 -‐ Actions of Household Members or Affiliated Parties
If any member of an Affiliate’s immediate household engages in any activity, which, if performed by the Affiliate, would violate any provision of the Agreement, such activity will be deemed a violation by the Affiliate and Digital Marx Media may take disciplinary action pursuant to these Policies and Procedures against the Affiliate. Similarly, if any individual associated in any way with a corporation, partnership, LLC, trust or other entity (collectively “Business Entity”) violates the Agreement, such action(s) will be deemed a violation by the Business Entity, and Digital Marx Media may take disciplinary action against the Business Entity. Likewise, if an Affiliate enrolls in Digital Marx Media as a Business Entity, each Affiliated Party of the Business Entity shall be personally and individually bound to, and must comply with, the terms and conditions of the Agreement.
SECTION 3.17.1 Business Entities
A corporation, limited liability company, partnership or trust (collectively referred to as a “Business Entity”) may apply to be a Digital Marx Media Affiliate by submitting an Affiliate Application and Agreement along with a properly completed Business Entity Registration form and a properly completed IRS Form W-‐9 (Request for Taxpayer Identification Number). If an Affiliate enrolls online, the Business Entity Registration Form must be submitted to Digital Marx Media within 30 days of the online enrollment. (If not received within the 30-‐day period, the Affiliate Agreement shall automatically terminate.) An Digital Marx Media business may change its status under the same Enroller from an individual to a partnership, corporation or trust, or from one type of entity to another. There is a $25.00 fee for each change requested, which must be included with the written request and the completed Affiliate Application and Agreement. The Business Entity Registration form must be signed by all of the shareholders, members, partners or trustees. The Business Entity and its shareholders, members, managers, partners, trustees, or other parties with any ownership interest in, or management responsibilities for, the Business Entity (collectively “Affiliated Parties”) are individually, jointly and severally liable for any indebtedness to Digital Marx Media, compliance with the Digital Marx Media Policies and Procedures, compliance with the Digital Marx Media Representative Agreement, and all other obligations to Digital Marx Media. Digital Marx Media will recognize only one individual in regard to any benefits received based on account performance. Be sure to indicate who shall receive said benefits (should any occur) when completing the Business Entity Registration Form. If no one is listed, Digital Marx Media will believe it to be the first person listed on the form.
SECTION 3 -‐ 18 -‐ Sale, Transfer or Assignment of an Independent Digital Marx Media Business
Although an Digital Marx Media business is an independently operated business, the sale, transfer or assignment of an Digital Marx Media business is subject to certain limitations. If an Affiliate wishes to sell his or her Digital Marx Media business, the selling Affiliate must offer Digital Marx Media the right of first refusal to purchase the business on the same terms as agreed upon with a third-‐party buyer. Digital Marx Media shall have fifteen days from the date of receipt of the written offer from the seller to exercise its right of first refusal. If Digital Marx Media elects not to purchase the business, the following criteria must be met:
an active Digital Marx Media Affiliate, he or she must first terminate his or her Digital Marx Media business and wait six calendar months before acquiring any interest in a different Digital Marx Media business.
Agreement in order to be eligible to sell, transfer or assign an Digital Marx Media business. Prior to selling an independent Digital Marx Media business or Business Entity interest, the selling Affiliate must notify Digital Marx Media’s Compliance Department in writing and advise of his or her intent to sell his or her Digital Marx Media business or Business Entity interest. The selling Affiliate must receive written approval from Digital Marx Media before proceeding with the sale. No changes in line of sponsorship can result from the sale or transfer of an Digital Marx Media business.
The selling Affiliate agrees that they will not disparage, demean or otherwise criticize Digital Marx Media for a minimum of one year, either written or verbal, after the sale or transfer of his/her Digital Marx Media account. You agree that it would be impossible, impractical, or extremely difficult to fix the actual damages suffered by reason of such a violation. Therefore, if such a breach does occur, you hereby agree that Digital Marx Media may determine to recover five thousand dollars ($5,000.00) for damages incurred, without prejudice to Digital Marx Media’s right to also seek injunctive or other equitable relief.
SECTION 3.18.1 Financing
Digital Marx Media does not permit the use of any financing options or terms by an Affiliate to their team or prospects. This includes, but is not limited to: affiliate product and services purchases. All purchases are to be made through the Digital Marx Media site and by no other means. Violation of this policy may include suspension or termination of the Affiliate’s Digital Marx Media account.
SECTION 3.18.2 -‐ General
Each Affiliate must immediately notify Digital Marx Media of all changes to the information contained on his or her Affiliate Application and Agreement. Affiliates may modify their existing Affiliate Agreement (i.e., change Social Security number to Federal I.D. number, or change the form of ownership from an individual proprietorship to a business entity owned by the Affiliate) by submitting a written request, a properly executed Affiliate Application and Agreement, and appropriate supporting documentation. Changes shall be processed only once per year. All changes must be submitted by November 30 to become effective on January 1 of the following year.
SECTION 3 -‐ 19 -‐ Separation of an Digital Marx Media Business
Digital Marx Media Affiliates sometimes operate their Digital Marx Media businesses as husband-‐ wife partnerships, regular partnerships, LLCs, corporations, trusts, or other Business Entities. At such time as a marriage may end in divorce or a corporation, LLC, partnership, trust or other Business Entity may dissolve, arrangements must be made to assure that any separation or division of the business is accomplished so as not to adversely affect the interests and income of other businesses up or down the line of sponsorship.
During the divorce or entity dissolution process, the parties must adopt one of the following methods of operation:
One of the parties may, with consent of the other(s), operate the Digital Marx Media business pursuant to an assignment in writing whereby the relinquishing spouse, shareholders, partners or trustees authorize Digital Marx Media to deal directly and solely with the other spouse or non-‐relinquishing shareholder, partner or trustee.
The parties may continue to operate the Digital Marx Media business jointly on a “business-‐as-‐ usual” basis, whereupon all compensation paid by Digital Marx Media will be paid according to the status quo as it existed prior to the divorce filing or dissolution proceedings. This is the default procedure if the parties do not agree on the format set forth above.
Under no circumstances will the Marketing Organization of divorcing spouses or a dissolving business entity be divided. Digital Marx Media will recognize only one Marketing Organization. In the event that parties to a divorce or dissolution proceeding are unable to resolve a dispute over the disposition of commissions and ownership of the business in a timely fashion as determined by the Company, the Affiliate Agreement shall be involuntarily canceled.
If a former spouse or former Business Entity partner, shareholder, or member has completely relinquished all rights in the original Digital Marx Media business pursuant to a divorce or Business Entity dissolution, he or she is thereafter free to enroll under any Sponsor of his or her choosing without waiting six calendar months. In such event, the former spouse or former partner, shareholder or member shall have no rights to any Affiliates in their former Marketing Organization or to any former customer. They must develop the new business in the same manner, as would any other new Affiliate.
SECTION 3 -‐ 20 -‐ Sponsoring Online
When sponsoring a new Affiliate through the online enrollment process, the Sponsor may assist the new applicant in filling out the enrollment materials. However, the applicant must personally review and agree to the Affiliate Agreement. The Sponsor may not fill out or submit the Affiliate Agreement on behalf of the applicant.
SECTION 3 -‐ 21 -‐ Death or Incapacity of an Affiliate
The Affiliate Agreement is a contract for personal services. Upon the death or incapacitation of an Affiliate (as determined by Digital Marx Media at its sole and absolute discretion), the Affiliate Agreement shall require the following.
To effect a testamentary transfer of a Digital Marx Media business, the executor of the estate must provide the following to Digital Marx Media: (1) an original death certificate; (2) certified letters testamentary or a letter of administration appointing an executor; and (3) written instructions from the authorized executor to Digital Marx Media specifying to whom the business and income should be transferred.
To effect a transfer of a Digital Marx Media business because of incapacity, the successor must provide the following to Digital Marx Media: (1) a notarized copy of an appointment as trustee; (2) a notarized copy of the trust document or other documentation establishing the trustee’s right to administer the Digital Marx Media business; and (3) a completed Affiliate Agreement executed by the trustee.
SECTION 3 -‐ 22 -‐ Telemarketing Techniques
The Federal Trade Commission and the Federal Communications Commission each have laws that restrict telemarketing practices. Both federal agencies (as well as a number of states) have “do not call”
regulations as part of their telemarketing laws. Although Digital Marx Media does not consider Affiliates to be “telemarketers” in the traditional sense of the word, these government regulations broadly define the term “telemarketer” and “telemarketing” so that your inadvertent action of calling someone whose telephone number is listed on the federal “do not call” registry could cause you to violate the law. Moreover, these regulations must not be taken lightly, as they carry significant penalties.
Therefore, Affiliates must not engage in telemarketing in the operation of their Digital Marx Media businesses. The term “telemarketing” means the placing of one or more telephone calls to an individual or entity to induce the purchase of an Digital Marx Media service, or to recruit them for the Digital Marx Media opportunity. “Cold calls” made to prospective customers or Affiliates that promote either Digital Marx Media’s products or services or the Digital Marx Media opportunity constitute telemarketing and are prohibited. However, a telephone call(s) placed to a prospective customer or Affiliate (a “prospect”) is permissible under the following situations:
If the Affiliate has an established business relationship with the prospect. An “established business relationship” is a relationship between an Affiliate and a prospect based on the prospect’s purchase, rental, or lease of goods or services from the Affiliate, or a financial transaction between the prospect and the Affiliate, within the eighteen (18) months immediately preceding the date of a telephone call to induce the prospect’s purchase of a product or service.
In response to a prospect’s personal inquiry or application regarding a product or service offered by the Affiliate, within the three (3) months immediately preceding the date of such a call.
If the Affiliate receives written and signed permission from the prospect authorizing the Affiliate to call. The authorization must specify the telephone number(s), which the Affiliate is authorized to call.
If the prospect is a family member, a personal friend, or an acquaintance. An “acquaintance” is someone with whom an Affiliate has at least a recent first-‐hand relationship within the preceding three months. Bear in mind, however, that if an Affiliate engages in “card collecting” with everyone the Affiliate meets and subsequently calling them, the FTC may consider this a form of telemarketing that is not subject to this exemption. Thus, if an Affiliate engages in calling “acquaintances,” the Affiliate must make such calls on an occasional basis only and not make this a routine practice.
Affiliates shall not use automatic telephone dialing systems or software relative to the operation of their Digital Marx Media businesses. Affiliates shall not place or initiate any outbound telephone call to any person that delivers any pre-‐recorded message (a “robocall”) regarding or relating to the Digital Marx Media products, and services.
SECTION 3 -‐ 23 -‐ Back Office Access
Digital Marx Media makes online back offices available to its Affiliates. Back offices provide Affiliates access to confidential and proprietary information that may be used solely and exclusively to promote the development of an Affiliate’s Digital Marx Media business and to increase sales of Digital Marx Media products. However, access to a back office is a privilege, and not a right. Digital Marx Media reserves the right to deny Affiliates’ access to the back office at its sole discretion.
SECTION 3 -‐ 24 -‐ Change of Contact Information
To ensure timely delivery of products, support materials, commissions, and tax documents, it is important that Digital Marx Media’s files are current. Street addresses are required for shipping. Affiliates planning to change any of their contact information or move must update their contact information via the Back Office function of the Digital Marx Media website. To guarantee proper delivery, two weeks advance notice must be provided to Digital Marx Media on all changes.
SECTION 3 -‐ 25 -‐ Continuing Development Obligations
SECTION 3 -‐ 25 -‐ 1 -‐ Ongoing Training
Any Affiliate who sponsors another Affiliate into Digital Marx Media must perform a bona fide assistance and training function to ensure that his or her downline is properly operating his or her Digital Marx Media business. Affiliates must have ongoing contact and communication with the Affiliates in their Marketing Organizations. Examples of such contact and communication may include, but are not limited to: newsletters, written correspondence, personal meetings, telephone contact, voice mail, electronic mail, and the accompaniment of downline Affiliates to Digital Marx Media meetings, training sessions, and other functions. Upline Affiliates are also responsible to motivate and train new Affiliates in Digital Marx Media product knowledge, effective sales techniques, the Digital Marx Media Compensation Plan, and compliance with Company Policies and Procedures. Communication with and the training of downline Affiliates must not, however, violate Sections 3.1 and/or 3.2 (regarding the development of Affiliate-‐produced sales aids and promotional materials).
Affiliates should monitor the Affiliates in their Marketing Organizations to guard against downline Affiliates making improper product or business claims, or engaging in any illegal or inappropriate conduct.
SECTION 3 -‐ 25 -‐ 2 -‐ Increased Training Responsibilities
As Affiliates progress through the various levels of leadership, they will become more experienced in sales techniques, product knowledge, and understanding of the Digital Marx Media program. They will be called upon to share this knowledge with lesser-‐experienced Affiliates within their Marketing Organization.
SECTION 3.25.3 – Ongoing Sales Responsibilities
Regardless of their level of achievement, Affiliates have an ongoing obligation to continue to personally promote sales through the generation of new customers and through servicing their existing customers.
SECTION 3 -‐ 26 -‐ Non-‐disparagement
Digital Marx Media values constructive criticisms and comments from Affiliates. All such comments should be submitted in writing to the Legal Department (email@example.com). While Digital Marx Media welcomes constructive input, negative comments and remarks made in the field by Affiliates about the Company, its products, or Compensation Plan serve no purpose other than to sour the enthusiasm of other Digital Marx Media Affiliates. For this reason, and to set the proper example for their Marketing Organizations, Affiliates must not disparage, demean, or make negative remarks about Digital Marx Media, other Digital Marx Media Affiliates, Digital Marx Media’s products, the Compensation Plan, or Digital Marx Media’s directors, officers, or employees.
SECTION 3 -‐ 27 -‐ Product Sales and Commissions
The Digital Marx Media Compensation Plan is based on the sale of the Digital Marx Media products and services to end consumers. Affiliates must fulfill personal sales requirements as specified in the Digital Marx Media
Compensation Plan (as well as meet other responsibilities set forth in the Agreement) to be eligible to earn commissions from the sale of the Digital Marx Media platform. All commissions are paid directly to eligible Affiliates through the payment processing accounts that each Affiliate must activate.
SECTION 3 -‐ 28 -‐ Refunds
Due to the nature of Digital Marx Media’s online business, products are available at the time of purchase. As such, Digital Marx Media has a strict 3-‐day return policy in effect, which begins from the date of purchase. The state of California has an exception to this rule based on their state’s governing laws. Please see Section 4.5 for more information.
Affiliates receive commissions based on the actual sales of the platform to end consumers. When the Company issues a refund to a customer, the Affiliate who received a commission based on the sale of the refunded product or service agrees that he or she shall reimburse Digital Marx Media the amount of the refund.
SECTION 3 -‐ 29 -‐ Reports
All information provided by Digital Marx Media in downline activity or downline genealogy reports, including but not limited to downline sales information and downline sponsoring activity is believed to be accurate and reliable. Nevertheless, due to various factors including but not limited to the inherent possibility of human, digital, and mechanical error; the accuracy, completeness, and timeliness of orders; denial of credit card and electronic check payments; returned products; credit card and electronic check charge-‐backs; the information is not guaranteed by Digital Marx Media or any persons creating or transmitting the information.
ALL PERSONAL AND DOWNLINE SALES INFORMATION IS PROVIDED “AS IS” WITHOUT WARRANTIES, EXPRESS OR IMPLIED, OR REPRESENTATIONS OF ANY KIND WHATSOEVER. IN PARTICULAR BUT WITHOUT LIMITATION THERE SHALL BE NO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NONINFRINGEMENT.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, Digital Marx Media AND/OR OTHER PERSONS CREATING OR TRANSMITTING THE INFORMATION WILL IN NO EVENT BE LIABLE TO ANY AFFILIATE OR ANYONE ELSE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES THAT ARISE OUT OF THE USE OF OR ACCESS TO PERSONAL AND/OR DOWNLINE SALES INFORMATION (INCLUDING BUT NOT LIMITED TO LOST PROFITS, COMMISSIONS, LOSS OF OPPORTUNITY, AND DAMAGES THAT MAY RESULT FROM INACCURACY, INCOMPLETENESS, INCONVENIENCE, DELAY, OR LOSS OF THE USE OF THE INFORMATION), EVEN IF Digital Marx Media OR OTHER PERSONS CREATING OR TRANSMITTING THE INFORMATION SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, Digital Marx Media OR OTHER PERSONS CREATING OR TRANSMITTING THE INFORMATION SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO YOU OR ANYONE ELSE UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHER THEORY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO.
Access to and use of Digital Marx Media’s online reporting services and your reliance upon such information is at your own risk. All such information is provided to you “as is”. If you are dissatisfied with the accuracy or quality of the information, your sole and exclusive remedy is to discontinue use of and access to Digital Marx Media’s online reporting services and your reliance upon the information.
SECTION 3 -‐ 30 -‐ Monthly Billing
The subscription fees are automatically paid each month with a credit or debit card maintained on file with Digital Marx Media. Affiliates may make adjustments to their monthly subscription in the back office of the Digital Marx Media website.
SECTION 4 -‐ DISPUTE RESOLUTION AND DISCIPLINARY PROCEEDINGS
SECTION 4 -‐ 1 -‐ Disciplinary Sanctions
Violation of any term of the Agreement or the violation of any common law duty, including but not limited to any applicable duty of loyalty, or any illegal, fraudulent, deceptive or unethical business conduct, or any act or omission by an Affiliate that, in the sole discretion of the Company may damage its reputation or goodwill (such damaging act or omission need not be related to the Affiliate’s Digital Marx Media business), may result, at Digital Marx Media’s discretion, in one or more of the following corrective measures:
Affiliate’s Marketing Organization;
In all situations when a Suspension is issued and commissions withheld, commissions will be paid to Admin until such time that the suspended account is reinstated. The reason for this is to keep everyone honest in their dealings and allegations of wrongdoing. In situations deemed appropriate by Digital Marx Media, the Company may institute legal proceedings for monetary and/or equitable relief.
SECTION 4 -‐ 2 -‐ Grievances and Complaints
When an Affiliate has a grievance or complaint with another Affiliate regarding any practice or conduct in relationship to their respective Digital Marx Media businesses, the complaining Affiliate should first report the problem to his or her Sponsor who should review the matter and try to resolve it with the other party’s upline sponsor. If the matter involves interpretation or violation of Company policy, it must be reported in writing to the Affiliate Services Department at the Company. The Affiliate Services Department will review the facts and attempt to resolve it.
SECTION 4 -‐ 3 -‐ Mediation
Prior to instituting an arbitration as provided in Section 4.4 below, the parties shall meet in good faith and attempt to resolve any dispute arising from or relating to the Agreement through non-‐binding mediation. One individual who is mutually acceptable to the parties shall be appointed as mediator. If the parties cannot agree on a mediator within 14 days from the date that a party submits a written request for mediation, the complaining party shall apply to Judicate West (www.judicatewest.com) to appoint a mediator. The mediation shall occur within 60 days from the date on which the mediator is appointed. The mediator’s fees and costs, as well as the costs of holding and conducting the mediation, shall be divided equally between the parties. Each party shall pay its portion of the anticipated shared fees and costs at least 10 days in advance of the mediation. Each party shall pay its own attorneys fees, costs, and individual expenses associated with conducting and attending the mediation. Mediation shall be held in Minneapolis, Minnesota and shall last no more than two business days.
SECTION 4 -‐ 4 -‐ Arbitration
If mediation is unsuccessful, any controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be settled by arbitration. The parties waive all rights to trial by jury or to any court.
NO CLASS ACTION, OR OTHER REPRESENTATIVE ACTION OR PRIVATE ATTORNEY GENERAL ACTION OR JOINDER OR CONSOLIDATION OF ANY CLAIM WITH A CLAIM OF ANOTHER PERSON OR CLASS OF CLAIMANTS SHALL BE ALLOWABLE.
The arbitration shall be filed with, and administered by, Judicate West under its rules and procedures. The Judicate West Arbitration Rules of Procedures are available at www.judicatewest.com/library/rules. Copies of Judicate West Arbitration Rules of Procedures will be emailed to Affiliates upon request to Digital Marx Media’s Legal Department (firstname.lastname@example.org).
Notwithstanding the rules of Judicate West, the following shall apply to all Arbitration actions:
All arbitration proceedings shall be held in Tampa, Florida. There shall be one arbitrator selected from the panel that Judicate West provides. Each party to the arbitration shall be responsible for its own costs and expenses of arbitration, including legal and filing fees. The decision of the arbitrator shall be final and binding on the parties and may, if necessary, be reduced to a judgment in any court of competent jurisdiction. This agreement to arbitrate shall survive the cancellation or termination of the Agreement.
The parties and the arbitrator shall maintain the confidentiality of the entire arbitration process and shall not disclose to any person not directly involved in the arbitration process:
through discovery in arbitration;
Notwithstanding the foregoing, nothing in the Agreement shall prevent either party from applying to and obtaining from any court having jurisdiction a writ of attachment, a temporary injunction, preliminary injunction, permanent injunction, or other relief available to safeguard and protect its intellectual property rights and/or to enforce its rights under the nonsolicitation provision of the Agreement.
SECTION 4 -‐ 5 -‐ Governing Law, Jurisdiction and Venue
Jurisdiction and venue of any matter not subject to arbitration shall reside exclusively in Los Angeles, California. The Federal Arbitration Act shall govern all matters relating to arbitration. The law of the State of California shall govern all other matters relating to or arising from the Agreement.
SECTION 4 -‐ 5 -‐ 1 -‐ Louisiana Residents
Notwithstanding the foregoing, and the mediation and arbitration provisions in Sections 4.3 and 4.4, residents of the State of Louisiana shall be entitled to bring an action against Digital Marx Media in their home forum and pursuant to Louisiana law.
SECTION 4.5.2 California Residents
A California resident may cancel his or her Affiliate Agreement within 15 days from the date of enrollment and receive a 100% refund for all fees paid and products or services purchased prior to the date of cancellation
SECTION 5 -‐ CANCELLATION OF THE AGREEMENT AND RECLASSIFICATION
SECTION 5 -‐ 1 -‐ Effect of Cancellation
So long as an Affiliate remains active and complies with the terms of the Agreement, Digital Marx Media shall pay commissions to such Affiliate in accordance with the Compensation Plan. An Affiliate’s commissions constitute the entire consideration for the Affiliate’s efforts in generating sales of Digital Marx Media services and all activities related to generating such sales (including building a Marketing Organization). Following an Affiliate’s non-‐renewal of his or her Affiliate Agreement, cancellation for inactivity, or voluntary or involuntary cancellation of his or her Affiliate Agreement (all of these methods are collectively referred to as “cancellation”), the former Affiliate shall have no right, title, claim or interest to the Marketing Organization which he or she operated, or any commission from the sales generated by any Affiliate in the organization. An Affiliate whose business is cancelled will lose all rights as an Affiliate. This includes the right to sponsor the sale of the Digital Marx Media platform and the right to receive future commissions, bonuses, or other income resulting from the sales sponsored by other Affiliates in the Affiliate’s former Marketing Organization. In the event of cancellation, Affiliates agree to waive all rights they may have, including but not limited to property rights, to their former Marketing Organization and to any bonuses, commissions or other remuneration derived from the sales of Digital Marx Media services sponsored by any of the Affiliates in his or her former Marketing Organization.
Following an Affiliate’s cancellation of his or her Affiliate Agreement, the former Affiliate shall not hold himself or herself out as an Digital Marx Media Affiliate and shall not have the right to sponsor the sale of Digital Marx Media products or services. An Affiliate whose Affiliate Agreement is canceled shall receive commissions and bonuses only for the last full pay period he or she was active prior to cancellation (less any amounts withheld during an investigation preceding an involuntary cancellation).
SECTION 5 -‐ 2 -‐ Cancellation
SECTION 5 -‐ 2 -‐ 1 -‐ Involuntary Cancellation
An Affiliate’s violation of any of the terms of the Agreement, including any amendments that may be made by Digital Marx Media in its sole discretion, may result in any of the sanctions listed in Section 4.1, including the involuntary cancellation of his or her Affiliate Agreement. Cancellation shall be effective on the date on which written notice is mailed, emailed, faxed, or delivered to an express courier, to the Affiliate’s last known address, email address, or fax number, or to his or her attorney, or when the Affiliate receives actual notice of cancellation, whichever occurs first.
Digital Marx Media reserves the right to terminate all Affiliate Agreements upon thirty (30) days written notice in the event that it elects to: (1) cease business operations; (2) dissolve as a corporate entity; or (3) terminate distribution of its products via direct selling.
SECTION 5 -‐ 2 -‐ 2 -‐ Voluntary Cancellation
A participant in this affiliate marketing plan has a right to cancel at any time, regardless of reason. Cancellation must be submitted in writing to the Company at its principal business address. The written notice must include the Affiliate’s signature, printed name, address, and Affiliate I.D. Number.
If such a former Affiliate has an active subscription to any of the Company’s subscription-‐based products or services, such subscription(s) shall remain in force and the former Affiliate shall be reclassified as a customer, unless the Affiliate also specifically requests that his or her subscription(s) also be canceled.
SECTION 5 -‐ 2 -‐ 3 -‐ Non-‐renewal
An Affiliate may also voluntarily cancel his or her Affiliate Agreement by failing to renew the Agreement on its anniversary date. The Company may also elect not to renew an Affiliate’s Agreement upon its anniversary date.
SECTION 6 –Definitions
Active Affiliate — An Affiliate is one who satisfies the requirements, as set forth in the Digital Marx Media Compensation Plan to ensure that he or she is eligible to receive bonuses and commissions.
Agreement — The contract between the Company and each Affiliate includes the Affiliate Agreement, the Digital Marx Media Policies and Procedures, and the Digital Marx Media Compensation Plan, all in their current form and as amended by Digital Marx Media in its sole discretion. These documents are collectively referred to as the “Agreement.”
Business Entity — A corporation, partnership, trust, limited liability company, or other type of entity. Business Volume (BV) -‐ The commissionable value of products and services sold in a calendar month: (1) by the Company to an Affiliate; and (2) by the Company to the Affiliate’s personally enrolled Customers and affiliates (who make optional product purchases).
Cancel — The termination of an Affiliate’s business. Cancellation may be either voluntary, involuntary, through non-‐renewal or inactivity.
Customer — An individual or entity that purchases Digital Marx Media products or services from an
Affiliate, but who is not an Affiliate, or falls within an immediate household family member’s account.
Household — All individuals who are living at or doing business at the same address, and who are related by blood or marriage, or who are living together as a family unit or in a family-‐like setting. A household includes, but is not limited to, spouses, heads-‐of-‐household, dependent family members residing in the same residence, and roommate situations.
Immediate Household — Spouses, heads-‐of-‐household, and dependent family members residing in the same residence.
Marketing Organization — The Affiliates sponsored below a particular Affiliate make up such Affiliate’s Marketing Organization.
Official Digital Marx Media Material — Literature, audio or videotapes, websites, and other materials developed, printed, published and/or distributed by Digital Marx Media to Affiliates.
Recruit — For purposes of Digital Marx Media’s Conflict of Interest Policy (Section 3.7), the term “Re
Digital Marx Media is a full service digital media and production agency that focuses on innovation and branding solutions for online reputation, search, social media strategy, website and mobile/tablet applications.
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