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Introduction
The terms and conditions
listed here will serve as the agreement between BizCentral Inc, and
you, an Affiliate in the affiliate marketing network
AffiliateBot.com, operated by BizCentral Inc (the “AffiliateBot
Network”). When you submit this application, you confirm that
you’ve read and completely understand all terms and conditions
listed in this agreement and agree to be bound by said terms and
conditions. The “Agreement” is comprised of all terms
and conditions listed here in addition to the following articles:
AffiliateBot.com Website
Terms of Use
AffiliateBot.com Privacy
Policy
AffiliateBot.com
Affiliate Agreement
AffiliateBot.com Email
Marketing Policy
AffiliateBot.com reserves
the right to modify, update or otherwise change the terms and
conditions of this Agreement. We will notify you of any material
changes to this Agreement by posting the revised terms to the
Affiliate Account Area of our website. YOU SHOULD REFER TO THE SITE
FREQUENTLY TO ENSURE THAT YOU HAVE REVIEWED AND ARE FAMILIAR WITH THE
MOST RECENT VERSION. Unless we state otherwise, the change, addition
or deletion will apply to your future use of the Affiliate Marketing
Network. You are deemed to accept all changes, additions and
deletions unless and until you terminate this Agreement.
1.
Participation in Programs.
(a) Acceptance by Advertiser.
During this Agreement You may apply to Advertiser Programs for the
opportunity to earn Payouts by promoting Advertisers in accordance
with the Advertiser's Program terms and complying with this
Agreement. Upon approval by the Advertiser for acceptance into its
Program, You may display (and remove) Links to Advertiser's Web site
or Web site content in accordance with the Advertiser's Program terms
and this Agreement. An Advertiser's acceptance of You extends only to
the entity, or individual, that enters into this Agreement with
BizCentral’s AffiliateBOT.
(b) Program Terms. The
details of an Advertiser's Program shall be available through the
Network Service. Transactions qualifying for a Payout are defined by
the Advertiser. Advertisers may change any Payout rate at any
time.
(c) Additional Terms. Affiliates and Advertisers may
enter into direct contractual relationships through the apply to join
process in the form of a click-through agreement hosted by
AffiliateBOT (“Click-through Agreement”) or in the form
of an offer made to You by Advertiser via the members' area on the
Network Service (“Offer”). It is Your obligation to
review and accept or decline a Click-through Agreement or Offer when
such is presented to You. If accepted by You, compliance with the
Click-through Agreement or Offer is solely Your responsibility. The
terms and conditions of the Click-through Agreement or Offer may
supersede or conflict with this Agreement and shall apply only with
respect to Your relationship with that particular Advertiser.
(d)
Prohibited Uses of Links.
(i)
Locations. You may not place Links to an Advertiser's Web site
or Web site content in third party newsgroups, message boards, blogs,
unsolicited email and other types of spam, link farms, counters,
chatrooms, or guestbooks. Affiliates using IRC channels, instant
messages or similar Internet resources must designate their program
as special requiring manual review and acceptance by the
Advertiser.
(ii) Non-Bona Fide Transactions. You must
promote Advertisers such that You do not mislead the Visitor, and
such that the Links deliver bona fide Transactions by the Visitor to
Advertiser from the Link. You shall not cause any Transactions to be
made that are not in good faith, including, but not limited to, using
any device, program, robot, Iframes, or hidden frames. You may
not place any Transactions, whether it is for testing or a genuine transaction, where You or Your agent are the
Visitor. Multiple Leads from the same individual, entity or IP
address may be considered non-bona fide Transactions. You shall not
earn Payouts for non-bona fide Transactions.
(iii) Infringement.
None of Your promotional activities may infringe an Advertiser's
proprietary rights (including but not limited to trademark rights),
BizCentral's proprietary rights, or a third party's proprietary
rights.
(e)
Updating Links. If Links to Advertiser are not dynamically
updated through the Network Service, upon notification You are
obligated to update an Advertiser's Links in order to earn Payouts.
2.
Affiliate Obligations to BizCentral’s AffiliateBOT.
(a)
Accurate, Up-to-Date Information. You agree to provide
AffiliateBOT and Advertiser with accurate information about You and
Your promotional methods, and to maintain up-to-date “Account”
information (such as contact information, Web sites used, etc.). In
Your Account, You must accurately, clearly and completely describe
all promotional methods by selecting the appropriate descriptions and
providing additional information when necessary. Some promotional
methods will be designated by the system as “special”.
Special programs are linked to promotional methods and practices
considered unique and require manual approval and acceptance by the
Advertiser. AffiliateBOT reserves the right to define any program as
special.
(b) Use of Links. You represent and warrant that
all promotional means used by You will not contain objectionable
content (including but not limited to content that is misleading,
libelous, defamatory, obscene, violent, bigoted, hate-oriented,
illegal, and/or promoting illegal goods, services or activities), and
that You will not mislead others. You agree to: (i) use ethical and
legal business practices, (ii) comply with the Advertisers' Program
terms and this Agreement, (iii) maintain a privacy policy on Your Web
site and for any non-Web site based promotional method made available
to Visitors, and (iv) designate Your Affiliate Account as “special”
if You promote an Advertiser(s) by any means other than displaying a
Link to the Advertiser on Your Web site. AffiliateBOT must approve
all of Your promotional activities and may deem Your promotional
activities inappropriate and a material breach of this Agreement in
AffiliateBOT’s sole discretion. Our network quality department
reviews affiliate conduct and any suspected fraudulent, abusive or
otherwise illegal content or activity by You through Your promotional
methods, or that is perpetrated through use of the Network Service,
is grounds for immediate termination of this Agreement or
deactivation of Your Account.
(c) Promotional Methods. You
represent and warrant that You will not engage in and/or facilitate
spamming, indiscriminate advertising or unsolicited commercial email
or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law
108-187 or any successor legislation), and/or any other laws and/ or
regulations that govern email marketing and/or communications. You
represent and warrant that You will not engage in pop-up or pop-under
advertising using any means involving third party properties and/or
services (software). Pop up/unders are acceptable on a first party
basis only when triggered by Your site content /site visit or by
downloadable software applications for which You are the
owner/operator. Pop up/unders delivered through downloadable software
cannot engage in means that force clicks or perform redirects, or pop
over a pay-per-click listing or natural search results. Pop up/unders
must honor the AffiliateBOT Affiliate Code of Conduct requirements
(as such requirements may be modified from time to time), including
but not limited to: (i) installation requirements, (ii) enduser
agreement requirements, (iii) afsrc=1 requirements, (iv) requirements
prohibiting usurpation of a Transaction that might otherwise result
in a Payout to another Affiliate (e.g. by purposefully detecting and
forcing a subsequent click-through on a link of the same Advertiser)
and (v) non-interference with competing advertiser/ Affiliate
referrals.
(d) Personally Identifiable Information of Visitors.
You represent and warrant that You will not enable the Tracking Code
to collect personally identifiable information of Visitors that would
allow AffiliateBOT to personally identify Visitors.
(e) Privacy.
You must conspicuously post Your privacy policy on Your Web site and
otherwise make it available to all Visitors. Your privacy policy must
comply with all laws and regulations regarding the privacy of Visitor
information, be commercially reasonable, and fully and accurately
disclose Your collection and use of Visitor information. You must
fully and accurately disclose Your use of third party technology,
including AffiliateBOT’s tracking technology, use of cookies
and options for discontinuing use of such cookies.
(f) Applicable
Codes and Code Maintenance. In order for AffiliateBOT to record
the tracking of Visitors' Transactions resulting from clicks on Links
to Advertisers promoted by You, You must include and maintain a
AffiliateBOT “Tracking Code” within the Advertiser's
Links. All Advertiser Links and all advertisements ("Ad
Content") must be in a Network Service compatible format.
(g)
Usage and Security of Account. You shall be responsible for
all usage and activity on Your account and for loss, theft or
unauthorized disclosure of Your password (other than through
AffiliateBOT’s negligent or willful conduct or omission). You
shall provide AffiliateBOT with prompt written notification of any
known or suspected unauthorized use of Your Account or breach of the
security of Your Account.
(h) Own Transactions. You may not click on your own Links to generate
transactions for your Affiliate Account, regardless of its purpose.
AffiliateBOT reserves the right to reverse any such transactions and terminate your
account for the violation without any compensation.
(i) Duplicate Accounts Prohibited. As an affiliate, you can only have 1 account. You can list multiple domains in one account, but only one account is allowed. Self-referrals for affiliate or merchant accounts are strictly prohibited.
3.
BizCentral Inc’s AffiliateBOT's Services.
(a)
Tracking Transactions and Payouts. AFFILIATEBOT shall
determine (where possible) actual Payouts that should be credited to
Your Account. AFFILIATEBOT may, in AFFILIATEBOT's sole discretion,
apply an estimated amount of Payouts, if: (i) You are referring
Visitors to Advertiser as verified by clicks through Links to
Advertiser with AFFILIATEBOT Tracking Code, (ii) where there is an
error in Advertiser's transmission of Tracking Code data to
AFFILIATEBOT, and (iii) where AFFILIATEBOT is able to utilize a
historical analysis of Your promotion of Advertiser to determine an
equitable amount of estimated Payouts.
(b) Charge-backs. An
Advertiser may apply, or AFFILIATEBOT may apply, a debit to Your
Account in an amount equal to a Payout previously credited to Your
Account in circumstances of : (i) product returns; (ii) duplicate
entry or other clear error; (iii) non-bona fide Transactions; (iv)
non-receipt of payment from, or refund of payment to, the Visitor by
the Advertiser; or (v) Affiliate failure to comply with Advertiser's
Program terms or other agreement with Advertiser ("Charge-back").
Charge-backs may be applied to Your Account at any time, including
previous payment cycles.
(c) Access to Tracking and Reporting
Tools. AFFILIATEBOT shall provide You with access to tracking and
reporting tools, and to support services. From time to time
AFFILIATEBOT may offer optional services for a fee. Fees for such
optional services are at AFFILIATEBOT's then-current published rates
or as may be quoted by AFFILIATEBOT, and are payable in advance or
may be off-set against Your positive Account balance (at
AFFILIATEBOT's discretion). Tracking detail regarding Visitor
Transactions is not available on a real-time basis for all
Advertisers and there may be reporting delays regarding Transactions
for some Advertisers. AFFILIATEBOT may make available, for fees that
AFFILIATEBOT shall publish from time-to-time, enhanced reporting
capabilities and other services that are not included in the standard
Network Service.
(d) Support. Support for your program is
available on-line through the "Contact Us" area in the
AFFILIATEBOT Account Manager, which allows You to categorize and
describe Your issue. Online help also allows You to check the status
of all issues through the "Check Question Status" feature.
Phone support may also be available during operating hours, except
holidays.
(e) Facilitating Payment of Payouts. Subject to
other provisions in this Agreement, AFFILIATEBOT shall credit Your
Account with a Payout for each qualifying Transaction in accordance
with the Advertiser's Payout rate and Program terms for the relevant
Transaction. On the 15th day of each calendar month, AFFILIATEBOT
will issue to You any positive balance in Your Account for
Transactions reported for the month preceding the previous month
(net-30 or net-45), provided Your Account balance exceeds the
required “Minimum Account Balance.” AFFILIATEBOT shall
have no obligation to make payment of any Payouts for which
AFFILIATEBOT has not received payment from the relevant Advertiser of
all monies due to AFFILIATEBOT (including for all Payouts owed by
such Advertiser to all of such Advertiser's Affiliates). If
AFFILIATEBOT elects, in its own discretion, not to make payment to
You for amounts not received from an Advertiser, those amounts shall
not be included in the Minimum Balance Amount. Your recourse for any
earned Payouts not paid to You shall be to make a claim against the
relevant Advertiser(s), and AFFILIATEBOT disclaims any and all
liability for such payment. You may elect to receive payment in any
of the currencies that AFFILIATEBOT supports (as may be amended by
AFFILIATEBOT). The conversion rate shall be determined in accordance
with AFFILIATEBOT's operating standards using the rates prevailing
upon the date that payment is made to You, or upon the basis of
historical conversion rates if rates are unavailable. The number or
amount of Transactions, credits for Payouts, and debits for
Charge-backs, as calculated by AFFILIATEBOT, shall be final and
binding on You.
(f) Dormant Accounts. If Affiliate's
Account has not been credited with a valid, compensable Transaction
that has not been Charged-back during any rolling, six consecutive
calendar month period (“Dormant Account”), a dormant
account fee at AFFILIATEBOT's then-current rate shall be applied to
Affiliate's Account each calendar month that Affiliate's Account
remains an open yet Dormant Account or until Your Account balance
reaches a zero balance, at which time the Account shall become
deactivated. Transactions will not be counted if the Transaction
subsequently becomes a Charge-back.
(g) Negative Accounts.
You may have a negative balance if Your Account is debited amounts
equivalent to previous Payouts for Charge-backs and You do not have
an adequate Account balance to cover the Charge-back amounts. When
You have a negative balance, You must immediately remit payment to
AFFILIATEBOT in an amount sufficient to bring Your Account to a zero
balance, or Your Account is subject to 1.5% interest per month,
compounded monthly.
4.
Proprietary Rights.
(a) Linking to Advertisers. For
each Advertiser's Program that You have been accepted to, the
Advertiser is granting to You the right to display and Link to the
Advertiser's Web site or Web site content in accordance with the
Advertiser's Program terms for the limited purposes of Promoting the
Advertiser's Program, subject to the terms and conditions of this
Agreement. Your use of the Link signifies Your agreement to refrain
from copying or modifying any icons, buttons, banners, graphics files
or content contained in the Link, including but not limited to
refraining from removing or altering any copyright or trademark
notices. As between AFFILIATEBOT and Affiliate, AFFILIATEBOT owns all
rights in and to all information regarding the Visitors that You
refer to Advertisers through AFFILIATEBOT.
(b) AFFILIATEBOT's
Use of Your Marks. You authorize AFFILIATEBOT to utilize Your
trademarks, service marks, tradenames, and/or copyrighted material
that You provide to AFFILIATEBOT through Your Account to promote Your
participation in the Network Services.
(c) Your Use of
AFFILIATEBOT's Proprietary Rights. You agree that Your use of any
AFFILIATEBOT Web site (such as www.AffiliateBOT.com) and Your use of
any AFFILIATEBOT trademarks, service marks, tradenames, and/or URLs
is subject to the license and terms of use that are available from
such Web site ("Terms of Use"). You explicitly agree not to
adopt or use in any manner any trademarks, service marks, tradenames,
and/or URLs that are the same or confusingly similar to, or are
combined with, those of AFFILIATEBOT.
(d) Retention of Rights.
All proprietary rights of Advertisers, You, and AFFILIATEBOT, and all
goodwill arising as a result of such rights, inure to the benefit of
such owner.
(e) No Challenge to AFFILIATEBOT's/Advertiser's
Proprietary Rights. You acknowledge that You obtain no
proprietary rights in AFFILIATEBOT's trademarks, service marks,
tradenames, URLs, copyrighted material, patents, and patent
applications, and agree not to challenge AFFILIATEBOT's proprietary
rights. You acknowledge that You obtain no proprietary rights in Your
Advertisers' proprietary rights, and agree not to challenge such
Advertiser's proprietary rights.
5.
Confidentiality.
(a) Obligations. You or
AFFILIATEBOT may provide the other with information that is
confidential and proprietary to that party or a third party, as is
designated by the disclosing party or that is reasonably understood
to be proprietary and/or confidential ("Confidential
Information"). The receiving party 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 any proprietary interests of the
disclosing party. Confidential Information shall not include (even if
designated by a party) information: (i) that is or becomes part of
the public domain through no act or omission of the receiving party;
(ii) that is lawfully received by the receiving party from a third
party without restriction on use or disclosure and without breach of
this Agreement or any other agreement without knowledge by the
receiving party of any breach of fiduciary duty, or (iii) that the
receiving party had in its possession prior to the date of this
Agreement. Upon termination of this Agreement, You must destroy or
return to AFFILIATEBOT any Confidential Information provided by
AFFILIATEBOT to You under this Agreement.
(b) Provision of Info
to Advertisers/Third Parties. You agree that AFFILIATEBOT may,
but is not obligated to, provide Your email address(es) and basic
Affiliate Account detail (including but not limited to Your address,
phone and fax number, Web site name, the date the website or
subscription email first entered into operation, and visitor
demographics) to Advertisers. AFFILIATEBOT may provide any and all
Visitor, Transaction and/or Tracking Code data to the Advertiser to
which You referred such Visitor, and to any third party in
AFFILIATEBOT's sole discretion, including but not limited to all
regulatory, legislative and judicial bodies, and pursuant to
allegations and claims of proprietary rights infringement.
AFFILIATEBOT reserves the right to be able to utilize Tracking Code
data provided to it, which may include: information about Your
performance statistics, to analyze Network Service trends, monitor
Network Service efficiencies, maintain the integrity of the tracking
code, promote Network Service capabilities and efficiencies, and
promote You and Your Web performance to Advertisers.
6.
Term, Termination, Deactivation and Notices.
(a) Term.
This Agreement shall commence upon Your indication that You have
accepted this Agreement by providing the required information and
‘clicking through' the acceptance button on the AFFILIATEBOT
Web site and shall continue until terminated in accordance with the
terms of this Agreement. This Agreement may be terminated by either
party upon 15 days notice. This Agreement may be terminated
immediately upon notice for Your breach of this Agreement. Your
Account may be deactivated during investigation of breach of this
Agreement. If this Agreement is terminated based upon Your breach,
You shall not be eligible to enter into a new click-through Affiliate
Service Agreement with AFFILIATEBOT, and any attempt to do so shall
be null and void.
(b) Termination by Advertiser. An
Advertiser may terminate You, one of Your Web sites, or Your ability
to use a promotional method, from the Advertiser's Program for any or
no reason, effective immediately. Additionally, Advertiser may
terminate You from the Advertiser's Program for breach of a third
party's proprietary rights, and/or diluting, tarnishing or blurring
an Advertiser's trademarks, tradenames, and/or service marks, or for
Your material breach of the Advertiser's Program terms or of this
Agreement.
(c) Termination or Deactivation by AFFILIATEBOT.
AFFILIATEBOT may terminate You, one of Your Web sites, or Your use of
a promotional method, from an Advertiser's Program, at any time in
AFFILIATEBOT's sole discretion. Breach of any Section of this
Agreement is cause for immediate termination from an Advertiser's
Program and/or termination of this Agreement, and may result in
Chargeback of one or more Payouts. AFFILIATEBOT may temporarily
deactivate or terminate Your Account if: (i) You or Your agent are
responsible for the improper functioning of Ad Content, or if You
otherwise interfere with and/or fail to maintain the Tracking Code;
(ii) Your Account has not been logged into and/or there have been no
Transactions credited to Your Account for any 30 day period; (iii)
You maintain a negative balance in Your Account; (iv) AFFILIATEBOT
determines You are diluting, tarnishing or blurring AFFILIATEBOT's
proprietary rights; (v) You begin proceedings to challenge
AFFILIATEBOT's proprietary rights; or (vi) a third party (including a
AFFILIATEBOT Advertiser) disputes Your right to use any Link, domain
name, trademark, service mark, trade dress, or right to offer any
service or good offered on Your Web site, or through any of Your
promotional means. Upon termination of this Agreement, or in case of
deactivation of Your Account, You shall no longer accrue Payouts in
Your Account, including but not limited to subsequent sales and/or
Leads for click-throughs that occurred prior to termination.
(d)
Termination of Programs and Offers. Programs and Offers may be
discontinued at any time.
(e) Post-termination. Upon
termination of this Agreement, any outstanding payments shall be paid
by AFFILIATEBOT to You within 90 days of the termination date, and
any outstanding debit balance shall be paid by You to AFFILIATEBOT
within 30 days of termination of this Agreement. All payments are
subject to recovery for Charge-backs. Upon termination of this
Agreement, any permissions granted under this Agreement will
terminate, and You must immediately remove all Links to
Advertiser(s). Provisions of this Agreement that by their nature and
context are intended to survive the termination of this Agreement
shall survive the termination of this Agreement to the extent that
and as long as is necessary to preserve a party's rights under this
Agreement that accrued prior to termination.
7.
Representations, Warranties, Disclaimers and Limitations.
(a)
Business Operations. Each party will make reasonable
commercial efforts to keep its Web site operational during normal
business hours. However, the parties agree that it is normal to have
a certain amount of system downtime and agree not to hold each other
or Your Advertisers liable for any of the consequences of such
interruptions. AFFILIATEBOT may modify the Network Service, or
discontinue providing the Network Service, or any portion thereof, at
any time.
(b) Authority. Each party represents and warrants
to the other party as to itself that the person executing this
Agreement is authorized to do so on such party's behalf. IF YOU ARE
AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18
YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
(c)
Non-infringement Warranties. You represent and warrant that:
(i) You have all appropriate authority to operate, and to any and all
content on, Your Web site(s); (ii) You have all appropriate authority
in any promotional method you may choose to use; (iii) Your Web
site(s) and Your promotional methods do not and will not infringe a
third party's, a AFFILIATEBOT Advertiser's, or AFFILIATEBOT's,
proprietary rights; and (iv) You shall remain solely responsible for
any and all Web sites owned and/or operated by You and all of Your
promotional methods. AFFILIATEBOT may or may not review all content
on Your Web site or used by You in Your promotional methods.
(d)
Compliance with Laws. You are responsible for compliance with
the requirements of all relevant legislation (including subordinate
legislation and the rules of statutorily recognized regulatory
authorities) in force or applicable in the United States or in any
other applicable territory, and warrant that no promotion method used
by You or the content of Your Web site(s) will render AFFILIATEBOT
liable to any proceedings whatsoever.
(e) Limitation of
Liabilities. ANY OBLIGATION OR LIABILITY OF AFFILIATEBOT UNDER
THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR PAYOUTS PAID TO
YOU BY AFFILIATEBOT UNDER THIS AGREEMENT DURING THE YEAR PRECEDING
THE CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE
OTHER PARTY TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE
TERMINATION OF THIS AGREEMENT. YOU AGREE THAT AFFILIATEBOT SHALL NOT
BE LIABLE TO YOU, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A
CLAIM BY ANOTHER AFFILIATE OR AN ADVERTISER OF THE NETWORK SERVICE),
FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE
DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST
PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN
IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
(f)
Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE
PURSUANT TO APPLICABLE LAW, AFFILIATEBOT DISCLAIMS ALL WARRANTIES
IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS,
(B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT
AFFILIATEBOT'S SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING
CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE
WITH ENJOYMENT OF THE AFFILIATE'S INFORMATION OR WEB SITE. ALL
'INFORMATION' AND 'COMPUTER PROGRAMS' PROVIDED TO YOU IN THE COURSE
OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK
AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH
YOU. AFFILIATEBOT IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE
PRACTICES, ACTS OR OMISSIONS OF ANY ADVERTISER OR AFFILIATE, OR SUCH
ADVERTISER OR AFFILIATE'S WEB SITE(S), AND/OR THE CONTENT OF AN
ADVERTISER'S WEB SITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH
THE NETWORK SERVICE.
(g) Remedies. No remedy or election
shall be deemed exclusive but shall, wherever possible, be cumulative
with all other remedies at law or in equity.
(h) Benefit of the
Bargain. THE PROVISIONS OF THIS SECTION 7 ARE AN ESSENTIAL
ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.
8.
Affiliate's Indemnification Obligations. Affiliate shall
defend, indemnify and hold AFFILIATEBOT and Advertisers harmless
against all claims, suits, demands, damages, liabilities, losses,
penalties, interest, settlements and judgments, costs and expenses
(including attorneys' fees) incurred, claimed or sustained by third
parties, including but not limited to Advertisers, directly or
indirectly as a result of (a) Affiliate's breach of or non-compliance
with this Agreement, (b) Affiliate's violation of any law, or an
alleged violation of law by AFFILIATEBOT, that is a direct or
indirect result of Affiliate's use of the Network Service, (c)
Affiliate's use of the Network Service, (d) Affiliate's participation
in any Program, (e) any content, goods or services offered, sold or
otherwise made available by Affiliate to any person, (f) Affiliate's
acts or omissions in using, displaying or distributing any internet
links obtained from the Network Service or elsewhere, including but
not limited to Affiliate's use of internet links via email
distribution, (g) any claim that AFFILIATEBOT is obligated to pay tax
obligations in connection with payment made to Affiliate pursuant to
this Agreement and/or any Advertiser's Program, and (h) any violation
or alleged violation by Affiliate of any rights of another, including
breach of a person's or entity's intellectual property rights (each
(a)-(h) individually is referred to hereinafter as a "Claim").
Should any Claim give rise to a duty of indemnification under this
Section 8, AFFILIATEBOT shall promptly notify Affiliate, and
AFFILIATEBOT shall be entitled, at its own expense, and upon
reasonable notice to Affiliate, to participate in the defense of such
Claim. Participation in the defense shall not waive or reduce any of
Affiliate's obligations to indemnify or hold AFFILIATEBOT harmless.
Affiliate shall not settle any Claim without AFFILIATEBOTs prior
written consent. Affiliate also shall indemnify for any reasonable
attorneys' fees or other costs incurred by an indemnified party in
investigating or enforcing this Section 8. In the context of this
Section 8 only, the term “AFFILIATEBOT” shall include
officers, directors, employees, corporate affiliates, subsidiaries,
agents, and subcontractors.
9.
Miscellaneous.
(a) Headings and References. Headings
of Sections are for the convenience of reference only. Words
indicated in quotes and capitalized signify an abbreviation or
defined term for indicated words or terms, including those
definitions contained in the opening paragraph.
(b) Third Party
Disputes. In the event of a third party claim against either: (a)
AFFILIATEBOT's intellectual property; or (b) against AFFILIATEBOT's
right to offer any service or good on AFFILIATEBOT's Web site(s) or
if, in AFFILIATEBOT's opinion, such a claim is likely, AFFILIATEBOT
shall have the right, at its sole option and in its sole discretion,
to (i) secure the right at AFFILIATEBOT's expense to continue using
the intellectual property or good or service; or (ii) at
AFFILIATEBOT's expense replace or modify the same to make it
non-infringing or without misappropriation.
(c) Relationships
of Parties/Third Party Rights. The relationships of the parties
to this Agreement shall be solely that of independent contractors,
and nothing contained in this Agreement shall be construed otherwise.
Nothing in this Agreement or in the business or dealings between the
parties shall be construed to make them joint venturers or partners
with each other. Neither party shall do anything to suggest to third
parties that the relationship between the parties is anything other
than that of independent contractor. You agree that Your consent is
not necessary to modify any Advertiser Service Agreement.
(d)
Choice of Law/Attorneys' Fees. This Agreement is governed by
the laws of the BVI, except for its conflict of law provisions. The
exclusive forum for any actions related to this Agreement shall be in
the BVI courts. The parties consent to such venue and jurisdiction
and waive any right to a trial by jury. The application of the United
Nations Convention on the International Sale of Goods is expressly
excluded. A party that primarily prevails in an action brought under
this Agreement is entitled to recover from the other party its
reasonable attorneys fees and costs. AFFILIATEBOT controls and
operates its Web site from its offices in the USA and access or use
where illegal is prohibited.
(e) 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.
(f) Severability/Waiver. If any provision of this
Agreement is held by any court of competent jurisdiction to be
illegal, null or void or against public policy, the remaining
provisions of this Agreement shall remain in full force and effect.
The parties shall in good faith attempt to modify any invalidated
provision to carry out the stated intentions in this Agreement. The
waiver of any breach of any provision under this Agreement by any
party shall not be deemed to be a waiver of any preceding or
subsequent breach, nor shall any waiver constitute a continuing
waiver.
(g) Assignment and Acknowledgement. Neither party
may assign this Agreement without the prior express written
permission of the other party. Notwithstanding the foregoing, Your
consent shall not be required for assignment or transfer made by
AFFILIATEBOT (1) due to operation of law, or (2) to an entity that
acquires substantially all of AFFILIATEBOT's stock, assets or
business, or (3) to a related entity (e.g. parent or subsidiary of
parent). Your use of the Network Service is irrefutable
acknowledgement by You that You have read, understood and agreed to
each and every term and provision of this Agreement. AFFILIATEBOT may
establish from time to time rules and regulations regarding use of
the Network Service as published on the Network Service and
incorporated herein.
(h) Marketing. Affiliate agrees that
AFFILIATEBOT may identify it as a AFFILIATEBOT Affiliate in client
lists and may use Affiliate's name and/or logo solely for such
purpose in its marketing materials. Any other uses of Affiliate's
name and/or logo not otherwise described or contemplated herein shall
require Affiliate's prior written consent.
(i) Entire
Agreement, Assignment and Amendment. This Agreement, including
the Introduction, contains the entire understanding and agreement of
the parties and there have been no promises, representations,
agreements, warranties or undertakings by either of the parties,
either oral or written, except as stated in this Agreement. This
Agreement may only be altered, amended or modified by an instrument
that is assented to by each party to this Agreement by verifiable
means, including without limitation by written instrument signed by
the parties or through a "click through" acknowledgement of
assent. No interlineations to this Agreement shall be binding unless
initialed by both parties. Notwithstanding the foregoing,
AFFILIATEBOT shall have the right to change, modify or amend
("Change") this Agreement, in whole or in part, by posting
a revised Agreement at least 14 days prior to the effective date of
such Change. Your continued use of the Network Service after the
effective date of such Change shall be deemed Your acceptance of the
revised Agreement.
IF
YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT
LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
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