This Agreement contains the terms and conditions that shall apply to anyone who
joins our Affiliate Program. Read them over very carefully.
This Agreement contains the terms and conditions that shall apply to an individual's or an entity's (hereinafter a "Participant," "Affiliate Site," or "Affiliate Member." or "you" or "your") participation in affiliate program (the "Program") of Fupa Games, Inc., a California corporation (hereinafter "Fupa", "Fupa Games", "Fupa Games, Inc." "we", "its," "us" "our" or "the Company").
- 1. Enrollment in the Network
To begin the automated enrollment process, you will submit a completed Affiliate Network Application via our web site. We will notify you by email of your acceptance. We may reject your site for any reason or no reason. If you are an individual, you must be at least the age of 18 (or the age of majority in your state, locality or jurisdiction in which you reside) in order to become an Affiliate Member.
You are prohibited from submitting an Affiliate Network Application if your site or service(s) are involved in unlawful activity or contain objectionable material including by way of example only: a site or services containing images or content that is in any way unlawful, harmful, threatening, defamatory, obscene, or otherwise legally prohibited, a site or services facilitating illegal activity or considered obscene or harmful to minors or not in compliance with applicable laws; a site or services promoting fraudulent, unlawful, misleading, or unfair business practices, a site or services promoting violence, a site or services that has sent unsolicited commercial e-mail within the past four years, a site or services that intends on sending unsolicited commercial e-mail at any time during the term of this agreement, a site or services promoting discrimination based on race, sex, religion, nationality, disability, or age, a site or services incorporating any materials which infringe or assist others to infringe on any copyright, trademarks, patents, or other intellectual property rights, or a site or services involving unfair competition (collectively "Content Restrictions").
- Utilizing Our Links on Your Site; Prohibition Against the Use of Members' Information on Your Site
As an affiliate site, you will receive, or they will be available to you, banner advertisements, button links and/or text links to our site. These "Link" or "Links" may contain Fupa Games, Inc.'s or its entities' logos and/or identifying words. Use of these Link(s) is (are) subject to the terms and conditions hereof. As an Affiliate Site, you may display Links throughout your site as you see fit. You may not alter, modify or expand the Link(s) in any way; provided, a Link may be modified and/or expanded with our written consent. Each Link connecting users of your site to our site may not alter the look, feel or functionality of our site. We may monitor your site at any time and from time to time to determine if you are in compliance with the terms of this Agreement. We will be responsible for providing all information necessary to allow you to make appropriate Links from your site to our site. However, we reserve the right to approve and to prohibit all Links.
You may NOT link to, display or by any other method utilize any photos, videos or any other information pertaining to any of our member(s) on your site.
You are strictly prohibited from using any spyware or sexually explicit ads or promotions to advertise our sites, goods, and services.
- Order Processing
We will process orders placed by customers who follow the Links from your site to our site(s). We reserve the right to reject orders that do not comply with certain requirements that we have periodically, or may in the future establish. We will be solely responsible for all aspects of order processing and fulfillment, including, but not limited to, order entry, payment processing, shipping, cancellations, returns and related customer service. We will track the volume and amount of sales generated by your site and will make unaudited reports, summarizing this sales activity, available to you through our site. The form, content, and frequency of the reports may vary from time to time in our discretion. To permit accurate tracking, reporting, and fee accrual, you must ensure that the Links between your site and our site are properly formatted.
As an Affiliate, you will be entitled to the commission as displayed on the Affiliate Commissions page and which may be changed or modified from time to time at our sole discretion. In order for a commission to be paid, the customer who you referred to our site will be tracked by our internal tracking system from the time of the Link is activated until the time of the gameplay or signup. No commission will be paid if the visitor to our site cannot be tracked by our system. Only gameplays and signups, for which we have received a valid gameplay or signup, and reports that are provided by us (to users of your site) through Links to our site will qualify for a commission if applicable under your program. For purposes of calculating commissions for the Affiliate programs gameplays are defined as a unique session who is defined as a person who has accessed a game page containing a game on the website where their purpose is to play the game for which the game page is dedicated to. Unique session is defined as a user using a web browser tracked by a cookie who visits the website through an affiliate link within a 24 hour period. For purposes of calculating commissions for the Affiliate programs signups are defined as a member who is defined as a person who has completed our registration process, has successfully logged on to our website(s) by using his or her password for at least one session, and had his or her profile successfully uploaded and not rejected via our automated systems. Member refers to one account (and one username or user ID). Therefore a person can have more than one account and thus could have multiple memberships. By your continued use of our sites and your involvement and use of our Affiliate Program and by your continued sending of traffic to us for which you expect compensation under our Affiliate Program, you hereby acknowledge and agree that the above definitions have controlled your relationship with us from the inception of your involvement in any of our Affiliate Programs, or those of our predecessors, and that you hereby fully waive any and all claims against us related to or arising out of theories or allegations or arguments that the above defined items should be given different definitions than those above or that you believed that the items above had different definitions at any point in time or that you reasonably relied on the above items having different definitions than the above or that such definitions have caused or will cause underpayment of commissions to you. For a gameplay or signup to generate a commission, the customer must follow the Link from your site to our site, and completely and successfully play a game or sign up for a free trial or membership through our online ordering system. For purposes of illustration only: (i) if a visitor comes to our site once from a link from Site A, but does not sign up for a free trial or membership and then later returns to our site from a link from Site B, where they then sign up for a free trial or membership - all commissions will be paid to Site B; (ii) if a visitor comes to our site from Site A, but does not sign up for a free trial or membership and later returns directly to our site to sign up for a free trial or membership no commission will be paid.
- Conversion of Commission Schedule
After reviewing Affiliate statistics, we will automatically convert Affiliates that do not meet the ratios defined on the Affiliate Commissions page.
For example, after reviewing affiliate statistics, we convert affiliates that do not meet the 20-1 (unique click to sign up ratio) from a CPC or Per Member account to a percentage payout without notification. We also convert affiliates that do not meet the 25-1 (signups to paying membership) from a CPC or Per Member account to a percentage payout without notification. If you do not agree with our decision to change the schedule, your affiliate membership will be terminated as provided in paragraph 16.
- Chargebacks and Creditbacks
While this will not constitute our exclusive remedy - we will not pay any affiliates who have chargebacks and creditbacks of 7% or greater. Creditback is defined as customers who cancel their memberships and receive a credit. Chargeback is defined as a refund of payment for customers after the credit card has been processed.
- Payment of Commission
You will be paid commissions on an approximate monthly basis as further set forth below. Approximately thirty days following the end of each calendar month, we will send you a payment for the commissions earned on Net Sales of signups sold and numbers of gameplays generated that month, less any taxes that we are required by law to withhold - however, if the commissions accrued to you for any month are less than $50.00 (the "Commission Payment Floor"), we will hold those commissions until the total amount accrued is at least equal to the Commission Payment Floor. The Commission Payment Floor is subject to change at any time or from time to time. You will be notified of any change in the Commission Payment Floor via email and/or posting in a revised agreement and/or posting on the Site and/or in another method in our sole discretion. Any account which has not been accessed in one year may be subject to termination. The affiliate user of such an account will be sent an e-mail regarding such termination and will have a thirty day period from the date of the e-mail to visit the website and access their account. If such a visit occurs during the thirty day period, their account will be placed back on active status.
If a Customer disputes or rejects a purchased Membership, and Fupa Games, Inc. has already paid Affiliate Commission Fees based on the sale of that Membership ("Disputed Commission"), Fupa Games, Inc. will deduct the amount of the Disputed Commission from Affiliate's next monthly Commission Fees payment. If there are no subsequent Commission Fees due Affiliate, Fupa Games, Inc. will send Affiliate a bill for the amount of the Disputed Commission, and Affiliate agrees to pay such bill no later than thirty days after its receipt.
- Reports of Gameplays and Sales
You will have the opportunity to review your gameplays and sales. You will be given a password and have the ability to enter a password protected site to receive your gameplay and sales statistics on an approximate daily basis.
- Tax Information Policy
If you are based in, and pay taxes, in the U.S., you are required to submit Internal Revenue Service (IRS) for W-9, for which a U.S. tax ID such as a Taxpayer Identification Number (TIN) or Social Security Number (SSN) is needed.
Until we received your tax information, we will hold all payments to you (You will still have access to your publish account).
- Policies and Pricing
We may change our policies, terms, and operating procedures at any time and your continued use of the Affiliate program is your assent to the change or modified policies, terms, and operating procedures. For example only, we will determine when an affiliate will be converted from a CPC to a percentage payout affiliate and the prices to be charged for Membership sold under the Affiliate Network in accordance with our own pricing policies. Product/Service prices and availability may vary from time to time. Because price changes may affect items that you already have listed on your site, you may not include price information in your descriptions. We will use reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular Product/Service.
- Countries Accepted
Traffic is currently accepted from the following countries:
- Ownership of Customer
Customers who buy membership through the Affiliate Network will be deemed to be customers of Fupa Games, Inc. and its entities. Accordingly, all Fupa Games, Inc.'s rules, policies, terms, and operating procedures concerning all aspects of the customer relationship including, but not limited to, customer orders, customer service, and sales will apply to those customers.
- Non-Exclusive Limited License and Use of Fupa Games, Inc. Logos and Trademarks
We grant you a non-exclusive, non-transferable, revocable license to (i) access our site through links solely in accordance with the terms of this Agreement, and (ii) solely in connection with such links, to use our logos, trade names, trademarks and similar identifying material (collectively "Fupa Games, Inc. Marks"), solely for the purpose of selling our services and memberships on your site. You may not alter, modify or change the Fupa Games, Inc. Marks in any way. You are only entitled to use the Fupa Games, Inc. Marks to the extent you are an Affiliate Member, in good standing. You shall not make any specific use of any Fupa Games, Inc. Marks for purposes other than advertising memberships to the particular Fupa Games, Inc. service(s). You agree not to use the Fupa Games, Inc. Marks in any manner that is disparaging or that otherwise portrays Fupa Games, Inc. in a negative or misleading light. We reserve all of our rights in the Fupa Games, Inc. Marks, and all other intellectual property rights thereto. We may revoke the rights granted to you pursuant to this section at any time by giving you written notice. The rights granted to you pursuant to this section shall terminate upon the effective date of the expiration or termination of this Agreement and by that time you shall cease and desist all use of the Fupa Games, Inc. Marks.
Notwithstanding the above grant to use the Fupa Games, Inc. Marks:
- You may not create a website or webpage which uses Fupa Games, Inc. Marks in a manner that is likely to be confused, e.g. near copies of the Fupa Games, Inc. website, similar designs, graphics, look and feel, etc., with a Fupa Games, Inc. webpage(s) or website. In determining whether a subject webpage is likely to be confusing, Fupa Games, Inc. shall , without waiver, have the sole discretion and to require the removal or redesign of the offending webpage. Fupa Games, Inc.'s conclusion that a webpage or website of an Affiliate Member is not confusing, does not waive any rights of Fupa Games, Inc. to require subsequent removal or redesign.
- As an Affiliate Member of Fupa Games, Inc., you agree not to register a domain name using the term "Fupa Games, Inc.," "Fupa.com," "FupaGames," "Fupa" or any other prefix of Fupa Games, Inc.'s domain names or Fupa Games, Inc. Marks, whether these names are used alone or in combination with other words and includes all top level domains, i.e. ".com" ".net" ".org" etc. ("Prohibited Domain Name Terms"). If you have previously registered a Prohibited Domain Name Term, by continuing to remain an Affiliate Member, you agree that upon termination of your affiliate relationship, you will transfer the domain name that uses the Prohibited Domain Name Term to Fupa Games, Inc. within 45 days. In such a case, Fupa Games, Inc. shall pay you a reasonable fee to cover the expenses necessary to transfer the Prohibited Domain Name Term, but in no instance will the amount exceed $100.
- Non-Exclusive Limited License and Use of Affiliates Logos and Trademarks
You grant us a non-exclusive license to utilize your names, titles, logos, and trademarks (collectively the "Affiliate Marks"), and to advertise, market, promote and publicize in any manner our rights hereunder. Notwithstanding anything herein to the contrary, we shall not be required to so advertise, market, promote or publicize. You hereby represent and warrant that you are the sole and exclusive owner of the Affiliate Marks and have the right and power to grant to us the license to use them in the manner contemplated herein, and such grant does not or will not (i) breach, conflict with or constitute a default under any agreement or other instrument applicable to you or binding upon you, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity. This license shall terminate upon the effective date of the expiration or termination of this Agreement.
- Anti-Spamming Policy
"Fupa Games, Inc." prohibits you from engaging in any form of unsolicited commercial emailing (commonly referred to as "spamming") or the sending of e-mails that are misleading, spoofed, contain misleading subject lines, contain inaccurate or misleading sender or recipient data, or violate applicable State or Federal Statutes. For the purposes of Fupa Games, Inc., Inc's definition, spamming also includes similar, abusive behavior in a third party "chat room" or website or the sending of unsolicited or misleading Instant Messages, Chatroom, Newsgroup, ICQ or IRC messages. Such behavior could include automatically sending scripted text (and website URLs) disguised as "chat" or conversation into any third party chat room. Fupa Games, Inc. at its own discretion and not as its exclusive remedy, reserves the right to suspend, terminate or by any other method, discipline any affiliate without further notice or pay if it is determined that the affiliate was spamming or in violation of this provision or in violation of applicable law. You hereby represent, agree, and warrant that you shall only send commercial e-mail to those who opted-in and consented to receive such commercial e-mail and you further represent, agree, and warrant that as proof of the above you shall maintain, use, and update in real time an "E-Mail Database" that contains a full audit trail of all persons or entities who opted-in and consented to receive any commercial e-mail advertisements sent by you (or at your request) during the term of this agreement including, the date of the opt-in consent, the manner, date, time, location (URL if by web form), scope, and method of the opt-in consent, the e-mail address (and PII and/or Static IP address if obtained) that opted-in, and all the e-mails sent to such e-mail address, and requests to opt-out by such e-mail address along with the manner, date, time, location (URL if by web form), scope, and method of such opt-out. You hereby agree to act expeditiously to remedy any and all complaints of spam or unsolicited commercial e-mail, including but not limited to, opting-out such persons from receiving further e-mails from you. You further agree to fully and immediately respond to any and all requests or queries we make of you requesting information and/or written reports of data located in the E-Mail Database. In addition, you agree to make immediately available to us for inspection and querying, upon our demand of you during the term of this agreement and for five years after termination, the E-Mail Database in a usable and secure manner remotely or in person at our discretion. You also agree to preserve the integrity of the data in the E-Mail Database, to, amongst other things, provide evidence of opt-in consent of all e-mails sent during the term(s) of this agreement, and all such E-Mail Database data will be preserved (and not erased or destroyed) during the term of this agreement and for at least five years thereafter.
- E-Mail Advertising Prohibited
You are prohibited from advertising, in any manner, Fupa Games, Inc. services through the use of e-mail or Links in e-mail. This provision prohibiting such e-mail advertising goes beyond the prohibition in Section 13 above (prohibiting the use of unsolicited e-mail advertising) and prohibits you from sending any e-mail messages advertising Fupa Games, Inc. services or including Fupa Games, Inc. Marks or Links even if such e-mail is permission based or double opt-in. Fupa Games, Inc. at its own discretion and not as its exclusive remedy, reserves the right to suspend, terminate or by any other method, discipline you without further notice or pay if it is determined that you (or someone acting on your behalf) violated this provision.
- Responsibility for Your Site
You will be solely responsible for the development, operation and maintenance of your site and for all materials that appear on your site. The registration or "whois" information pertaining to any of your sites shall contain current and accurate contact information so that a third-party could have a reasonable expectation of reaching you during normal business hours by telephone, mail, facsimile and/or email. We shall have no responsibility for the development, operation and maintenance of your site and for all materials that appear on your site. You hereby represent and warrant to us that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights), and that materials posted on your site are not libelous or otherwise illegal. You must have express permission to use another party's copyrighted or other proprietary material. We will not be responsible if you use another party's copyrighted or other proprietary material in violation of the law. We reserve the right to terminate this Agreement without pay and without notice in the event that we determine that an Affiliate Member is violating a third party's intellectual property rights. We reserve the right to cooperate in any investigation (including third party investigations by governmental entities) relating to activities involving your conduct or any violation of these Terms and Conditions, including, but not limited to, disclosure of your account information to third parties in connection therewith, when, for example, your registration or "whois" information is not current or accurate.
The term of this Agreement will begin upon our acceptance of your Application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party notice of termination. Notice sent by email, to the address in our records, is considered sufficient notice to terminate this Agreement - whether or not such e-mail is in fact read by you. Upon such notice, you agree to promptly destroy or return to Fupa Games, Inc. all artwork pertaining to Fupa Games, Inc. in your possession or control. Furthermore, you must immediately remove from your site any Fupa Games, Inc. Marks, links to Fupa Games, Inc., and all references to Fupa Games, Inc. and its respective sites. If this Agreement is terminated because you have violated the terms of this Agreement, while it shall not act as our exclusive remedy you are not eligible to receive any commission payments, even for commissions earned prior to the date of termination. If this Agreement is terminated for any other reason, you are only eligible to earn a commission on sales occurring during the term of the Agreement. Commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement, at any time and at our sole discretion. Notice of any change by the email address you provided, to your address in our records, or the posting on our site of a change notice or a new or modified agreement, is considered sufficient notice for notifying you of a modification to the terms and conditions of this Agreement. Modifications may include, but are not limited to, changes in the scope of available commission fees, commission schedules, payment procedures, and Affiliate Network rules. All such modifications may take effect immediately after we serve notice as provided above, unless we indicate otherwise. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Network, following our posting of a change notice or new or modified agreement on our site, will constitute binding acceptance of the change(s).
- Relationship of Parties
Nothing in this Agreement shall be construed to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise that contradicts anything in this Section.
- Limitation of Liability
We will not be liable for indirect, incidental, special, or consequential punitive or multiple damages, including without limitation any damages resulting from loss of use, loss of business, loss of revenue, loss of profits, or loss of data, arising in connection with this Agreement, the Affiliate Network, Fupa Games, Inc.'s performance of services or of any other obligations relating to the Agreement, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement will not exceed the total commissions paid or payable to you under this Agreement. The foregoing limitation of liability shall apply regardless of the cause of action under which such damages are sought. Company files will prevail in determining all statistics including but not limited to the amount of valid hits, signups, referrals, cancellation, credits and any commissions or referral fees owned to any Affiliate pursuant to this Agreement. Any discrepancies or errors must be brought to our attention within 30 days or else they will be deemed permanently waived.
We make no express or implied warranties or representations with respect to the Affiliate Network or any product or service sold through it. In addition, we make no representation that the operation of our site will be uninterrupted or error-free, and we will not be liable for the consequences of any service interruptions or errors. You acknowledge and agree that under no circumstances shall Company, its employees, independent contractors, authors, agents, representatives, assigns and successors be liable to you, or any other person or entity, for any direct or indirect losses, injuries, special or incidental or consequential damages of any kind (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, GOODWILL, LOSS OF BUSINESS INFORMATION, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS) with regard to any link to any Company web site, or arising from or in connection with the use of the Program Materials, or due to any mistakes, omissions, delays, errors, interruptions in the transmission, or receipt of Company's services, content or Program Materials, including without limitation any losses due to server problems, computer or other equipment failure, or due to incorrect placement of HTML., regardless whether based upon breach of contract, negligence or any other claim or cause of action, In the event of any network downtime, computer or technical error we will not be held responsible for any lost hits, signups, traffic or income.
- Representations and Warranties
You hereby represent and warrant to us that your services, advertising (including, but not limited to e-mail or the web) and your web site(s) and all materials, content, goods, communications, e-mail, and services offered through and in association with you or your web site do not and shall not at any time:
- violate any law, statute, ordinance or regulation or promote illegal activities;
- contain or promote obscene materials or pornography;
- contain or promote materials that infringe on copyrights, patents, trademarks, or other intellectual property rights;
- contain or promote harmful or indecent matter to minors;
- promote violence;
- promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
- contain content which is defamatory, misleading, libellous, hateful or unlawfully threatening, abusive or harassing;
- involve advertising or marketing that is misleading or unlawful in any manner;
- involve unfair, fraudulent, or misleading business practices or unfair competition;
- include any of the Company's trademarks or service marks, or variations or misspellings thereof, in your domain names; or
- involve the sending of unsolicited commercial e-mail ("spam") or chat messages or instant messenger messages;
- involve any program, file, data stream or other material which contains viruses, worms, "Trojan horses" or any other destructive feature or features that constitute a trespass or unlawfully intrude on privacy.
You further represent and warrant to us:
- That you full authority to enter into this Agreement and that you have reached the age of majority under the laws of the state or locality where you reside and/or do business;
- That you entering and performing under this agreement shall neither violate nor constitute a default under (i) provision of any law, rule, regulation, order, judgment or decree to which you are subject or which is binding upon you, or (ii) the terms of any other agreement, document or instrument applicable to you or binding upon you;
- That you will provide accurate and complete information to Company concerning your identity, bank account, address or other required information and immediately update the Company as such information changes;
- That all obligations owed to third parties with respect to the activities contemplated to be undertaken by you pursuant to this Agreement are or will be fully satisfied by you, so that the Company will not have any obligations with respect thereto;
- That nothing on, in or associated with your web site violates any laws, regulations, rules or customs, including but not limited to violation of regulations set forth at 18 U.S.C. Section 2257 et seq., or violate or infringe any rights of any person or entity, including any intellectual property rights, including, without limitation any copyrights, patent rights, trademark rights, trade secret rights, or rights of publicity, or any person's or entities' privacy rights or any other personal or proprietary rights of any kind; and
- That you will comply with all applicable federal, state and local laws in the performance of this agreement;
- That you hereby represent and warrant to us that this Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms; that the execution, delivery and performance by you of this Agreement are within your legal capacity and power; have been duly authorized by all requisite action on your part; require the approval or consent of no other persons.
We may disclose to you certain information as a result of your participation as part of the Affiliate Network, which information we consider to be confidential (herein referred to as "Confidential Information"). For purposes of this Agreement, the term "Confidential Information" shall include, but not be limited to, any modifications to the terms and provisions of this Affiliate Network Agreement made specifically for your site and not generally available to other members of the Affiliate Network, website, business and financial information relating Fupa Games, Inc. customer and vendor lists, relating to Fupa Games, Inc., and pricing and sales information for Fupa Games, Inc. and any members of the Affiliate Network, other than you. Confidential Information shall also include any information that we designate as confidential during the term of this Agreement.
You agree not to disclose any Confidential Information and that such Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public or if same is required by law or legal process. We make no warranty, expressed or implied, with respect to any information delivered hereunder, including implied warranties of merchantability, fitness for a particular purpose or freedom from patent, trademark or copyright infringements, whether arising by law, customer conduct, or as to the accuracy or completeness of the information and we shall not have any liability to you or to any other person resulting from your or such third person's use of the information.
You hereby agree to defend (or pay our fees ands costs of defense at our sole discretion), indemnify and hold us and our subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees (any or all of the foregoing hereinafter referred to as "losses") insofar as such losses, or actions in respect thereof, arise out of or are based on 1) any claim that our use of the Affiliate Marks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, 2) any failure or breach of any representation, warranty, covenant, or agreement made by you herein including, but not limited to those representations and warranties found in Sections 13 and 21 above, 3) any misuse of our name or trademarks, 4) any claim related to your site or services, including, without limitation, any content therein, 5) any claim that your content infringes copyrights or any other intellectual property rights or that your site or services are engaged in unfair competition, 6), any claim arising out of your violation of the terms and conditions of this agreement, 7) any claim that you or your site(s) violated privacy rights or failed to maintain proper security, or 8) any claim that your advertising, communications (including, but not limited to e-mail communications), or marketing is misleading or unlawful in any manner.
- Independent Investigation/Mutual Drafting
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) PROVIDE TERMS TO OTHERS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETITIVE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE NETWORK AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. We strongly advise that you review this Agreement with your attorney before you enter into it. You acknowledge and agree that nothing herein and no statement by us or any employee, representative, agent or other person associated with us has in any way prevented or inhibited you in any way from seeking such advice prior to entering into this Agreement. You hereby acknowledge and agree that the terms of this Agreement are reasonable and fair; all terms have been fully disclosed in writing, and that you have been given a reasonable chance to seek advice of independent counsel with respect to this Agreement and all transactions associated herewith. For purposes of construction of this Agreement, both Company and you shall be deemed to have mutually drafted this Agreement and all parts thereof.
- Non-Assignability of the Agreement
This Agreement may not be assigned by you without the written consent of the Company. Company may assign this agreement at any time.
- Choice of Law and Forum
Any and all disputes arising out of or related to this agreement or our relationship with you shall be submitted to binding arbitration before a retired Judge at JAMS in San Jose, California according to the applicable JAMS commercial rules of arbitration. If the parties cannot agree on an arbitrator then JAMS shall appoint a retired Judge under its rules who has experience in handling the matters alleged in the arbitral forum. The costs of the arbitration shall be divided evenly between the parties. This Agreement shall be governed by and construed under the laws of the State of California. Any legal actions needed to compel arbitration or reduce the arbitration award to a Judgment or related to enforcement of arbitration shall take place exclusively in the County of Santa Clara in the State of California and you hereby agree to submit to exclusive jurisdiction and venue for the above in Santa Clara County, CA.
If any provision of this Agreement is held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of this Agreement shall be interpreted as if such provision was so excluded and shall be enforceable in accordance with its modified terms.
This Agreement represents the entire understanding between the parties with respect to the subject matter hereof and supersedes all previous understandings, written, oral or implied. This Agreement may only be amended with the written consent of the parties, and no oral waiver or amendment shall be effective under any circumstances.
- Agreement Binding
This Agreement shall be binding upon the parties, their assigns, successors, heirs, affiliates, directors, shareholders, officers, employees and/or agents.
The headings and other captions used in this Agreement are for the convenience and ease of reference only and shall not be used in interpreting, constructing and/or enforcing any of the provisions of this Agreement.