Affiliate Program's Terms & Conditions
This Affiliate Partners Agreement (the "Agreement") contains the complete terms and conditions that apply to your participation as a Affiliate Partner ("you," "your," yours," or "Affiliate Partner") in the Affiliate Network of TrademarkAffiliates.com, and the establishment of links from your web site(s) (the "Affiliate Partner Site") to our web site located at the http://www.trademarkaffiliates.com. "Our Website" means a website, including TrademarkAffiliates.com, and any other sites owned and operated by us. TrademarkAffiliates.com is the name of an affiliate marketing program.
In consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. SEARCH ENGINE PAY-PER CLICK (PPC) ADVERTISING USING TRADEMARK NAME PROHIBITED.
Affiliate is NOT allowed to use the trademark name Legal Pays, TrademarkAffiliates.com, Trademark Plus, TrademarkPlus or any similar wording variations or misspellings in any search engine Pay-Per Click (PPC) advertising, including Display URL, Target URL, description, keyword or headline of the PPC search engine advertising.
Affiliate agrees to not utilize, advertise or otherwise promote, any mark of TrademarkAffiliates.com or its affiliates in the headline, description, or URL copy associated with pay-for-placement search engines or paid search engine advertising. Affiliate may NOT bid on any mark of TrademarkAffiliates.com or its affiliates, on any pay-for-placement search engines. Violation of the foregoing prohibitions may result in, among other things, the immediate termination of this Agreement and/or the commencement of an action by TrademarkAffiliates.com against Affiliate seeking, without limitation, injunctive relief and/or recovery of actual, statutory and/or punitive damages.
2. LINKS AND CONTENT.
a. Links. As promptly as practicable after the date hereof, TrademarkAffiliates.com will make available to you via its "Linking Tools" (i) graphic and/or textual links, which will establish a direct hyperlink connection from the Affiliate Partner Site to the TrademarkAffiliates.com Site (each of which is referred to herein as a "Link"), and (ii) certain TrademarkAffiliates.com Content (as defined in Section 4 hereof). The Links may include, without limitation, a graphic of the TrademarkAffiliates.com search box which, when "clicked" or selected by a user of the Affiliate Partner Site, will enable such user to access the TrademarkAffiliates.com Site to conduct searches thereon for the availability of game card product. Subject to the terms and conditions hereof, in your discretion, you shall display during the duration of this Agreement some or all of the Links and TrademarkAffiliates.com Content on the Affiliate Partner Site as promptly as practicable after such Links and TrademarkAffiliates.com Content are made available by TrademarkAffiliates.com. You agree to reproduce, and agree not to remove or obscure, any proprietary rights legends (such as copyright notices, among others) or license terms and conditions included with any TrademarkAffiliates.com Content provided in connection with this Agreement.
b. Agreements Regarding Links.
i. You agree that you will cooperate fully with TrademarkAffiliates.com in order to establish and maintain the Links. You also agree to display on the Affiliate Partner Site only those TrademarkAffiliates.com-branded images or TrademarkAffiliates.com Content (indicating a Link) which are provided, or approved in writing, by TrademarkAffiliates.com, and will substitute such images with any new images provided by TrademarkAffiliates.com from time to time throughout the Term of this Agreement. You shall display such images prominently in relevant sections of the Affiliate Partner Site. TrademarkAffiliates.com will be responsible for providing link access in connection with each Link.
ii. You agree that the Affiliate Partner Site will not in any way copy or resemble the look and feel of the Our WebSites, nor will you create the impression that the Affiliate Partner Site is Our Website or is a part of the Our Website. You also agree that the Affiliate Partner Site will not contain any content of Our WebSites or any materials which are proprietary to TrademarkAffiliates.com, except (i) materials which are obtained by you via the Linking Tools in accordance with the provisions hereof or the policies or instructions thereon, and (ii) pursuant to the license from TrademarkAffiliates.com set forth in Section 5(a) hereof. You further agree that (i) that you will not purchase or otherwise contract with a third party to exploit any of Our WebSite Marks for the purpose of causing the Affiliate Partner Site to appear as a search result or for any other reason.
3. RESPONSIBILITIES OF TrademarkAffiliates.com
Order Fulfillment. TrademarkAffiliates.com will be solely responsible for processing every order placed by a Linked User (defined below), for tracking the volume and amount of sales of TrademarkAffiliates.com Products (defined below) generated by a Linked User, and for providing information to you regarding TrademarkAffiliates.com Product sales statistics of Linked Users. TrademarkAffiliates.com will be responsible for order entry, payment processing, and related customer service for such sales of TrademarkAffiliates.com Products. As used herein, "TrademarkAffiliates.com Products and Services" shall include all of the following merchandise categories (more particularly described below) offered for sale by or on behalf of TrademarkAffiliates.com on the TrademarkAffiliates.com Site: legal and document filings services, and related services; and "Linked User" shall mean a user of the Affiliate Partner Site who connects directly to the TrademarkAffiliates.com Site via a Link and, prior to leaving or otherwise terminating an active browsing session with the TrademarkAffiliates.com Site, purchases a Product or Service using the check out process located on Our WebSite.
4. APPLICATION FOR ESTABLISHING TrademarkAffiliates.com ACCOUNT.
If you have not done so already, you shall submit a complete Affiliate Network Application for the Affiliate Partner Site via the TrademarkAffiliates.com Site (the "Application"). Submitting an application does not guarantee acceptance into the affiliate program. TrademarkAffiliates.com reserves the right to refuse any application. The purposes of the Application shall be, among other things, (a) to enable you access to the Linking Tools to obtain Links and Content, and (b) to establish a Affiliate Partner account and unique source identification code to enable TrademarkAffiliates.com to track purchases made by Linked Users. The Affiliate Partner shall be responsible to maintain the accuracy of the information it has provided to TrademarkAffiliates.com on the Application by updating the information on the Linking Tools. TrademarkAffiliates.com may rely upon the information about you on the Linking Tools as accurate and complete. If any term or condition contained in the Application conflicts with the terms of this Agreement, the terms of this Agreement shall govern.
5. SITE RESPONSIBILITY.
a. Each party will be solely responsible for the development, operation and maintenance of its site and for all materials that appear on its site. Such responsibilities include, but are not limited to:
i. ensuring the technical operation of its site and all related equipment;
ii. ensuring the accuracy and appropriateness of materials posted on its site;
iii. ensuring that materials posted on its site do not violate any law, rule or regulation, or infringe upon the rights of any third party (including, for example, copyright, trademarks, privacy or other personal or proprietary rights); and
iv. ensuring that materials posted on its site are not libelous or otherwise illegal.
b. Each party disclaims all liability for all such matters with respect to the other party's site.
c. For purposes herein,
i. "Content" shall mean Our WebSite Content or Affiliate Partner Content, as the case may be.
ii. "Our WebSite Content" shall mean proprietary content of Our WebSites, or content contained on the TrademarkAffiliates.com Site which TrademarkAffiliates.com has the right to sublicense to you as contemplated herein. In no event shall the term TrademarkAffiliates.com Content be deemed to include any content created or transmitted by users of the TrademarkAffiliates.com Site.
iii. "Affiliate Partner Content" shall mean your proprietary content contained on the Affiliate Partner Site, or content contained on the Affiliate Partner Site which you have the right to sublicense to TrademarkAffiliates.com as contemplated herein (if any). In no event shall the term Affiliate Partner Content be deemed to include any content created or transmitted by users of the Affiliate Partner Site.
a. Subject to the terms and conditions of this Agreement, TrademarkAffiliates.com hereby grants to you a non-exclusive, non-transferable, revocable and limited license to reproduce and display Our WebSite trademarks and logos provided by TrademarkAffiliates.com to you hereunder (the "TrademarkAffiliates.com Trademarks") and TrademarkAffiliates.com Content in connection with the display of the Links and as otherwise contemplated in this Agreement. Such license may be revoked in whole or in part by TrademarkAffiliates.com in its sole discretion by written notice to you. Furthermore this license shall terminate upon the effective date of the expiration or termination of this Agreement, and you shall immediately cease using and remove all of Our WebSite Trademarks and Content from the Affiliate Partner Site and any other of your materials.
b. Subject to the terms and conditions of this Agreement, you hereby grant to TrademarkAffiliates.com a non-exclusive, non-transferable, limited license to reproduce and display all Affiliate Partner logos, trademarks, trade names and similar identifying material provided by you hereunder (the "Affiliate Partner Trademarks") for TrademarkAffiliates.com to refer to you as a participant in the TrademarkAffiliates.com Affiliate Network. You are NOT allowed to use the trademark name Legal Pays, TrademarkAffiliates.com, Trademark Plus, TrademarkPlus or any similar wording variations or misspellings in any search engine Pay-Per-Click (PPC) advertising, including Display URL in the PPC advertising. Such license shall terminate upon the effective date of the expiration or termination of this Agreement, and TrademarkAffiliates.com shall immediately cease using and remove all Affiliate Partner Trademarks from Our WebSite and any other WebSite materials.
a. As used herein, the following capitalized terms shall have the following meanings ascribed thereto:
i. "Net Sales Revenue" shall mean the gross revenue actually received by Our WebSite from a Linked User in connection with a Qualifying Purchase (as defined below) during the Term less (i) handling fees and other similar charges (ii) losses due to credit, charge and debit card fraud and bad debt, and (iii) credits for returned goods All available and eligible Products and Services on Our WebSite will be included in the computation of Net Sales Revenue (as defined below).
ii. "Qualifying Purchase" shall mean a purchase of Our WebSite Product or Service during the Term by a Linked User for which Our WebSite has received full payment and was (I) sent by Our WebSite and (ii) not returned by such Linked User.
iii. "Qualifying Purchase Referral Fee" shall mean the fee payable by TrademarkAffiliates.com to you as set forth in Section 6(b) hereof for each Qualifying Purchase during the Term.
iv. "Returning Customer" shall mean the fee payable by TrademarkAffiliates.com to you as set forth in Section 6(b) hereof for each Qualifying Purchase during the Term.
b. Qualifying Purchase Referral Fee.
i. For each Qualifying Purchase made during the Term, you shall be entitled to receive from TrademarkAffiliates.com a Qualifying Purchase Referral Fee based on the type of Product or Service sold on Our WebSite:
1 If the Qualifying Purchase involves the sale of Our WebSite's Product or Service, the Qualifying Purchase Referral Fee shall be:
||Monthly Revenue Volumes
||$0 - $5,000
||$5,001 - $10,000
||$10,001 - $25,000
||$25,001 - $50,000
The commission pay is calculated as a percentage of revenue. Revenue is defined as the sales amount of the Product or Service on Our WebSite; Repeat Customer is defined as one who returns and places any order within 60 days after the customer's initial order.
8. POLICIES AND CUSTOMER INFORMATION.
TrademarkAffiliates.com considers all users who visit Our WebSite, including, without limitation, Linked Users, to be customers of Our WebSite. Accordingly, all of Our WebSite rules, policies and operating procedures concerning customer orders, customer service and sales will apply to those customers. Our WebSite may change its policies and operating procedures at any time. Our WebSite will determine the prices to be charged for Products and/or other Services sold in accordance with its own pricing policies. Prices and availability may vary from time to time. You shall not include price information in any descriptions on the Affiliate Partner Site. Our WebSite will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular item. The parties hereto agree that TrademarkAffiliates.com shall have no obligation to share any customer information collected by TrademarkAffiliates.com, including but not limited to the name, address, e-mail address of the customer, or any titles ordered. Furthermore, to the extent TrademarkAffiliates.com shares with you any customer information that is collected by or on behalf TrademarkAffiliates.com (e.g., information accessible at the Linking Tools), you shall maintain such information in confidence as TrademarkAffiliates.com confidential and trade secret information in accordance with Section 10 hereof.
9. REPRESENTATIONS AND WARRANTIES.
a. You hereby represent and warrant to TrademarkAffiliates.com as follows:
i. This Agreement has been duly and validly executed and delivered by you and constitutes the legal, valid and binding obligation of you, enforceable against you in accordance with its terms.
ii. You are duly organized, validly existing and in good standing under the laws of your State of organization, and have full corporate power and authority to execute, deliver and perform this Agreement.
iii. The execution, delivery and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time or both, conflict with or violate (A) any provision of law, rule or regulation to which you are subject, (B) any order, judgment or decree applicable to you or binding upon your assets or properties, (C) any provision of your organizational documents, or (D) any agreement or other instrument applicable to you or binding upon your assets or properties.
iv. You are the owner or licensee of the Affiliate Partner Trademarks and have all the rights and power to license to TrademarkAffiliates.com (A) the Affiliate Partner Trademarks and (B) all materials provided by you to TrademarkAffiliates.com hereunder. Furthermore, such license does not and will not (1) breach, conflict with or constitute a default under any agreement or other instrument applicable to you, your assets or properties, the Affiliate Partner Trademarks or the materials provided by you, or (2) infringe upon any trademark, trade name, service mark, copyright or other proprietary right of any other person or entity.
v. To the best of your knowledge, no consent, approval or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery and performance of this Agreement or the taking by you of any other action contemplated hereby.
vi. To the best of your knowledge there is no pending or threatened claim, action or proceeding against you, or any affiliate thereof, with respect to the execution, delivery or consummation of this Agreement and, to the best knowledge of you, there is no basis for any such claim, action or proceeding.
b. TrademarkAffiliates.com hereby represents and warrants to you as follows:
i. This Agreement has been duly and validly executed and delivered by TrademarkAffiliates.com and constitutes the legal, valid and binding obligation of TrademarkAffiliates.com, enforceable against TrademarkAffiliates.com in accordance with its terms.
ii. TrademarkAffiliates.com is duly organized, validly existing and in good standing under the laws of the State of Illinois and has full power and authority to execute, deliver and perform this Agreement.
iii. The execution, delivery and performance by TrademarkAffiliates.com of this Agreement and the consummation by it of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time or both, conflict with or violate (A) any provision of law, rule or regulation to which TrademarkAffiliates.com is subject, (B) any order, judgment or decree applicable to TrademarkAffiliates.com or binding upon its assets or properties, (C) any provision of the organizational documents of TrademarkAffiliates.com or (D) any agreement or other instrument applicable to TrademarkAffiliates.com or binding upon its assets or properties.
iv. TrademarkAffiliates.com is the owner or licensee of the TrademarkAffiliates.com Trademarks and has all the rights and power to license to Affiliate Partner (A) the TrademarkAffiliates.com Trademarks as provided hereunder and (B) all materials provided by TrademarkAffiliates.com to Affiliate Partner hereunder. Furthermore, such license does not and will not (1) breach, conflict with or constitute a default under any agreement or other instrument applicable to TrademarkAffiliates.com, TrademarkAffiliates.com's assets or properties, the TrademarkAffiliates.com Trademarks or the materials provided by TrademarkAffiliates.com, or (2) infringe upon any trademark, trade name, service mark, copyright or other proprietary right of any other person or entity.
v. To the best of its knowledge, no consent, approval or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by TrademarkAffiliates.com in connection with the execution, delivery and performance of this Agreement or the taking by TrademarkAffiliates.com of any other action contemplated hereby.
vi. To the best of its knowledge there is no pending or threatened claim, action or proceeding against TrademarkAffiliates.com, with respect to the execution, delivery or consummation of this Agreement and, to the best knowledge of TrademarkAffiliates.com, there is no basis for any such claim, action or proceeding.
You may not use "SPAM", including unsolicited commercial email (UCE) to promote Our WebSites or marketing partners. If you are found to Spam your account will be immediately terminated without pay and you will not be credited for referred customers. To report spam to us: Email the full text of the spam, including subject line plus all headers [where available], to us. TrademarkAffiliates.com has a strict ZERO-TOLERANCE anti-spam policy. TrademarkAffiliates.com does not, and will not, honor any traffic or referrals that result from so-called "SPAM" activities, including UCE, newsgroup postings, IM spam, and other abusive tactics. In fact, if TrademarkAffiliates.com observes your use of such tactics to promote the sites of TrademarkAffiliates.com marketing partners, not only will we terminate your account, suspend all credits, and add your account information to a well-circulated "black list", we will also notify your ISP and upstream carriers of your violation of those firms' acceptable-use policies (AUPs). .
10. NO SPAM/UCE
11. TERM; TERMINATION.
a. The term of this Agreement will begin upon our acceptance of your Affiliate Network 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 written notice of termination provided that TrademarkAffiliates.com may provide written notice to you via e-mail.
b. Upon the effective date of termination or expiration of this Agreement, (i) each party shall return to the other party any confidential information of the other party, and shall immediately cease to use any of the other party's trademarks and Content, and (ii) the rights and obligations of each party hereunder shall terminate; provided, however, that all terms of this Agreement which by their nature extend beyond the termination of this Agreement, including, without limitation, the rights and obligations of the parties hereto under Section 4, Section 6(b) and Sections 10 through 16 hereof, shall survive and remain in effect, and apply to respective successors and assigns.
c. We reserve the right to hold any account, without notice, that we believe to be involved in fraudulent or misleading activity. This includes, but is not limited to; credit card fraud, misleading promises to surfers, high chargeback levels, refunds, cancellations and other suspicious activity. We reserve the right to terminate any account for any reason.
We do not accept traffic from, and will not pay webmasters associated with any of the following countries/regions: Afghanistan, Albania, Armenia, Azerbaijan, Bahrain, Baltics, Bangladesh, Belarus, Belgium, Bemen, Bhutan, Bosnia and Herzegovina, Brunei, Bulgaria, Cambodia, China, Croatia, Cyprus, Czech Republic, Egypt, Hungary, India, Indonesia, Iran, Iraq, Israel, Japan, Jordan, Kazakhstan, Korea (North & South), Kuwait, Kyrgyzstan, Laos, Latvia, Lebanon, Lithuania, Macedonia, Malaysia, Maldives, Malta, Mexico, Moldova, Mongolia, Montenegro, Myanmar, Nepal, Oman, Pakistan, Palestinian Authority, Philippines, Poland, Qatar, Russia, Saudi Arabia, Serbia, Singapore, Slovakia, Slovenia, Spain, Sri Lanka, Syria, Taiwan, Tajikistan, Thailand, Turkey, Turkmenistan, United Arab Emirates, Ukraine, Uzbekistan, Vietnam, Yemen, Yugoslavia.
12. PROHIBITIED COUNTRIES/REGIONS:
a. Except as otherwise provided in this Agreement or with the consent of the other party hereto, you and TrademarkAffiliates.com each agrees that all information ("Confidential Information") including, without limitation, the terms and conditions of this Agreement, business and financial information, customer and vendor lists and pricing and sales information, concerning you or TrademarkAffiliates.com (each herein, a "Disclosing Party"), or any affiliates (by common ownership) of the Disclosing Party, shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by or on behalf of the party receiving such information (each herein, a "Receiving Party") for its own business purposes or for any other purpose. As used herein "Confidential Information" shall not include information that (i) is already known to the Receiving Party at the time such information is obtained from the Disclosing Party; (ii) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by the Receiving Party in violation of this Agreement; (iii) is or becomes available to the Receiving Party on a non-confidential basis from a source, other that the Disclosing Party, which to the knowledge of the Receiving Party is not prohibited from disclosing such information by a contractual, legal or fiduciary obligation; or (iv) has been independently developed by the Receiving Party without violating any of its obligations under this Agreement.
b. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such Confidential Information (i) to any person pursuant to a subpoena issued by any court or administrative agency, (ii) to its accountants, attorneys or other agents on a confidential basis and (iii) otherwise as required by applicable law, rule, regulation or legal process including, without limitation, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and the respective rules and regulations promulgated thereunder.
c. Furthermore, notwithstanding anything contained herein to the contrary, TrademarkAffiliates.com shall be permitted to share with third party publishers aggregate TrademarkAffiliates.com Product sales with respect to TrademarkAffiliates.com Products published by such third party publishers.
Subject to Sections 5(b) and 10 hereof, neither party shall (i) create, publish, distribute or permit any written material which makes reference to the other party hereto without first submitting such material to the other party and receiving the prior written consent of such party, nor (ii) disclose to the public or any third party the relationship between them or the transactions contemplated by this Agreement without receiving the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Neither party hereto shall issue a press release describing the relationship or the terms of this Agreement without the other party's prior written approval. Neither party shall misrepresent the relationship between the parties hereunder (such as making any reference to any endorsement or sponsorship of the other party) in any communication.
a. Proprietary Rights. Affiliate Partner acknowledges that Our WebSite contains information, data, graphics, and other material (collectively "Third Party Content") that are protected by copyrights, trademarks, trade secrets, or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All Third Party Content is copyrighted as a collective work under the U.S. copyright laws, and TrademarkAffiliates.com owns or has a license to a copyright in the selection, coordination, arrangement, and enhancement of such Third Party Content. Affiliate Partner may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Third Party Content, in whole or in part unless expressly provided by TrademarkAffiliates.com on the Linking Tools . Except as permitted by the fair use privilege under the U.S. copyright laws (see, e.g., 17 U.S.C. Section 107), Affiliate Partner may not upload, post, reproduce, or distribute in any way Third Party Content protected by copyright, or other proprietary right, without obtaining permission of the owner of the copyright or other propriety right.
b. Third Party Content. Our WebSite is a distributor and not a publisher of Third Party Content supplied by third parties and users. Our WebSite has no more editorial control over such Third Party Content than does a public library or newsstand. Any opinions, advice, statements, services, offers, or other information that constitutes part of Third Party Content expressed or made available by third parties, including any other customer or contractor of TrademarkAffiliates.com, are those of the respective authors or distributors and not of Our WebSite or its affiliates (by common ownership or control) or any of their officers, directors, employees, or agents. In many instances, the Third Party Content available through the TrademarkAffiliates.com Site represents the opinions and judgments of the respective Provider, or customer not under contract with Our WebSite. Our WebSite neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, or statement made on Our WebSite by anyone other than authorized employees. Under no circumstances shall Our WebSite, or its affiliates (by common ownership or control), or any of their officers, directors, employees, or agents be liable for any loss, damage or harm caused by Affiliate Partner's reliance on information obtained through the TrademarkAffiliates.com Site (excluding the Linking Tools). It is the responsibility of Affiliate Partner to evaluate the information, opinion, advice, or other Third Party Content available through the Our WebSite.
c. Trademarks. Each party hereby covenants and agrees that the trademarks, trade names, service marks, copyrights and other proprietary rights of the other party are and shall remain the sole and exclusive property of that party and neither party shall hold itself out as having any ownership rights with respect thereto or, except as specifically granted hereunder, any other rights therein. In addition, except as expressly permitted hereunder, each party hereby covenants and agrees that it will make no use of the trademarks, trade names, service marks, copyrights and other proprietary rights of the other party. Any and all goodwill associated with any such rights shall inure directly and exclusively to the benefit of the owner thereof.
a. Our WebSite shall defend, indemnify and hold harmless Affiliate Partner from and against any suit, proceeding, assertion, damage, cost, liability, and expenses (including court costs and reasonable attorneys' fees) incurred as a result of claims by a third party against Affiliate Partner and its affiliates (by common ownership or control), licensors, suppliers, officers, directors, employees and agents arising from or connected with a claim that Our WebSite Content infringes any valid patent, copyright, trade secret, or other intellectual property right under the laws of the United States. If a claim of infringement under this Section occurs, or if TrademarkAffiliates.com determines that a claim is likely to occur, TrademarkAffiliates.com will have the right, in its sole discretion, to either: (i) procure for Affiliate Partner the right or license to continue to use the TrademarkAffiliates.com Content free of the infringement claim; or (ii) replace or modify the TrademarkAffiliates.com Content to make it non-infringing provided that the replacement intellectual property substantially conforms to TrademarkAffiliates.com's then-current specification for the TrademarkAffiliates.com Content. If these remedies are not reasonably available to TrademarkAffiliates.com, TrademarkAffiliates.com may, at its option, terminate this Agreement immediately and be entitled to a refund any unearned fees paid in advance. Notwithstanding the foregoing, TrademarkAffiliates.com shall have no obligation with respect to any claim of infringement that is based upon or arises out of: (i) any Third Party Content; (ii) any modification to the TrademarkAffiliates.com Content if the modification was not made by TrademarkAffiliates.com; or (iii) Affiliate Partner's use of the TrademarkAffiliates.com Content other than in accordance with TrademarkAffiliates.com's written directions or policies.
b. Affiliate Partner acknowledges that by entering into and performing its obligations under this Agreement, TrademarkAffiliates.com does not assume and should not be exposed to the business and operational risks associated with Affiliate Partner's business, or any aspects of the operation or content of Affiliate Partner's web site(s). Accordingly, Affiliate Partner shall defend, indemnify, and hold harmless TrademarkAffiliates.com from and against any suit, proceeding, assertion damage, cost, liability, and expenses (including court costs and reasonable attorneys' fees) incurred as a result of claims of customers or other third parties claim against TrademarkAffiliates.com and its affiliates, licensors, suppliers, officers, directors, employees and agents arising from or connected with any Affiliate Partner Content or the Affiliate Partner Site (including without limitation any activities or aspects thereof or commerce conducted thereon), Affiliate Partner's misuse of the services provided by TrademarkAffiliates.com hereunder or unauthorized modification or use of the services and materials provided by TrademarkAffiliates.com hereunder.
c. The indemnification obligations set forth in clauses (a) and (b) above are contingent upon the following conditions: (i) the indemnified party must promptly notify the indemnifying party in writing of the claim (however, failure of the indemnified party to so promptly notify the indemnifying party will not relieve the indemnifying party of its indemnification obligations hereunder, except to the extent it has been damaged thereby);(ii) the indemnified party will reasonably cooperate with the indemnifying party in the defense of the matter; and (iii) the indemnifying party will have primary control of the defense of the action and negotiations for its settlement and compromise; provided, however, that: (1) the indemnified party will have the right to approve any settlement or compromise that will impose any obligation upon it or which may materially and adversely affect its rights under this Agreement or its rights to any matter or item subject to copyright, patent, trade secret or trademark protection; and (2) the indemnified party may, at its own cost, obtain separate counsel to represent its interests.
d. THE PROVISIONS OF THIS SECTION STATE THE SOLE AND EXCLUSIVE OBLIGATIONS OF EITHER PARTY FOR ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT AND ARE IN LIEU OF ANY WARRANTIES OF NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED.
17. LIMITATION OF LIABILITY; DISCLAIMERS.
a. EXCEPT WITH RESPECT TO LIABILITIES ARISING UNDER SECTION 13 HEREOF, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE OR LOST PROFITS, ARISING FROM ANY PROVISION OF THIS AGREEMENT, EVEN IF SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, NEITHER PARTY MAKES ANY REPRESENTATION THAT THE OPERATION OF ITS SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND SUCH PARTY WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
All notices, consents, requests, instructions, approvals, and other communications made, required or permitted hereunder (each herein, a "Notice") shall be given in writing and delivered: (i) by personal delivery, (ii) by electronic mail, (iii) by certified or registered mail (return receipt requested), or (iv) by a nationally recognized courier. If the Notice is to you, it shall be addressed to the electronic or postal address you have provided in the Application or updated on the Linking Tools; if the Notice is to TrademarkAffiliates.com, it shall be addressed to the electronic or postal address set forth on the Linking Tools. The effective date of such Notice shall be deemed to be the date upon which any such Notice is delivered to the addressee.
You may not refer yourself or your company under your own existing account(s). This will result in immediate termination of your existing account(s) without pay.
a. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without giving effect to the conflict of law principles thereof.
b. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreement, written and oral, with respect thereto.
c. Headings herein are for reference only and shall not affect the meaning of any terms.
d. We may modify any of the terms and conditions contained in this Agreement at any time in our sole discretion. You will be notified by email or a change notice will be posted on the Linking Tools. Modifications may include, but are not limited to, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Affiliate Network rules. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Network following our notification to you or new agreement on our site will constitute binding acceptance of the change.
e. This Agreement does not constitute either party an agent, legal representative, joint venturer, partner or employee of the other for any purpose whatsoever and neither party is in any way authorized to make any contract, agreement, warranty or representation or to create any obligation, express or implied, on behalf of the other party hereto.
f. This Agreement and the provisions hereof shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their successors and permitted assigns; provided, however, that neither party shall have the right to assign its rights or obligations hereunder to any other person or entity except that TrademarkAffiliates.com may assign its rights and obligations hereunder to a subsidiary or affiliate of TrademarkAffiliates.com provided that TrademarkAffiliates.com remains jointly and severally liable with respect to such obligations.
g. Each provision of this Agreement shall be considered severable and if, for any reason, any provision hereof is determined to be invalid and contrary to, or in conflict with, any existing or future law or regulation by any court or agency having valid jurisdiction, such provision shall be given the maximum permissible effect, and such invalidity or illegality shall not impair the operation or affect the remaining provisions of this Agreement; and the latter shall continue to be given full force and effect and bind the parties hereto and such invalid provisions shall be deemed not to be a part of this Agreement.
h. Neither party shall be liable to fulfill its obligations hereunder, or for delays in performance, due to causes beyond its reasonable control, including, but not limited to, acts of God, acts or omissions of civil or military authority, fires, strikes, floods, epidemics, riots or acts of war.