Exhibit 99.1
AFFILIATE MEMBERSHIP AGREEMENT
This is the Affiliate Membership Agreement that will govern your participation
on this LinkShare Network. Please read this Agreement, then scroll to the
bottom of the page to digitally sign this Agreement. To print a copy of this
Agreement, please use your browser's print command.
This Affiliate Membership Agreement is between LinkShare Corporation, a
Delaware, U.S.A. corporation ("LINKSHARE") and You ("YOU" or "YOUR"). If You
have registered for or on behalf of an entity, you are deemed to have accepted
this Agreement on behalf of that entity.
This "AGREEMENT" refers to, individually and collectively depending upon the
context, this Affiliate Membership Agreement and any and all Network Policies
and Guidelines as in effect from time to time and found at
xxxx://xxx.xxxxxxxxx.xxx/xxxxxxxxxx/xxx_xxxxxxxxxx.xxxxx.
In consideration of the mutual covenants and agreements contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
1. REGISTRATION, ETC.
1.1 Registration. To use (or continue to use) any LinkShare Network as a
Network Affiliate, You must provide LinkShare with truthful, accurate and
complete registration information. If any such information changes, You
must immediately update Your registration information.
1.2 Verification. LinkShare has the right to confirm or otherwise verify
or check, in its sole determination, the truth and accuracy of any
registration information at any time.
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Please note that the verification of Your registration information,
specifically, your name, address and Tax identification number, against a
third party database may be considered under certain laws to constitute a
"credit check." Notwithstanding that, your participation in the LinkShare
Network as a Network Affiliate does not depend on Your credit worthiness
or financial stability. LinkShare is not making as part of the
registration process, and will not otherwise make, any type of inquiry to
any third party regarding any individual's credit history and personal
financial information without first obtaining such individual's express
prior authorization to do so.
PLEASE BE ADVISED THAT IF ANY INFORMATION IS DETERMINED IN GOOD FAITH BY
LINKSHARE TO BE MISLEADING, INACCURATE OR UNTRUTHFUL, LINKSHARE MAY
RESTRICT, DENY OR TERMINATE YOUR ACCOUNT, YOUR ACCESS AND USE OF, AND/OR
ANY BENEFITS DERIVED FROM YOUR PARTICIPATION ON, ANY LINKSHARE NETWORK;
LINKSHARE MAY ALSO WITHHOLD PAYMENT OF ANY COMMISSIONS AND/OR OTHER FEES
THAT MAY BE OR BECOME DUE OR PAYABLE TO YOU, AND MAY ASSESS CHARGES
AGAINST SUCH AMOUNTS FOR LINKSHARE'S ACTIVITIES IN CONNECTION WITH THE
INVESTIGATION AND/OR VERIFICATION OF SUCH INFORMATION AND/OR OTHERWISE IN
ACCORDANCE WITH THIS AGREEMENT.
1.3 Participation. To join any LinkShare Network, You must be an
individual who is at least 18 years old or an entity, and must provide at
Your expense your own computer equipment and Internet access.
1.4 Use of the Network. You may use any LinkShare Network only for
business purposes and not for personal, household or family purposes.
2. DEFINED TERMS
2.1 The following terms have the meanings indicated:
"CONTENT" means information, data, text, documents, software, music,
sound, photographs, graphics and video.
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A "CORPORATE AFFILIATE" of a person is any other person that, directly or
indirectly, controls such person, is controlled by such person, or is
under common control with such person, with "control" meaning the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person.
An "END USER" means an actual or potential consumer, customer or other
natural person.
An "ENGAGEMENT" means any type of agreement or arrangement between a
Network Merchant and any Network Affiliate that can be performed on or in
relation to the Internet, including affiliate marketing, performance-
based linking, insertion order, or any other type of agreement or
arrangement.
An "ENTITY" means a sole proprietorship, corporation, partnership,
limited liability company, trust, government agency or instrumentality or
other entity recognized by law as a legal person separate from its
owners.
The words "INCLUDE," "INCLUDES" and "INCLUDING" shall be deemed to be
followed by the phrase "without limitation."
"INTELLECTUAL PROPERTY RIGHTS" means technology, templates, designs,
Sites, methodologies, processes, names, strategies, marks, logos,
Content, documentation, training manuals, and other materials, as well as
any and all patent, trade secret, trademark, copyright and other
intellectual property and proprietary rights therein and thereto.
A "LINK" means any software, software code, programming or other
technology or method (or any combination of the foregoing) that (i)
creates a hyperlink between two Sites, or (ii) otherwise causes a Web
access device to display to its user a "banner," "button," text-mention,
word, phrase, logo or other textual or graphical material that, when
activated by a person, results in a Site being served to such person or
such person
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being able to electronically access, receive or obtain Content, products,
services or other offerings from the linked Site.
"LINKSHARE NETWORK" means one or more of the networks operated by
LinkShare and consisting of participating Merchants (i.e., Network
Merchants), on the one hand, and a proprietary pool of Sites (i.e.,
Network Affiliates), on the other hand. Through the LinkShare Network and
use of the LinkShare Offering, such participants may explore, initiate
and develop engagements with each other, typically on a one-on-one basis,
and, in turn, to track, report on and/or otherwise manage or have managed
such engagements. Currently, "LinkShare Network" includes any of the
following networks: "The LinkShare NetworkTM", the "B2B LinkShare
NetworkTM", "LinkShare Japan," "LinkShare Canada" and "LinkShare UK."
"LINKSHARE OFFERINGS" means (a) LinkShare's offerings to be a Network
Affiliate or Network Merchant participating on any LinkShare Network and
(b) offerings provided by LinkShare or any LinkShare Related Parties in
the form of technology, software, reports and databases, customer
support, account management and other client services, symposia, summits
and other educational and networking events, as well as any other tools,
services, and other resources that may be provided or otherwise made
available from time to time.
"LINKSHARE RELATED PARTIES" means LinkShare's corporate affiliates and
its and their contractors, licensors, licensees and suppliers.
The phrase "PROVIDED BY LINKSHARE" or "LINKSHARE-PROVIDED" shall, when
used in relation to tools, services, resources or other offerings,
encompass the provision thereof by LinkShare or LinkShare Related
Parties.
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The phrase "TRACKED BY LINKSHARE" or "LINKSHARE-TRACKED" shall, when used
in relation to any engagement, encompass the tracking thereof by
LinkShare or LinkShare Related Parties.
"MERCHANT" means any person that owns or operates a Site and/or other
business that can acquire customers or other types of end users by way of
the Internet.
"NETWORK AFFILIATE" refers to a Site that participates on one or more
LinkShare Networks and, through such participation and use of the
appropriate LinkShare Offerings, desires or makes itself available to be
recruited or to enter into engagements to display, distribute or place
qualifying links provided by Network Merchants for compensation.
"NETWORK AFFILIATE ACCOUNT AREA" means, for any LinkShare Network, the
Webpage(s) or other area of the Site having the URL designated from time
to time by LinkShare for use by members of that Network for the purpose
of facilitating formation of qualifying links, accessing reports and
otherwise participating in such LinkShare Network.
"NETWORK MERCHANT" refers to a Merchant that participates on one or more
LinkShare Networks and, through such participation and use of the
appropriate LinkShare Offerings, desires or seeks to recruit Network
Affiliates to enter into engagements with such Merchant in order to
display, distribute or place its qualifying links for compensation.
A "PERSON" is to be broadly construed and includes any natural person or
entity.
A "QUALIFYING LINK" means any type or format of link that is provided or
authorized by a Network Merchant to be displayed, distributed or placed
on or by a Site pursuant to an engagement and which, through addition
and/or use of any technology and/or methodology, can be tracked so that
such Network Merchant can monitor the impressions, click-throughs and/or
other tracked activities achieved by the display, distribution and/or
placement of such link. The term "qualifying link" shall also refer to
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any equivalent link, mechanism or technology that, upon being activated,
causes the same result as clicking on a qualifying link.
A "TRACKED ACTIVITY" means any type of preagreed or predefined activity
or result that is sought by a Merchant in relation to a qualifying link.
The kinds of tracked activities that a Merchant may seek to promote
through such arrangements may include, by way of example, impressions,
click-throughs, the sale of products or services, the downloading of
software, files or other items, the completion of an application,
registration or other form, the opening of an account, membership
enrollment, or any other kind of action, transaction or activity that can
be tracked and reported upon.
"WEB" or "INTERNET" or "ONLINE" means the global computer network
currently referred to as the Internet, including the World Wide Web, and
any and all successor networks, irrespective of what wired, wireless or
otherwise connected device, platform or technology is used to access it.
"SITE" means, as the context requires, either (a) one or more Web pages,
database, computer files, emails, scripts, software or other application,
or other destination, together with supporting files and programming,
that are on, provided, or accessible through the Web or works on or in
relation to the Web, or (b) a person owning or operating any such Site,
or (c) both. A person that owns or operates a Site may have offline
businesses which would not preclude it from being a Site for the purposes
of this Agreement.
3. PARTICIPATION; YOUR BUSINESS
3.1 Participation. Subject to the terms and conditions in this Agreement,
You may use the LinkShare Offerings to Network Affiliates via the Network
Affiliate Account Area or otherwise to enter into, track and report on,
and/or manage (or have managed) affiliate
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marketing and/or other types of LinkShare-tracked engagements on behalf
of Your business.
3.2 Voluntary Participation. Your participation in any one or more
LinkShare Networks is as an Online Affiliate. Your participation is
purely voluntarily and You may terminate Your participation at any time.
Neither LinkShare nor any Network Merchant shall be construed or deemed
as having solicited, requested or procured You or Your services to
promote LinkShare or any Network Merchant or its respective trade or
business, or goods, products, property, or services.
3.3 Not a Supplier, etc. You are not and shall not, at any time, be
deemed to be a vendor, supplier or provider of goods or services to
LinkShare, and neither Your participation on any LinkShare Network, use
of any LinkShare Offerings or receipt of payment of any compensation
under any LinkShare-tracked engagement shall be construed or be deemed to
be an inducement for, solicitation of You to provide any products or
services to LinkShare.
3.4 Prohibited Activities. In respect or in relation to any Site (or
portion thereof) used by You in connection with Your participation on any
LinkShare Network, You may not engage in any activity that is or
constitutes, or that involves, facilitates, advocates or promotes, one or
more of the following: (a) discrimination on the basis of race,
ethnicity, gender, religion, sexual orientation, age or disability; (b)
libelous, defamatory, threatening, harassing, tortious, or similarly
abusive activities; (c) obscene, pornographic, sexually explicit or
similar activities; (d) gambling; (e) sale, export or use of illegal
substances; (f) terrorism, sedition or other illegal activities; (g) MP3,
MPEG and/or other proprietary materials for download, sale or otherwise,
in any case without the permission of the owner of the Intellectual
Property Rights (h) a conflict or violation of any law or regulation or
any Intellectual Property Rights or other rights of any person or entity;
(i) harm to minors in any way; (j) impersonation of any person, including
any LinkShare
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representative, or misrepresentation of affiliation with any person; or
(k) conducting of raffles, contests, lotteries or sweepstakes.
3.5 Regulated Business. You represent, warrant and covenant that Your
businesses and activities will not cause, nor could cause, LinkShare or
any Site with which You have entered into a LinkShare-tracked engagement
to be or become subject to any law, rule or regulation adversely
affecting LinkShare or such Site, and You shall defend and indemnify
LinkShare and such Sites against any such adverse effect.
4. ENGAGEMENTS; QUALIFYING LINKS.
4.1 Use of Qualifying Links. Each qualifying link used by You in relation
to a LinkShare-tracked engagement must include, in unaltered form, the
special "tagged" link codes and/or other transaction tracking codes in
the manner and format made available or otherwise dictated by LinkShare
that, among other things, associate such qualifying link with such
engagement.
4.2 Valid Referrals Only. You will place or use qualified links of a
Network Merchant only with the intention of delivering valid sales,
leads, applications, accounts, clicks or other specified compensable
tracked activities for the benefit of such Network Merchant. You may not,
nor knowingly permit any person to, activate a qualifying link or inflate
the amount of any sought-after or resulting tracked activities through
any method or technology that does not actually deliver an end user to
the destination Site associated with such qualifying link.
4.3 LinkShare's Determination Final and Binding. All determinations of
qualifying links and the compensation due to You made by LinkShare shall
be final and binding on You. LinkShare's services do not involve
investigating or resolving any claim or dispute involving You and any
Network Merchant or other third party person. If LinkShare, in its sole
discretion, elects to investigate or otherwise become involved in any
such claim or
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dispute, it shall not thereby undertake, assume or have any duty,
obligation or liability to You or any other party to the claim or
dispute.
4.4 Merchants' Terms and Conditions. In addition to and without limiting
Your obligations under this Agreement, the terms and conditions of the
Network Merchant's engagement govern Your performance of such engagement
including Your use of the associated qualifying links, the tracked
activities sought, the compensation that might become payable, and any
limitations or restrictions that may apply to Your promotion of such
Network Merchant or its qualifying links. LinkShare has no liability or
responsibility to review, endorse, police or enforce any such
engagements.
4.5 Distribution of Qualifying Links. If You currently distribute, or
plan to distribute, qualifying links on, to or through Sites other than
those owned or operated by You and registered with LinkShare, You may do
so (or continue to do so) until SEPTEMBER 30, 2005 (or such later date as
LinkShare may designate). After such date, You will be required to obtain
LinkShare's approval to continue to do so. Such approval may be
conditioned upon Your agreement to additional terms and conditions and
additional disclosures in respect of Your distribution and/or use of such
qualifying links.
4.6 No Modification. etc. of Qualifying Links. You will not modify,
circumvent, impair, disable or otherwise interfere with any tracking
codes and/or other technology and/or methodology required or made
available by LinkShare and/or the Network Merchant to be used in
connection with such qualifying link so that it may be properly tracked
by LinkShare.
4.7 Termination of Qualifying Links. LinkShare or the relevant Network
Merchant may terminate any qualifying links associated with any affiliate
marketing programs of, and/or other LinkShare-tracked engagements with
which You have entered into with such Network Merchant. You must remove
any qualifying links after any termination of the corresponding
engagements, including due to termination or expiration of a relevant
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Network Merchant's participation. If qualifying links are not so removed,
LinkShare may redirect such links as it determines in its sole
discretion, with or without compensation to You.
4.8 Discontinuing Use of Qualifying Links. You may at any time
discontinue use of qualifying links by removing such qualifying links
from Your Site, with or without notice to LinkShare or, subject to the
terms of Your engagement with the relevant Network Merchant, such Network
Merchant, provided, however, that You remain subject to such engagement
and this Agreement until you separately terminate such engagement or
Agreement.
4.9 LinkShare as Neutral Host. Participation in any LinkShare Network is
not an endorsement by LinkShare of any Network Merchant or Network
Affiliate. LinkShare operates the LinkShare Networks and/or provides the
LinkShare Offerings as a neutral host, and LinkShare does not regularly
or proactively monitor, regulate or police the usage thereof by any of
its participants. LinkShare is not responsible or liable for the acts,
omissions, agreements or promises of or by any Network Merchant, Network
Affiliate or other Site using LinkShare offerings to enter into any
arrangement or otherwise work with any other person or entity.
4.10 Independent Contractors. LinkShare is the host of each LinkShare
Network. Network Merchants and Network Affiliates are independent parties
and LinkShare does not and shall not have any responsibility or liability
for the acts, omissions, promotions, Content or qualifying links or other
links of any Network Merchant, Network Affiliate or other third party,
including breaches of engagements by Network Merchants, or for screening
or policing the Sites or actions of Network Merchants or Network
Affiliates.
5. PROVISION OF INFORMATION
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5.1 Reports; Revisions. You acknowledge and agree that each Network
Merchant whose Program You join shall receive reports from LinkShare that
identify You and may include data about You and Your qualifying links
with that Network Merchant. If LinkShare is notified by a Network
Merchant that it believes that its reports about its relationship with
You contain an error or omission or otherwise require adjustment,
LinkShare may elect to revise those reports as requested by the Network
Merchant and make corresponding changes to Your Affiliate Reports. Since
the reports LinkShare provides You and such Network Merchant are the
bases for calculating the compensation, if any, due to You from that
Network Merchant, any such adjustment may affect the amount of
compensation to which You are entitled.
5.2 Data Furnished by Network Merchants. In providing LinkShare
Offerings, including giving You reports on Your Network activities,
LinkShare relies on data provided by Network Merchants. LinkShare is not
obligated to confirm, and does not warrant or guarantee, the accuracy,
truth or completeness of any data provided by Network Merchants.
5.3 Errors. If You believe that any of Your Affiliate Reports for any
month contains errors in the data about Your engagement with any Network
Merchant, You must notify that Network Merchant (with a copy to
LinkShare) within ten days after the end of that month or any shorter
period in Your engagement so that, if possible, the matter may be
resolved. If any Affiliate Reports for any month are corrected or
adjusted after the end of the month, then the period within which You
must notify the Network Merchant (with a copy to LinkShare) of errors in
the corrected or adjusted data shall be ten days after such correction or
adjustment is posted or any shorter period in Your engagement. Any
dispute between You and a Network Merchant about any error You report
must be resolved by You and that Network Merchant. In the event LinkShare
is in receipt of funds from a Merchant for the purpose of paying
commissions to You, and a dispute arises between you and the Merchant
regarding the amount of the funds that are due, LinkShare will be
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entitled to return such funds to the Merchant, and to decline to offer
further processing services until such dispute is resolved and LinkShare
is notified, in writing, by all parties, that payments should resume. You
agree that LinkShare shall have no obligations and incur no liabilities
to You in connection with any such dispute.
5.4 No Personal End User Data. In order to provide any of the LinkShare
Offerings, LinkShare does not require to be provided, nor does it
capture, any personally-identifiable information about any end user who
undertakes tracked activities in relation to You or any Network Merchant.
LinkShare has no obligation or liability to You, any end user or any
other person if You, any Network Merchant or other person should provide
such information, for whatever reason, to LinkShare.
5.5 Privacy Policy. You will ensure that any and all Sites employed by
You in connection with Your participation in any LinkShare Network or any
LinkShare-tracked engagement will feature an easy-to-understand privacy
policy, linked, at a minimum, conspicuously from such Site's home page,
with a link that contains the word "Privacy", "Legal", "Terms" or similar
language. Such privacy policy shall, in addition to the disclosures about
Your privacy practices, identify the collection and use of any
information You provide or may provide to LinkShare and to any Network
Merchant or other Sites or persons with which You have any LinkShare-
tracked engagement or other arrangement in relation thereto. As to Your
personal information, LinkShare may use Your personal information in any
manner or for any purpose that it determines to be appropriate or
necessary in its sole discretion in connection with conducting any
activities of or on any LinkShare Network and in relation to LinkShare's
business.
5.6 Backing Up Data and Other Precautions. Data transfer, conversion,
processing and storage are subject to the likelihood of human and machine
errors, delays, interruptions and losses. LinkShare is not liable for any
such events or their consequences. You are solely responsible for
adopting measures to limit the impact of such events, including backing
up any reports or data provided to You. LinkShare may, from time to time,
with
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or without notice, change the time period covered, type and/or scope of
current or historical data stored by LinkShare and/or to which it
provides You with access.
6. YOUR OBLIGATIONS
6.1 No Circumvention.
a. You agree that You will not in any way bypass or circumvent, or
attempt to bypass or circumvent, LinkShare and any LinkShare
Network in connection with any engagement You have entered into
with any Network Merchant. This includes entering into a direct
relationship or linking arrangement where LinkShare-provided
qualifying links are not used in accordance with this Agreement
such that LinkShare is unable to track and monitor the commissions
owing to You under a LinkShare-tracked engagement or the fees owing
to LinkShare therefor. You may not enter into any relationship that
would result in the avoidance or reduction of the LinkShare
tracking process, the commissions to be paid pursuant to this
Agreement, or the fees to be paid to LinkShare as a result of any
tracked engagement.
b. Further, if LinkShare brokers an introduction or arrangement
between You and any Network Merchant through any LinkShare
Offering, You and such Network Merchant will track any resulting
engagement through using a LinkShare Network using LinkShare-
provided qualifying links. This includes using Your Network
Affiliate Account Area to investigate Network Merchant terms and
contacting such Network Merchants directly to enter into
engagements that are not tracked by LinkShare-provided qualifying
links. LinkShare will be deemed to have brokered an introduction or
arrangement in any of the following circumstances: (i) such Network
Merchant recruits or otherwise first contacts You through use of
any LinkShare Offerings; or (ii) You apply to such Network
Merchant's affiliate marketing program or otherwise first contact
such Network Merchant through use of any LinkShare Offerings; or
(iii) at Your request or the
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Network Merchant's request or with Your or its express involvement,
LinkShare arranges an introduction or facilitates the consummation
of an arrangement between You and such Network Merchant through the
use of any LinkShare Offerings.
c. Your obligations under this Section will survive any termination by
You or LinkShare of Your participation in any LinkShare Networks
for a period of one (1) year after such termination.
Notwithstanding the preceding sentence, Your obligations under this
Section will cease with respect to any individual Network Merchant
upon the expiration or termination (other than due to breach by
such Network Merchant) of such individual Network Merchant's
participation in the relevant LinkShare Network.
6.2 No Poaching. You may not use any LinkShare Offerings in connection
with aggregating, soliciting or recruiting Network Merchants, Network
Affiliates, other Sites or other persons to form or join affiliate
marketing, advertising or similar network.
6.3 No Sublicense, etc. You may not sublicense, rent, lease, sell,
resell, outsource or service bureau any LinkShare Offerings, and any
attempt to do so shall be null and void.
6.4 No Reverse Engineering. You will not make unauthorized modifications,
reverse engineer, disassemble, decompile or attempt to derive source code
of any LinkShare Offerings.
6.5 No Hacking, etc. You agree not to hack, abuse, adversely interfere
with, infect with viruses, worms or other malicious or destructive code,
or use or cause to be used in extraordinary and unreasonable or
inappropriate ways or amounts, any LinkShare Offerings, including any
servers, bandwidth supply, equipment, software and other technological
resources provided by LinkShare.
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6.6 No Spam. You may not use any qualifying links in any electronic
message unless (a) You have received the express written authorization of
the Network Merchant to use email or other electronic messages to promote
it or its qualifying link and (b) any and all such electronic messages
comply in all respects with this Agreement, the Network Merchant's terms
and conditions, and any and all applicable laws, including the
requirements of the Can Spam Act of 2003 (Public Law No. 108-187).
Further, no electronic message initiated or sent by You or on Your behalf
may identify LinkShare or, except as expressly authorized by an
individual Network Merchant, any Network Merchant as a sender or sponsor
of such electronic message.
6.7 No Interference. You may not, through downloadable or other
technology, replace, intercept, redirect, block, alter or otherwise
interfere with the full functioning and intended actions of any
qualifying link that has been placed or distributed by another Network
Affiliate including any action that would in any way prevent the behavior
or result that would occur or would have occurred had an end user
activated such qualifying link without Your interference.
6.8 No Infringing Uses. You may not use any name, trademark, service
xxxx, domain name or other Intellectual Property Rights of any third
party in connection with Your use of any qualifying links, any LinkShare
Network or any other LinkShare Offerings, in any way or for any purpose
that infringes or violates any Intellectual Property Rights or other
rights of such third party, whether for the purpose of increasing the
levels of tracked activities attributable to Your qualifying links or for
any other purpose.
6.9 Fraud, Abuse, etc. You will not, and will not knowingly permit other
persons to, engage in any fraudulent, abusive or illegal activity in
connection with Your participation on any LinkShare Network or in
connection with any Network Merchant's affiliate marketing program or
engagement.
7. GRANT OF LICENSE TO YOU
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7.1 Your Use of LinkShare Offerings. For each LinkShare Network of which
You are a member in good standing, LinkShare grants You a personal, non-
exclusive, non-transferable, non-sublicenseable, revocable and limited
license and right, subject to the terms of this Agreement, to:
a. Participate in any LinkShare Network for which You have registered
as a Network Affiliate.
b. Access the areas of the relevant Network Affiliate Account Area
necessary for Your participation in such LinkShare Network as a
Network Affiliate.
c. Solely for Your use in connection with Your participation in such
LinkShare Network, download any reports made available to You by
LinkShare.
d. Use any software code or other Content that is provided by
LinkShare Solely for the purpose of creating and maintaining
qualifying links in accordance with this Agreement and Your
engagements, for such purpose, and no other purpose, but only in
the form so provided.
All other use of any LinkShare Network, Network Affiliate Account Area,
any reports made available to You by LinkShare and such software code or
Content, including modification, publication, transmission, transfer or
sale of, reproduction, creation of derivative works, distribution,
performance, display, incorporation into another Site or mirroring is
prohibited.
7.2 Use of the LinkShare Name. This Agreement does not grant to You any
license or right to use LinkShare's name or any of its logos or trade or
service names or marks, except to the extent required to be used in
connection with an URL. Any press release or other public announcement by
You regarding this Agreement or any LinkShare Network or that mentions
LinkShare shall require the prior written approval of LinkShare. You
agree that You shall not disparage LinkShare or any of the LinkShare
Networks or any other participants thereof.
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7.3 Duration of License Rights; Reservation. The above licenses with
respect to any LinkShare Network are valid only while You remain a member
of such LinkShare Network as a Network Affiliate in good standing and
comply with this Agreement. LinkShare may revoke any such license at any
time by giving You notice by e-mail or in writing. LinkShare reserves all
rights that are not specifically granted to You by this Agreement.
8. GRANT OF LICENSES TO LINKSHARE
8.1 Use of Your Content. Other than as provided below, in order to
participate in the LinkShare Network, You are not required to provide
LinkShare with any Content or other materials. Should You do so, by way
of uploading, delivering or otherwise making available to LinkShare any
Content and/or other materials (including any Intellectual Property
Rights therein and thereto), You agree to grant, and hereby grant, to
LinkShare a non-exclusive, worldwide, royalty-free, sublicenseable,
perpetual license to use and store the same including in relation to
conducting its business or performing any services in relation to any
LinkShare Network. This Section will survive any termination.
8.2 Use of Your Name. LinkShare shall have the right to refer to You by
Your name in connection with any LinkShare Network and/or the performance
or provision of any LinkShare Offerings, including in communications sent
to actual or prospective participants of the LinkShare Networks in which
You participate.
8.3 Disclosure of Business Relationship. Nothing in this Agreement shall
prevent LinkShare from making any public or private statements about Your
business relationship with LinkShare and/or any Network Merchant and/or
Your participation in any LinkShare Network.
8.4 Use of Your Logo. Except as expressly provided above, LinkShare shall
not use any of Your logos and/or other trademarks without Your prior
written approval. Any and all
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uses of Your logos and/or other trademarks shall be in accordance with
Your specified usage guidelines.
9. REPRESENTATIONS AND WARRANTIES
9.1 You represent, warrant and covenant as follows:
a. You have the legal right to conduct any business conducted by You
including in respect of any Site(s) participating in any LinkShare
Network; and
b. Any and all information You provided as part of the registration
process or otherwise shall be truthful, accurate and complete,
irrespective of any independent verification or other determination
made by LinkShare; and
c. This Agreement has been duly and validly authorized, accepted,
executed and delivered by You (or Your authorized representative)
and constitutes Your legal, valid, and binding obligation,
enforceable against You in accordance with its terms; and
d. The performance by You of this Agreement and the participation by
You in any LinkShare Network and any relevant Network Merchant's
engagement does not and shall not conflict with or violate (i) any
law, rule, regulation, order, judgment, decree, agreement or
instrument applicable to You or (ii) if You are an entity, any
provision of Your certificate of incorporation or other
organizational documents.
10.NON-DISCLOSURE
10.1 Confidential Information. You acknowledge that in connection with
Your participation on a LinkShare Network and/or in one or more Network
Merchants' engagements, You will be provided with confidential and
proprietary data and information from time to time through reports as
well as other LinkShare Offerings to You through Your Network Affiliate
Account Area or otherwise. Such confidential and proprietary data and
information may be owned variously by LinkShare or Network Merchants
and/or its or their suppliers or contractors. You will retain ownership
of any
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data and information that You independently collect through Your Sites
without the use of LinkShare Offerings, provided that any data and
information that may be provided by You to LinkShare shall be deemed to
be covered by the licenses granted to LinkShare under this Agreement.
10.2 Duty of Care. You will keep all reports, data and other confidential
information provided to You through the Network Affiliate Account Area or
otherwise strictly confidential. Without LinkShare's prior written
consent, You will not disclose any such confidential information to any
third party or use any such confidential information other than solely as
and to the extent required for you to perform under this Agreement and/or
Your engagements with any Network Merchants.
10.3 Need to Know Basis. You may disclose any such confidential
information only to Your employees, officers and directors who need to
know such information in order to perform their respective duties;
provided that each such person has a legal or contractual obligation to
maintain the confidentiality of such information.
10.4 Legally Required Disclosures. If You receive any document request,
interrogatory, subpoena or other legal process ("REQUEST") that would, by
its terms, require the disclosure of any Confidential Information
protected by this Agreement, then promptly upon receipt thereof, and
prior to making any response thereto, You will notify LinkShare in
writing of Your receipt of such Request, and shall provide a copy
thereof. Upon receipt of such notice, LinkShare may seek to intervene in
the matter in which the Request was issued to seek protection of the
confidentiality provided for by this Section. Absent written agreement
signed by LinkShare, You may not make such disclosure absent an order or
directive from the tribunal from which a Request was issued. LinkShare
will be entitled to seek and obtain injunctive relief preventing any
breach of Your obligations under this Section, without the need to show
irreparable harm, and without the need to post a bond or undertaking.
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11. PAYMENT; FEES
11.1 Network Merchant Responsible for Payment. You acknowledge that Your
entitlement to any compensation reported with respect to any tracked
activity (including if reported) is solely a function of the terms of
Your agreement with the relevant Network Merchant and that such Network
Merchant is solely responsible for its payment. LinkShare is not liable
or responsible for payment or collection. This is true even if LinkShare
performs the function of processing payments to you on behalf of Network
Merchants.
11.2 Payment Terms. The fact that a compensation amount is reported for
any tracked activity does not necessarily mean that a payment is due to
You from the relevant Network Merchant, since payment may be subject to
conditions established by that Network Merchant, including policies
regarding order cancellation, returned merchandise, receipt of pending
credit card authorizations and/or chargebacks and minimums for earned
compensation before payment is made.
11.3 LinkShare's Right to Assess Fees. LinkShare may, at any time upon
prior written notice to you as described below, commence charging or
assessing fees in relation to any or all LinkShare Offerings made
available to You including Your participation on any LinkShare
Network(s). Except as otherwise expressly provided in this Agreement, in
the event LinkShare elects to charge or assess fees, You will be notified
at least one (1) month in advance in writing by email or posting through
the Network Affiliate Account Area. You may elect not to pay any such
fees by discontinuing Your participation in all LinkShare Offerings prior
to the commencement of such fees. Any and all fees or other charges may
be offset against or debited from any amounts that might be held in
account for You by LinkShare or LinkShare Related Parties including any
amounts that may be due, payable or paid to You by any Network Merchants
or other third parties.
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11.4 Tax. You agree that You are solely responsible for any and all tax
obligations, if any, due to all taxing authorities arising from or in
connection with Your participation in any LinkShare Offerings, LinkShare
Network or any Network Merchant engagement.
12.COMPLIANCE WITH LAWS
12.1 You and Your affiliates, officers, directors, employees,
consultants, agents and representatives, and the conduct of Your
business, Your performance under any engagements with any Network
Merchant, and Your use of any LinkShare Network and/or LinkShare
Offerings shall comply at all times with all applicable federal, state,
provincial and foreign laws, ordinances, rules, regulations, orders,
judgments and decrees.
13.TERMINATION OF NETWORK MERCHANTS
13.1 Any Network Merchant's participation in any LinkShare Network may
end or be suspended for a number of reasons, including expiration or
early termination of its merchant agreement with LinkShare, and You shall
not necessarily receive any prior notice that such Network Merchant's
participation is ending.
13.2 If a Network Merchant's participation in any LinkShare Network ends
or is suspended for any reason, its program conducted through such
LinkShare Network shall end or be suspended and LinkShare may, without
notice to You, terminate or suspend all qualifying links that You have
with that Network Merchant immediately or, in LinkShare's discretion, at
any time thereafter. LinkShare shall have no obligation or liability to
You because of any such termination or suspension of any Network
Merchant.
14.DISCLAIMER OF WARRANTIES
14.1 EACH LINKSHARE NETWORK AND ANY LINKSHARE OFFERINGS ARE PROVIDED "AS
IS, WHERE IS" AND "AS AVAILABLE."
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14.2 EACH OF LINKSHARE AND LINKSHARE RELATED PARTIES HEREBY DISCLAIMS ANY
AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY AS TO
ACCURACY, MERCHANTABILITY, COMPLETENESS, CURRENTNESS, SECURITY, NON-
INFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE OF ANY LINKSHARE
NETWORK OR ANY LINKSHARE OFFERINGS OR THAT YOUR USE OF THE SAME WILL BE
UNINTERRUPTED OR ERROR-FREE, OR THAT ANY NETWORK MERCHANT WILL BE
AVAILABLE (INCLUDING IN THE EVENT OF BEING TERMINATED FOR WHATEVER REASON
FROM ANY LINKSHARE NETWORK) OR CAN OR WILL BE WILLING TO ENTER INTO ANY
ENGAGEMENT WITH YOU.
15.LIMITATION ON LIABILITY
15.1 If You reasonably determine that any LinkShare Offering does not
materially meet LinkShare's obligations under this Agreement, then You
must notify LinkShare in writing within ten (10) days of receiving any
such allegedly nonconforming services. Your failure to so notify
LinkShare on a timely basis shall mean that You accept such services, and
LinkShare shall thereafter have no liability whatsoever with respect to
such services. If upon receipt of any notice under this Section,
LinkShare may, at its sole discretion, reperform the service in question
or otherwise provide You with any substitution or replacement services in
lieu thereof. Any reperformance or provision of substitute or replacement
services shall in no event be construed as an admission that the original
service was nonconforming or otherwise improper, and Your acceptance of
the same constitutes Your sole remedy and in such case constitutes
LinkShare's maximum liability for any such alleged breach of this
Agreement.
15.2 IF, NOTWITHSTANDING THE ABOVE, LIABILITY IS IMPOSED ON LINKSHARE OR
LINKSHARE RELATED PARTIES, THEN YOU AGREE THAT THE TOTAL LIABILITY OF
LINKSHARE AND LINKSHARE RELATED PARTIES, AND ITS AND THEIR OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS,
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SUBCONTRACTORS AND REPRESENTATIVES, TO YOU WILL NOT EXCEED TWENTY-FIVE
DOLLARS ($25.00). YOU RECOGNIZE AND ACKNOWLEDGE THAT THIS LIMITATION OF
DAMAGES IS FAIR AND REASONABLE, IN LIGHT OF THE FACT THAT LINKSHARE IS
PROVIDING THIS SERVICE TO YOU AT NO CHARGE TO YOU.
15.3 NONE OF LINKSHARE AND LINKSHARE RELATED PARTIES WILL BE LIABLE TO
YOU (WHETHER IN CONTRACT OR BASED ON WARRANTY, NEGLIGENCE, TORT, STRICT
LIABILITY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
RELIANCE, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOSS OF REVENUE OR
PROFITS, EVEN IF SUCH PERSON WAS AWARE THAT SUCH DAMAGES COULD RESULT.
15.4 Any claim or cause of action arising out of Your use of any
LinkShare Network, this Agreement or the Network Policies and Guidelines
must be filed within ninety (90) days after such claim or cause of action
arose or be forever barred.
15.5 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES
OR LIMITATION OF CERTAIN LIABILITIES. ACCORDINGLY, SOME OF THE ABOVE
LIMITATIONS OF THIS SECTION 15 MAY NOT APPLY TO YOU.
16.INDEMNIFICATION
16.1 You agree to defend, indemnify and hold harmless LinkShare and
LinkShare Related Parties, and its and their directors, officers,
employees, agents, subcontractors and representatives for and against any
and all claims, actions, demands, liabilities, losses, damages,
penalties, interest, judgments, settlements, costs and expenses
(including reasonable attorneys' fees) that directly or indirectly arise
out of or are based on:
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a. (a) any misrepresentation or breach of any representation,
warranty, or covenant made by You in this Agreement,
b. (b) any conduct, or activity, error or omission by You, including
in relation to Your participation on any LinkShare Network,
performance of any LinkShare-tracked engagement, or otherwise,
c. (c) any violation by You of any law, regulation or rule,
d. (d) Your use of any other LinkShare Offerings, and/or
e. (e) any actual or alleged infringement by You of any Intellectual
Property Rights or other rights of any person.
16.2 LinkShare may, at its election in its sole discretion, assume the
exclusive defense and control of any matter otherwise subject to
indemnification by You. LinkShare may participate in the defense of all
claims as to which it does not assume defense and control, and You shall
not settle any such claim without LinkShare's prior written consent.
17. AMENDMENTS
17.1 Amendments. Upon prior written notice, LinkShare may, at any time,
add to, remove or otherwise amend any or all terms, conditions and/or
other provisions of this Agreement, including any Network Policies and
Guidelines.
17.2 Changes in Service. Upon prior written notice, LinkShare may add,
remove, suspend or discontinue any aspect of any LinkShare Network or any
other LinkShare Offering.
17.3 YOUR CONTINUED USE OF ANY LINKSHARE NETWORK AND/OR LINKSHARE
OFFERING AFTER NOTICE IS GIVEN (AND AFTER EXPIRATION OF ANY APPLICABLE
PRIOR NOTICE PERIOD) SHALL CONSTITUTE YOUR BINDING AND LEGALLY
ENFORCEABLE AGREEMENT TO SUCH CHANGE. IF YOU DO NOT WISH TO ACCEPT ANY
SUCH CHANGE, THEN YOU MUST TERMINATE YOUR ACCOUNT WITH SUCH LINKSHARE
NETWORK AND/OR
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LINKSHARE OFFERING AND CEASE USING SUCH LINKSHARE NETWORK AND ANY
ASSOCIATED LINKSHARE OFFERING.
18.TERMINATION, ETC.
18.1 Termination. You or LinkShare may, at any time, with or without
cause, terminate this Agreement and Your participation on any LinkShare
Network or use of any other LinkShare Offering. You may effect such
termination through Your Network Affiliate Account Area or by written
notice to LinkShare subject to actual receipt thereof.
18.2 Restricted Use. Alternatively, LinkShare may, in its sole
discretion, suspend, limit, restrict, condition or deny Your access to or
use of all or any part of any LinkShare Network or any LinkShare
Offering.
19.EFFECTS OF TERMINATION
19.1 Upon any termination of this Agreement and/or Your participation on
all LinkShare Networks:
1. You shall immediately cease to use and remove from any and all
Site(s), whether or not owned or operated by You, any and all
qualifying links and all other Content or materials provided to You
in connection with Your participation on such LinkShare Network or
Your use of any other LinkShare Offerings.
2. Any and all licenses and rights granted to You under this Agreement
shall immediately cease and terminate.
3. LinkShare may terminate or, in its sole discretion, direct or
redirect to any destination Site any and all qualifying links
continued to be used by You without LinkShare or any Network
Merchant incurring any further liability or obligation to You.
4. Any and all confidential or proprietary information of LinkShare
(including as applicable any confidential or proprietary
information of Network Merchants as
25
and to the extent originally provided by LinkShare) that is in Your
possession or control must be immediately returned or destroyed. If
requested, You will certify in a writing signed by You or an
authorized officer as to the return or destruction of all such
confidential or proprietary information.
19.2 LinkShare may withhold and offset against any and all compensation
and/or other fees that are then unpaid to You. Following assessment of
any fees or other charges owing to LinkShare, and subject to LinkShare
holding any amount it determines in its sole discretion to be needed to
support any of Your indemnification and/or other obligations and/or
liabilities under this Agreement, LinkShare may refund any remaining
monies to any of the Network Merchants with which You had entered into a
LinkShare-tracked engagement. Such withholding of such compensation
and/or other fees is in addition to any other rights and remedies that
LinkShare or any Network Merchant may have in contract, at law or in
equity.
19.3 All rights or remedies arising out of a breach of any terms of this
Agreement shall survive any such termination of this Agreement. of Your
participation in any LinkShare Network or Your use of other LinkShare
Offerings.
19.4 Sections 19 and 20, and any provision which by its terms are
intended to survive any expiration or termination of this Agreement, will
survive any expiration or termination of this Agreement. Your
representations and warranties in this Agreement shall survive execution,
delivery, acceptance, performance, expiration or termination of this
Agreement.
20. MISCELLANEOUS
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20.1 Independent Contractors. The parties are independent contractors and
nothing in this Agreement shall confer upon either party any authority to
obligate or bind the other in any respect.
20.2 Force Majeure. LinkShare shall not be liable to You by reason of any
failure or delay in the performance of its obligations hereunder on
account of strikes, shortages, riots, insurrection, fires, flood, storm,
explosions, acts of God, war, governmental action, labor conditions,
earthquakes, interruptions in telecommunications services or Internet
facilities, or any other cause which is beyond the reasonable control of
LinkShare, whether or not similar to the foregoing.
20.3 Assignability. You shall not assign or delegate any of the rights or
obligations under this Agreement, and any such attempted assignment or
delegation shall be void. Subject to the preceding sentence, this
Agreement is binding on and inures to the benefit of the respective
successors, heirs and assigns of each party.
20.4 Severability. If any portion of this Agreement is held by a court
with jurisdiction to be invalid or unenforceable, the remaining portions
hereof, shall remain in full force and effect. If any provision of this
Agreement shall be judicially unenforceable in any jurisdiction, such
provision shall not be affected with respect to any other jurisdiction.
20.5 Governing Law; Consent to Jurisdiction; Jury Trial Waiver. This
Agreement shall be governed by and construed in accordance with the laws
of the State of New York, U.S.A., without regard to its conflicts of law
principles. You consent to the personal and exclusive jurisdiction of the
Federal and New York State courts sitting in New York County, New York,
U.S.A.. EACH PARTY WAIVES RIGHTS TO TRIAL BY JURY IN RESPECT OF ANY
ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT. The U.N.
Convention on the International Sale of Goods shall not apply to this
Agreement.
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20.6 Entire Agreement; Third Party Beneficiaries. This Agreement is the
entire agreement between the parties pertaining to its subject matter,
and supersedes all prior written or oral agreements (including prior
versions of this Agreement and any conflicting confidentiality
agreements), representations, warranties or covenants between the parties
with respect to such subject matter. There are no third party
beneficiaries of this Agreement. The headings of sections or other
subdivisions of this Agreement will not affect in any way the meaning or
interpretation of this Agreement.
20.7 Notices. LinkShare may provide notices to You by posting notices or
links to notices in Your Network Affiliate Account Area. Notices to You
also may be made via e-mail, regular mail, overnight courier or facsimile
at your contact addresses of record for any LinkShare Network. If you
provide notice to LinkShare, such notice shall be sent, postage prepaid
by U.S. registered or certified mail or by international or domestic
overnight courier, to: LinkShare Corporation, 000 Xxxx Xxxxxx Xxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000, Attn: President and General Counsel. Notices
sent by email or telecopy, with or without electronic confirmation, will
not be deemed to be valid unless actual receipt is confirmed in writing
by an authorized personnel member of LinkShare.
20.8 Language. The English language versions of this Agreement and
Network Policies and Guidelines are the controlling versions thereof. All
support and other inquiries regarding Your use of any LinkShare Offering
must be submitted to LinkShare in English, and LinkShare will communicate
in English only.
20.9 Government Restricted Rights. With respect to any acquisition or use
of any LinkShare Network or other LinkShare Offerings by or for any unit
or agency of the United States Government (the "Government"), such items
shall be classified as "commercial computer software" as that term is
defined in the applicable provisions of the Federal Acquisition
Regulation (the "FAR") and supplements thereto, including the Department
of Defense (DoD) FAR Supplement (the "DFARS"). The LinkShare Offerings
were developed entirely at private expense, and no part of the LinkShare
28
Offerings was first produced in the performance of a Government contract.
If any LinkShare Offering is supplied for use by the DoD, such LinkShare
Offering is delivered subject to the terms of this Agreement and either
(i) in accordance with DFARS 227.7202-1(a) and 227.7202-3(a), or (ii)
with restricted rights in accordance with DFARS 000-000-0000
(c)(l)(ii)(OCT 1988), as applicable. If the LinkShare Offering is
supplied for use by a Federal agency other than the DoD, such LinkShare
Offering is restricted computer software delivered subject to the terms
of this Agreement and (i) FAR 12.212(a); (ii) FAR 52.227-19; or (iii) FAR
52.227-14(ALT III), as applicable. The contractor/manufacturer is
LinkShare Corporation, 000 Xxxx Xxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, XX
00000.
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