In this Agreement, “SELLER,” “we,” and “us” means e-Cyrano.com, Inc. and evanmarckatz.com, and “you”, or “Partner” means the applicant desiring to participate in the SELLER Partner Program (the “Partner Program”). “Link” or “Links” refers to any hypertext link, URL, banner, graphical or text ad containing a reference to SELLER or its products or services or web properties pursuant to this Agreement. The “SELLER Site” or “Our Site” means the web site located at or other SELLER-owned Internet properties, “our” meaning belonging to or pertaining to SELLER. “Your Site” means the web site or sites, or other online marketing venues upon which you establish the Links to Our Site as part of the Partner Program. The term “SELLER Services” means any SELLER service or product as well as any services or products that SELLER may introduce from time to time in the future and offer through the Partner Program.
1.0 ELIGIBILITY FOR THE Partner Program
We may reject your participation in this Program if we determine, at any time and at our sole discretion, that Your Site is unsuitable for the Program. Your Site may be deemed by us to be unsuitable if, in our view, it:
a) contains, promotes or links to sexually explicit or violent material;
b) promotes, depicts or links to material that promotes or depicts discrimination based on race, gender, religion, national origin, physical or mental disability, sexual orientation, or age;
c) contains unlawful material, including but not limited to materials that may violate another’s intellectual property rights, or links to a site that contains such material;
d) contains information regarding, promotes or links to a site that provides information or promotes illegal activity; or
e) for any other reason that is deemed by us to be unsuitable.
1.4 Unconditional Right to Reject Participation
2.1 Links, Banners, Graphics.
Subject to the terms of this Section, we will provide to you all Links, and any related banners, graphics, or text ads necessary to promote and offer the SELLER Services to Your Site’s visitors and/or its members. The Link may consist of ads containing text or graphic images provided by us (and is subject to change from time to time in our sole discretion) and may contain our logo or other references to SELLER. This Link will connect Your Site with the area on Our Site where the visitor may apply for the SELLER Services directly with us. The Link will serve to identify you as a member of our Partner Program and will establish a Link from Your Site to Our Site.
2.2 Displaying Links
In utilizing any SELLER provided Link, you agree that you will cooperate fully with us in order to establish and maintain such Link. You also agree that you will display only those Links that are provided by us, and you will substitute such Links with any new or update Links provided by us from time to time throughout the term of this Agreement. All Links may be modified by us and/or expanded from time to time throughout the term of this Agreement. Each Link connecting users of Your Site to the pertinent area of Our Site shall in no way alter the look, feel or functionality of Our Site.
2.3 Prohibitions against Uses
You may not use unsolicited commercial email (UCE), spam, search engine spam, or other illegal or unethical means by which to generate referral commissions.
2.4 Required Permissions
To obtain permission to advertise the Link in ways not specifically covered in this Agreement, you must email with your proposed advertising method, Partner ID, and personal contact information and we will then contact you regarding this request. Such requests will be given due consideration, however, SELLER reserves the right to deny any such requests without reason or justification, in SELLER’s sole discretion.
2.5 Intellectual Property Rights
You understand that the Links and any related banners, graphics, artwork, or text are SELLER’s intellectual property, and that your use of those links is governed by the terms of Section 9 of this Agreement and by relevant State, Federal, and International law.
2.6 Limitations of Partner Purchases
You understand that while buying your own SELLER products with your Partner link is permitted, we do not permit the bulk purchasing of domains with your own partner tracking link, as the program is intended to assist SELLER in gaining new customers. Abuse of this self-buying privilege may cause your commissions to be retracted, and/or your status as a partner to be terminated at our discretion.
3.0 OUR RESPONSIBILITIES
We will be responsible for providing all information necessary to allow you to make appropriate Link from Your Site to Our Site. We will be solely responsible for processing every order application for SELLER products or services placed by a customer following a Link from Your Site, for tracking the number and amount of sales generated by the Link from Your Site, and for providing information to you regarding commission payments. Also, we will be responsible for credit card authorizations, payment processing, cancellations, returns, and related customer service for the SELLER Services, it being understood that such activities shall be for our account. We are responsible for establishing commission schedules and payouts of earned Commissions as detailed in Section 6 of this Agreement.
4.0 YOUR RESPONSIBILITIES
4.1 Limitations of Promotion
If you qualify and agree to participate as a SELLER Partner:
a) You may display the provided Link prominently throughout Your Site as you see fit and without our prior consent subject to the terms and limitations of this Agreement.
b) You may not be entitled to participate and promote on Your Site any sweepstakes, contests, and special promotions we may offer, and in connection therewith, only upon our discretion shall we make such contests and promotions available to users of Your Site. If we do decide to allow partners to participate, you will be provided with approved licensed ads only for those you are allowed to offer, and you may become entitled to earn referral fees as set forth in Articles 5 and 6 below.
c) You shall not misrepresent SELLER or its products or services, or otherwise make any claims, representations, or warranties in connection with SELLER other than as expressly authorized by SELLER, and
d) You shall have no authority to, and shall not bind SELLER to any obligations, except as may be expressly set forth herein to the contrary or as otherwise agreed to and approved in advance in writing by SELLER. Nothing in this Agreement nor any conduct of either party shall be deemed to constitute an employment or agency relationship.
4.2 Compliance with Laws
You are solely responsible for ensuring that Your Site and your products and services that you offer from Your Site comply with all applicable copyright and other laws, including, without limitation, anti-spam laws. You must have express permission to use another party’s copyrighted or other proprietary material. We will not be responsible if you use another party’s copyrighted or other proprietary material on Your Site in violation of the law or any agreement, and your indemnity as outlined in Section 16 will protect us if you do so.
4.3 Responsibility to Maintain Your Site
You are solely responsible for the development, operation and maintenance of Your Site and for all materials that appear on Your Site. Such responsibilities include, but are not limited to, the technical operation of Your Site and all related equipment; the accuracy and propriety of materials posted on Your Site; and ensuring that materials posted on Your Site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. We disclaim all liability for all such matters.
You may not:
a) directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money (including any rebate), or granting of any discount or other benefit) for using the Link on your site to access Our Site.
b) read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to us by any person or entity;
c) take any action that could reasonably cause any customer confusion as to our relationship with you, or as to the site on which any functions or transactions (e.g., search, order, browse, and so on) are occurring;
d) other than providing the Link on your site in accordance with this Agreement, post or serve any advertisements or promotional promoting Our Site or otherwise around or in conjunction with the display of the SELLER Site (e.g., through any “framing” technique or technology or pop-up or pop-under windows); or
e) seek to purchase or register any keywords, search terms or other identifiers related to the trademarks of SELLER or the trade or service marks or names of SELLER’s primary competitors, including misspellings or variations thereof for use in any search engine, portal, sponsored advertising service or other search or referral service.
f) seek to purchase or register any domains or other identifiers that include variations on the trade or service marks or names of SELLER intended to approximate misspellings or typographical mistakes of same or which otherwise would constitute typo or domain squatting, including variations thereof for use in any search engine, portal, sponsored advertising service or other search or referral service.
4.5 Violation of Provisions
If we determine, in our sole discretion, that you have engaged in any of the activities outlined in this Section, we may (without limiting any other rights or remedies available to us) withhold any Commissions otherwise payable to you under this Agreement and/or terminate this Agreement.
4.6 Monitoring Your Site
We have the right, but not the obligation, in our sole discretion, to monitor Your Site and your usage of the Link at any time and from time to time to determine if you are in compliance with the terms of this Agreement.
4.7 Tax Information
We are obligated under Federal law to obtain certain tax information from Partner Program participants who are U.S. citizens, residents or corporations or others whose businesses are taxable in the U.S. If we believe we are obligated to obtain tax information from you and you do not provide this information to us, we may withhold Partner payments until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain such information.
5.0 REFERRAL FEES
Subject to the Payments and Fees Schedule, we will pay you, a single referral fee (“Commission”) on sales of SELLER Services to third parties who are not already SELLER customers. Your entitlement to an earned commission will accrue only if the customer:
a) accesses Our Site through the use of a Link on Your Site;
b) purchases the SELLER Services using our online sign-up process;
c) remits full payment to us; and
d) remains a customer beyond the SELLER Guarantee Period
6.0 PAYMENTS AND FEE SCHEDULE
6.1. Basis of Commission
You will be paid a commission (defined below) of SELLER’s Net Advertising Revenues, payable 60 days after sales are generated, no later than 7 days after the end of the 60 day period during which such Net Advertising Revenues have been received and reconciled by SELLER. .
6.2. Accumulation and Exlusions
The Commissions are accumulated for every unique paying customer referred to us by Your Site, utilizing the Links between Your Site and Our Site, excluding sales/amounts due to credit card or other fraud, charge backs and bad debt and credits for cancelled services (“Net Sales”). We reserve the right to delay or reclaim a payment for up to our g to allow for the aforementioned actions to take place.
6.3. Delivery of Payment
Payment will be made to you either via the credit or other payment method which you keep on file with SELLER or via mailed check to your address on file with SELLER, or Paypal at our discretion. We will however, pay you via the method you choose on your partner application. (Paypal or Check)
6.4. Tracking Commissions
SELLER will track the Commissions earned per Agent/Partner. SELLER will track all Commissions earned and may, at its absolute discretion, decide not to pay any Commission to you should SELLER believe that any referral has been made in violation of its technical guidelines, due to referral/customer fraud, or due to referral/customer contract cancellation. It is the Partner’s sole and absolute duty to follow precisely this Agreement and its guidelines at all times. SELLER is under no obligation whatsoever to pay any Commission to any Partner who does not strictly follow this Agreement and its guidelines, as modified from time to time. SELLER’s determination of the commissions due shall be dispositive.
6.5 Legal Action
SELLER reserves the right to prosecute or take legal action against any fraud, or conspiracy to defraud and to recover any Commissions paid to an Partner which were earned as a result of such fraud. Fraud includes knowingly violating the terms and spirit of this Agreement.
7.0 POLICIES AND PRICING
Customers who buy SELLER Services through the Partner Program will be deemed to be customers of SELLER 90 days after their account is activated. Accordingly, all of our rules, policies, and operating procedures concerning customer applications, customer service, and sales of our services will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for SELLER Services sold through the Program in accordance with our own pricing policies. Service prices may vary from time to time.
8.0 PUBLICITY AND PERMISSION OF SELLER
You shall not create, publish, distribute, or permit any written or graphical material that makes reference to SELLER other than those mentioned in this Agreement or otherwise provided by SELLER, without our prior written consent, which may be granted, in our sole discretion, provided such materials are not in direct conflict with SELLER’s own marketing efforts.
9.0 LICENSES AND USE OF SELLER LOGOS AND TRADEMARKS
9.1 Limitation of License
We grant you a non-exclusive, non-transferable, revocable right:
a) to access Our Site through the Link solely in accordance with the terms of this agreement; and
b) 9.1.2. solely in connection with the Link, to use our logos, trade names, trademarks and similar identifying material relating to us and which we provide to you (collectively, the “Licensed Materials”), for the sole purpose of establishing a link to Our Site so users of Your Site can purchase SELLER Services.
9.2 No Right to Modification
You may not alter, modify or change the Link or Licensed Materials in any way. You may use only authorized, licensed advertising creatives or ads.
9.3 Limitation of Use of Licensed Materials
Other than establishing a link from Your Site to Our Site, you shall not make any use of any Licensed Materials without first obtaining our prior written consent. You shall not use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light. We reserve all of our rights in the Licensed Materials and of our other proprietary rights. We, in our sole discretion, may revoke your license to use our Link or the Licensed Materials at any time. Partner shall comply with all guidelines provided by SELLER with respect to the text or graphic reproduction, appearance, and “look and feel” related to the marketing and representation of the Links and SELLER.
The licenses described in this Section 9 shall expire upon the effective date of the expiration or termination of this Agreement, and is dependent upon your status as defined in Section 1.
9.5. Post Termination
Any unauthorized use of the SELLER links, text, banners or other ads not approved of or provided by SELLER may be cause for immediate termination of this Agreement.
9.6. SELLER Retains Ownership of All Intellectual Property and Proprietary Rights
Except for the license granted under this Section 9, you do not obtain any rights under this Agreement in any intellectual property, including, without limitation, any intellectual property with respect to the Licensed Materials, the Link, link formats, technical specifications, guidelines or graphical artwork referenced above, or with respect to the 1and1.com domain name or other 1and1 web properties. You shall not assert the invalidity, unenforceability, or contest the ownership by SELLER of the Licensed Materials, the SELLER Site, or any related links, artwork, logos or other materials in any action or proceeding of whatever kind or nature, and shall not take any action that may prejudice SELLER’s rights in the marks, render the same generic, or otherwise weaken their validity or diminish their associated goodwill.
9.7. PARTNER’s Grant of Non-Exclusive License
You grant to us a non-exclusive license to utilize your company name and logo, as the same may be amended from time to time (the “Partner Trademarks”), to advertise, market, promote and publicize in any manner your participation in the Program or our rights hereunder; provided, however, that we shall not be required to so advertise, market, promote or publicize.
10.0 TERM AND TERMINATION OF THIS AGREEMENT
10.1. Commencement and Termination
The term of this Agreement will begin upon your acceptance of this Agreement and our acceptance of your application for the Partner Program, and will end when terminated by either party. SELLER may terminate this Agreement immediately at any time, with or without cause. Should you cease your publication of the Link this Agreement shall be deemed terminated by you. Violation of this Agreement shall constitute grounds for immediate termination of this Agreement.
10.2. Events at Termination
Upon termination of this Agreement:
a) SELLER’s acceptance of referrals obtained through Your Site shall not constitute a continuation or renewal of this Agreement or a waiver of such termination;
b) you shall be entitled only to those Commissions, if any, earned by you on or prior to the date of termination excluding amounts due to actual fraud, credit card fraud, credit card chargebacks and bad debt and credits for cancelled services or as otherwise in violation of this Agreement;
c) you shall in no event be entitled to Commissions with respect to referrals delivered after the date of termination, irrespective of whether any service or product order, contract, or commitment relating thereto was entered into prior to the date of termination;
d) upon termination, your rights and licenses under this agreement shall immediately terminate and you shall remove the Link or other Licensed Materials from Your Site; and
e) you shall return to SELLER any confidential information, and all copies thereof, in its possession, custody and control and will cease all uses of any trade names, trademarks, service marks, logos and other designations of SELLER and the Partner Program.
10.3. Withholding of Payment
We may withhold payment of Commissions, or any portion thereof, for a reasonable time to ensure that the correct amount is paid and the sale is legitimate under the terms of this agreement, although generally payments will continue to follow the schedule as outlined in Article 6.
10.4. Release of Obligations
Upon any termination of this Agreement, you and SELLER will be released from all obligations and liabilities to the other occurring or arising after the date of such termination or the transactions contemplated hereby, except with respect to those obligations which by their nature are designed to survive termination as provided herein; provided that no such termination will relieve you from any liability arising from any breach of this Agreement occurring prior to termination.
11.1. SELLER’s Right to Modification at Any Time
We reserve the right in its sole and absolute discretion, to modify any terms and conditions of the Partner Program and the terms and conditions of this Agreement upon notice to you. Notice of any changes may be given via Email to you or by posting such changes in the Partner Program sections of our website. Such changes and modifications will take effect upon transmission of Email or posting on our website. You may terminate participation in the Partner Program in the event that any of these modifications are unacceptable to you and such termination shall be your sole and exclusive remedy. In the event that you continue to participate in the Partner Program following such modifications, you will be deemed by yourself continued participation to accept any and all such changes. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT AS PROVIDED IN ARTICLE 10.
11.2. Continuation of Participation after Modification
Your continued participation in the Program following our posting of a change notice or new Agreement on Our Site will constitute binding acceptance of the change. No amendment, modification or supplement to this Agreement shall be effective unless it is posted by an authorized representative of SELLER at the SELLER Web Site.
12.0 RELATIONSHIP OF PARTIES
You and SELLER are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on Your Site or otherwise, that reasonably would contradict anything in this Section.
13.0 REPRESENTATIONS AND WARRANTIES
13.1. PARTNER’s Actual Ownership
You hereby represent and warrant to us that you are the sole and exclusive owner of the Partner Trademarks and have the right and power to grant to us the license to use your trademarks in the manner contemplated herein, and such grant does not and will not:
a) breach, conflict with or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or
b) infringe upon any trademark, trade name, service mark, copyright or other proprietary right of any other person or entity.
13.2 Further Representations of PARTNER
You further represent that:
a) you are duly organized, validly existing, and in good standing under the laws of the state or country of your origin, or you are an adult at least eighteen (18) years of age;
b) you have all requisite power and authority to enter into this Agreement and to carry out and perform its obligations under the terms of this Agreement;
c) this Agreement has been duly authorized, executed, and delivered by you and is a valid and binding obligation enforceable in accordance with its terms; and
d) the execution, delivery, and performance of and compliance with this Agreement does not and will not (i) conflict with, or constitute a default under, or result in the creation of, any mortgage, pledge, lien, encumbrance or charge upon any of your properties or assets, nor result in any violation of any term of your governing documents, (ii) in any material respect, any term or provision of any mortgage, indenture, contract, agreement, instrument, judgment or decree, or (iii) to the best of your knowledge, any order, status, rule or regulation applicable to you, the violation of which would have a material adverse effect on your business or properties.
14.1. Agreement to Confidentiality
You acknowledge that, during the term of this Agreement, you may be entrusted with confidential information relating to the business, operations, or underlying technology of SELLER and/or the Partner Program (the “Confidential Information”). You shall provide care to avoid disclosure or unauthorized use of the Confidential Information to any other person or entity.
Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or you, respectively, or any of our partners provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by such party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public or through a source or sources other than such party hereto or its partners.
14.2 Limited Authorization to Distribute
You shall not use the Confidential Information for purposes other than those necessary to further the purposes of this Agreement. You shall not disclose the Confidential Information to third persons or outside parties without the prior written consent of SELLER. Should you be required under applicable law, rule or regulation, or pursuant to the order of any court or governmental entity of legal process of any governmental entity of competent jurisdiction to disclose Confidential Information in its possession, custody or control, you shall:
a) give at least thirty (30) days prior written notice of such disclosure to SELLER;
b) use its best efforts to limit such disclosure; and
c) make such disclosure only to the extent so required.
Your obligations hereunder with respect to Confidential Information shall survive the expiration or earlier termination of this Agreement.
15.0 LIMITATIONS OF LIABILITY
15.1 No Liability of SELLER
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER. SHALL IN NO EVENT BE LIABLE TO YOU OR ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION, SUBSCRIBERS, FOR INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS, OR ANY OTHER FORM OF CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER RESULTING FROM BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL REFERRAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL SELLER. BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY, INCLUDING, WITHOUT LIMITATION, CUSTOMERS, FOR ANY LOSS, INJURY, OR DAMAGE, OF WHATEVER KIND OR NATURE, RESULTING FROM OR ARISING OUT OF ANY MISTAKES, ERRORS, OMISSIONS, DELAYS, OR INTERRUPTIONS IN THE RECEIPT, TRANSMISSION, OR STORAGE OF ANY MESSAGES OR INFORMATION ARISING OUT OF OR IN CONNECTION WITH THE Partner Program OR SELLER
15.2 No Warranties
SELLER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, CONCERNING THE PERFORMANCE OR FUNCTIONALITY OF THE SELLER SERVICES, OR OUR Partner Program, INCLUDING BUT NOT LIMITED TO THE LINK OR OTHER PARTNER ADVERTISEMENTS AND HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE.
You hereby agree to indemnify and hold harmless SELLER, its parent company, sister companies, subsidiaries and partners, and their directors, officers, employees, agents, shareholders, partners, members and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, expenses (including reasonable attorneys’ fees), and costs (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on, or in any way connected with this Agreement, including but not limited to:
a) any breach by you of any warranty, representation, or agreement contained herein,
b) the performance of your duties and obligations hereunder,
c) your negligence,
d) any injury (including death) to persons or damages to property caused directly or indirectly by your negligent or intentional acts or omissions, or
e) the unauthorized use of any SELLER intellectual property, including but not limited to the banners, logos, text or graphics; SELLER, and or any part of the Partner Program.
f) any claim that our use of the Partner Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party,
g) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein,
h) the development, operation, maintenance and of Your Site and products and services offered from Your Site, or
i) any claim related to Your Site, including, without limitation, therein not attributable to us.
All notices to us in connection with this Agreement shall be deemed given as of the day they are received either by messenger, delivery service or in the United States of America mails, postage prepaid, certified or registered, return receipt requested, and addressed as follows: Everything Web Based, LLC, 14241 NE Woodinville-Duvall Road, #351, Woodinville, WA 98072 Attention: Partner Program Manager at the address provide by PARTNER at the time of application to the program.
Any notice under this Agreement shall be given by SELLER to you via email at the address provided by you to SELLER at the commencement of this Agreement or as SELLER is subsequently advised. Notice to you at this address is deemed sufficient regardless of your receipt of such email.
18.0 INDEPENDENT INVESTIGATION
You acknowledge that you have read this agreement and agree to all its terms and conditions. You understand that we may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this agreement or operate web sites that are similar to or compete with your site. You have independently evaluated the desirability of participating in the program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
19.0 FEDERAL TRADE COMMISSION ACT – COMPLIANCE
PARTNERS agrees to comply with all state and federal regulations, including all provisions of the Federal Trade Commission Act (15 U.S.C. §41-58, as amended) and the Federal Trade Commission Guides Concerning Use of Endorsements and Testimonials in Advertising (16 C.F.R. §255.0 et seq.).
a) Consumer Endorsements. If PARTNER is providing endorsement of any of SELLER’s products, PARTNER agrees to comply with all requirements of 16 CFR §255.1, including but not limited to:
i) PARTNER will be a bona fide user of the product at the time PARTNER makes the endorsement;
ii) PARTNER will notify SELLER immediately if PARTNER discontinues being a user of the product; and
iii) PARTNER will only make endorsements of SELLER’s products which reflect the honest opinions, finding, beliefs or experiences of PARTNER, and PARTNER will not make any representation which is deceptive or could not be substantiated.
b) Endorsement of any Drug or Device. If PARTNER is endorsing any drug or devise, as defined by Federal Trade Commission Act 15 U.S.C. 55, PARTNER may only do so in accordance with 16 CFR §255.2, which prohibits the endorsement of a drug or device unless:
i) PARTNER has adequate scientific substantiation for such claim, and
ii) PARTNERS claims are not inconsistent with any determination that has been made by the Food and Drug Administration with respect to the drug or device that is subject of the claim.
c) Expert Endorsements. If PARTNER provides endorsement based on expertise, pursuant to 16 CFR §255.3, PARTNER must ensure:
i) PARTNER’s endorsement is support by an actual exercise of his/her/it’s expertise in evaluating the product’s features with respect to which he/she/it is an expert and which are both relevant to an ordinary consumer’s use of or experience with the product and also are available to the ordinary consumer;
ii) PARTNER’s evaluation of the product includes an examination or testing of the product at least as extensively as someone with the same degree of expertise would normally need to conduct in order to support the conclusions presented in the endorsement;
iii) PARTNER’s endorsement, when based on comparison of products, the comparisons must be included in the evaluation, and, as a result of such comparisons, must have concluded that, with respect to those features on which he is an expert and which are relevant and available to an ordinary consumer, the endorsed product is at least equal to or superior overall to the competitor’s products. Moreover, where the net impression created by the endorsement is the advertised product is superior to other products with respect to any such feature or features, PARTNER must have in fact found such superiority.
d) Endorsement by Organization. If PARTNER provides an endorsement on behalf of an organization, the endorsement must fairly reflect the collective judgment of the organization. (16 CFR §255.4).
e) Disclosure of Payment, Compensation or Benefits. Pursuant to 16 CFR §255.5, PARTNER shall disclose conspicuously in any advertisement to the public, any payment, promise of payment, benefit or compensation he/she/it receives in exchange for any endorsement he/she/it provides to SELLER, unless PARTNER is an expert or well know personality.
You shall not assign or delegate its obligations under this Agreement, either in whole or in part, without the prior written consent of SELLER, in its sole discretion. Any attempted assignment in violation of the provisions of this Agreement, whether by operation of law or otherwise, will be void. This Agreement is not intended to and shall not be construed to provide any rights, remedies or benefits to or for any person or entity not a party to this Agreement. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
If any provision of this Agreement, or the application thereof to any person or circumstance, shall be held invalid or unenforceable under any applicable law, such invalidity or unenforceability shall not affect any other provision of this Agreement that can be given effect without the invalid or unenforceable provision, or the application of such provision to other persons or circumstances, and, to this end, the provisions hereof are severable.
No delay or failure by SELLER in exercising any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right.
The rights and remedies of SELLER hereunder shall not be mutually exclusive, i.e., the exercise of one or more of the provisions hereof shall not preclude the exercise of any other provision hereof. You acknowledge, confirm, and agree that damages may be inadequate for a breach or a threatened breach of this Agreement and, in the event of a breach or threatened breach of any provision hereof, the respective rights and obligations hereunder shall be unenforceable by specific performance, injunction, or other equitable remedy. Nothing contained in this Agreement shall limit or affect any rights at law or otherwise of SELLER for a breach or threatened breach of any provision hereof, it being the intent of this provision to make clear that the respective rights and obligations of SELLER shall be enforceable in equity as well as at law or otherwise.
This Agreement shall not be construed or interpreted in favor or against SELLER or you on the basis of draftsmanship or preparation of the Agreement.
The headings, captions, and other typographical formatting used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement
20.7 Governing Law
This Agreement shall be interpreted under the laws of the State of California, without regard to any conflict of laws provisions.
20.8 Dispute Resolution
Any claim, dispute or controversy with respect to, in connection with or arising out of this Agreement shall be subject to and decided by arbitration in the County of Los Angeles, State of California, by a panel of three arbitrators. Each Party shall designate one disinterested arbitrator and the two arbitrators so designated shall select a third arbitrator. The persons selected as arbitrators need not be professional arbitrators and persons such as lawyers, accountants, brokers and bankers shall be acceptable, but each shall have substantial experience with respect to information technology and development. The arbitration proceeding shall be conducted in accordance with the commercial arbitration rules of the American Arbitration Association then and there pertaining. Any party may initiate arbitration proceedings hereunder by providing written notice (“Demand for Arbitration”) to the other party to such claim, dispute or controversy. A Demand for Arbitration shall be made within a reasonable time after the claim, dispute or controversy has arisen; provided, however, that no Demand for Arbitration may be made after the date when institution of such claim, dispute or controversy would be barred by the applicable statutes of limitations. Arbitration proceedings shall be commenced within thirty (30) days of such notice or as soon thereafter as practicable, and the arbitrators shall be required to render a written determination within thirty (30) days after the commencement of such arbitration proceedings. The written award of a majority of the arbitrators shall be final and binding upon the parties and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof, including the federal district courts located in the County of Los Angeles, State of California. All costs of any such arbitration shall be borne equally by the parties. The provisions of this paragraph shall survive the expiration or earlier termination of this Agreement.
This Section shall not be construed to prohibit either party from seeking preliminary or permanent injunctive relief in any court of competent jurisdiction, however, the arbitrator hearing the dispute to which the injunction pertains will have the power to modify or dissolve any such injunction, or to order additional injunctive relief, in connection with the final arbitration award. The parties, their representatives, other participants, and the mediator and arbitrator shall hold the existence, content, and result of any mediation and arbitration in confidence except to the extent necessary to enforce a final settlement agreement or to obtain and secure enforcement of or a judgment on an arbitration decision and award.
20.9 Execution and Acceptance
By using a Link provided by Partner Program, you execute, accept, enter into, and become party to this Agreement. At such point, SELLER simultaneously and automatically becomes counter-party to this Agreement. The Effective Date of such Agreement is the day on which Link is used by you.
20.10 Entire Agreement
Together with the above guidelines, this Agreement constitutes the entire agreement between the Parties. No prior or contemporaneous written or oral representation of the Partner Program form a part of this Agreement, and this Agreement supersedes all prior agreements between the Parties relating to the subject matter of this Agreement.
20.11 Attorneys Fees
In the event SELLER shall commence formal legal action to interpret and/or enforce the terms of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorneys’ fees and costs incurred in connection therewith.