Opes Media’s Terms and Conditions of Use
Welcome to the Opes Media Affiliate Network! We’re glad you’ve decided to join our affiliate network and are eager to explain the terms and conditions of your use of the Network so you can better understand what is expected of you as well as how we operate so you can know what to expect from the Opes Media Affiliate Network.
The Opes Media’s Terms and Conditions of Use Agreement (hereafter “Agreement”) sets out the responsibilities and obligations of affiliates (collectively referred as "you" and “your”) of the Opes Media Affiliate Network (the “Network”) and all of the web pages, websites, systems and processes located on or part of the Network website (collectively referred to as the “Site”). By visiting the Site or by joining the Network, you agree to be bound by and consent to the terms of this Agreement as amended from time to time.
The following terms and conditions, together with the Opes Media Privacy Policy ("Privacy Policy"), the Opes Media CAN-SPAM Agreement and the Acceptable Use Policy ("AUP"), constitute the binding legal agreement by and between the Network and you. The Privacy Policy, CAN-SPAM Agreement and the AUP are incorporated herein by reference as if fully set forth herein and going forward when the term “Agreement” it specifically refers to the collective whole of these agreements. When in this Agreement the term “you” or “your” appears, it means, without limitation, you the individual, business or corporation, as well as any parent entities, owners, subsidiaries, affiliates, predecessor or successor entities, and any agents, officers, directors and/or employees acting on behalf of same. You agree to use the Website as well as the services offered by the Network in only in accordance with this Agreement. The Network reserves the right to make changes to the Website, the service offered and to the terms and conditions of this Agreement at any time, with or without notice. The latest version of the Agreement will be posted on the Website. Your continued use of the Website and/or the service offered after any such modification shall constitute your consent to such modification and agreement to abide by the terms of the Agreement as revised. Therefore, you should regularly check the Website for updates and/or changes to this Agreement as well as any other agreements such as the Privacy Policy, CAN-SPAM Agreement and AUP. If you do not agree to the terms and conditions contained within the Agreement in their entirety, you are not authorized to register as a member of the Network, and you may not use the any of the services of the Network and/or Website in any manner or form.
1. Marketing Programs and Materials
Once you’re application has been approved by the Network; you will be able to log into the Affiliate Member’s Area of the website and your affiliate account details. Inside the Affiliate Member’s Area, the Network posts offers as well as marketing materials ("Marketing Materials") to use in promoting the Network’s various products utilizing the Network’s strategic marketing programs ("Marketing Programs"). Inside the Affiliate Member’s Area, you will also find specific linking codes identifying you and your affiliate account and these codes must be used to refer sales to the Network from your account using the Marketing Materials. You may use the Marketing Materials: (i) for publication on any website(s) affiliated with, owned by, operated by and/or controlled by you; or (ii) for distribution in email messages sent to those email addresses listed in any database affiliated with, owned by, operated by and/or controlled by you, but said email distribution shall only be in accordance with the Network’s CAN-SPAM Agreement. No scripts, images, graphics, links, copy or processes for generating sales, other than the Marketing Material may be used by you without first obtaining the prior express written permission of the Network. You may not edit or modify the Marketing Materials in any way without the Network’s prior written approval. In the event that the Network desires to cancel the use of any specific element of the Marketing Materials, you shall cease the use of that element no more than forty-eight (48) business hours following the Network’s request. You understand and agree that the Network is the sole owner of any and all intellectual property rights associated with the Marketing Materials and that you are granted only a limited license to use the Marketing Materials and that said license is subject to termination upon notice by the Network. All of the terms and conditions of the license to use Marketing Materials are contained in Section 2 below.
The Marketing Programs will specify the amount and terms under which you will receive payment. Your earnings as an affiliate are generated from the product sales that you generate. The definition of the commissions payable to you and the applicable earnings shall be available for each Marketing Program set forth in the applicable Marketing Program's website. The Network may change a Marketing Program at any time, with or without notice. Similarly, you may cease participation in any Marketing Programs at any time with or without notice. The Network is responsible for displaying and administrating all active Marketing Programs and tracking any and all commissions owed to you for sales you have made. The Network shall compile, calculate and electronically deliver data necessary to determine your compensation. The Network's figures and calculations regarding compensation due to you shall be final and binding. Any questions regarding the data provided by the Network need to be submitted to the Network in writing within fourteen (14) days of your receipt of the applicable payment and shall be made to the address in the below Notices section. Otherwise, such information will be deemed accurate and accepted by you.
2. Marketing Materials License
The Network retains sole discretion to accept or reject any affiliate application or request to join the Network and moreover, the Network reserves the right to terminate your account and your participation in the Network at any time and for any reason, in Network's sole discretion. You shall, upon notice by the Network, provide the Network with a list of your websites and databases. Only your websites and databases that have been reviewed and approved by the Network may be utilized in connection with your participation in the Marketing Programs. The Network reserves the right to withhold or refuse approval of any websites and/or databases for any reason whatsoever, in the Network's sole discretion, and to revoke approval of one or more websites and/or databases even if the Network had previously approved the same websites and/or databases.
In order to be eligible to be paid commissions in the Network and to thus maintain an active account, you must meet certain professional standards including that your websites must contain distinct and legitimate content, substance and material, not simply a list of links or advertisements; and your websites and emails must each be represented by a legitimate second-level domain name (i.e. yoursite.com).
The content of your websites and emails must not promote, advocate, facilitate, link to or otherwise include any of the following:
Racial, ethnic, political, hate-mongering or otherwise objectionable content;
Investment, money-making opportunities or advice not permitted under foreign, federal or state law;
Violence or profanity;
Pornographic, obscene, sexually explicit or related content;
Material that defames, abuses, is libelous, is tortuous or threatens physical harm to others;
Material that displays any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third person;
Material that impersonates any person or entity;
Any indication that any statements you make are endorsed by the Network, without the Network's specific prior written consent;
Illegal substances or activities (e.g., illegal narcotics, how to build a bomb, counterfeiting money, etc.);
Material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation;
Content which is inappropriate or harmful to children;
Terrorism or terrorist-related activities, sedition or similar activities;
Software Pirating (e.g., warez, hotline);
Hacking, Phishing or Phreaking;
Any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
Any software, product or service that is illegal or that violates the rights of a third party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. "spamware"), services that send unsolicited advertisements, programs designed to initiate "denial of service" attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet;
Any software, product or service that harvests or collects the personal information of Internet users, whether or not for commercial purposes, without the express consent of such users;
Any spoofing, redirecting or trafficking from other websites in an effort to gain traffic;
Any content that infringes upon the intellectual property rights of any third party;
Any material that otherwise infringes upon the rights of any third parties including, without limitation, false advertising, unfair competition, invasion of rights of publicity or privacy, violation of any anti-discriminatory law or regulation, or any other right of any person or entity;
Gambling, contests, lotteries, raffles, or sweepstakes;
Any material that violates the CAN-SPAM Act or the CAN-SPAM Agreement which is incorporated herein by reference; or
Any illegal activity whatsoever (including any violations of applicable U.S. state or federal law, rule or regulation, Canadian provincial or federal law, EU directives and regulations and/or the laws of any foreign jurisdiction in which You operate).
Upon approval of your application, the Network grants to you a non-transferable, non-exclusive, limited license to use the website services, Marketing Materials, website data, specified trademarks, specified service marks, specified trade names, product data, marketing information, product reports, product testimonials, product information, product analyses or any other information or other intellectual property made available by the Network for use by Affiliates to promote the Network’s products (collectively, the "Network Intellectual Property") subject to the terms and conditions set forth herein.
You acknowledge and agree that you do not have, nor will you claim any right, title or interest in, or to, the Network Intellectual Property. You may only access the Website via web browser, email or in a manner otherwise approved by the Network. No part of the Network Intellectual Property may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Network Intellectual Property or any portion thereof. Systematic retrieval of material from the Network website or Marketing Materials by automated means or any other form of scraping or data extraction in order to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from Network is strictly prohibited. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Website. You may not take any action that imposes an unreasonable or disproportionately large load on the Network systems and infrastructure. Your right to use the Network Intellectual Property is not transferable. Your joining of the Network grants an unrestricted right of the Network to disclose your website URLs and your logos in any promotional materials and/or press releases created by Network. The Network reserves any rights not explicitly granted or excluded in this Agreement.
3. Chargebacks, Returns and Fraud
In the course of any business activity involving the sale of products, there is to be expected some chargebacks (i.e. customer credit card charges that the customer refuses to pay), returns and fraud. In the event that any sale referred by you results in a chargeback, return or fraudulent activity by the referred customer, then you will likewise have your commission charged back against your account and thus the amount of the sales commission will be deducted from future earnings.
Additionally, the Network actively monitors sales, customers, affiliate referrals and other Program-related activities for potential problems including fraud. If the Network suspects that your account has been used in a fraudulent manner, your account will be deactivated effective immediately and with no notice to you pending further investigation and if the fraud is confirmed to the Network’s sole discretion and satisfaction, then your account will be terminated and you will forfeit all commissions due for all Marketing Programs, and not just those commissions associated with the fraudulent activity. Your Network account will be terminated effective immediately. The Network reserves sole judgment in determining fraud, and you agree to be bound these determinations.
You will place, deliver and/or otherwise use any Marketing Materials only with the intention of delivering valid product sales for the benefit of the Network. You may not, nor knowingly permit any person to, use any deceptive or misleading sales practices, methods or technologies including, but not limited to, the use of any spyware, device, program, robot, redirects, spiders, computer script or other fraudulent methods to sell Network products.
Where the Network brings instances of suspected fraud to your attention, it is your obligation to prove to the Network that you have NOT engaged in fraud. The Network will hold your commission payments until you have satisfactorily provided evidence that you have not engaged in fraud.
During the term of the Agreement, and for a period of six (6) months thereafter, the Network shall have the right to inspect and audit your use, possession and distribution of the Marketing Materials and Network Intellectual Property upon five (5) days’ prior written notice, for the purpose of verifying compliance with the Agreement. The Network’s duly authorized representatives shall have access at all reasonable times to all of your records that may be needed to verify and audit all of the aforementioned issues. If any such audit or inspection discloses material misuse of the Marketing Materials and Network Intellectual Property, you shall pay for the cost of the audit and the Network shall be entitled to: (a) terminate your Network account; (b) forfeit any and all commissions due and payable to you; and (c) pursue any and all other remedies that Network may have at law or in equity.
The Network reserves the right to terminate your account for excessive customer chargebacks, returns and fraud and you will forfeit any and all commissions due to you.
4. Downloadable Software Marketing
Downloadable Software may only be utilized by you if its use and installation complies with the Network’s Acceptable Use Policy (“AUP”), which is incorporated herein by reference. Downloadable Software and the method of installation must receive approval by the Network prior to your use. Your right to use Downloadable Software to promote the Network’s products may be revoked at any time by the Network and you agree to stop using Downloadable Software to promote the Network’s Products immediately upon notice by the Network. The Network reserves the right to terminate your account for failure to abide by the revocation notice under this provision and you will forfeit any and all commissions due to you.
5. Email Marketing
Email Marketing may only be utilized by you if its use complies with the Network's CAN-SPAM Agreement, which is incorporated herein by reference. Your right to use Email Marketing to promote the Network’s products may be revoked at any time by the Network and you agree to stop using Email Marketing to promote the Network’s Products immediately upon notice by the Network. The Network reserves the right to terminate your account for failure to abide by the revocation notice under this provision and you will forfeit any and all commissions due to you.
6. Mobile Phone Marketing
Mobile Marketing may only be utilized by you if its use complies with Network's AUP. Mobile Marketing must receive approval by Network prior to use. Your right to use Mobile Phone Marketing to promote the Network’s products may be revoked at any time by the Network and you agree to stop using Mobile Phone Marketing to promote the Network’s Products immediately upon notice by the Network. The Network reserves the right to terminate your account for failure to abide by the revocation notice under this provision and you will forfeit any and all commissions due to you.
7. Search Engine Marketing
Search Engine Marketing may only be utilized by you if its use complies with Network's AUP. Your right to use Search Engine Marketing to promote the Network’s products may be revoked at any time by the Network and you agree to stop using Search Engine Marketing to promote the Network’s Products immediately upon notice by the Network. The Network reserves the right to terminate your account for failure to abide by the revocation notice under this provision and you will forfeit any and all commissions due to you.
8. Payment of Commissions
(a) You will be paid commissions based on the sales that you generate through your marketing efforts. These commissions will be paid once a month no later than thirty (30) days after the last day of a preceding calendar month for all paid sales realized in that month. If you are a United States citizen, you must submit a valid taxpayer identification number with your application or payment by the Network will be withheld until said TIN has been submitted with it.
The Commissions Due and Payable to you shall be calculated as all commissions earned during the monthly period as defined above and shall be based on actual sales figures as defined, accounted for and audited by Network and will be paid in United States Dollars. The Network may offer various methods of payment for the Commissions Due and Payable from time to time and the methods of payment shall be listed in the website in the Affiliate Member’s Area. The Network also reserves the right to set a Minimum Payment Amount to qualify for payment of your Commissions Due and Payable. The current applicable Minimum Payment Amount is listed in the Affiliate Member’s Area.
Pursuant to paragraph 3 above, all commission deductions resulting from customer chargebacks, returns and customer fraud, will be deducted from your Commissions Due and Payable at the time the customer chargeback, return or fraud occurs.
Once you generate Commissions Due and Payable sufficient to meet the Minimum Payment Amount then you will be paid your Commissions Due and Payable on the next monthly payment date.
(b) In order for you to get credit for sales that you generate, you must use the correct affiliate tracking codes identifying your account and available to you in the Affiliate Member’s Area. Your failure to use the correct affiliate tracking codes to sale the Network’s products and services may result in your note getting credit for sales you generate. Using the correct affiliate tracking codes is very important and it is your responsibility to make sure the correct affiliate tracking codes and links are used in the promotion and sales of the Network’s products.
(c) The Network is proud to offer an Affiliate Referral Program to encourage you to refer new affiliates to the Network and to reward you for the sales success of affiliates that you refer. In the event you refer a new affiliate to the Network and that affiliate makes sales of the Network’s products, then you will be paid an "Affiliate Referral Commission." In order to qualify for an Affiliate Referral Commission, the referred affiliate must be accepted by the Network as an affiliate and must make sales that do not result in a customer chargeback, refund or fraud. All referred affiliates must be new affiliates to the Network and you may NOT refer another account belonging to or owned by you. You may not refer an affiliate that you have referred previously. The Affiliate Referral Commissions is set by the Network and may change from time to time to reflect special campaigns and promotions designed to increase and encourage affiliate referrals to the Network. The amount of the Affiliate Referral Commission and additional rules for qualification for payment of the Affiliate Referral Commission are included in the Affiliate Member’s Area. All Affiliate Referral Commissions are payable subject to the Minimum Payment Amount and other rules set forth in this paragraph 8.
9. Termination
This Agreement shall commence upon the Network's acceptance of your affiliate application and remain in effect until terminated by either party as set forth herein. The Agreement may be terminated by you upon written notice to Network to the address contained in the notice provisions located herein. This Agreement shall terminate immediately upon the bankruptcy, dissolution or insolvency of either Party. The Network reserves the right, in its sole and absolute discretion, to terminate any Marketing Program, Marketing Materials, and/or offers at any time for any reason with or without notice to you. The Network also reserves the right to terminate the Agreement, as well as your access to the website, Marketing Programs, Marketing Materials, offers and Network Intellectual Property at any time with or without notice to you and with or without cause. If the Network notifies you of your account termination, such notice will be sent via e-mail and will be effective immediately.
If your account is terminated for cause, fraud in connection with sales of products, or otherwise violate or breach the Agreement, the Privacy Policy, the CAN-SPAM Agreement or the AUP, then you will forfeit any and all Commissions Due and Payable.
If your account is not terminated for cause or for breach of this Agreement, you will be paid all Commissions Due and Payable on the next payment date after termination of your account.
The representations, warranties and obligations contained in Sections 2, 8, 10, 11, 12 and 13 hereof shall remain in full force and effect after termination of the Agreement.
10. Representations and Warranties
You represent and warrant that:
You will not, nor knowingly permit any person to, use third party trademarks in any way to direct traffic to your Websites including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name, or any derivative of any such trademark, service mark or brand name, of the Network and the products offered through the Network;
Your Websites and emails are, and shall remain at all times during the term hereof, in compliance with all applicable laws and the CAN-SPAM and shall not contain or promote, or link to another website that contains, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content;
Your Websites and emails are, and shall remain at all times during the term hereof, in compliance with all applicable Network rules and policies;
You will not send unsolicited bulk e-mail (i.e., SPAM) or otherwise violate any of the provisions of the CAN-SPAM Act;
You will not post any messages to newsgroups, chat rooms, bulletin boards or any other places that mention specific Marketing Programs unless you obtain the express prior written permission from Network;
You are not, nor are you acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control (“OFAC”). In addition, you are not, nor are you acting on behalf of any person or entity that is, a Specially Designated National (“SDN”), as OFAC may so designate from time to time. In addition to all other rights and remedies available to Network under this Agreement, and at law and in equity, your breach of this Section 10.6 shall result in immediate termination of your affiliate account and forfeiture of any and all Commissions Due and Payable to you under this Agreement.
You will be solely responsible for the development, operation and maintenance of your Websites, databases and emails and for any and all materials that appear therein. Such responsibilities include, without limitation: (i) the technical operation of your Websites, databases, emails and all related equipment; (ii) creating and posting content, descriptions and references on or through your Websites and emails; and (iii) the accuracy and propriety of materials posted on or through the your Websites and emails;
Your Websites, databases, emails, and any and all information, products and/or services contained therein, or that you can link to or access therein or therethrough, as well as your associated marketing practices, will at all times fully comply with all applicable foreign, federal and state laws, rules and/or regulations;
There is no pending or, to the best of your knowledge, threatened claim, action or proceeding against you;
Your execution, delivery and performance of this Agreement will not conflict with or violate: (i) any provision of law, rule or regulation to which you are subject; (ii) any order, judgment or decree applicable to you; (iii) any provision of your corporate by-laws or certificate of incorporation, if applicable; or (iv) any agreement or other instrument applicable to you;
You own, or have the legal right to use and distribute, all content, copyrighted material, products and services displayed on and/or through your Websites and emails;
You agree to not use deceit when marketing and promoting the Marketing Programs of the Network to consumers;
You have the right, power, and authority to enter into the Agreement and grant the rights specified herein;
You will not “frame” or “mirror” any part of the Website, without obtaining our prior express written authorization;
If instructed to do so by Network and/or if the Agreement terminates, You will immediately remove and discontinue the use of any Marketing Materials and Network Intellectual Property;
You understand that the Network does not represent, warrant, or make any specific or implied promises as to the successful outcome of any Marketing Programs;
You will display the Marketing Materials exactly as it is made available to you in connection with the applicable Marketing Program and you will not alter in any way any Marketing Material and Network Intellectual Property that has been made available to you by and through the Website and the Affiliate Member’s Area;
If fraudulent activities are occurring, unbeknownst to you, through your Websites, databases and/or emails and you are notified that fraudulent activities may be occurring, if you do not take all necessary action to stop such fraudulent activities from continuing, then you shall be responsible for all associated costs and legal fees resulting from these fraudulent activities; and
You understand that if any errors or omissions occur in the recording of sales due to no fault of Network, Network shall not be responsible for any associated losses or failure to pay commissions.
11. Non-Disclosure of Confidential Information
As between You and the Network, all information submitted by end-user customers ("Customer Information") in connection with a Marketing Program shall be considered proprietary to and owned exclusively by Network. Such Customer Information shall be considered the confidential information of Network and may not be utilized or otherwise disclosed by you. You will notify the Network as soon as you learn of any actual or suspected unauthorized use of or access to the data contained in the Customer Information and provide reasonable assistance to the Network in the investigation and prosecution of any such unauthorized use or disclosure.
In addition, you acknowledge that all non-public information, data, reports and other Network Intellectual Property made available by the Network to you is proprietary to and owned by or licensed to the Network. All Network Intellectual Property and other proprietary and confidential information of the Network is protected by copyright, trademark and other intellectual property laws. You agree not to reproduce, disseminate, sell, distribute or commercially exploit any Network Intellectual Property and other proprietary or confidential information of Network. These non-disclosure obligations shall survive termination or expiration of the Agreement. Both Parties agree and acknowledge that if you violate the confidentiality obligations under this Agreement, such violation would result in serious and irreparable damage to the Network and that a remedy at law for any such breach would be inadequate. Therefore, the Parties agree that in the event of a breach or threatened breach of these provisions by you, the Network shall be entitled to: (a) injunctive relief without the requirement to post a bond; (b) liquidated damages in the amount of Fifty Thousand Dollars ($50,000.00); and (c) any other remedies that Network may have at law or in equity.
12. Limitation of Liability; Disclaimer of Warranty
IN NO EVENT SHALL THE NETWORK BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH YOUR MARKETING EFFORTS) FOR ANY DAMAGES OF ANY KIND ARISING FROM OR RELATED TO YOUR USE OF THE WEBSITE, SERVICE, WEBSITE DATA, OPERATION OF A MARKETING PROGRAM, ADVERTISERS' UNDERLYING PRODUCTS OR YOUR DISPLAY OF ANY MARKETING MATERIALS OR OFFERS ON OR THROUGH YOUR YOU WEBSITES AND/OR EMAILS AND/OR ANY OTHER NETWORK INTELLECTUAL PROPERTY INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF THE NETWORK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NETWORK'S MAXIMUM AGGREGATE LIABILITY TO YOU AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE FIVE HUNDRED DOLLARS ($500.00). YOU RECOGNIZE AND ACKNOWLEDGE THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE.
THE WEBSITE, SERVICE, MARKETING MATERIALS, OFFERS, MARKETING PROGRAMS, WEBSITE DATA, PRODUCTS, INFORMATION AND CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE WEBSITE, SERVICE, MARKETING MATERIALS, OFFERS, MARKETING PROGRAMS, WEBSITE DATA AND/OR ADVERTISERS’ UNDERLYING PRODUCTS MAY CONTAIN ERRORS, PROBLEMS OR OTHER LIMITATIONS. NETWORK HAS NO LIABILITY, WHATSOEVER, TO YOU OR ANY THIRD PARTY, FOR YOUR USE OF, OR INABILITY TO USE, THE PRODUCTS, WEBSITE, SERVICE, MARKETING MATERIALS, OFFERS, MARKETING PROGRAMS, WEBSITE DATA AND THE NETWORK DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT YOUR USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OF THE MARKETING PROGRAMS WILL BE AVAILABLE TO YOU. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE NETWORK AND YOU. THE WEBSITE, SERVICE, MARKETING MATERIALS, OFFERS, MARKETING PROGRAMS, WEBSITE DATA AND/OR THE UNDERLYING PRODUCTS WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. THE NETWORK MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE WEBSITE, SERVICE, MARKETING MATERIALS, OFFERS, WEBSITE DATA AND/OR MARKETING PROGRAMS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE NETWORK THROUGH THE WEBSITE, SERVICE, MARKETING MATERIALS, OFFERS, WEBSITE DATA AND/OR MARKETING PROGRAMS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.
THE WEBSITE, SERVICE, MARKETING MATERIALS, OFFERS, MARKETING PROGRAMS, WEBSITE DATA, AND THE UNDERLYING PRODUCTS, INFORMATION AND CONTENT, AS WELL AS ANY OTHER NETWORK INTELLECTUAL PROPERTY, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE WEBSITE, SERVICE, MARKETING MATERIALS, OFFERS, MARKETING PROGRAMS, WEBSITE DATA AND/OR THE UNDERLYING PRODUCTS, AS WELL AS ANY OTHER NETWORK INTELLECTUAL PROPERTY, MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. NETWORK HAS NO LIABILITY, WHATSOEVER, TO YOU OR ANY THIRD PARTY, FOR YOUR USE OF, OR INABILITY TO USE, THE WEBSITE, SERVICE, MARKETING MATERIALS, OFFERS, MARKETING PROGRAMS, WEBSITE DATA AND/OR THE UNDERLYING PRODUCTS, AS WELL AS ANY OTHER NETWORK INTELLECTUAL PROPERTY, AND THE NETWORK DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT YOUR USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OF THE MARKETING PROGRAMS WILL BE AVAILABLE TO YOU. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN NETWORK AND YOU. THE WEBSITE, SERVICE, MARKETING MATERIALS, OFFERS, MARKETING PROGRAMS, WEBSITE DATA AND/OR THE UNDERLYING PRODUCTS, AS WELL AS ANY OTHER NETWORK INTELLECTUAL PROPERTY, WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. NETWORK MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE WEBSITE, SERVICE, MARKETING MATERIALS, OFFERS, WEBSITE DATA AND/OR MARKETING PROGRAMS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE NETWORK, OR OTHERWISE THROUGH THE WEBSITE, SERVICE, MARKETING MATERIALS, OFFERS, WEBSITE DATA AND/OR MARKETING PROGRAMS, AS WELL AS ANY OTHER NETWORK INTELLECTUAL PROPERTY, SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.
13. Indemnity
You shall indemnify, defend and hold the Network, its affiliates and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys' fees and the cost of indemnifying third parties) arising out of or related to: (i) Your use of the Website, Service, Marketing Materials, Website Data or any Offer(s), in any manner whatsoever; (ii) any third party claim related to your Websites, databases, emails and/or your marketing practices; (iii) any content, goods or services offered, sold or otherwise made available by you on or through your Websites, emails or otherwise; (iv) any claim that the Network is obligated to pay any taxes in connection with payment made to you in connection with the Agreement and/or any Marketing Program; (v) breach or violation of the Agreement and/or any representation or warranty contained herein; and/or (vi) the acts and/or omissions of any agents, affiliates, employees or other parties acting on your behalf.
The Network shall indemnify, defend and hold you harmless from and against any and all claims allegations, liabilities, costs and expenses (including reasonable attorneys' fees) by third parties arising out of any actual infringement of intellectual property rights resulting from your display of the Marketing Materials and the Network Intellectual Property provided in connection with any Marketing Program.
14. Assignment and Jurisdiction
Network may assign the Agreement with or without your consent. You may not assign this Agreement without the prior written consent of Network, which may be withheld for any reason.
This Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties' respective successors and assigns. You are responsible for and shall fully and unconditionally indemnify Network for any and all acts or omissions of any of its assignees or employees, agents, or other parties acting on your behalf.
The Agreement shall be construed and governed by the laws of the State of Florida, without regard to its conflict of laws principles. Any and all disputes or controversies whether of law or fact of any nature whatsoever arising from or respecting the Agreement shall be decided by arbitration by the American Arbitration Association ("Arbitrator"), in accordance with the then current Commercial Rules of the Arbitrator. Arbitration shall take place in Miami, Florida. At the request of the Network, arbitration proceedings will be conducted in secrecy. In such case, all documents, testimony and records shall be received, heard and maintained by Arbitrator in secrecy under seal, available for the inspection only by Network or you and by their respective attorneys who shall have agreed, in advance and in writing, to receive all such information confidentially and to maintain such information in secrecy. Arbitrator shall be able to decree any and all relief of an equitable nature including, but not limited to, such relief as a temporary restraining order, a temporary and/or a permanent injunction, and shall also be able to award damages, with or without an accounting and costs. The Network shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding in connection with, arising out of, or under the Agreement. Nothing contained herein shall prevent either Party from seeking injunctive relief pending an outcome in arbitration. To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against the Network, its employees, officers, directors, members, representatives and/or assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorneys’ fees and court costs that the Network incurs in seeking such relief.
15. Severability
If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of the Agreement, and the Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.
16. Force Majeure
Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, interruption or failure of telecommunication or digital transmission links, results of computer hacking, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of such Party. You understand and agree that on occasion the service and/or website may be inaccessible, unavailable or inoperable for any reason including, but not limited to, the following: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs; or (iii) causes beyond the control of Network or which are not reasonably foreseeable by the Network including, but not limited to, the aforementioned force majeure events. The Network will attempt to provide the service on a continuous basis. However, you acknowledge and agree that the Network has no control over the availability of the service on a continuous or uninterrupted basis. The terms of the Agreement are subject to the Network’s hardware, software, and bandwidth traffic limitations. The Network's failure to deliver because of technical difficulties does not represent a failure to meet the obligations of the Agreement.
17. Attorneys' Fees
Network shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding arising out of the Agreement.
18. Notices
All notices shall be sent to the addresses submitted by you when signing up for the service and may be sent to you by certified mail, fax, email or courier at the Network’s discretion.
All notices to the Network shall be sent to the Network at the following Address:
Miami Web Staff
235 Lincoln Road, Suite PH
Miami Beach, Florida, 33139
With a copy to:
Matthew P. Collins
General Counsel
PO Box 191061
Atlanta, GA 31119
19. Miscellaneous Provisions
You agree that any unauthorized and/or unlawful use of the Website, Service, Marketing Materials, Offers, Website Data and/or Marketing Programs would result in irreparable injury to Network for which monetary damages would be inadequate. In such event, the Network shall have the right, in addition to other remedies available to it pursuant to the Agreement, to immediate injunctive relief against you without the need to post a bond. Nothing contained in the Agreement shall be construed to limit any legal remedies available to the Network. The Agreement, together with the AUP, CAN-SPAM Agreement and Privacy Policy, contains the sole and entire agreement and understanding between the Parties relating to the subject matter hereof, and merges all prior discussions, whether through officers, directors, salespersons, employees or consultants. Each Party is an independent contractor and not a partner, joint venturer or employee of the other. Neither Party shall have the right to bind the other or to incur any obligation on the other’s behalf. Network’s failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. The Network reserves the right to change any of the terms and/or conditions of the Agreement at any time, with or without notice to you.