1. This SUPER AFFILIATE WORLD CLIENT CONTRACT
(the "Agreement") constitutes a legally binding agreement
between Click Sales Inc., a Delaware corporation ("Super Affiliate
World") and you ("You" or "Your"). BY CHECKING THE BOX STATING THAT YOU HAVE READ AND AGREE TO
THE TERMS AND CONDITIONS OF THIS AGREEMENT AS PART OF YOUR REGISTRATION WITH SUPER
AFFILIATE WORLD, YOU AGREE AND CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS
OF THIS AGREEMENT, INCLUDING ANY CHANGES TO THIS AGREEMENT OR ADDITIONAL
POLICIES INCORPORATED BY REFERENCE WHICH SUPER AFFILIATE WORLD MAY MAKE IN ITS
SOLE DISCRETION IN THE FUTURE, FOR AS LONG AS YOU USE THE SUPER AFFILIATE WORLD
SERVICES.
Subject to the terms and conditions of this
Agreement, Super Affiliate World hereby grants to You a non-exclusive,
revocable, right and license, without right to sublicense, to use Super
Affiliate World's proprietary online platform, including without limitation the
website located at http://www.Super Affiliate World.com, any
services offered on or through such website, and any servers, computers or
networks used to provide such website (the "Super Affiliate World
Services") for the purposes set forth in this Agreement. In the event You
transfer Your account or ownership of any Product, as defined below, You shall
ensure that any purchasers or assignees are bound by the terms of this
Agreement.
In addition to any other rights or remedies
afforded Super Affiliate World under or otherwise in connection with this
Agreement, You agree and acknowledge that You have read and agree to comply
with the following policies which are hereby incorporated by reference into,
and made a part of, this Agreement:
2. REGISTRATION.
.
You will be required
to register for an account in order to use certain Super Affiliate World
Services. When You provide information during the registration process, You
agree to provide only true, accurate, current and complete information and to
update it as necessary to maintain its truth and accuracy.
a. If You register for a Super Affiliate World
account, You agree to accept responsibility for all activities that occur under
Your account or password, if any, and You agree You will not sell, transfer or
assign Your subscription or any subscriber rights. You are responsible for
maintaining the confidentiality of Your password, if any, and for restricting
access to Your computer (or other Internet access device, as applicable) so
that others may not access the password protected portion of the Super
Affiliate World Services using Your account information in whole or in part. Super
Affiliate World reserves the right to terminate Your account or otherwise deny
You access in its sole discretion without notice and without liability.
3. PROMOTING PRODUCTS. If You promote, market or otherwise advertise
("Promote" or a "Promotion") any product which is registered for sale via
the Super Affiliate World Services, either by You or by another Super Affiliate
World client (each a "Product"), whether via the Super Affiliate World Services
or via any other online or offline channel or medium for the purpose of earning
a percentage of the sale price of any Product sold as a result of such
Promotion ("Commissions"), You agree, acknowledge, represent
and warrant that:
.
You will not provide,
suggest or imply any warranty or other policy with respect to any Products
other than Super Affiliate World'sReturn and Cancellation Policy without the prior written consent of Super
Affiliate World, which Super Affiliate World may withhold in its sole
discretion for any reason.
a. When You Promote a Product, You will use the
applicable Vendor's trademarks, logos, trade names or service marks in
accordance with such Vendor's trademark guidelines, which will either be
supplied by Super Affiliate World or set forth in the Vendor Promotional
Messaging Guidelines, if applicable. For purposes of this Agreement,
"Vendor" is defined as any person or entity that submits one or more
Products for sale via the Super Affiliate World Marketplace.
b. You will not make any unlicensed or
unauthorized use of, or otherwise infringe, violate or misappropriate any
patent, copyright, trademark, trade secret, right of privacy, right of
publicity or other intellectual property or other proprietary right
(collectively "IP Rights") of any entity or individual.
c. You will not interfere with or manipulate
rankings of Super Affiliate World's Marketplace (as defined below in Section
4(d)), tracking of Commissions, or the normal flow of traffic to, through, or
from the Super Affiliate World Services.
d. If You Promote Products or Brands in a high
risk industry, You must be in compliance with Super Affiliate World's
Additional Terms and Conditions provided to You, which are incorporated into
this Agreement by this reference, at all times.
e. You will not Promote violence, sexually
explicit materials, Products from any website, blog, social network, forum or
other medium that contain, host or promote illegal content or material, illegal
activities, alcohol, tobacco or prescription drugs, discrimination based upon
race, sex, religion, nationality, disability, sexual orientation or age.
f. You will not Promote any Products or services
to children under the age of thirteen (13).
g. You will not defame any person.
h. You will not include any trademarks or other
brand identifiers, or any copyrighted materials, other than as expressly
permitted by this Agreement.
i. You will not incorporate any variation of or
misspell any third-party trademarks or other brand identifiers in any domain
name, username or other identifier, including on any social networking site.
j. You will not in any way copy the "look
and feel" of any third party website, or otherwise imply that the
Promotion is in fact a third party website.
k. All communications and/or representations made
by You in connection with any Promotions and/or in relation to any Product will
be accurate and contain all disclosures and disclaimers necessary to prevent
such Promotions from being false or deceptive. Such disclosures and disclaimers
must be made in a clear and conspicuous manner, and will otherwise comply with
Your country's laws and all U.S. federal and state laws, including U.S. Federal
Trade Commission ("FTC")
regulations, policies and guidelines governing advertising, disclosure and
consumer protection, including the FTC's
Endorsement Guidelines.
l. Super Affiliate World reserves the right but
is not obligated to review Your Promotions. You agree that Super Affiliate
World, in its sole discretion and at any time, may require changes to Product
Promotion and delivery pages, customer support or other items related to the
content of Your Promotions.
m. You will provide valid contact information,
including but not limited to a working email address and phone number, where Super
Affiliate World can send inquiries and receive a non-automated reply by end of
the following business day.
n. Super Affiliate World does not independently
review, verify, guarantee, or assume any responsibility or liability for, the
accuracy, completeness, efficacy, or timeliness of any information provided by
Vendors, nor is it responsible for any bonuses, prizes or other incentives
offered by Vendors in the "Vendor Spotlight," as described in this
Agreement, or otherwise offered by Vendors via the Super Affiliate World
Services. Your use of any information presented by a Vendor is voluntary, and
Your reliance is at Your sole risk. You acknowledge and understand that Super
Affiliate World does not verify statements, claims, incentives or Promotions
made by Vendors in the Vendor Spotlight or otherwise made by Vendors via the Super
Affiliate World Services.
4. SELLING PRODUCTS. If You register any Products for sale via the Super
Affiliate World Services, You agree, acknowledge, represent and warrant that:
.
All Products You
register for sale via the Super Affiliate World Services must be approved by Super
Affiliate World prior to You being able to sell the Products through the Super
Affiliate World Services. In certain circumstances, Super Affiliate World may
require You to modify your Products prior to being approved or prohibit your
Products from being sold via the Super Affiliate World Services, in Super
Affiliate World's sole discretion.
a. All Products You register for sale via the Super
Affiliate World Services, and the offering and sale thereof via the Super
Affiliate World Services, comply with all of Your country's laws and all
applicable U.S. federal and state laws and regulations.
b. Your Products do not involve downloading
software on the computer of a person or entity purchasing a Product (the
"Purchaser") unless a purchase is completed or You provide the
Purchaser a clear and conspicuous disclosure describing all of the software
being downloaded, its functionality and You obtain express consent prior to any
such downloads.
c. Without further conditions or limitations, You
authorize Super Affiliate World to list any Product You register for sale via
the Super Affiliate World Services in the online, searchable marketplace of
Products made available via the Super Affiliate World Services (the Super Affiliate World Marketplace"); and make it available for sale to
Purchasers and/or for the persons and/or entities that Promote the Products
made available via the Super Affiliate World Marketplace ("Affiliates")
at the price designated by Super Affiliate World ("Retail Price")
after taking into consideration Your suggestions regarding such Retail Price,
including any applicable sales tax.
d. You will provide valid email addresses to
which Purchasers or Super Affiliate World can send inquiries and receive a
reply by end of the following business day. Purchasers and Super Affiliate
World must also be able to receive a non-automated response within one business
day, when necessary.
e. You will notify Super Affiliate World of any
regulatory or legal complaints, or threats of such complaints, that You receive
in connection with or in relation to a Product within two business days of Your
receipt of such complaint. You shall assist Super Affiliate World, at Your sole
cost and expense, in taking any necessary or appropriate actions reasonably
requested by Super Affiliate World to respond to and/or resolve such
complaints.
f. Super Affiliate World will collect and remit
state or local transfer taxes for any retail transaction (including but not
limited to sales or use tax) where it is legally required to do so. Where Super
Affiliate World does not collect and remit state or local transfer taxes on a transaction,
You may have the legal obligation to pay such taxes. Such obligation may arise
as a result of Your existing or past physical contacts with a state (including
but not limited to Your provision of a "drop ship" delivery of the
physical Product to a buyer located in a state). You may wish to consult a tax
professional to determine if You will have this type of obligation in any
particular state. You agree that if such an obligation arises with respect to
any particular state, You will be solely responsible for the timely payment of
such tax and any interest or penalties.
g. If You use the Vendor Spotlight platform or
the Super Affiliate World Services to communicate with Affiliates about Your
Products, You agree that all statements or messages communicated by You via the
Vendor Spotlight or Super Affiliate World Services constitute Promotions under
this Agreement and are subject to all applicable terms and obligations thereto.
Additionally, and without limiting any other restriction contained herein, You
will not use the Vendor Spotlight or Super Affiliate World Services to: (i)
make any false or deceptive statement or claim regarding Your Product or sales
of Your Product; (ii) offer any Promotions or incentives to Affiliates unless
You intend to fulfill such Promotions or incentives; (iii) offer any Promotions
or incentives to Affiliates unless You affirmatively state that they are
offered only by You and not by Super Affiliate World; or (iv) suggest in any
way, whether express or implied, that Your Product(s) are endorsed, approved or
sponsored by Super Affiliate World in any way. Super Affiliate World reserves
the right to suspend Your ability to use the Vendor Spotlight or Super
Affiliate World Services at any time.
h. If and to the extent You use third parties to
provide Products or Services, You and such third parties must be in compliance
with all terms of this Agreement, and You are responsible for all acts and
omissions of such third party.
i. All Vendors must include the required
disclaimers and comply with the requirements set forth here:http://accounts.Super
Affiliate World.com/help/vendor-help/vendor-basics/selling-basics/required-disclaimers/.
j. No account may have more than 100 Joint
Venture contracts. Accounts with more than 100 Joint Venture contracts are
subject to review and potential corrective actions, as determined in Super
Affiliate World's sole discretion.
5. AVAILABILITY OF SERVICES; SUSPENSION;
TERMINATION. You agree and
acknowledge that:
.
Subject to the terms
and conditions of this Agreement and Super Affiliate World's policies and
procedures, Super Affiliate World shall use commercially reasonable efforts to
provide the Super Affiliate World Services in a manner that will not disrupt
Your business. You acknowledge and agree that from time-to-time the Super
Affiliate World Services may be inaccessible or inoperable for reasons
including, without limitation: (i) equipment malfunctions; (ii) periodic
maintenance procedures or repairs that Super Affiliate World may undertake from
time to time; or (iii) causes beyond the reasonable control of Super Affiliate
World or that are reasonably unforeseeable by Super Affiliate World, including,
without limitation, interruption or failure of telecommunication or digital
transmission links, hostile network attacks, network congestion or other
failures. You acknowledge and agree that Super Affiliate World is not liable
for these periodic interruptions in availability of the Super Affiliate World
Services and further acknowledge that Super Affiliate World does not guarantee
access to the Super Affiliate World Services on a continuous and uninterrupted
basis.
a. Super Affiliate World may decline, delist or
halt sales or Promotion of any Product from the Super Affiliate World
Marketplace, suspend funds, adjust Commissions based on performance, close an
account, and/or suspend or terminate the Super Affiliate World Services at any
time, in its sole discretion, without cause or notice to You or any penalty or
liability for doing so.
b. Super Affiliate World, in its sole discretion,
may suspend or terminate Your account(s), or retain any or all funds in Your Super
Affiliate World account, if Super Affiliate World suspects or has reason to
believe and/or if a person otherwise claims that You have violated the law or
breached any term of this Agreement. In addition to the foregoing, and all
other rights and remedies available to Super Affiliate World at law or in
equity and notwithstanding anything in the Agreement to the contrary, in the
event You breach any term of this Agreement, or Your account becomes dormant as
defined in our Accounting Policy and/or has a negative balance, Super Affiliate
World will have the right to immediately suspend or terminate Your Account and
Your rights to access, use and/or otherwise participate in the Super Affiliate
World Services. Upon such termination, You agree to immediately cease all use
of the Super Affiliate World Services and Super Affiliate World intellectual
property licensed in Section 8(b) of this Agreement. Without limiting the
foregoing, Super Affiliate World shall have the right to immediately terminate
Your access and use of the Super Affiliate World Services, or any portion
thereof, in the event of any conduct which Super Affiliate World, in its sole
discretion, considers to be unacceptable.
c. Following suspension or termination of an
account or retaining of funds pursuant to this Section 5, Super Affiliate World
will review Your account in a manner determined by Super Affiliate World in its
sole discretion. You agree to cooperate with this review if asked. If the
review concludes that there is a reasonable basis to believe misconduct has
occurred, You agree that Super Affiliate World may retain funds in Your Super
Affiliate World account as liquidated damages and/or for the benefit of Super
Affiliate World or third parties affected by the misconduct. You acknowledge
and agree that such liquidated damages: (a) are not a penalty, and (b) are
reasonable and not disproportionate to such presumed damages to Super Affiliate
World.
d. Super Affiliate World may temporarily withhold
any portion of the funds in Your Super Affiliate World account if Super
Affiliate World, in its sole discretion, determines such action is necessary to
secure payment for, performance of, and/or assurances regarding any
liabilities, obligations, or indebtedness You may have incurred with Super
Affiliate World or any other Person.
6. EMAIL, TEXT MESSAGES AND TELEMARKETING.
.
If You send, or cause
to be sent any emails in connection with the direct or indirect Promotion or
sale of any Product and/or Your use of the Super Affiliate World Services, then
You agree, acknowledge, represent and warrant that all such Emails shall be in
compliance with all applicable federal and state laws and regulations regarding
the use of electronic messages, including without limitation the Controlling
the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM
Act") and the Children's Online Privacy Protection Act ("COPPA")
(Information on these laws can be found at http://www.ftc.gov/spam/ and http://www.ftc.gov/privacy/privacyinitiatives/childrens.html).
a. You shall not directly or indirectly exploit
documented or undocumented security holes on any client or server machine, or
obtain email addresses via automated means or send any email to any address
which was obtained via automated means or the use of spyware, viruses, or other
means of bypassing system security or invading consumer privacy.
b. You may not, directly or indirectly, send,
initiate or procure the sending of any text message, or use or procure the use
of any telemarketing activities, to Promote or sell Products, unless You have
received prior written approval from Super Affiliate World. If You receive such
approval and You send, or cause to be sent, any text messages or use or procure
telemarketing activities in connection with the direct or indirect Promotion or
sale of any Product and/or Your use of the Super Affiliate World Services, then
You represent and warrant that all such text messages or calls will be in
full-compliance with all applicable federal and state laws and regulations that
apply to sending electronic messages and using telemarketing activities,
including without limitation regulations issued by the FTC, the Federal
Communications Commission ("FCC"), the CAN-SPAM Act, the Telephone
Consumer Protection Act ("TCPA") and state laws regarding anti-spam,
text messages and Do-Not-Call Registries (Information on these laws can be
found at http://transition.fcc.gov/cgb/policy/TCPA-Rules.pdf, http://www.fcc.gov/guides/spam-unwanted-text-messages-and-email,
and http://www.ftc.gov/privacy/privacyinitiatives/childrens.html).
7. API REQUIREMENTS. Your use of Super Affiliate World's
Application Programming Interface ("API") is subject to the API Terms
of Service available at http://accounts.Super Affiliate World.com/api_terms.html.
8. SUPER AFFILIATE WORLD'S IP RIGHTS.
.
Except as set forth in
Section 8(b) below, You may not use Super Affiliate World's name, trademarks,
service marks or any other IP Right of Super Affiliate World in any manner
whatsoever to suggest association or affiliation with or endorsement by Super
Affiliate World without the express prior written consent of Super Affiliate
World, which Super Affiliate World may withhold at its sole discretion.
Promotional use of images or reproductions of payment checks issued by Super
Affiliate World without the express, written consent of Super Affiliate World
is prohibited.
a. Subject to the following terms and conditions,
during the term of this Agreement Super Affiliate World grants You a limited,
revocable license to use Super Affiliate World's name: (i) as a watermark,
Internet search engine description, keyword, search term or seeding element
with any Internet search engines or keyword-triggered advertising programs;
(ii) in metatags or hidden text (iii) as a sub domain or second or third level
domain name identifier; (iv) to identify Products or (v) in connection with
Promotions.
1. Super Affiliate World may revoke the foregoing
license and/or provide restrictions upon Your use of Super Affiliate World's
name, including requiring the use of such disclaimers as Super Affiliate World
may provide, in connection with Your use of Super Affiliate World's name, at
anytime and for any reason in Super Affiliate World's sole discretion.
2. Failure to comply with any restrictions
imposed by Super Affiliate World upon Your use of Super Affiliate World's name
or failure by You to immediately cease all use of Super Affiliate World's name
if so instructed by Super Affiliate World shall constitute (1) a breach of the
limited license set forth in this Section 8(b); and (2) a breach of this
Agreement. In such case, Super Affiliate World reserves the right to pursue any
and all remedies available to it at law or in equity.
3. You may not use or display Super Affiliate
World's name in any manner to disparage Super Affiliate World or the Super
Affiliate World Services.
b. Notwithstanding the limited revocable license
set forth in Section 8(b) above, as between the parties, Super Affiliate World
shall be and remain the sole owner of all right, title and interest in and to
the Super Affiliate World Services (including, without limitation, all IP
Rights therein) and any other IP Rights, materials or other properties owned,
licensed or controlled by Super Affiliate World, and You hereby assign to Super
Affiliate World all right, title and interest You may be deemed to have
therein. All rights not specifically granted to You under this Agreement are
expressly reserved by Super Affiliate World.
9. CONFIDENTIALITY & NON-DISCLOSURE
OBLIGATIONS.
.
In connection with
this Agreement, Super Affiliate World may disclose to You and/or You may
otherwise receive or have access to sensitive, confidential, and/or proprietary
information of Super Affiliate World (collectively, "Confidential Information"), including, but not limited to (a) the
identities of other Vendors or Affiliates of Super Affiliate World
(collectively, "Super Affiliate
World Clients"); (b) physical and
data security information; (c) technical data; (d) Super Affiliate World
Marketplace statistics and sales data; and/or (e) know-how or business
information relating to business processes, methods, or marketing strategies.
Except as required to perform Your obligations under and in accordance with the
terms of this Agreement, You shall not (i) disclose the Confidential
Information to any Person, or (ii) use the Confidential Information (whether
for Your own benefit or the benefit of any other Person), without the express
prior written consent of Super Affiliate World. You may not use any
Confidential Information for the purpose of soliciting, or to permit others to
solicit, Super Affiliate World Clients to subscribe to any other services or
promote the sale of any products which compete, either directly or indirectly,
with Super Affiliate World or the Super Affiliate World Services, including
without limitation the functionality offered by the Super Affiliate World
Marketplace. You agree and acknowledge that Super Affiliate World may be
required to provide to governmental agencies or other third parties information
in its possession regarding You or the business You conduct with Super
Affiliate World.
a. Super Affiliate World does not invite and
cannot accept any ideas or information You consider to be confidential and/or
proprietary. Except with respect to Your personally identifiable information
(as expressly provided for in the Super Affiliate WorldPrivacy Policy, any
suggestions, submissions, comments, ideas, concepts, know-how, techniques
material or feedback conveyed, offered or transmitted by You to Super Affiliate
World, or otherwise in connection with the Super Affiliate World Services
(collectively, the "Submissions"), shall be deemed to be non-confidential and
non-proprietary and Super Affiliate World shall have no obligation of any kind
with respect to such Submissions, unless otherwise expressly agreed to in a
writing executed by You and a duly authorized officer of Super Affiliate World.
You hereby grant to Super Affiliate World and its licensees a worldwide,
perpetual, non-exclusive, fully-paid, royalty-free, transferable right and
license, with right to sublicense, to reproduce, publicly display, distribute,
perform, transmit, edit, modify, create derivatives works of, publish, sell,
commercially exploit, use, and disclose the Submissions for any purpose and in
all forms and all media whether now known or to become known in the future. Super
Affiliate World shall have no obligation to compensate You for any such
Submissions in any manner. You hereby represent and warrant that: (a) You own
or otherwise have the right to grant the foregoing license to Super Affiliate
World with respect to Your Submissions; and (b) Your Submissions and any use
thereof by Super Affiliate World will not infringe or violate the rights of any
Person. You are and shall remain solely responsible for the content of any
Submissions You make and acknowledge that Super Affiliate World is under no
obligation to respond to or use any Submission You may provide.
10. EXPORT CONTROL. You acknowledge and agree to comply with all
applicable export Laws, including the U.S. Export Administration Act, the Arms
Export Control Act, the International Economic Emergency Powers Act, and the
Foreign Corrupt Practices Act; and regulations issued pursuant to these and
other U.S. Laws. You hereby represent and warrant that any Product Promoted,
offered and/or provided by You via the Super Affiliate World Services is
approved for export from the United States without additional authorization or
licensing from the U.S. government. Should the export authorization status of
Your Products change, You must immediately notify Super Affiliate World in
writing. Information on U.S. export control regulations can be found on the
Commerce Department's website at http://www.bis.doc.gov, the State Department's
website at http://www.pmddtc.state.gov and the U.S. Treasury Department's website athttp://www.treas.gov/offices/enforcement/ofac/index.shtml.
11. REQUIRED PERMITS. It is your sole responsibility to obtain and
maintain all applicable licenses and permits required for the operation of Your
business.
12. REPRESENTATIONS AND WARRANTIES. You represent, acknowledge and warrant that:
.
You, Your Products
Your Promotions, and/or Your Submissions, as applicable, do not and will not,
directly or indirectly: (i) violate the right of privacy or publicity of any
Person; (ii) contain any libelous, obscene, indecent or otherwise unlawful
material; (iii) infringe any IP Rights in any jurisdiction or otherwise
contravene any rights of any Person; (iv) violate any laws, FTC rules,
regulations, guidelines, or industry standards; or (v) violate Super Affiliate
World's Privacy Policy.
a. You may not: (i) frame, copy or mirror any
content forming part of the Super Affiliate World Services; (ii) reverse
engineer the Super Affiliate World Services or otherwise attempt to derive its
source materials; (iii) access the Super Affiliate World Services for the
purpose of (A) building a competitive product or service, or (B) copy any
features, functions or graphics of the Super Affiliate World Services; (iv)
interfere with or disrupt the Super Affiliate World Services or any data
contained therein; (v) attempt to gain unauthorized access to the Super
Affiliate World Services, its related systems or networks; or (vi) use the Super
Affiliate World Services for any unlawful purpose or in violation of the rights
of any Person.
13. INDEMNIFICATION. To the fullest extent permitted by Law, You
agree that
.
In the event a third
party makes any demand or complaint, or commences any action or files any claim
whatsoever ("Claim") in connection with Your use of the Super
Affiliate World Services, Your Products, Your Promotions or use of the Vendor
Spotlight, You shall defend, indemnify and hold harmless Super Affiliate World,
its related parties and affiliates, and its officers, directors, employees,
representatives, agents, licensors, attorneys, heirs, successors, and assignees
(the"Super Affiliate World Parties"), from and against any and
all damages, liabilities, claims or costs (including the costs of
investigation, defense, reasonable attorneys' fees and costs) ("Losses")
incurred by any Super Affiliate World Party as a result of such Claim,
regardless of whether such Losses are direct, incidental, consequential,
punitive or statutory.
a. Upon receiving notice of a Claim for which Super
Affiliate World is entitled to indemnification by You, Super Affiliate World
shall provide You with written notification and the opportunity to assume sole
control over the defense or settlement of the Claim and reasonable assistance
to settle and/or defend the Claim at Your sole expense; provided, however, that (i) any settlement which would impose a
non-monetary obligation on and/or admission or finding of liability or
wrongdoing by Super Affiliate World will require Super Affiliate World's prior
written consent; (ii) the failure to provide timely notice, control, or assistance
shall not relieve You of Your indemnification obligations; and (iii) Super
Affiliate World may have its own counsel present at and participating in all
proceedings or negotiations relating to a Claim, at Super Affiliate World's own
expense, unless You fail or refuse to secure legal counsel to defend any Claim
in a timely manner, in which case You shall pay all expenses related to Super
Affiliate World's use of such counsel.
b. In the event that Super Affiliate World incurs
costs, attorneys' fees or other expenses responding to any complaint other than
a Claim, in connection with or in relation to Your Products or Promotions,
including copyright infringement complaints under the DMCA, Super Affiliate
World reserves the right, in its sole discretion, to recover such costs and
expenses by deducting a reasonable, commensurate amount from any monies owed to
You by Super Affiliate World up to a maximum of ten thousand dollars ($10,000)
per event. In the event that Super Affiliate World incurs any Losses relating
to Your violation of Super Affiliate World's Email/Text Message/Telemarketing
policy, as set forth in Section 6 above, Super Affiliate World reserves the
right, in its sole discretion, first to recover such Losses by deducting a
reasonable, commensurate amount from any monies owed to You by Super Affiliate
World up to a maximum of twenty thousand dollars ($20,000) per event.
You understand and agree that the remedies set forth above are not exhaustive
and that Super Affiliate World retains all rights to indemnification described
herein. You authorize Super Affiliate World to make, and release Super
Affiliate World from any liability in connection with, any such deductions.
14. LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY SUPER AFFILIATE WORLD
PARTY, OR ITS HEIRS, SUCCESSORS AND ASSIGNS, BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT
OF, RESULTING FROM, OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY (A) USE OF
OR INABILITY TO USE THE SUPER AFFILIATE WORLD SERVICES, (B) PERSONAL INJURY,
PROPERTY DAMAGE, OR LOSSES OF ANY KIND, RESULTING FROM YOUR ACCESS TO AND/OR
USE OF THE SUPER AFFILIATE WORLD SERVICES, (C) UNAUTHORIZED ACCESS TO OR USE OF
ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN,
(D) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SUPER AFFILIATE
WORLD SERVICES, AND/OR (E) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY
BE TRANSMITTED TO OR THROUGH THE SUPER AFFILIATE WORLD SERVICES, WHETHER OR NOT
SUPER AFFILIATE WORLD IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE MAXIMUM CUMULATIVE AND
AGGREGATE LIABILITY OF SUPER AFFILIATE WORLD FOR ALL COSTS, LOSSES OR DAMAGES
FROM CLAIMS ARISING UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT, WHETHER IN
CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL
AMOUNTS DUE AND PAYABLE BY SUPER AFFILIATE WORLD TO YOU UNDER THIS AGREEMENT
FOR THE MONTH IMMEDIATELY PRECEDING THE DATE UPON WHICH SUCH DAMAGES ACCRUE.
THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE
BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE SUPER AFFILIATE WORLD
SERVICES, AND ANY SERVICES OR INFORMATION OFFERED THROUGH THE SUPER AFFILIATE
WORLD SERVICES, WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE
THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED HEREIN WILL SURVIVE
AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. BECAUSE SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF
DAMAGES, IN SUCH JURISDICTIONS, YOU AGREE THAT THE LIABILITY OF SUPER AFFILIATE
WORLD SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.
15. NO GUARANTEE OF VALIDITY. Super Affiliate World does not endorse,
approve, or certify any information provided on or through the Super Affiliate
World Services, nor does it guarantee the accuracy, completeness, efficacy,
timeliness, or correct sequencing of such information. Information provided on
or through the Super Affiliate World Services may or may not be current as of
the date of Your access, and Super Affiliate World has no duty to update and
maintain such information. Additionally, the information provided on or through
the Super Affiliate World Services may be changed periodically without prior
notice. All content provided on or through the Super Affiliate World Services
is provided "AS IS." Use of such information is voluntary, and
reliance on it should only be undertaken after an independent review of its
accuracy, completeness, efficacy, and timeliness.
16. NO PROFESSIONAL ADVICE. Super Affiliate World provides professional
information (for example, financial or compliance) for informational purposes
only, which should not be construed as legal or accounting advice. You should
seek independent professional advice from a person who is licensed and/or
knowledgeable in the applicable area before acting upon any information, fact
or opinion provided on or through the Super Affiliate World Services. You
understand that Super Affiliate World employees, representatives, and/or agents
do not provide advice pursuant to the authority of professional certifications
or licenses and You will not treat information provided by our employees,
representatives, and/or agents as such. You further understand that by
receiving information, facts or opinions on or through the Super Affiliate
World Services, You are not entering into a relationship with Super Affiliate
World or its employees, representatives and/or agents that entitles You to
client privileges that may be associated with any professional certifications
or licenses.
17. DISCLAIMER. YOU ASSUME ALL RISK AND RESPONSIBILITY FOR
YOUR DECISION TO USE THE SUPER AFFILIATE WORLD SERVICES. THE SUPER AFFILIATE
WORLD SERVICES AND ALL RELATED SERVICES ARE OFFERED "AS IS" AND SUPER
AFFILIATE WORLD DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT. NEITHER SUPER AFFILIATE WORLD NOR ITS RELATED
PARTIES AND AFFILIATES ENDORSE OR ARE RESPONSIBLE FOR THE ACCURACY OR
RELIABILITY OF ANY INFORMATION, FACT OR OPINION PROVIDED ON OR THROUGH THE SUPER
AFFILIATE WORLD SERVICES.
18. GENERAL TERMS AND CONDITIONS.
.
Governing
Law; Dispute Resolution, Attorneys' Fees. You agree that Idaho law will govern this
Agreement and that any action, suit, proceeding, or claim arising out of or
related to this Agreement must be brought exclusively in federal or state
courts located in Boise, Idaho. You hereby submit to the in personam
jurisdiction and venue of such courts and waive any objection based on
inconvenient forum. You agree to indemnify Super Affiliate World for all of its
reasonable attorneys' fees and costs incurred as a result of any action, suit,
proceeding or claim brought by You or Super Affiliate World in which Super
Affiliate World is found to be the prevailing party. YOU HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM OR COUNTERCLAIM ARISING
UNDER OR IN RELATION TO THIS AGREEMENT.
a. English is Governing Language. This Agreement is in English and all disputes
between the parties shall be resolved in English. You understand and
acknowledge that any foreign language services provided by Super Affiliate
World are for informational purposes only and it is Your obligation to obtain
independent legal advice at Your own expense to ensure You understand the terms
of this Agreement.
b. Our Relationship. This Agreement does not create any
relationship of principal and agent, partners, joint venturers, employer and
employee, fiduciary or similar relationship between the parties. You are
prohibited from making any promise, warranty or representation on behalf of Super
Affiliate World or obligating Super Affiliate World in any way. You may not
represent to any person that You are the agent of Super Affiliate World, or are
authorized to act on its behalf.
c. Assignment. Super Affiliate World may freely assign or
transfer any or all of the rights and obligations described in this Agreement.
You may not assign this Agreement or any of Your rights and duties hereunder
without the prior written consent of Super Affiliate World. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
d. Severability. If any provision of this Agreement is
determined by a court to be unenforceable or invalid, the validity of the
remaining parts, terms or provisions shall not be affected by that
determination, and such court shall substitute a provision that is legal and
enforceable and is as close to the intentions underlying the original provision
as possible.
e. Publicity. You may not issue or make any publicity
release (including press releases and advertising or solicitation materials) or
other public statement: (i) relating to this Agreement; (ii) using Super
Affiliate World's name or referencing the Super Affiliate World Services; or
(iii) suggesting or implying any endorsement by Super Affiliate World of You
and/or any Products without the prior written approval of Super Affiliate World,
which Super Affiliate World may withhold in its sole discretion.
f. Entire Agreement; Amendment. This Agreement constitutes the complete and
exclusive agreement between the parties relating to the subject matter hereof.
It supersedes all prior proposals, understandings and all other agreements,
oral and written, between the parties relating to this subject matter. Super
Affiliate World reserves the right to amend this Agreement at any time. When Super
Affiliate World amends this Agreement, Super Affiliate World shall make
reasonable efforts to provide You with general, not specific, notice of such
changes by posting a conspicuous announcement athttp://www.Super Affiliate World.com that such changes or amendments have occurred
and identifying which particular provisions have changed. Such announcement
shall be maintained for no less than 30 days following the effective date of
such amendment. Your continued use of the Super Affiliate World Services,
following the posting of such amendment will signify and be deemed Your assent
to and acceptance of the revised Agreement. You agree that You have the burden
to review periodically http://www.Super Affiliate World.com to inform Yourself of any such changes.
g. Waiver. The waiver or failure by Super Affiliate World to exercise any
right provided for herein will not be deemed a waiver of any further right
hereunder. The rights and remedies of Super Affiliate World set forth in this
Agreement are cumulative and are in addition to any rights or remedies Super
Affiliate World may otherwise have at law or equity, except with respect to any
sole and exclusive remedies expressly provided for herein.
h. Equitable Actions. You acknowledge and agree that any breach or
threatened breach of this Agreement may cause immediate and irreparable harm to
Super Affiliate World which would not be adequately compensated by monetary
damages and that Super Affiliate World may seek injunctive relief, specific
performance, and/or other equitable relief as a remedy for any such breach or
anticipated breach without the necessity of posting a bond or other security.
Notwithstanding any other provision of this Agreement, any such relief may be
sought in the state or federal courts of the State of Idaho or any other court
of competent jurisdiction anywhere in the world (at Super Affiliate World's
sole discretion), and, You hereby consent to the jurisdiction of any such court
and waive any objection to venue laid therein. Any such relief shall be in
addition to and not in lieu of any appropriate relief in the way of monetary
damages.
i. Force Majeure. You nor Super Affiliate World shall be
responsible for delays or failures in performance resulting from acts of God,
strikes, lockouts, riots, acts of war and terrorism, embargoes, boycotts,
changes in governmental regulations, epidemics, fire, communication line failures,
power failures, earthquakes, other disasters or any other reason where failure
to perform is beyond the control of, and not caused by, the non-performing
party.
j. Notices. Any notice, request, approval, authorization,
consent, demand or other communication required or permitted pursuant to this
Agreement shall be in writing and shall be deemed given on the earliest of: (i)
actual receipt, irrespective of the method of delivery; (ii) the time of
transmission from Super Affiliate World if sent via email, as date stamped by Super
Affiliate World's systems; (iii) on the delivery day following dispatch if sent
by express mail (or similar next day air courier service); or (iv) on the sixth
(6th) day after mailing by registered or certified United States mail, return
receipt requested, postage prepaid and addressed to the last address provided
by a party.
k. Headings/Interpretation. The section headings are for convenience only
and shall not control or affect the meaning or construction of any provision of
this Agreement.
l. Survival. Sections 5, 8, 9, 10, 12, 13, 14, 15, 16, 17
and 18 shall survive termination of this Agreement.
