TERMS AND CONDITIONS FOR USE
OF THE ON-LINE SERVICES
Effective August 25, 2009
This following Agreement terms and conditions govern your access and usage of the services (the "Online Services") and the products and online materials provided to you by the Company ("Materials").
Please read this Agreement carefully before accessing or using the Online Services or Materials. By accessing or using the Online Services or Materials, you agree to be bound by the terms and conditions set forth below. If you do not wish to be bound by these terms and conditions, you may not access or use the Online Services or Materials. If you do not have the legal authority to bind, please do not access the Online Services or Materials. If you utilize the Online Services in a manner inconsistent with these terms and conditions, the Company may terminate your access, block your future access and/or seek such additional relief as the circumstances of your misuse indicate is proper. The Company may modify this Agreement at any time, and such modifications shall be effective immediately upon posting of the modified Agreement. You agree to review the Agreement periodically to be aware of such modifications and your continued access or use of the Online Services or Materials shall be deemed your conclusive acceptance of the modified Agreement.
1. AUTHORIZED COMMUNICATIONS; INFORMATION YOU PROVIDE TO THE COMPANY; TRACKING
1.1 By utilizing the Online Services or Materials, you acknowledge that you have agreed to receive electronic mail, telephone calls, postal mail, and other communications from the Company, its agents, affiliates, independent contractors, successors, and assigns. You agree that the Company may contact you with regard to these Terms and Conditions, the Online Services and Materials, opportunities in which you may be interested, and other related purposes.
1.2 When using the Online Services or Materials, you may be prompted to disclose certain information about yourself (“Personal Information”). Your use of the Online Services or Materials indicates your express consent for the Company to use and disclose your Personal Information in accordance with the Company’s Privacy Policy.
1.3 By becoming a registered affiliate member (“Member”) of the Site, you agree that Company has the right to utilize your personally identifiable information such as your name, postal address, telephone number, fax number and email address (“Personally Identifiable Information”) and financial information, such as account or credit card numbers (“Financial Information”) to track your transactions, in order to accurately calculate the commissions due to you and gather other related information.
2. LICENSE; RESTRICTIONS ON USE
2.1 Except for distributions in compliance with these Terms and Conditions, you may not distribute any Materials, Online Services, or software associated with or derived from it, modify, copy, license, or create derivative works from the same, unless you obtain Company’s express written permission in advance.
2.2 You are granted a nonexclusive, nontransferable, limited license to access and use the Online Services and Materials from time to time made available to you. This license includes the right to promote and market particular Online Services and Materials.
2.3 Except as specifically provided herein, you are prohibited from downloading, storing, reproducing, transmitting, displaying, copying, distributing, or using Materials. You may not print or download any online Materials without using the printing or downloading commands of the Online Services.
2.4 All right, title, and interest (including all copyrights and other intellectual property rights) in the Online Services and Materials (in both print and machine-readable forms) belong to the Covered Party. You acquire no proprietary interest in the Online Services, Materials, or copies thereof.
2.5 Company retains all right, title, and interest in the financial, personal, or other information of any buyer, customer, end user, consumer or any other party that purchases a product or service of the Company (“Consumer”) generated by your marketing or promotion efforts (“Consumer Information”). You may not utilize Consumer Information except as specifically provided in this Agreement.
2.6 Except as specifically provided herein, you may not use the Online Services or Materials in any fashion that infringes the copyrights or proprietary interests therein.
2.7 You may not remove or obscure the copyright notice or other notices contained in Materials.
3. ACCESS TO SERVICES
3.1 Only Members may access and use the Online Services and Materials.
3.2 You may not use an identification number to access the Online Services and Materials from outside the country for which it was issued.
3.3 You may be restricted from accessing certain Materials otherwise available in the Online Services.
3.4 Materials and features may be added to or withdrawn from the Online Services and the Online Services otherwise changed without notice.
4. COMPANY REPRESENTATIONS; LIMITED WARRANTY
4.1 Members will have the opportunity to market and promote particular products and services provided by the Company (“Campaign”). Your participation in any Campaign is subject to approval of the Company, in its sole discretion.
4.2 Each Campaign will have additional terms, conditions, and restrictions, including particular commission rates (“Campaign Terms”). Company may change the Campaign Terms at any time, in its sole discretion. Changes are effective upon Company posting such changes. Member’s continued participation in the Campaign shall be deemed Member’s conclusive acceptance of the modified Campaign Terms. In the event of a conflict between this Agreement and any Campaign Terms, the respective Campaign Terms shall govern.
5. COMMISIONS
5.1 Company will pay commissions according to the Campaign Terms (“Commissions”).
5.2 Company will pay Commissions to Member approximately thirty (30) days after the last day of a given calendar month, for Commissions generated in that calendar month.
5.3 Company is responsible for tracking the payments owed. Company will compile, calculate, and provide any data necessary to determine Member Commissions. Company's data and calculations are final and binding. Member must submit any dispute regarding Commissions in writing to Company within thirty (30) days of receipt or availability of the Commission information in the Online Services, otherwise Member waives all disputes regarding Commissions, and the Commissions will be deemed accurate and accepted by Member.
5.4 Company may withhold or cancel Commission payments due to Member at any time, in Company’s sole discretion, when Company believes that the Member is in breach of this Agreement.
5.5 Company will pay all Commission payments due to Member by check in US dollars, unless otherwise set forth in the applicable Campaign Terms.
5.6 Company may deduct an amount equal to any chargebacks, refunds, deductions or any other type of adjustments, plus any associated fees and charges ("Adjustments"), incurred by Company in connection with registrations or purchases generated by a Member hereunder. If Company incurs any Adjustments, the respective Member connected to the Adjustment agrees that Company may deduct such amounts from any future Commissions earned by the Member.
5.7 Company may refuse to pay a commission for a sale which the Company believes obtained by fraudulent means or is otherwise illegitimate.
6. COMPANY REPRESENTATIONS; LIMITED WARRANTY
6.1 The Company represents and warrants that it has the right and authority to make the Online Services and Materials available pursuant to these Terms and Conditions.
6.2 The Company represents and warrants that it shall take all necessary steps to comply with the CAN SPAM Act of 2003 and any and all other applicable laws with respect to advertising and marketing.
6.3 The Company and its affiliates, officers, directors, employees, subcontractors, agents, successors, or assigns, make no representations or warranty, express or implied, as to the accuracy, earnings claims, content, and advertising materials on its web sites, Online Services, or Materials. In the event that any advertisement is inaccurate, your sole remedy is for the Company to remedy such inaccuracy within fifteen (15) working days of it being notified of the inaccuracy. You understand and agree that the online content and advertising copy therein solely represents hypothetical examples and does not in any way guaranty income, revenue, or performance of the Online Services and Materials and does not in any way represent explicit or implicit earnings claims for the user.
6.4 The content, claims, and representations of independent third-party testimonials from users of the Online Services and Materials is not subject to Company’s prior approval and no representation or warranty is given by the Company to the accuracy of such testimonials. The Company does not undertake to review the contents of any testimonials and any such review of, and approval by, the Company shall not be deemed to constitute an acceptance by the Company that such testimonial is provided in accordance with the terms of the Agreement, nor shall it constitute a waiver of the its rights hereunder. You understand and agree that the online content, claims, and representations of such third party testimonials does not in any way guaranty income, revenue, or performance of the Online Services and Materials and does not in any way represent explicit or implicit earnings claims by the Company for the user.
6.5 EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 6, THE ONLINE SERVICES AND MATERIALS ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS AND THE PROVIDER OF THE ONLINE SERVICES AND EACH THIRD PARTY SUPPLIER OF MATERIALS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
7. MEMBER’S REPRESENTATIONS AND WARRANTIES
7.1 Member represents and warrants that Member will not utilize the Online Services or Materials in such a fashion that will violate any law, statute, ordinance, or regulation, including, without limitation, false or deceptive advertising laws or the CAN SPAM Act of 2003.
7.2 Member represents and warrants that Member will not utilize or distribute Consumer Information in violation of any law, statute, ordinance, or regulation, including, without limitation, false or deceptive advertising laws or the CAN SPAM Act of 2003. Member will notify Company immediately upon Member’s receipt or notice of a complaint or investigation with regard to Member’s use of Consumer Information, Online Services, or Materials.
7.3 Member represents and warrants that Member will not utilize the Online Services or Materials to infringe on any third party’s copyright, patent, trademark, trade secret, or other proprietary rights.
7.4 Member represents and warrants that Member will not utilize the Online Services or Materials to display any material that may be considered defamatory, libelous, pornographic, obscene, or contain any viruses, Trojan horses, worms, or other harmful programs.
8. LIMITATION OF LIABILITY
8.1 A Covered Party (as defined below) shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) any errors in or omissions from the Online Services or any Materials available or not included therein, (b) the unavailability or interruption of the Online Services or any features thereof or any Materials, (c) your use of the Online Services or Materials (regardless of whether you received any assistance from a Covered Party in using the Online Services), (d) your use of any equipment in connection with the Online Services, (e) the content of Materials, or (f) any delay or failure in performance beyond the reasonable control of a Covered Party.
8.2 "Covered Party" means iAffiliate, its affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of iAffiliate or its affiliates.
8.3 “The Company” means iAffiliate.
8.4 THE AGGREGATE LIABILITY OF THE COVERED PARTIES IN CONNECTION WITH ANY OTHER CLAIM ARISING OUT OF OR RELATING TO THE ONLINE SERVICES OR MATERIALS SHALL NOT EXCEED THE AMOUNT OF YOUR ACTUAL DIRECT DAMAGES. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST ANY COVERED PARTY.
8.5 THE COVERED PARTIES SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE ONLINE SERVICES, MATERIALS, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS, REGARDLESS OF ANY NEGLIGENCE OF ANY COVERED PARTY. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
9. TERM OF SERVICE
9.1 There is no limitation on the term of service with respect to these Terms and Conditions. You will retain access to all services and products so long as you remain a Member in good standing with the Company. The Company does not have any recurring cost, product, or service.
9.2 The Company may terminate your membership and access to the Online Services or Materials at any time for any reason. The effective date of termination shall be ten (10) days after the receipt of an appropriate notice of termination, unless a later date is specified in the notice. The Company may suspend or discontinue your membership and discontinue providing the Online Services or Materials to you without notice and pursue any other remedy legally available to it if you fail to comply with any of your obligations hereunder.
9.3 Company or Member may terminate this Agreement upon ten (10) days’ notice to the other party.
Upon termination of this Agreement, Member shall destroy all data and proprietary information belonging to Company, including but not limited to, Consumer Information.
10. MEMBER SERVICE
A Member Service Representative will work with you to resolve any issues you may have with regard to the Company’s products, services, or web sites. If you have any such issues, please contact the Company’s Member Service Department at 1-888-383-2370.
11. INDEMNIFICATION
Member shall indemnify, defend and hold harmless the Covered Party from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys' fees, court costs or settlement costs) arising out of Member’s (a) improper use of Consumer Information, Online Services, or Materials; (b) violation of any law, statute, ordinance, or regulation; (c) breach or violation of this Agreement; or (d) willful misconduct or gross negligence not covered by the terms of this Agreement.
12. MISCELLANEOUS
12.1 The Company reserves the right to modify these Terms and Conditions from time to time in its sole discretion, without notice or liability to you. You agree to be bound by these Terms and Conditions, as modified. Please review the most current version of the Terms and Conditions from time to time, so that you will be apprised of any changes. Your continued use of the Online Services or Materials after any such change shall constitute your express consent to be bound by such changes.
12.2 Company and Member are independent contractors, nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, employment or any other relationship between the parties.
12.3 Except as otherwise provided herein, all notices and other communications hereunder shall be in writing or displayed electronically in the Online Services by the Company. Notices shall be deemed to have been properly given on the date deposited in the U.S. mail, if mailed; on the date first made available, if displayed in the Online Services; or on the date received, if delivered in any other manner. Notices to the Company should be sent to: iAffiliate, c/o, General Counsel 3867 West Market Street, Suite 256, Akron, Ohio 44333.
12.4 The failure of a Covered Party or any third party supplier of Online Services or Materials to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
12.5 If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not effect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.
12.6 This Agreement contains the sole and entire agreement and understanding between the parties relating to the subject matter herein, and merges all prior and contemporaneous discussions, contracts, understandings and agreements, whether through officers, directors, salespersons, employees or consultants, unless otherwise stated in a writing signed by both parties.
12.7 You may not assign your rights or delegate your duties under your access to the Online Services without the prior written consent of the Company.
12.8 These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Ohio.
