The following terms and conditions (this "Agreement") is a legal agreement between FYNDIRECT Network, a division of FYNDIRECT, LLC (interchangeably, "Company" or "Network"), and you (interchangeably, "Publisher," "Affiliate," "You" or "Your"), the user of the FYNDIRECT Network website (the "Site"). You and Company may also be individually referred to herein as a "Party" and collectively as "Parties."
These FYNDIRECT Network Terms and Conditions shall govern Your participation in FYNDIRECT's FYNDIRECT Network. You agree to use the Site and any additional services offered by Company in the future only in accordance with this Agreement. Company reserves the right to make changes to the Site and the terms and conditions of this Agreement at any time. Your continued use of the Site after any such modification and notification thereof shall constitute Your consent to such modification.
"Action" - shall have the meaning set forth in the Program terms for that offer, such as clicks, click-thrus, sales, registrations, impressions or leads.
"Bounty" - means the amount and terms under which You will receive payment for an Action.
"CPA" - means a campaign for which Publisher shall be paid on a Cost Per Action basis. CPA stands for Cost Per Action. In Cost Per Action on-line marketing, Company pays a Bounty for an Action that is the result of the advertising services provided by You.
"Creative" - means any type of advertising creative materials used by You to provide advertising services hereunder, including, but not limited to, buttons, banners, fixed graphic images, text-links, and email messages.
"Currently Available Creatives" - means certain Creatives available within the Network from which Publisher may select and display on Publisher's Media, payment for which shall be based on the Bounty set forth in the Program terms for that offer.
"Email Lists" - means lists of email addresses of persons who have provided Publisher with their permission (via an opt-in) to receive emails containing Creatives via electronic mail over the Internet.
"FYNDIRECT Network" - means the affiliate network owned by FYNDIRECT, LLC, which may generally be accessed at http://www.FYNDIRECT.com
"Incentivized" - means incentives provided by You for an Action by a third party, which may include, but are not limited to, awarding customers cash, points, prizes, contest entries, and any other thing of value transferred or licensed to a user or a person or entity under the control of a user.
"Media" - means Your media properties, such as Your website, affiliated websites, third party websites used by You to provide advertising services (e.g. Google.com or Yahoo.com) or Email Lists.
"Revenue Share" - means a campaign for which You shall be paid on a fixed revenue share basis, based on the revenue generated by You as a result of delivering Creatives and causing a sale by a third party customer.
"Website" - means an HTML document containing a set of information available via the Internet.
1. Background and Use of the Site.
1.1 The Site allows Company to post offers of advertising programs sponsored by Company or its affiliates on the FYNDIRECT Network ("Program(s)"). The Programs will specify the amount and terms under which You will receive payment ("Bounties") when the Program's requirements are fulfilled. Bounties are generated from a specified Action identified in a Program, such as clicks, click-thrus, sales, registrations, impressions or leads. The definition of the Action associated with a Program is set forth in the Program's specifications, and such definition shall govern this Agreement.
1.2 If You accept a Program, You agree to place that Program's advertising creative on Your media properties, such as Your website, affiliated websites or email distribution lists ("Media"), in accordance with the terms of the accepted Program. Only the advertising creative associated with the Program on the Site may be used in conjunction with the Program, and that advertising creative may not be modified by You unless Company provides express written consent for the proposed modification after reviewing the proposed modification in its final context.
1.3 No Program may be modified from its terms without the express written consent of Company. This includes providing incentives for customers to view or accept an offer, which are strictly prohibited unless explicitly allowed as part of a Program. Use of spyware or adware (defined as the placing of code or a program, other than a cookie, onto a user's computer that monitors the user's behavior and selects or causes to be selected advertising based on the user's behavior) is prohibited unless explicitly allowed as part of a Program. Use of paid or sponsored search results is prohibited unless explicitly allowed as part of a Program.
1.4 Company may change a Program at any time unless otherwise specified upon reasonable notice to You. Similarly, You may cease to promote previously accepted Programs at any time unless otherwise specified.
1.5 Company is responsible for displaying and administering all active Programs and tracking the payments owed. Company shall compile, calculate and electronically provide data required to determine Your billing and compensation ("Data"). Company's figures and calculations regarding the Data shall be final and binding. Any questions regarding the Data provided by Company must be submitted in writing within thirty (30) calendar days of receipt or availability of the Data on the Site, otherwise all claims relating to the accuracy of the Data will be waived, and the Data will be deemed accurate and accepted as such by You.
2.1 All websites, newsletters, companies, or individuals need official approval from Company before they can become an affiliate publisher granted access to the Site ("Affiliate"). Only websites, affiliated websites and email distribution lists ("Affiliate Content") that have been reviewed and approved are permitted to use the Site. Company reserves the right to withhold or refuse approval for any reason or no reason, in its sole discretion.
2.3 Company grants You a non-transferable, non-exclusive, revocable, limited license, if approved, to use the Site and any data, reports, information or analyses arising out of such use, subject to the terms and conditions set forth herein.
2.4 You acknowledge and agree that You do not have, nor will You claim any right, title or interest in the Site software, applications, data, methods of doing business or any elements thereof, except through some written agreement separate and distinct from this Agreement.
2.5 You may only access the Site via web browser, email or in a manner approved by Company. Site integration tags must not be altered. Altering tags may jeopardize Your ability to be paid for Actions, or to otherwise receive Bounties.
2.6 You acknowledge that Your license to the Site and any content therein is strictly limited solely to You and to such officers, directors, or employees as You may have. You must not allow access to the Site by any third parties that are not officers, directors, or employees of You through the use of Your Site access. Any access to the Site by a third party not authorized by Company to do so shall be considered trespass. If an unauthorized third party uses Your Site access to gain access to the Site, such access shall constitute trespass and shall constitute a violation by You subject to Section 4.7(iii). Company reserves all other rights (legal or otherwise) that it may have against You in the event that a trespass occurs using Your Site access.
3. Prohibited Conduct
3.1 You must not promote any Programs using fraudulent means. "Fraudulent means" include, but are not limited to:
i. Adding leads or clicks through fraudulent traffic generation, such as prepopulation of forms or via other such mechanisms not approved by Company;
ii. Using "impression spam," the frequent or automated searching of a search term used to reduce competitors' click-thru rates on their advertisements, in conjunction with paid search campaigns;
iii. Altering the creative materials provided in the Program in any way, unless authorized in writing by Company or in the Program terms; or
iv. Any illegal activity whatsoever, under the laws and treaties of the United States, any of its states or localities, or under the laws of any nation who has reciprocal treaty rights with the United States for the enforcement of its laws or judgments relating to those laws;
3.2 Your advertising for the Programs must not include any of the following:
i. A site that consists solely of a list of links or advertisements;
ii. A site whose content consists solely of an advertisement from a Program;
iii. A site that exclusively offers incentives to users to click on ads, unless the only Program(s) run by the Affiliate explicitly allow incentives; incentives include, but are not limited to, awarding customers cash, points, prizes, contest entries, and any other thing of value transferred or licensed to a user or a person or entity under the control of a user;
iv. A site that includes spawning process pop-ups or that causes more than one pop-up window to appear;
v. Third party website internal communications systems, including but not limited to internal website email (e.g. Myspace.com email), bulletin boards, chat rooms, or comments.
vi. Content or material that may infringe on any personal property rights, intellectual property rights or rights to be free of tortious behavior, including, but not limited to:
a. Racial, ethnic, political, religious, gender, or lifestyle hate-mongering or otherwise objectionable content;
b. Investment, money-making opportunities or advice not permitted under law;
c. Gratuitous violence or profanity;
d. Material that defames, abuses, or threatens or urges physical harm to others;
e. Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.;
f. Software or other media pirating (e.g., Warez, Hotline);
g. Hacking, spoofing, phishing or Phreaking;
vii. A site that is not fully functional at all levels, with no "under construction" sites or sections;
viii. Any spoofing, redirecting, or trafficking from or to adult-related websites in an effort to gain traffic;
ix. Use of any spyware or malware or any program that generates new browser windows or tabs based on behavioral profiles, except to the extent such use is expressly approved in writing by Company; or
x. Email messages that constitute Unsolicited Commercial Email. Unsolicited Commercial Email includes all email so defined by the laws of the United States or any of the several states. Unsolicited Commercial Email also includes email messages with fraudulent or deceptive "from" or "subject" lines (including the alteration of "from" or "subject" lines where the Program terms set forth "from" and "subject" lines to be used), fraudulent or deceptive headers, or fraudulent or deceptive initiating-IP addresses. In the event that Company suspects that You may have sent an email that violates any of these laws or Company's policies regarding Unsolicited Commercial Email, You agree to cooperate fully with Company's investigation, and to send Company all information relevant to the investigation that it requests within twenty-four (24) hours of the sending of the request by Company.
4.1 Company actively monitors the FYNDIRECT Network for fraudulent activity using a combination of its proprietary software, third party monitoring services, and its Compliance department. Company will freeze Your account and prohibit Your access to that account (including a suspension of its payment obligations to You) pending the conclusion of its investigation if Company reasonably believes the account has:
i. Click-thru rates that are much higher than industry averages and where solid justification is not evident;
ii. Only click programs generating clicks with no indication by site traffic that it can sustain the clicks reported;
iii. Shown fraudulent leads as determined by our clients or by third parties;
iv. Used fake redirects, automated software, and/or fraud to generate clicks or leads from our programs; or
v. Violated any prohibitions contained in this Agreement.
4.2 Company may, in its sole discretion, designate employees or other agents as Compliance Officers. These Compliance Officers will enforce the terms of this Agreement (including but not limited to Sections 2, 3 and 5) and Your compliance with those terms. The Compliance Officers shall conduct initial investigations of alleged breaches of this Agreement by You. You agree to provide any information requested by the Compliance Officers that is reasonably related to Your compliance with the terms of this Agreement. Requests for opt-in information must be complied with in one (1) business day or less. Other requests for information from the Compliance Officers must be complied with in the timeframe set forth by a Compliance Officer. If no timeframe is set forth by a Compliance Officer, You must comply in a commercially reasonable time, which shall not exceed five (5) business days.
4.3 You agree to allow Company to use any means of monitoring of your promotional activities on behalf of the Programs, including but not limited to:
i. The use of a seed email account or account which Company may require you to include in any email on behalf of a Program. These seed emails may vary from Program to Program, in the sole discretion of Company.
ii. The use of third party monitoring services, including, but not limited, to Lashback, UnsubCentral and Email Analyst. Company will also, in its discretion, adopt a search marketing monitoring service.
iii. The use of proprietary monitoring systems, including, but not limited to, monitoring of IP usage.
iv. Monitoring of your promotional activities for any Program and your website(s), newsletter(s) or other forms of promotional activities by Company and its Compliance Officers to ensure compliance with the terms of this Agreement and the additional rules for each Program you promote.
4.4 Your promotion of particular Programs may be subject to additional rules, as set forth in the Program, and Your promotion of a Program constitutes your acceptance of those additional rules and your agreement not to breach said rules, which are incorporated herein in relation to that Program. Violation of the additional rules in a Program shall constitute a violation of the terms of this Agreement, and shall subject you to the disciplinary procedures set forth below.
4.5 Company has a zero-tolerance policy toward intentional or reckless violations of the law, in particular the CAN-SPAM Act of 2003, laws governing false and misleading advertising, the Children's Online Privacy Protection Act (COPPA), and the Michigan and Utah child protection registries. Any violation of those laws or their associated regulations shall subject you to the disciplinary procedures set forth below. If the violation is intentional, you shall be subject to discipline at least equal to Section 4.7(ii). For any such violation, Company reserves any and all rights, civil and criminal, it may have against You included in and independent of this Agreement.
4.6 Company and its Compliance Officers will monitor incentivized promotion of Programs in particular. Violations of the rules governing incentivized promotion for a Program are a violation of the Program's additional rules, and you shall be subject to discipline at least equal to Section 4.7(ii). For any such violation, Company reserves any and all rights, civil and criminal, it may have against You included in and independent of this Agreement.
4.7 If You are in violation of the above terms, You will generally be subject to the following enforcement procedures:
i. For an initial ("Level 1") violation, You will receive a written warning setting forth the violation. This warning may be delivered via email, facsimile, letter, or any other written means.
ii. For a second ("Level 2") violation or a first-time intentional violation, You will be blocked from further advertising for any campaigns for which the violation was committed, and You will forfeit any payments for Bounties otherwise owed to You that reasonably relate to the violation.
iii. For a third ("Level 3") violation or for any serious and intentional violation, You will be terminated from FYNDIRECT Network, pursuant to Section 7.2. You will receive no payments for any Bounties not previously paid if you are terminated under this provision, as per Section 7.3. If payments were made to You after You committed the violation that resulted in Your termination, but before Company determined that You had violated this Agreement, You shall refund said funds to Company within fifteen (15) calendar days of the termination of this Agreement.
4.8 Company and its Compliance Officers may, in their sole discretion, choose alternative forms of discipline for violations of the above terms, including, but not limited to, their exercise of Company's rights under Sections 7.2 and 7.3, or the use of any of the forms of discipline contained in Section 4.7.
4.9 Company may, following a reasonable determination in Company's sole discretion that an Action is invalid (whether because the Action was caused by fraud or otherwise), seek a refund or setoff of future Bounties (or both) from You for the value of any payments previously made by Company that reasonably relate to that invalid Action. Company may seek such refunds or setoffs at any time during this Agreement and for up to one (1) year following the termination of this Agreement. You expressly consent to such a setoff in advance and You agree to provide such a refund within five (5) business days of Company's written notice to You of Your obligation to provide the refund. This remedy is in addition to all other rights, legal or otherwise, as Company may have against You as a result of the invalid Action(s).
5.1 You will be paid per the occurrence of an Action. Parties understand and agree that Bounties will be owed to You from third parties whose Programs appear on the Site on terms as outlined in Company's agreement with Advertiser, which shall in no event be greater than thirty (30) days following the end of the month in which the Bounties were earned. Payment for said Bounties shall generally be made to You by Company within fifteen (15) days of the end of the month in which the Bounties were earned. All payments are based on actual figures as defined, accounted and audited by Advertiser and/or Company.
5.2 All Bounties will be paid in US dollars ($US), except where explicitly stated otherwise in the Program or as otherwise set forth by Company. No payments will be issued for any amounts less than $50 US Dollars (or their foreign currency equivalents), except in the sole discretion of Company.
5.3 If You are a U.S. resident, Your account must have a unique, valid taxpayer identification number (TIN) or valid Social Security Number (SSN) associated with it. You must have a valid, completed Form W8 or Form W9 on file with Company, and Company shall have no obligation to pay You until the appropriate form is filed with Company.
5.4 Company will generally facilitate payment by disbursing the earned portion of lump sum aggregate payments to You within fifteen (15) days of receipt of payment from Advertiser, unless otherwise explicitly stated in the Program or unless some or all of the payment has been forfeited by You or is otherwise in dispute. Company will disburse this payment electronically unless You do not provide information allowing it to do so, or You request that it provide payment through some other form.
5.5 In the event Company fails to receive payment in full from Advertiser it shall have no payment obligation to You. You accept all risks associated with non-payment by the Advertiser, and explicitly acknowledge that Company is not a guarantor of any payment or other obligations of any Advertiser. If Advertiser does not pay on time, Company will notify You and offer its best efforts in matters related to collections, but it is not contractually bound to do so.
5.6 Company may, in its sole discretion, decide to pay You for any Bounties owed to you by Advertiser in the event Advertiser does not timely pay Company. In the event that Company decides to make such a payment to You, You agree to assign all rights to future payments from Advertiser to the Company to the extent that Company has already paid an equivalent amount to those Bounties to You.
5.7 Company will not pay for any Actions that occur before a Program is initiated, or after a Program terminates. Invoices submitted to Company and payments made to You shall be based on the Actions and corresponding Bounties as reported by Company, based on online or offline reporting of the Data by Company. Company and Advertisers will not be responsible to compensate You for Actions that are not recorded due to Your error.
5.8 Company will not pay any interest or late payment fees on any Bounties or other payments held or withheld by Company, unless Company otherwise explicitly agrees in writing to do so.
5.9 Company may, in its sole discretion, adopt a rewards program for its affiliates, as otherwise set forth on Company's website, and subject to the terms set forth therein. The reward(s) (if any) shall be Your property and may constitute additional income for You under this Agreement. You may, in Company's sole discretion, choose to transfer the reward(s) (if any) to another person and may designate such person with Company via whatever means are chosen by Company. You expressly acknowledge that the third party recipient of the reward(s) (if any) is not a third party beneficiary of this Agreement. You expressly consent to the receipt of the reward(s) (if any) by the third party recipient if You designate a third party recipient. You expressly represent and agree that if such a third party recipient is designated by You, the receipt of the reward(s) (if any) by that third party recipient shall not constitute compensation from Company to the third party recipient, and shall solely constitute a transfer from You to the third party recipient. If the transfer of the reward(s) (if any) would violate any law or regulation, or would constitute a secret profit for the third party recipient, Company may in its sole discretion decline to transfer the reward(s) (if any). You expressly agree to hold harmless Company for any costs, expenses, or other damages to You that arise from the reward program, any reward(s) that may be received thereunder, or for any transfer of ownership to a third party recipient for the reward(s) (if any).
6. Representations and Warranties.
6.1 You represent and warrant that Your Media are in compliance with all applicable laws and do not contain or promote, nor link to, another website that contains or promotes, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content.
6.2 You represent and warrant that all email associated with any Program sent by You shall include any features required by the laws and regulations of the United States of America and of the several states (including but not limited to the CAN-SPAM Act of 2003). You represent and warrant that all emails associated with any Program sent by You shall contain a physical mailing address for You where recipients may contact You. You further represent and warrant that all email associated with any Program sent by You shall include a functioning reply-to address allowing recipients to opt-out of further communications from You or from the Advertiser. You represent and warrant that upon receipt of an opt-out message from a recipient, that you will cease any further email communication with that person within ten (10) calendar days, unless the recipient subsequently requests that such email communication be initiated again.
6.3 You represent and warrant that the recipients of all email addresses used by you in connection with any Program have manifested affirmative consent to receive commercial emails from You. You represent and warrant that none of the email addresses of any emails sent by you in connection with any Program were obtained by You through email harvesting or dictionary attacks, whether by You or by a third party.
6.4 You represent and warrant that You will not use fraud or deceit when marketing a Program or presenting a Program to consumers.
6.5 You represent and warrant that You will display the creative content of a Program exactly as it appears on the Program and will not alter any creative that has been submitted to the Site without the express written authorization of Company.
6.6 You represent and warrant that you will not post any specific messages relating to Company or any Program to newsgroups, chat rooms, bulletin boards, blog comments, that utilize social website internal email systems, or any other places unless expressly approved in writing from Company. You may post messages which are generic in nature and do not mention any specific client or offer, which are expressly approved in writing from Company.
6.7 You represent and warrant that You will not promote any Programs via a website or link to other websites that contain any pornographic, racial, ethnic, political, software pirating (e.g. Warez) or hacking, hate-mongering, or otherwise objectionable content.
6.8 You represent and warrant that all of Your efforts associated with Company and any of its Programs comply with the laws of the United States and of the several states, and any other laws of any other jurisdictions which are applicable to You. You will not engage in or promote any illegal activities of any kind in association with Company or any of its Programs.
6.9 You represent and warrant that You own or have the legal right to use and distribute all content, copyrighted material, products, and services displayed on Your Media. You further represent and warrant that you have the right, power, and authority to enter into this Agreement and grant the rights specified herein.
6.10 You represent and warrant that You will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service ("Site Data"). If instructed to do so by Company and/or if this Agreement terminates, You will immediately remove and discontinue the use of any Site Data.
6.11 You acknowledge that Company does not represent, warrant, or make any specific or implied promises as to the successful outcome, or any outcome, of any Program or Programs.
6.12 You acknowledge that if any errors or undesirable results occur to You or a third party that do not result from the willful misconduct by Company, gross neglect of Company, or breach of this Agreement by Company, then Company shall not be responsible for any losses or damages You may incur and You may not be compensated for said losses or damages by Company.
6.13 If You are notified that fraudulent activities may be occurring on your Media, and You do not take any actions to stop the fraudulent activities, then You are responsible for all associated costs and legal fees resulting from these fraudulent activities that may be incurred by Company or Advertisers. Such responsibility includes, but is not limited to, the indemnity provided by You in Section 9, below.
6.14 If You have affiliates, publishers, or other agents performing any portion of Your obligations or services under this Agreement, You represent and warrant that all such affiliates, publishers, or other agents will agree or have agreed to substantially similar prohibitions on their conduct as are contained in this Agreement. You further agree that the acts or omissions of any of Your affiliates, publishers, or other agents shall be as if those acts or omissions were Your acts or omissions for all purposes under this Agreement (including such times as the agent may act outside of their scope of agency), and You shall in all other ways be obligated as a principal for the acts or omissions of your agents.
7.1 This Agreement shall commence upon Your acceptance and remain in effect until terminated. This Agreement may be terminated by either Party upon three (3) calendar days' notice, or immediately by Company if Company reasonably determines You breached this Agreement. This Agreement shall terminate immediately upon the windup and dissolution or insolvency of either Party, whether voluntary or not.
7.2 Company reserves the right, in its sole and absolute discretion, to immediately terminate a Program or your participation in a Program at any time for any reason. Company also reserves the right, in its sole and absolute discretion, to remove any advertisements related to Company or to a Program at any time for any reason. Company further reserves the right to immediately terminate Your access to the Site at any time without notice.
7.3 Notice of termination of this Agreement may be provided in written form, and may be delivered via letter, facsimile, or e-mail (though any writing expressing the termination of this Agreement is sufficient) and will take effect three (3) calendar days after the notice is sent, or immediately upon receipt by Affiliate, whichever occurs first. All Bounties due to You will be paid during the next billing cycle. If You commit any violations of Section 3 of this Agreement, then all payments owed to You are forfeited, as determined in the sole and absolute discretion of Company.
7.4 The terms of Sections 4, 8, 9, 10, 12, 14 and 15 shall remain in full force and effect after termination of this Agreement. All payment obligations of either party to the other shall survive until fully performed.
8. Confidential Information; Non-Disclosure.
8.1 All information submitted by end-user customers pursuant to a Program is proprietary to and owned by Company or its affiliates. Such customer information is confidential and may not be disclosed by Company or You. In addition, You acknowledge that all non-public information, data and reports received from Company hereunder or as part of the services hereunder is proprietary to and owned by Company ("Confidential Information").
8.2 You agree not to disclose the terms of any Program or Programs, including the CPA value, to any third party without the express written consent of Company, and that such constitutes Confidential Information. You agree not to disclose Your Site access information (e.g. Your username and password) to any third party that is not an employee, officer, or director of You, and that Your Site access information constitutes Confidential Information.
8.3 All Confidential Information is or may be protected by copyright, trademark, trade secret and other intellectual property law, as appropriate. You agree not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary or onfidential information in any manner. These non-disclosure obligations shall survive the termination of this Agreement for a period of five (5) years.
8.4 This section does not bind Company or You in the event such information is required to be disclosed by operation of law. If a request is made of You to disclose such information, you must immediately inform Company via written notice sufficiently promptly to allow Company to seek a Protective Order prior to the time commanded to produce or disclose such Confidential Information, and You agree to cooperate in whatever way Company requests to attempt to protect that information from disclosure by operation of law.
9. Limitation of Liability; Disclaimer of Warranty.
9.1 IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE SITE (INCLUDING YOUR INABILITY TO ACCESS OR USE THE SITE), OPERATION OF A PROGRAM (INCLUDING YOUR INABILITY TO ACCESS OR USE AN ADVERTISER'S WEBSITE), OR YOUR DISPLAY OF ANY PROGRAM CREATIVE ON YOUR MEDIA, INCLUDING BUT NOT LIMITED TO BROKEN IMAGES, UNAVAILABILITY OF SOME OR ALL OF THE SITE OR OTHER SERVICES PROVIDED BY COMPANY), SPECIAL, INDIRECT, INCIDENTAL, LOST PROFIT, PUNITIVE AND CONSEQUENTIAL DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 THE INFORMATION, CONTENT AND SERVICES ON THE SITE ARE PROVIDED ON AN "AS IS" BASIS WITH NO WARRANTY. YOU USE THE SITE AND RUN PROGRAMS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE OPERATION OF THE SITE, THE INFORMATION, SERVICES, AND CONTENT INCLUDED ON THE SITE AND PROVIDED BY COMPANY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ON THIS SITE OR PROVIDED BY COMPANY IS ACCURATE, COMPLETE OR CURRENT.
9.3 IN THE EVENT THAT COMPANY IS DETERMINED TO HAVE DAMAGED YOU, WHETHER THROUGH BREACH OF THIS AGREEMENT OR OTHERWISE, YOU AGREE THAT THE MAXIMUM LIABILITY COMPANY SHALL INCUR TO YOU IS LIMITED TO THE SUM OF THE BOUNTIES COMPANY PAID TO YOU IN THE SIX MONTHS PRIOR TO THE ACTS OR OMISSIONS CAUSING SUCH LIABILITY. IF THIS AGREEMENT BETWEEN YOU AND COMPANY WAS EXECUTED LESS THAN SIX MONTHS PRIOR TO THE ACTS OR OMISSIONS CAUSING SUCH LIABILITY, THAN THE MAXIMUM LIABILITY COMPANY SHALL INCUR TO YOU IS LIMITED TO THE AVERAGE DAILY BOUNTY EARNED BY YOU DURING THE PERIOD FOLLOWING EXECUTION OF THE AGREEMENT MULTIPLIED BY ONE HUNDRED EIGHTY (180).
10.1 You shall indemnify, defend and hold Company (including Company's parents, successors, subsidiaries, officers, directors, shareholders, employees, and other agents) harmless from and against any and all claims, allegations, liabilities, costs, expenses (including reasonable attorneys' fees and reasonable other professionals' fees) or other damages by third parties arising out of Your: (a) improper use of the Site; (b) improper operation of a Program; (c) breach or violation of this Agreement; or (d) willful misconduct or gross neglect not covered by the terms of this Agreement. Company shall indemnify, defend and hold You harmless from and against any and all claims allegations, liabilities, costs, expenses (including reasonable attorneys' fees) or other damages by third parties arising out of any actual infringement of intellectual property rights resulting from Your display of Company's advertising creative provided in connection with operating a Program, so long as Your display of Company's advertising creative does not breach this Agreement.
11. Assignment and Jurisdiction.
11.1 Company may assign this Agreement to a subsidiary or business successor. You may not assign this Agreement without the prior written consent of Company, which shall not be unreasonably withheld. This Agreement shall be construed and governed by the law of the state of California. You expressly consent to the exclusive venue and personal jurisdiction of the state and federal courts located in Los Angeles County, California for any actions arising from or relating to this Agreement.
12.1 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.
13. Force Majeure.
13.1 Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of Acts of God, fires, storms, war, terrorism, governmental action, labor conditions, riots, earthquakes, floods, other natural disasters, interruption in Internet service, or any other cause which is beyond the reasonable control of such Party.
14. Attorneys' Fees and Other Collection Costs.
14.1 Company shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, other professionals' fees, and other collections costs, and prejudgment interest at the maximum legal rate, in any action or proceeding arising out of this Agreement resulting from the gross negligence or willful misconduct of You, or that results from Your breach of the Agreement. You shall be entitled to an award of your reasonable costs and expenses, including attorneys' fees, in any action or proceeding arising out of this Agreement resulting from the gross negligence or willful misconduct of Company.
15.1 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. Each Party is an independent contractor and not a partner, joint venturer or employee of the other. All notices to You shall be sent to the addresses submitted by You when signing up for the service by certified mail, fax, email or courier. You shall send all notices to Company to the contact information listed on the Site.
15.2 Company reserves the right to change any conditions of this Agreement at any time, with or without notice. Such changes shall affect all future use or uses of Site or Programs by You, and your future use of the Site or Company's Programs constitute affirmative consent to the new agreement.
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