Terms of Service

PLEASE READ THIS PUBLISHER / AFFILIATE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE SERVICES OFFERED BY SHOPPINGADS, INC. ("COMPANY") IN CONNECTION WITH COMPANY'S NETWORK OF AFFILIATES AND ADVERTISERS ("AFFILIATE NETWORK"). BY CLICKING ON THE "I ACCEPT" BUTTON BELOW, YOU ("AFFILIATE") AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT: (A) CLICK ON THE "CANCEL" BUTTON; AND (B) YOU WILL NOT HAVE ANY RIGHT TO USE THE AFFILIATE NETWORK OR ANY OTHER ASSOCIATED SERVICES OFFERED BY COMPANY. COMPANY'S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS AND CONDITIONS OF THIS AGREEMENT SHOULD BE CONSTRUED AS AN OFFER BY COMPANY, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

Please be advised that this Agreement is subject to change at any time, in Company's sole discretion. Changes may include, without limitation, changes in the payout structure, payment procedures and other policies related to the Affiliate Network. The continued participation by Affiliate in the Affiliate Network constitutes agreement by Affiliate to any and all changes to this Agreement in effect at that time. Affiliates continued use of the Site (as that term is defined herein below) after such modification and notification thereof constitutes Affiliate's consent to such changes.

The web pages available at www.shoppingads.com, and all linked pages unless indicated otherwise ("Site"), are owned and operated by Company, and are accessed by you under the following terms and conditions:

ShoppingAds Program Policies

Clicks and Impressions: Clicks on ShoppingAds ads must result from genuine user interest. Any method that artificially generates is strictly prohibited. These prohibited methods include but are not limited using robots, automated click and impression generating tools, third-party services that generate clicks or impressions such as paid-to-click, paid-to-surf, autosurf, and click-exchange programs, or any deceptive software. Failure to comply with this policy may lead to your account being disabled.

Publisher Obligations to ShoppingAds

Accurate, Up-to-Date Information. You agree to provide SHOPPINGADS and Advertiser with accurate information and maintain up-to-date Account information (such as contact information, Web sites used, etc.).
Use of Links. You represent and warrant that all promotional means used by You will not contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities), and that You will not mislead others. You agree to: (i) use ethical and legal business practices, (ii) comply with the Advertisers' Program terms and this Agreement, (iii) maintain a privacy policy on Your Web site and for any non-Web site based promotional method made available to Visitors, and (iv) designate Your Publisher Account as special if You promote an Advertiser(s) by any means other than displaying a Link to the Advertiser on Your Web site. SHOPPINGADS must approve all of Your promotional activities and may deem Your promotional activities inappropriate and a material breach of this Agreement in SHOPPINGADS's sole discretion. Our Compliance team reviews publisher conduct and any suspected fraudulent, abusive or otherwise illegal content or activity by You through Your promotional methods, or that is perpetrated through use of the Network Service, is grounds for immediate termination of this Agreement or deactivation of Your Account.
Promotional Methods. You represent and warrant that You will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation), and/or any other laws and/ or regulations that govern email marketing and/or communications. You represent and warrant that You will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results. Pop up/unders must honor the SHOPPINGADS Publisher Code of Conduct requirements (as such requirements may be modified from time to time), including but not limited to: (i) installation requirements, (ii) end-user agreement requirements, (iii) afsrc=1 requirements, (iv) requirements prohibiting usurpation of a Transaction that might otherwise result in a Payout to another Publisher (e.g. by purposefully detecting and forcing a subsequent click-through on a link of the same Advertiser) and (v) non-interference with competing advertiser/ publisher referrals.
Personally Identifiable Information of Visitors. You represent and warrant that You will not enable the Tracking Code to collect personally identifiable information of Visitors that would allow SHOPPINGADS to personally identify Visitors.
Privacy. You must conspicuously post Your privacy policy on Your Web site and otherwise make it available to all Visitors. Your privacy policy must comply with all laws and regulations regarding the privacy of Visitor information, be commercially reasonable, and fully and accurately disclose Your collection and use of Visitor information. You must fully and accurately disclose Your use of third party technology, including SHOPPINGADS's tracking technology, use of cookies and options for discontinuing use of such cookies.
Applicable Codes and Code Maintenance. In order for SHOPPINGADS to record the tracking of Visitors' Transactions resulting from clicks on Links to Advertisers promoted by You, You must include and maintain a SHOPPINGADS "Tracking Code" within the Advertiser's Links. All Advertiser Links and all advertisements ("Ad Content") must be in a Network Service compatible format.
Usage and Security of Account. You shall be responsible for all usage and activity on Your account and for loss, theft or unauthorized disclosure of Your password (other than through SHOPPINGADS's negligent or willful conduct or omission). You shall provide SHOPPINGADS with prompt written notification of any known or suspected unauthorized use of Your Account or breach of the security of Your Account.

ShoppingAds Terms & Conditions

DESCRIPTION OF AFFILIATE NETWORK. The Affiliate Network enables Affiliates to apply for and, upon approval by Company and, where applicable, the advertising customer of Company authorized to use the Affiliate Network ("Advertiser"), earn Commissions (as that term is defined herein below) through participation in Advertiser marketing campaigns featuring the applicable Advertiser’s product and/or service offerings in accordance with the terms and conditions of this Agreement (each, a "Campaign"). Company may reject your Affiliate Network application and/or terminate your participation in the Affiliate Network at any time and for any reason, in Company’s sole discretion. Such reasons may include, without limitation: (i) where Company believes that you are in any way in breach of this Agreement; (ii) where Company believes that the Affiliate Websites (as that term is defined herein below) are unsuitable for inclusion in the Affiliate Network for any reason including, without limitation, that the Affiliate Websites contain or link to material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable; and/or (iii) where Company believes that you, at any time, are conducting commercial activities that do not fully comply with all applicable local, state and federal laws, rules and/or regulations. Company and/or any Advertiser may also, in their respective discretion, reject Affiliate’s application for any Campaign for any reason and no reason. Advertisers shall make certain creative including, without limitation, all banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mails, tests, graphic files and similar online media (collectively, "Advertisements") available for use in connection with the applicable Campaigns. Upon approval of Affiliate by any Advertiser, Affiliate may download certain Advertisements provided by Customer on the Affiliate Network: (a) for publication on Affiliate’s website and/or any other website affiliated with, owned, operated and/or controlled by such Affiliate ("Affiliate Website"); or (b) for distribution to those e-mail addresses listed in Affiliate’s database and/or any other database affiliated with, owned, operated and/or controlled by such Affiliate ("Affiliate E-mails"). The applicable Campaign specifications shall set forth the valid sales, leads, applications, accounts, clicks or other compensable activities, that will apply for each such Campaign (the "Compensable Transactions"). Compensable Transactions achieved by the display and/or placement of Advertisements on Affiliate’s Website or in Affiliate E-mails will be calculated by Company through the use of industry standard tracking technology. Unless otherwise stated in writing by Company, each Advertisement made available to Affiliate in connection with any Campaign must include, in unaltered form, the transaction tracking codes as embedded by Company in all such Advertisements (the "Transaction Tracking Codes"). Affiliate will not knowingly, modify, circumvent, impair, disable or otherwise interfere with any Transaction Tracking Codes and/or other technology and/or methodology required or made available by Company to be used in connection with any and all Advertisements. Affiliate will ensure that any and all Affiliate Websites employed in connection with any and all Campaigns feature a privacy policy, linked, at a minimum, conspicuously from such Affiliate Website’s home page, with a link that contains explicit language indicating its presence. Such privacy policy shall, in addition to the disclosures about Affiliate’s privacy practices, identify the collection and use of any information Affiliate collects, provides or may provide to Company and to any Advertiser or other websites or persons with which Affiliate has any other arrangement relating thereto.
LICENSE/USE OF ADVERTISEMENTS. "Upon Company’s acceptance of your application to be an Affiliate, Company grants you a non-exclusive, non-transferable, revocable and limited license to use the Affiliate Network, as well as the Advertisements made available via the Affiliate Network, solely and exclusively in connection with Affiliate’s efforts to market the products and/or services featured in each Campaign in accordance with the terms and conditions contained herein. Company may change or revise the Advertisements that are made available hereunder at any time, in its sole discretion, and Affiliate agrees to use only the most recent version of the Advertisements that are posted on the Site. Affiliate may not alter, modify or otherwise change the Advertisements in any manner, whatsoever. Company may terminate Affiliate’s right to use the Advertisements for any reason at any time, in its sole discretion. Affiliate may only use Advertisements that are supplied by Company and that are posted on the Site. Use, or the attempted use, of any other marketing materials in connection with the Affiliate Network will result in the immediate termination of this Agreement, without notice. Each Affiliate agrees that Company may, in its sole discretion, direct the placement of the Advertisements. Unless such direction is given, and subject to the terms and conditions of this Agreement, the applicable Campaign and all applicable laws, rules and regulations, Affiliate may display the Advertisements as often and in as many areas of your Affiliate Websites and/or in creative for distribution to those e-mail addresses listed in the Affiliate Database, as you desire, in your discretion. Notwithstanding the foregoing, Affiliate must comply, immediately, with any and all requests by Company to modify, alter or otherwise change the positioning, placement, frequency and/or other editorial decisions related to Advertisements. Affiliate must immediately remove Advertisements upon receiving notice from Company or upon the termination or expiration of any applicable Campaign. Affiliate may not use brand names and/or trademarks of another party in the "subject" or "from" lines or body of any commercial e-mail transmission. Affiliate may not use third-party trademarks in any other way to direct traffic to any Affiliate Websites or Advertiser website including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name, or any derivative of any such trademark, service mark or brand name, of any of the Advertisers, Company and/or any of their respective affiliates or clients. Affiliate may not allow the Advertisements to be placed on any non-Affiliate Websites without the prior express written consent of Company. Affiliate must place or use the Advertisements only with the intention of delivering valid Compensable Transactions. Affiliate may not, nor knowingly permit any person to, activate the Advertisements or inflate the amount of Compensable Transactions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, Iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing a Compensable Transaction. Affiliate agrees and acknowledges that it shall not: (i) use incentivize offers, create the appearance of incentivizing offers, establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Compensable Transactions, or otherwise attempt to induce Internet users to click on any of the Advertisements through use of any other incentives, without obtaining the prior written approval of Company; (ii) place any statement in close proximity to the Advertisements requesting that e-mail recipients or Internet users "click" on the Advertisements; (iii) place misleading statements in close proximity to the Advertisements; and/or (iv) redirect traffic to a website other than the website listed by the particular Advertiser. Prior to the sending of any commercial e-mail in connection with the Affiliate Network, Affiliate shall provide Company with a list of Internet protocol ("IP") addresses and domain names that it intends to use in connection with the particular Campaign. Should Affiliate market any Campaign to its Affiliate Database, Affiliate must, upon the request of Company, be able to produce the name, date, time, IP address and referral uniform resource locator ("URL") where the applicable consumers granted Affiliate affirmative consent, as defined by applicable law, to send such e-mail marketing messages. Affiliate is solely responsible for all consumer complaints relating to e-mail campaigns conducted by Affiliate. Affiliate represents and warrants that it will respond to all consumer complaints within forty-eight (48) hours of notification. In addition to all other available remedies, Company may withhold and suspend Commission payment until any and all outstanding consumer complaints are resolved. All costs associated with such required actions shall be deducted from the Affiliate Commission.
COMPENSATION AND PAYMENT. "Company shall pay commissions according to the payment terms of the applicable Campaign ("Commissions") as set forth in the Affiliate Network and/or on the Site. Company shall pay Affiliate Commissions based on the Compensable Transactions recorded by the Transaction Tracking Codes approximately thirty (30) days after the last day of a given calendar month, for Commissions earned in that month. All determinations made by Company in connection with the Advertisements, Transaction Tracking Codes, Compensable Transactions and any associated payments due to Affiliate shall be final and binding on Affiliate. Company, in its sole discretion, may withhold any and all payments due and owing to Affiliate until such time as the applicable Advertiser has paid Company for the associated Campaign. Company reserves the right to reduce any and all payments owed to Affiliate where Advertiser has offset payments owed to Company. Notwithstanding the foregoing, Company’s services do not involve investigating or resolving any claim or dispute involving Affiliate and any Advertiser or other third party. Company shall compile, calculate and post on the Site data derived from the Transaction Tracking Codes and otherwise that Company has used to determine Affiliate’s billing and the associated Commissions due to Affiliate (the "Affiliate Reports"). Any questions or disputes regarding the Affiliate Reports must be submitted in writing to Company within five (5) business days of the date that the applicable Affiliate Report is posted on the Site; otherwise, the information contained therein will be deemed accurate and accepted by Affiliate. Company will investigate and resolve any Affiliate Report-related questions or disputes in its sole discretion. If, due to any impairment of the Transaction Tracking Codes or any other reason, Company is unable or fails to provide Affiliate with accurate and/or complete Affiliate Reports, Company shall calculate Compensable Transactions, based upon: (i) Affiliate’s average monthly Compensable Transactions recorded by Company for the applicable Campaign, prorated for any shorter or longer period of time, where data is available to calculate a monthly average; or (ii) such amount that Company reasonably determines is due and owing, in its sole discretion, where data needed to calculate Affiliate’s average monthly Compensable Transactions is unavailable. Company shall not be responsible to pay Affiliate on any eligible Commissions where: (a) the applicable Compensable Transaction involves the generation of leads, and the applicable leads delivered by Affiliate are comprised of consumers that have previously registered for, opted-in to and/or are already a member and/or an applicable Campaign customer of the applicable Advertiser, as the case may be; and/or (b) the subject e-mail recipient did not opt-in to receiving e-mail marketing from Advertiser. Company will not pay Commissions on any billings: (1) that occur before Affiliate is accepted into the Affiliate Network; (2) that occur after termination of this Agreement or any applicable Campaign; and/or (3) if Affiliate is in breach of any term contained in this Agreement. Company will not pay any Commissions to Affiliate unless Company has documentation to support such Commissions within the Company database and Affiliate Reports. Company may require Affiliate to provide a W-9, or similar tax identification information, as a condition precedent to receiving any Commission payments. Company reserves the right to withhold and/or cancel Commission payments due and owing to Affiliate at any time, in its sole discretion, when Company believes that Affiliate is in breach of any term of this Agreement. Customers that buy products and/or services through the Affiliate Network shall not be deemed to be the customers of Company. All Commission payments due to Affiliate will be paid in US dollars. Affiliate agrees to pay all applicable taxes or charges imposed by any government entity in connection with Affiliate’s use of, or participation on, the Affiliate Network.
COPYRIGHT/INTELLECTUAL PROPERTY RIGHTS. "The organization, graphics, design, compilation, magnetic translation, digital conversion, software and other matters related to the Affiliate Network, Advertisements, Affiliate Reports, Suppression Lists (as that term is defined herein below) made available by Company or any Advertiser, Transaction Tracking Codes and the Site are protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights. The usage, copying, redistribution and/or publication by Affiliate of any part of the Affiliate Network, Advertisements, Affiliate Reports, and Suppression Lists made available by Company or any Advertiser, Transaction Tracking Codes and the Site, other than as contemplated hereunder, are strictly prohibited. Affiliate does not acquire any ownership rights to the Affiliate Network, Advertisements, Affiliate Reports, Suppression Lists made available by Company or any Advertiser, Transaction Tracking Codes and/or the Site. The availability of the Affiliate Network, Advertisements, Affiliate Reports, and Suppression Lists made available by Company or any Advertiser, Transaction Tracking Codes and the Site does not constitute a waiver of any rights related thereto.
USAGE. "Company may use Affiliate’s personal information in any manner consistent with the Company Privacy Policy, which is hereby incorporated into, and made part of, this Agreement. For additional information regarding the Company’s usage of Affiliate information collected, please refer to the Company Privacy Policy located at the Site.
E-MAIL MARKETING POLICY/CAN-SPAM COMPLIANCE. "Affiliate represents and warrants that, at all times, it will comply with all applicable state and federal laws, rules and Federal Trade Commission implementing regulations (including, but not limited to, the CAN-SPAM Act of 2003, as amended ("CAN-SPAM") and any international laws, rules and regulations), as well as any published rules or guidelines of any applicable e-mail service providers, with respect to its e-mail marketing. Affiliate acknowledges that any failure to comply with this Section 6 may, in Company’s sole discretion, result in the immediate termination of this Agreement and the forfeiture of any and all rights to any Commissions otherwise owed to Affiliate by Company. When performing e-mail marketing of any kind and on behalf of any Advertiser, Affiliate represents and warrants that Affiliate shall transmit commercial e-mail only to those recipients that have given Affiliate Affirmative Consent to receive e-mail advertising from Affiliate and have not revoked such consent as of the date that the commercial e-mail was transmitted to such recipient. Affiliate must: (i) refrain from falsifying e-mail header and transmission information (including, without limitation, source, destination and routing information); (ii) not use any subject or from line that is materially false or misleading; (iii) refrain from seeking or obtaining unauthorized access to computers for the purpose of sending any and all commercial e-mail; (iv) include within all commercial e-mail sent: (a) a valid street address for both Affiliate and the Advertiser (if any); (b) a clear and conspicuous opt-out notice and functional opt-out mechanism that must remain active for at least thirty (30) days from the date that the subject e-mail was transmitted; and (c) process unsubscribe requests within three (3) days of receipt of same; (v) comply with all legal obligations and best practices with respect to unsubscribing consumers from the Affiliate’s e-mail mailing lists; (vi) at least once a week, scrub the Affiliate Database against the Advertiser suppression list, Company suppression list and Affiliate generated suppression list (collectively, the "Suppression List") as same will be made available on the Site, subject to the provisions contained herein below; and (vii) immediately notify Company in the event that any complaint, investigation and/or litigation ensues concerning Affiliate’s e-mail practices (whether or not such complaint, investigation and/or litigation relates to Affiliate’s relationship with Company).
SUPPRESSION LISTS. "With respect to any Suppression List generated in connection with, or made available by and through the Affiliate Network, Affiliate agrees to: (i) use such Suppression List, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of this Agreement; (ii) regularly use such Suppression List to remove any and all e-mail addresses or domains contained therein from future commercial e-mail mailings; (iii) not use the Suppression List for purposes of e-mail marketing (or provide the Suppression List to any third party for said purposes) and not send, or cause to be sent, any commercial e-mail messages to an e-mail address or domain appearing on any Suppression List; (iv) not use any Suppression List for purposes of e-mail appending in any manner whatsoever; (v) hold any Suppression List made available by Company or any Advertiser in trust and confidence and use same solely for the suppression purposes set forth herein; (vi) not retain a copy of any Suppression List made available by Company or any Advertiser following termination of this Agreement; and (vii) not disclose any Suppression List made available by Company or any Advertiser to any employee, consultant, subcontractor or third party individual, corporation or entity without first ensuring said party’s written agreement to be bound by the terms of this Agreement. Such agreement shall be immediately forwarded to Company, upon request. Company reserves the right to withhold its consent to such disclosure and may, within its discretion, accordingly bar the disclosure of any and all Suppression Lists made available by Company or any Advertiser. Affiliate shall upload its own list of suppressed e-mail addresses to the applicable area of the Site designated by Company ("SL Section"), if such an SL Section is provided by Company. If the SL Section is provided by Company, and no such e-mail addresses are supplied by Affiliate, Company may conclude that no such addresses exist. Affiliate further agrees and acknowledges that: (a) it has downloaded and removed the domains located on the Federal Communications Commissions ("FCC"s") wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all current data used in Company mailings; and (b) any and all new data that it acquires, regardless of its source, will be scrubbed against the FCC"s wireless domain names list and that the domain names contained therein will be removed before sending any Company mailings.
REPRESENTATIONS AND WARRANTIES. "Affiliate hereby represents and warrants that: (i) this Agreement has been duly and validly executed and delivered by Affiliate and constitutes Affiliate’s legal, valid and binding obligation which is fully enforceable against it in accordance with its terms; (ii) Affiliate will only transmit commercial e-mail to those recipients that have given Affiliate Affirmative Consent to receive e-mail advertising from Affiliate, and have not revoked such consent as of the date that the commercial e-mail was transmitted to such recipient; (iii) Affiliate will comply with all applicable state and federal laws, rules and Federal Trade Commission implementing regulations (including, but not limited to, CAN-SPAM), international laws, rules and regulations, as well as applicable e-mail service provider guidelines, with respect to the Affiliate Network; and (iv) Affiliate understands and agrees that Company will enter into similar agreements with other Company affiliates in direct competition with Affiliate. Affiliate will be solely responsible for the development, operation and maintenance of the Affiliate Websites, Affiliate Database and for any and all materials that appear on the Affiliate Websites. Such responsibilities include, without limitation: (a) the technical operation of the Affiliate Websites and all related equipment; (b) creating and posting content, descriptions and references on the Affiliate Websites; (c) the accuracy and propriety of materials posted on the Affiliate Website; (d) ensuring that materials posted on the Affiliate Websites do not violate or infringe upon the rights of any third party and are not defamatory, obscene, libelous, harmful, illegal or otherwise offensive; (e) ensuring that the Affiliate Websites comply with all applicable laws, rules and regulations; (f) ensuring that Affiliate’s use of the Affiliate Database will comply with all applicable privacy, data protection, credit and any other laws, statutes and governmental regulations including, without limitation, CAN-SPAM, state e-mail, deceptive marketing and privacy laws, the Fair Credit Reporting Act and the Children’s Online Privacy Protection Act; (g) ensuring compliance by any Sub-Affiliates with the terms of this Agreement including, without limitation, compliance with CAN-SPAM, e-mail marketing policy, suppression list usage and privacy terms; (h) ensuring that each such Affiliate Website shall, at all times during the term of this Agreement, maintain a privacy policy ("Affiliate Privacy Policy") that complies with applicable law; (i) that the Affiliate Privacy Policy shall explain that each such Affiliate Website allows third parties, including Advertiser, to serve the Advertisements within its media; and (j) that the Affiliate Privacy Policy explains that each such Affiliate Website is allowed to share any information collected therein with third parties, such as Advertiser as contemplated hereunder.
DISCLAIMER OF LIABILITY/ LIMITATION OF LIABILITY. "THE AFFILIATE NETWORK, SITE, AFFILIATE REPORTS, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND ADVERTISEMENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE AFFILIATE NETWORK, SITE, AFFILIATE REPORTS, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND ADVERTISEMENTS MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. COMPANY HAS NO LIABILITY, WHATSOEVER, TO AFFILIATE OR ANY THIRD PARTY, FOR AFFILIATE"S USE OF, OR INABILITY TO USE, THE AFFILIATE NETWORK, SITE, AFFILIATE REPORTS, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND ADVERTISEMENTS. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, COMPANY IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND AFFILIATE. THE AFFILIATE NETWORK, SITE, AFFILIATE REPORTS, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND ADVERTISEMENTS WOULD NOT BE PROVIDED TO AFFILIATE WITHOUT SUCH LIMITATIONS. COMPANY MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE AFFILIATE NETWORK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY AFFILIATE FROM COMPANY THROUGH THE AFFILIATE NETWORK, SITE, AFFILIATE REPORTS, SUPPRESSION LISTS, TRANSACTION TRACKING CODES OR ADVERTISEMENTS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. ALL RESPONSIBILITY AND/OR LIABILITY FOR ANY AND ALL DAMAGES CAUSED BY, AND/OR THROUGH, THE AFFILIATE NETWORK, SITE, AFFILIATE REPORTS, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND ADVERTISEMENTS IS EXPRESSLY DISCLAIMED. AFFILIATE UNDERSTANDS AND AGREES THAT PARTICIPATION IN THE AFFILIATE NETWORK AND ACCESS AND/OR USE OF THE SITE AND ADVERTISEMENTS IS DONE SOLELY AT AFFILIATE"S OWN DISCRETION AND AT AFFILIATE"S OWN RISK. AFFILIATE IS ALSO SOLELY RESPONSIBLE FOR ANY USE, OR ALLEGED USE, OF THE AFFILIATE NETWORK, SITE, AFFILIATE REPORTS, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND ADVERTISEMENTS THAT MAY INFRINGE UPON A THIRD PARTY"S INTELLECTUAL PROPERTY RIGHTS. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO AFFILIATE OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH AFFILIATE"S MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM AFFILIATE"S PARTICIPATION IN THE AFFILIATE NETWORK. COMPANY"S MAXIMUM AGGREGATE LIABILITY TO AFFILIATE AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE EQUAL TO THE PRICE THAT AFFILIATE HAS PAID TO PARTICIPATE IN THE AFFILIATE NETWORK.
CONFIDENTIALITY. 'Affiliate agrees that Company may use Affiliate's name, company name and/or likeness, the Affiliate Websites addresses and any associated information in Company's marketing materials and press releases, without compensating Affiliate. Affiliate shall not create, publish, distribute or permit any written material that makes reference to Company without first submitting such material to Company and receiving Company's prior written consent, which Company may withhold in its sole discretion. For purposes of this Agreement, 'Confidential Information' shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of this Agreement by one party ('Disclosing Party') to the other party ('Receiving Party'), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to: (a) a party's business plans, strategies, knowhow, marketing plans, suppliers, sources of materials, finances, business relationships, processes, methodologies, trade secrets, customer and vendor lists, personally identifiable customer information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format; (b) the Advertisements, as well as the material terms of this Agreement and/or any associated Advertisers and/or Campaigns; and (c) any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in this Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers: (i) who need to know such information in order for the Receiving Party to perform its obligation hereunder; and (ii) who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof: (i) is generally available to or known to the public through no wrongful act of the receiving party; (ii) was independently developed by the Receiving Party without the use of Confidential Information; or (iii) was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.
NON-SOLICITATION. 'Affiliate recognizes that Company has proprietary relationships with the Advertisers and other third-parties that participate in the Affiliate Network. Affiliate agrees not to circumvent Company's relationship with such Advertisers and third-parties, or otherwise offer, make available, provide, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by Affiliates in the Affiliate Network for any Advertiser or third-party publisher that is known, or should reasonably be known, by Affiliate to participate in the Affiliate Network, during the term of this Agreement and for the six (6) month period following termination or expiration of this Agreement. Notwithstanding the foregoing, to the extent that Affiliate can show that any such Advertiser or third-party already obtained such services from Affiliate prior to the date of this Agreement, then Affiliate shall not be prohibited from continuing such relationship.
TERMINATION. 'Either party may terminate this Agreement at any time upon written notice to the other party. Upon termination of this Agreement for any reason: (i) Affiliate shall immediately cease to use and remove from the Affiliate Websites any and all Advertisements and/or other materials made available to Affiliate in connection with Affiliate's participation in the Affiliate Network; (ii) Affiliate shall immediately cease transmitting any and all e-mails in connection with any Campaign; (iii) any and all licenses and rights granted to Affiliate in connection with this Agreement shall immediately cease and terminate; and (iv) any and all Confidential Information, Advertisements or proprietary information of Company (including, as applicable, any confidential or proprietary information of any Advertiser made available to Affiliate in connection with the Affiliate Network) that is in Affiliate's possession or control must be immediately returned or destroyed. If requested, Affiliate will certify in a writing signed by Affiliate or an authorized officer of Affiliate that all such confidential and/or proprietary information has been returned or destroyed.
INDEMNIFICATION. 'Affiliate agrees to indemnify, defend and hold harmless Company, its parents, affiliates and/or subsidiaries, and each of their respective officers, directors, partners, members, managers, employees, agents and attorneys, from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys' fees, court costs and/or settlement costs) arising from or related to: (i) Affiliate's breach of this Agreement and/or any representation or warranty contained herein; (ii) the Affiliate Websites, Affiliate Database and/or Affiliate's marketing practices; (iii) any third party allegation or claim against Company relating to a violation of any state and federal laws regarding online marketing including, but not limited to, CAN-SPAM and/or any state and federal laws regarding privacy and deceptive trade practices; (iv) any allegation that Affiliate has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; (v) any non-Campaign related content, goods or services offered, sold or otherwise made available by Affiliate on and through the Affiliate Websites, Affiliate Database or otherwise; (vi) any claim that Company is obligated to pay any taxes in connection with Affiliate's participation in the Affiliate Network; and/or (viii) Affiliate's participation in the Affiliate Network, in any manner whatsoever. You will promptly assume such defense with counsel reasonably acceptable to us upon written notice to you of such claim. We also reserve the right to participate in the defense at our sole expense. You agree that you will not settle any claim without our prior written approval.
ARBITRATION. 'Any dispute arising out of or relating to this Agreement shall be resolved in a binding arbitration under the auspices of the American Arbitration Association in New York, New York in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. In addition to all other rights and remedies a party may have, the prevailing party in any arbitration or legal action shall be entitled to an award of its reasonable attorneys' fees and costs. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. This binding arbitration provision shall not, however, prevent either party from seeking equitable or injunctive relief in a court of competent jurisdiction.
FORCE MAJEURE. 'Affiliate agrees that Company will not be liable, or be considered to be in breach of this Agreement, on account of Company's delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond Company's reasonable control and that Company is unable to overcome through the exercise of commercially reasonable diligence (a 'Force Majeure Event'). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, Company will give Affiliate notice and will use commercially reasonable efforts to minimize the impact of any such event.
MISCELLANEOUS. 'The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Affiliate except with Company's prior written consent. This Agreement shall be governed by and construed in accordance with the laws of the state of New York without regard to the conflict of laws provisions thereof. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Affiliate does not have any authority of any kind to bind Company in any respect whatsoever.