PLEASE READ THE ENTIRE AGREEMENT, YOU MAY PRINT THIS PAGE FOR YOUR RECORDS.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND BrainO Solutions LLC
YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in BrainO Solutions LLC Affiliate Program (“the Program”). The purpose of this Agreement is to allow HTML linking between your web site and the BrainO Solutions LLC web site. Please note that throughout this Agreement, “we,” “us,” and “our” refer to BrainO Solutions LLC, and “you,” “your,” and “yours” refer to the affiliate and any sites and software applications that you own or operate and link to us.
2. Affiliate Obligations
2.1. We may reject your application at our sole discretion. We may cancel your application if we determine that your site is unsuitable for our Program, including if it:
2.1.1. promotes sexually explicit materials;
2.1.2. promotes violence;
2.1.3. promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
2.1.4. promotes illegal activities;
2.1.5. incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law;
2.1.6. includes BrainO Solutions LLC or variations or misspellings thereof in its domain name;
2.1.7. is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion; or
2.1.8. contains software downloads that potentially enable diversions of commission from other affiliates in our program.
2.2 You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are BrainO Solutions LLC or any other affiliated business.
2.3. As a member of the Program, you will have access to Affiliate Account Manager. Here you will be able to review our Program’s details and previously-published affiliate newsletters, download HTML code (that provides for links to web pages within the BrainO Solutions LLC web site) and banner creatives, browse and get tracking codes for our coupons and deals. In order for us to accurately keep track of all guest visits from your site to ours, you must use the HTML code that we provide for each banner, text link, or other affiliate link we provide you with.
2.3. BrainO Solutions LLC reserves the right, at any time, to review your placement and approve the use of your links and require that you change the placement or use to comply with the guidelines provided to you.
2.4. The maintenance, accuracy and updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
2.5. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person’s copyrighted material, whether it isa writing, image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third party rights.
3. BrainO Solutions LLC Rights and Obligations
3.1. We have the right to monitor your site at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made, or to make sure that your links to our web site are appropriate and to notify further you of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the Program.
3.2. BrainO Solutions LLC reserves the right to terminate this Agreement and your participation in the Program immediately and without notice to you should you commit fraud in your use of the Program or should you abuse this program in any way. If such fraud or abuse is detected, BrainO Solutions LLC shall not be liable to you for any commissions for such fraudulent sales.
3.3. This Agreement will begin upon our acceptance of your Affiliate application, and will continue unless terminated in accordance with this Agreement.
4.1 Either you or we may end this Agreement AT ANY TIME, with or without cause, without prejudice to any right accrued under this licence by giving the other party 7 days written notice. Written notice can be in the form of post, email or fax. In addition, this Agreement will terminate immediately upon any material breach of this Agreement by you.
4.2 Upon termination, any and all licenses you have the benefit of will automatically terminate and you shall immediately:
4.2.1 discontinue the use of or disable any links to our website;
4.2.2 remove the links and BrainO Solutions LLC’s name and logos from your website; and
4.2.3 destroy any copies of material from your website which are in your possession, custody or control.
4.3We may withhold accrued unpaid advertising fees for a reasonable period of time following termination to ensure that the correct amount is paid (e.g., to account for any cancellations or returns).
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and the Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in the Program following the posting of the change notice or new Agreement on our site will indicate that: you agree to the changes;you agree to be bound by this Agreement; and you acknowledge and agree that you have independently evaluated the desirability of participating in the Program and are not relying on any representation, guarantee, or statement other than as expressly set out in this Agreement.
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7. Promotion Restrictions
7.1. You are free to promote your own web sites, but naturally any promotion that mentions http://traffpoint.com/ or BrainO Solutions LLC could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by BrainO Solutions LLC. For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote BrainO Solutions LLC so long as the recipient is already a customer or subscriber of your services or web site, and recipients have the option to remove themselves from future mailings.
Also, you may post to newsgroups to promote BrainO Solutions LLC so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your web sites as independent from BrainO Solutions LLC. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
7.2 Affiliate shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited Merchant’s site. “Parasiteware™” and “Parasitic Marketing” shall mean an application that:
7.2.1 through accidental or direct intent causes the overwriting of affiliate and non affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email;
7.2.2 intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines);
7.2.3set commission tracking cookies through loading of Merchant site in IFrames, hidden links and automatic pop ups that open BrainO Solutions LLC site;
7.2.4 targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; or
7.2.5 removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
8. Grant of Licenses
8.1. We grant to you a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free, revocable right to:
8.1.1access our site through HTML links solely in accordance with the terms of this Agreement; and
8.1.2 solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the “Licensed Materials”) that we provide to you or authorize for such purpose.
8.2. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights, title and interest in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
8.3 You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in or to, the Program, link formats, content, any domain name owned or operated by us or our affiliates, operational documentation, our and our affiliates’ trademarks and logos, and any other intellectual property and technology that we provide or use in connection with the Program (including,but not limited to, any application program interfaces, software development kits, libraries, sample code, and related materials). If you provide us or any of our affiliates with suggestions, reviews, modifications, data, images, text, or other information or content about a product or in connection with this Agreement, any content, or your participation in the Program, or if you modify any content in any way, (collectively, “Your Submission”), you hereby irrevocably assign to us all right, title, and interest in and to Your Submission and grant us (even if you have designated Your Submission as confidential) a paid-up royalty-free, nonexclusive, worldwide, irrevocable, freely transferable, perpetual (or if perpetual is not permitted, for the maximum duration of protection available, under applicable law) right and licence to use, reproduce, perform, display,adapt, and distribute Your Submission in any manner, including the creation of derivative works for any purpose and ability to sublicense of such rights.
8.4 Additionally, you warrant that Your Submission is your own original work (or was obtained lawfully) and our, or our sublicensees’, exercise of rights under the licence will not violate any person’s or entity’s rights, including any intellectual property rights. You agree to provide us such assistance as we may require to document, perfect, or maintain our rights in and to Your Submission.
BrainO Solutions LLC MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING BrainO Solutions LLC’S SERVICE AND WEBSITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF BrainO Solutions LLC ABILITY, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SATISFACTORY QUALITY, QUIET ENJOYMENT NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR WEBSITE WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.WE MAY DISCONTINUE ANY SERVICE, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE FROM TIME TO TIME.
FURTHER, WE WILL NOT BE RESPONSIBLE FOR ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES, OR ANY UNAUTHORISED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR WEBSITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT.
10. Representations and Warranties
You represent and warrant that:
10.1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms;
10.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
10.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
11. Limitations of Liability
11.1 WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL BrainO Solutions LLCS CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
11.2 SIMILARLY, WE WILL HAVE NO LIABILITY FOR ANY OF YOUR END USERS’ CLAIMS AND YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US, OUR AFFILIATES, LICENSORS OR OUR OR THEIR EMPLOYEES, DIRECTORS AND REPRESENTATIVES, HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES AND COSTS IN RELATION TO ANY MATTER RELATING TO THE CONTENT OF THIS AGREEMENT.
11.3 NOTHING IN THIS AGREEMENT EXCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY ARISING AS A RESULT OF THE NEGLIGENCE OF EITHER PARTY, ITS EMPLOYEES, AGENTS OR AUTHORISED REPRESENTATIVES, EITHER PARTY’S CONTRACTUAL LIABILITY FOR GROSS NEGLIGENCE OR WILFUL MISCONDUCT, OR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED UNDER THE APPLICABLE LAW.
12.1 You hereby agree to indemnify and hold harmless BrainO Solutions LLC, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable legal fees) (“Losses”) insofar as such Losses (or actions) arise out of or are based on:
12.1.1 any claim that our use of the affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party;
12.1.2any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you; or
12.1.3 any claim related to your site, including, without limitation, its content not attributable to us.
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked “Confidential,” will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
14.1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and BrainO Solutions LLC or our affiliates. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or any other site or otherwise, that reasonably would contradict anything in this section.
14.2 You acknowledge and agree that we and our affiliates may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement or operate sites that are similar to or compete with your site.
14.3. You may not assign this Agreement, by operation of law or otherwise, without our express prior written approval. We may assign it to any of our affiliates or another party who undertakes to abide by our covenants and obligations given here. Subject to that restriction, this Agreement will be binding on and be enforceable against the parties and their respective successors and assigns.
14.4 You acknowledge that you have read and that you agree to the terms of our Privacy Notice. You authorise us to process any personal data we obtain in connection with this Agreement and the Program in compliance with applicable law on data protection and in accordance with our Privacy Notice.
14.5 Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce any provision of this Agreement.
14.4. This Agreement shall be governed by and interpreted in accordance with the laws of CA, United States without regard to the conflicts of laws and principles thereof.
14.5. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
14.6. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
14.7. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
14.8. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this Agreement shall have full force and effect.
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