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| Affiliate Program Agreement |
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This Publisher Service Agreement (hereinafter
the "Agreement") is made by and agreed to between Commission
Junction, Inc. ("CJ"), and you ("You"). As an
application service provider, CJ facilitates "Performance Marketing
Programs" through provision of services ("Network
Service")
via the Internet. A "Performance Marketing Program" (or "Program")
is where a person, entity, affiliate or its agent operating one or
more "Web site(s)" (domain or portion of a domain within
the Internet and/or subscription email list(s) ("Publisher")
may earn financial compensation ("Payouts") for "Transactions" (actions
by Visitors as defined by the Advertiser ) made from such Publisher's
Web site or subscription emails through a click made by a "Visitor" (any
person or entity that is not the Publisher or the Publisher's agent)
through an Internet connection ("Link") to a Web site or
Web site content operated by another person or entity ("Advertiser").
The Advertiser compensates the Publisher, in accordance with this
Agreement and the Program Payout specifications.
Please
click here for newly added provisions
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1. Relationship. As a Publisher, You
agree not to:
(a) mislead others;
(b) operate or utilize a Web site or email Link(s) to Web sites that
contain or promote, any of these types of content: libelous, defamatory,
obscene, abusive, violent, bigoted, hate-oriented, illegal, cracking,
hacking or warez, or the offer of any illegal good or service, or Link(s)
to a Web site(s) that does so; and/or
(c) engage in spamming, indiscriminate advertising or unsolicited commercial
email.
CJ may deem Your promotional activities inappropriate and a material
breach of this Agreement based upon the foregoing, and/or on reasonable
Internet business standards as they may evolve. If You are in breach
of this Section 1, CJ shall provide You with notice and the opportunity
to cure (in accordance with Section 6.2 below), except that no opportunity
to cure shall be provided if You are in breach of Section 1(b) . Any
suspected fraudulent, abusive or otherwise illegal content or activity
by You on Your Web site or in Your subscription emails, or that is perpetrated
through use of the Network Service, is grounds for immediate termination
of this Agreement or deactivation of "Your Account" (a memo
account kept by CJ on Your behalf), without prior notice by CJ and may
include referral to the appropriate law enforcement agencies (as CJ deems
appropriate). CJ may not review all content on Your Web site or in Your
subscription emails. You shall remain solely responsible for Your Web
site and subscription email content. CJ is, under no circumstances, responsible
for the practices of any Advertiser or Publisher or such Advertiser or
Publisher's Web site(s) and/or the content that an Advertiser makes available
through the Network Service and/or the content of Publishers' subscription
emails. |
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| 2.1 Linking to Advertisers. During the
Term You may apply to Advertiser Programs for the opportunity to earn
Payouts through running one or more Advertiser "Campaigns" (pay-per-Transaction
promotions). Upon approval by the Advertiser for acceptance into its
Program, You may post (and remove) Links from Your Web site or subscription
emails to Advertiser's Web site or Web site content. If such Links
are not dynamically updated through the Network Service, You are obligated
to update Links to an Advertiser's Web site or Web site content when
notified to do so in order to earn Payouts. |
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2.2 Use of Links to Advertisers. You
may not place Links to an Advertiser's Web site or Web site content
in newsgroups, message boards, unsolicited email and other types of
spam, banner networks, counters, chatrooms, guestbooks, IRC channels
or through similar Internet resources. You must place Links to the
Advertiser's Web site or Web site content such that it is unlikely
that the Links will mislead the Visitor, and such that it is reasonably
likely that the Links will deliver bona fide Transactions by the Visitor
to Advertiser from the Link. None of Your promotional activities may
infringe an Advertiser's intellectual property rights (including but
not limited to trademark rights), intellectual property rights of a
competitor of an Advertiser, or CJ's intellectual property rights.
You shall not cause any Transactions to be made that are not in good
faith, including, but not limited to, using any device, program, robot,
Iframes, hidden frames, redirects or clicking on Links that You place
to the Advertiser. You shall not establish or cause to be established
any promotion that provides any rewards, points or compensation for Transactions,
or that allows third parties ("Sub-Publishers") to place an
Advertiser's Links on its Web site or in its emails, unless You receive
the Advertiser's prior written permission, upon notification to and verification
by CJ. You shall be responsible for ensuring that each Sub-Publisher
meets CJ's eligibility requirements (as established from time to time),
is bound by and complies with Publisher duties (and where stated Sub-Publisher
duties) as specified in this Agreement, and for payment of Payouts due
to Sub-Publisher that shall accrue in Your Account. You shall indemnify
CJ for all acts of Your Sub-Publishers without limitation.
The details of an Advertiser's Program and any Campaigns shall be available
through the Network Service. An Advertiser may prohibit You from receiving
compensation for a Payout attributable to Transactions made directly
by You or on Your behalf by Your agent by Linking to Advertiser from
Your Web site or in Your subscription email. An Advertiser may permit
You to serve the Advertiser's ad content and/or modify the Advertiser's
Links (including but not limited to the images contained therein). For "Lead" Campaigns,
the Advertiser is compensating a Publisher when a Visitor has completed
an action that is defined by the Advertiser, such as completing a form
or other mechanism to identify potential customers. The Advertiser shall
publish on the Network Service Lead Campaign parameters, including details
regarding any disqualifying Leads or Lead form content (such as multiple
Lead submissions), and the components included within an individual sale
Transaction that result in a Payout. Notwithstanding the preceding, no
details of an Advertiser's Program may conflict with terms and conditions
contained in this Agreement. CJ shall not be obligated to enforce or
honor any such conflicting terms and conditions. Breach of this Section
2.2 is cause for immediate termination from an Advertiser's Program or
Campaign and/or termination of this Agreement.
Publishers and Advertisers may enter into direct contractual relationships
through the apply to join process in the form of a click-through agreement
hosted by CJ ("Click-through Agreement") or in the form of
an offer made to You by Advertiser via the members' area on the Network
Service ("Offer"). It is Your obligation to review and accept
or decline a Click-through Agreement or Offer when such Click-through
Agreement or Offer is presented to You. If accepted by You, compliance
with the Click-through Agreement or Offer is solely Your responsibility.
The terms and conditions of the Click-through Agreement or Offer may
supercede or conflict with this Agreement and shall apply only with respect
to Your relationship with that particular Advertiser. |
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2.3 Termination from Advertiser's Program/Campaign.
After You have been approved by an Advertiser, the Advertiser may
terminate You, one of Your Web sites or subscription email lists, and/or
Sub-Publisher(s) from the Advertiser's Program or a Campaign upon 7
days written notice with effect from the 8th day from such notice ("Publisher
Termination for Convenience"); unless the Advertiser is terminating
You/Your Sub-Publisher upon notification to You for any of the following
material breaches ("Publisher Termination for Material Breach"):
(a) operation of an illegal business through such Web site and/or subscription
email list;
(b) engaging in any illegal activity of any type, including but not
limited to displaying illegal content on Your Web Site and/or in Your
subscription emails or offering any illegal good or service through
Your Web Site and/or subscription emails;
(c) operation of a Web site or email Link to Web sites that contain
or promote, any of the following content: libelous, defamatory, obscene,
abusive, violent, bigoted, hate-oriented, illegal, cracking, hacking
or warez, or Link to a Web site(s) that does so;
(d) engaging in indiscriminate or unsolicited commercial advertising
emails;
(e) placing Links to Your Web site in newsgroups, message boards, unsolicited
email and other types of spam, banner networks, counters, chatrooms,
guestbooks, IRC channels or through similar Internet resources;
(f) causing or enabling any Transactions to be made that are not in
good faith, including, but not limited to, by means of any device,
program, robot, Iframes, hidden frames, and redirects;
(g) establishing or causing to be established any promotion that provides
any rewards, points or compensation for Transactions, or that allows
third parties to place Links to the Advertiser's Web site or Web site
content, without such Advertiser's prior written permission;
(h) breach of the licensing provisions of this Agreement;
(i) breach of any other intellectual property right provision of this
Agreement or other of common law intellectual property rights of Advertiser;
and/or
(j) diluting, blurring or tarnishing the value of Advertiser's trademarks,
tradenames, and/or service marks.
CJ may terminate You/Your Sub-Publisher from an Advertiser's Program
or Campaign in CJ's sole discretion. |
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3.1 Applicable Codes and Code Maintenance.
In order for CJ to record the tracking of Visitors' Transactions resulting
from clicks on Advertiser Links on Your Web sites and/or subscription
emailings, two types of CJ code must be included in and maintained
within the Advertiser's Links: "Impression Tracking Code" and "Transaction
Tracking Code" (collectively referred to as "Tracking Code"),
and all Advertiser Links and all advertisements ("Ad Content")
must be in a Network Service compatible format. You, the Advertiser
or the Advertiser's agent may serve standard Ad Content. If the Advertiser
has any non-standard Ad Content or Link format, these must be served
by the Advertiser, You or a CJ authorized provider (contact CJ client
services for verification and authority).
CJ shall determine (where possible) actual Payouts that should be credited
to Your Account, and alternatively apply an estimated amount of Payouts,
if the Advertiser or its agent serves Advertiser's Ad Content and such
Links are not functioning properly, or if Links to an Advertiser's
Web site through the Network Service are not functioning properly due
to the Advertiser's negligent or intentional act or omission. CJ may
temporarily deactivate Your Account or terminate Your Account if You
or Your agent is responsible for the improper functioning of Ad Content
that You serve, or if You otherwise interfere with and/or fail to maintain
the Impression Tracking Code and Transaction Tracking Code. |
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3.2 Network Service.
Subject to Section 3.1, CJ shall provide You with access to tracking
and reporting tools, and to support services. From time to time CJ
may offer optional services for a fee. Fees for such optional services
are at CJ's then-current published rates or as may be quoted by CJ,
and are payable in advance or may be off-set against Your positive
Account balance (at CJ's discretion). Tracking details regarding Visitor
Transactions for all Advertisers is not available on a real-time basis
and there may be reporting delays regarding Transactions for some Advertisers.
CJ may make available, for fees that CJ shall publish from time-to-time,
enhanced reporting capabilities and other services that are not included
in the standard Network Service.
On-line support service is available through "Help" within
the members' area. Phone support is provided during the operating hours
of 8am-5pm, excepting national and CJ recognized holidays (local time
and local holidays are applicable at all of CJ's business offices).
Your use of "Help" enables CJ to respond more quickly to
Your query. |
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3.3 Advertiser's Payout Rate. The Advertiser
shall establish through the Network Service a Payout rate for a qualifying
Transaction for each of the Advertiser's Campaigns. Your Account will
be credited with each Payout in accordance with the Advertiser's Campaign
Payout rate for the relevant Campaign for each such Visitor action
resulting directly from Links from each of Your or Your Sub-Publisher's
Web sites or subscription emails to each Advertiser's Web site or Web
site content.
Advertisers may discontinue Campaigns or Programs, or decrease any Payout
rate upon 7 days written notice with effect from the 8th day from such
notice. CJ will send You a notice through the Network Service messaging
system regarding each change in Payout rate(s) or Campaign or Program
discontinuation. If You have a custom Payout rate or other arrangements
it is the Advertiser's responsibility for notifying You through the Network
Service messaging system of a change in Payout rate or discontinuation
of a Campaign or Program. |
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3.4 Payment. If on the 20th day of the
month Your Account exceeds CJ's "Minimum Balance Amount",
as set by CJ from time to time, for Transactions reported for the previous
month, CJ will issue to You any positive balance in Your Account. CJ
shall have no obligation to make payment of any Payouts for which CJ
has not received payment from the relevant Advertiser. If CJ elects,
in its own discretion, not to make payment to You for amounts not received
from an Advertiser, those amounts shall not be included in the Minimum
Balance Amount. Your recourse for any earned Payouts not received by
CJ and not paid to You shall be to make a claim against the relevant
Advertiser(s) and CJ disclaims any and all liability for such payment.
If Publisher's Account has not been credited with a valid, compensable
Transaction that has not been Charged-back during any rolling, six consecutive
calendar month period ("Dormant Account"), a dormant account
fee at CJ's then-current rate shall be applied to Publisher's Account
each calendar month that Publisher's Account remains an open yet Dormant
Account or until Your Account balance reaches a zero balance, at which
time the Account shall become deactivated. Transactions will not be counted
if the Transaction subsequently becomes a Charge-back or until the Charge-back
period has expired (if applicable). Publisher may close its Account and
terminate this Agreement upon 30 days written notice in accordance with
Section 6.1. The number or amount of Transactions, credits for Payouts,
and debits for Charge-backs, as calculated by CJ shall be final and binding
on You.
You may have a negative balance if Your Account is debited amounts equivalent
to previous Payouts for Charge-backs and You do not have an adequate
Account balance to cover the Charge-back amounts. Whenever You have a
negative balance, You must immediately remit a payment to CJ in an amount
sufficient to bring Your Account to a zero balance. You may make payments
hereunder via check, wire transfer, or certain credit cards by phone.
When payment is made by check, Your Account will not reflect payment
until the check has cleared and cash has been transferred to Commission
Junction's bank account. Your positive Account balance will not accrue
interest. If You have a negative balance for any period of 45 days or
more, Your Account is subject to 1.5% interest per month, compounded
monthly. Your Account may be deactivated for non-payment. Check Your
Account page for payment instructions and foreign currency options.
You may elect to receive payment in any of the currencies that CJ supports
(as may be amended from time to time). Your Account balance shall appear
in US Dollars or other supported currency, although You may choose to
receive payment in another currency. Balances appearing in a supported
currency and paid out in that currency are not converted. Balances appearing
in a supported currency and paid out in a different currency are subject
to conversion. The conversion rate shall be determined in accordance
with CJ's and CJ's vendor's operating standards using the rates prevailing
upon the date that payment is made to You, or upon the basis of historical
conversion rates if rates are unavailable at such time. |
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| 3.5 Charge-backs. An Advertiser may request
that CJ, or CJ may on its own initiative, debit Your Account with an
amount equal to a Payout previously credited to Your Account in circumstances
of : product returns; duplicate entry or other clear error; non-bona
fide Transaction where there is no Publisher failure to comply with
the this Agreement; non-receipt of payment from, or refund of payment
to, the Visitor by the Advertiser; or Publisher failure to comply with
the terms of an Offer or Advertiser Click-through Agreement ("Charge-back").
Charge-backs requested by an Advertiser in accordance with the preceding
sentence may be applied up to and including the 60th day after the
end of the month in which the Payout was earned ("Charge-back
Period"). CJ may apply at any time Charge-backs for all Transactions
from Publisher's Web site(s) and/or subscription emails for Publisher's
or its Sub-Publisher's failure to comply with this Agreement. An Advertiser
may request that a Payout be postponed 1 payment cycle where Advertiser
is verifying a Lead (for Lead Campaigns) or the Advertiser has a product
return policy or offer to the Visitor that allows the Visitor to return
the product during the Charge-back Period. |
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4.1 Advertisements and Links. For each
Advertiser whose Program You have been accepted to, CJ grants to You
a revocable, non-transferable, royalty free, international sublicense
to display and Link to the Advertiser's Web site or Web site content,
and all trademarks, service marks, tradenames, and/or copyrighted material
("Content"), from each of Your Web Sites and/or subscription
email for the limited purposes of Promoting the Advertiser's Program
and subject to the terms and conditions of this Agreement. The foregoing
rights are sub-licensable by You to Your Sub-Publishers only if authorized
by Advertiser in writing. Your/Your Sub-Publisher's sub-license is
conditioned upon You/Your Sub-Publishers (as the case may be): (a)
not otherwise copying nor modifying, in any way, any icons, buttons,
banners, graphics files or Content that is made available to You through
the Network Service pursuant to such sublicense; and (b) not removing
or altering any copyright or trademark notices.
You grant to CJ a revocable, non-transferable, royalty free, international license
to display on and distribute from CJ's Web site Content that You provide to CJ
through the Network Service for the limited purposes of promoting You to Advertisers,
subject to the terms and conditions of this Agreement and the Advertiser's Advertiser
Service Agreement. The right to display such Content is sub-licensable by CJ
to Your Advertisers for the limited purpose of advertising that You are a member
of Advertiser's Program. Your Advertisers may not distribute and/or sublicense
Your Content unless authorized by Your written permission. CJ and sub-licensees
shall not otherwise copy nor modify, in any way, any Content that You have made
available through the Network Service pursuant to the foregoing license. CJ and
the sub-licensees may not remove or alter any copyright or trademark notices.
You agree that Your use of any CJ Web site (such as www.cj.com) and Your use
of any CJ Content or Links is subject to the license and terms of use that are
available from such Web site ("Terms of Use"). Each party may make
statements that it is doing business with the other party and use the other's
logo with such statements, subject to the other party's name and logo usage guidelines. |
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4.2 No Challenge to Intellectual Property.
CJ acknowledges that it obtains no proprietary rights in Your Content,
and agrees not to challenge Your proprietary rights to the Content,
if at all, unless and until this Agreement is terminated. You acknowledge
that You obtain no proprietary rights in CJ's Content, patents, and
patent applications, and agree not to challenge CJ's proprietary rights
in CJ's patents and patent applications, and, with respect to the Content,
if at all, until this Agreement is terminated. This Agreement may be
terminated upon notice if the other party begins proceedings to challenge
the party's intellectual property rights during the Term in violation
of the foregoing provisions.
You acknowledge that You obtain no proprietary rights in each of Your Advertisers'
Content, and agree not to challenge such Advertiser's proprietary rights to the
Content until the Advertiser has terminated You from its Program or You have
withdrawn from the Advertiser's Program by removing all Links provided to You
through the Network Service.
The licensees/sub-licensees agree that all goodwill arising as a result of the
licensor's Intellectual Property shall inure to the benefit of the licensor,
and that all non-licensed/non-sublicensed proprietary rights in the Intellectual
Property remain with the licensor. Licensees/sub-licensees shall not adopt any
names, trademarks, service marks or domain names that are confusingly similar
to, or in combination with any of licensor's tradenames, trademarks, service
marks and/or domain names. |
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| 4.3 Terminating Licenses. The
Advertiser may terminate any sublicense granted to You and/or a Sub-Publisher
under this Agreement immediately upon written notice to You if the
Advertiser has reasonable concerns that You and/or the Sub-Publisher
is diluting, tarnishing or blurring the value of the Advertiser's trademarks,
service marks, and/or tradenames, and/or breach of the Advertiser's
other intellectual property rights. CJ may terminate this Agreement
immediately upon written notice if CJ has reasonable concerns that
You or Your Sub-Publisher may be diluting, tarnishing or blurring the
value of CJ's trademarks, service marks, and/or tradenames, and/or
breach of CJ's other intellectual property rights. |
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5.1 Privacy and Confidentiality.
You or CJ may provide the other with information that is confidential
and proprietary to that party or a third party, as is clearly and obviously
designated by the disclosing party ("Confidential Information").
The receiving party agrees to make commercially reasonable efforts,
but in no case no less effort than it uses to protect its own Confidential
Information, to maintain the confidentiality in order to protect any
proprietary interests of the disclosing party. Confidential Information
shall not include (even if designated by a party) information that
is or becomes part of the public domain through no act or omission
of the receiving party, or is lawfully received by the receiving party
from a third party without restriction on use or disclosure and without
breach of this Agreement or any other agreement without knowledge by
the receiving party of any breach of fiduciary duty, or that the receiving
party had in its possession prior to the date of this Agreement.
The information that You supply to establish and maintain Your Account shall
be Your Confidential Information, and You agree that CJ may but is not obligated
to provide Your email address(es) and basic Publisher Account detail (including
but not limited to Your address, phone and fax number, Web site name (if applicable),
date Web site or subscription email first entered into operation, and visitor
demographics) to Advertisers. 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 CJ's grossly negligent or willful conduct or omission). You
shall provide CJ with prompt written notification of any known or suspected unauthorized
use of Your Account or breach of the security of Your Account.
CJ's Privacy Policy that is accessible from the home page of www.cj.com and may
be amended from time to time by way of republication, is incorporated into this
Agreement. |
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5.2 Collection and Use of Transaction
Data. CJ does not collect information
about a Visitor's Transactions, other than what it receives through the
installed tracking code. CJ reserves the right to be able to utilize
this data, which may include information about Your performance statistics,
to analyze Network Service trends, monitor Network Service efficiencies,
maintain the integrity of the tracking code, promote Network Service
capabilities and efficiencies, and promote You and Your Web site or subscription
email performance to Advertisers. CJ may also disclose data regarding
a Visitor's Transactions to You, if You referred the Visitor to the Advertiser,
for the performance of this Agreement and to the Advertiser for the performance
of the Advertiser's Advertiser Service Agreement, and for Your use for
rewards programs that the Visitor is a member of (on the condition that
the Visitor has authorized release of such information to You). Notwithstanding
the foregoing, You represent and warrant that You shall not enable the
Tracking Code to collect personally identifiable information of Visitors
such that the CJ would be able based upon the data that is passed back
by Advertisers to personally identify Visitors.
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| 5.3 Collection and Confidentiality of
Visitors' Personal Data. CJ promises not to disclose publicly,
other than under compulsion of law, including subpoena, any personal
or business information that can be linked specifically to any Visitors
to Your Web site that result directly from Links on Your Web sites
and/or subscription email mailings without the Visitor's express
permission (which may be through the Visitor's membership to Your
subscription email or Web site program), to the extent CJ collects
any such information, including, but not limited to, the Visitor's
name, email address, phone number, or any other personal information. |
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| 6.1 Term and Notices. This Agreement
shall commence upon Your indication that You have accepted this Agreement
by 'clicking through' the acceptance button on the CJ Web site, and,
subject to Section 6.2, shall last until terminated in accordance with
the terms of this Agreement. Except as provided elsewhere herein, both
parties must send all notices relating to this Agreement to: (a) for
CJ, via registered mail, return receipt requested or via an internationally
recognized express mail carrier to Commission Junction, Inc., Attn:
Legal Dept., 1501 Chapala Street, Santa Barbara, CA 93101 USA , and,
(b) for You, at the email address listed on Your Account, and shall
be effective upon sending as long as CJ does not receive an error message
regarding the delivery. Your Account may be closed and CJ may terminate
this Agreement if Your Account has not been logged into and/or there
have been no Transactions credited to Your Account for any 90 day period. |
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6.2 Temporary Deactivation and Termination.
This Agreement may be terminated by either party upon 30 days notice.
This Agreement may be terminated immediately upon notice for Your breach
of Section 1, or by either party if the other party challenges the
party's intellectual property rights during the Term. Your Account
may be deactivated in accordance with Sections 1, 2.2, 2.3, 3.5 or
other material breach of this Agreement pending termination or cure
of Your breach. If this Agreement is terminated for Your breach, You
shall not be eligible to enter into a new click-on Publisher Service
Agreement with CJ, and any attempt to do so shall be null and void.
Upon termination of this Agreement, an outstanding credit balance shall be paid
by CJ to You within 90 days of the termination date, and an outstanding debit
balance shall be paid by You to CJ within 30 days of termination of this Agreement,
subject to amounts equivalent to pending for Charge-backs (that shall be paid
promptly if and when CJ has been able to verify that no Charge-back is applicable).
Upon termination of this Agreement, any license or sublicense granted under this
Agreement will terminate, and the licensee/sub-licensee must immediately destroy
or delete all physical and electronic copies of the Intellectual Property and
the Confidential Information, and cause all Links to Advertisers (or applicable
Advertiser) to be removed, and, in the case of termination, Links to CJ to be
removed. Upon termination of this Agreement, or in case of deactivation of Your
Account pursuant to the terms of this Agreement, You shall no longer accrue Payouts
in Your Account for Visitors' click-throughs to any Advertiser's Web site or
Web site content (including but not limited to subsequent sales and/or Leads). |
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| 6.3 Survival. The provisions
of this Section and Sections 1, 3.4, 3.5, 5.1, 5.2, 6, 8.1(a), 9, 10,
11.3, 11.4, 11.6, and 11.7 shall survive the termination of this Agreement. |
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| 7 Changes to the Network Service.
This Agreement, including the Introduction, contains the entire understanding
and agreement of the parties and there have been no promises, representations,
agreements, warranties or undertakings by either of the parties, either
oral or written, except as stated in this Agreement. This Agreement
may only be altered, amended or modified by an instrument that is assented
to by each party to this Agreement by verifiable means, including without
limitation by written instrument signed by the parties or through a "click
through" acknowledgement of assent. Notwithstanding the foregoing,
CJ shall have the right to change, modify or amend ("Change")
this Agreement, in whole or in part, by notifying You of such Change,
by email, at least 14 days prior to the effective date of such Change;
provided however that either party shall have the right to terminate
this Agreement pursuant to Section 6.2 in the event that You do not
agree to such Change. |
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| 8.1 Remedies. No remedy or election
shall be deemed exclusive but shall, wherever possible, be cumulative
with all other remedies at law or in equity. |
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| 8.2 Third Party Disputes. Should
any third party (including a CJ Advertiser) dispute a party's right
to use any Link, domain name, trademark, service mark, trade dress,
or right to offer any service or good offered on a party's Web site
or through its subscription email, a party may, without prior notice,
terminate this Agreement, or, in CJ's case, deactivate Your Account.
A party's representations regarding the preceding may or may not be
relied upon in the other party's decision whether to terminate this
Agreement, or, in CJ's case, deactivate Your Account. |
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| 9.1 Business Operations. Each
party will make reasonable commercial efforts to keep its Web site
operational during normal business hours. However, the parties agree
that it is normal to have a certain amount of system downtime and agree
not to hold each other or Your Advertisers liable for any of the consequences
of such interruptions. |
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| 9.2 Authority and Compliance with Laws.
Each party represents and warrants to the other party as to itself
that the person executing this Agreement is authorized to do so on
such party's behalf. Each party is responsible for compliance with
the applicable local laws in the jurisdiction from which it operates
and represents and warrants such compliance. Each party represents
and warrants that the party shall have all appropriate authority and
rights to grant the licenses hereunder, and that to the party's knowledge
the licenses, and in the case of CJ, the technology that CJ utilizes
for the Network Service, do(es) not infringe a third party's (or the
other party's) intellectual property rights. |
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| 9.3 Limitation of Liabilities.
WITH THE EXCEPTION OF A PARTY'S INDEMNIFICATION OBLIGATIONS, ANY LIABILITY
OF A PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR
PAYOUTS PAID AND PAYABLE TO YOU BY CJ AND INTEREST PAID AND PAYABLE
BY YOU TO CJ DURING THE TERM OF THIS AGREEMENT. WITH THE EXCEPTION
OF A PARTY'S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE
TO THE OTHER PARTY, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO
A CLAIM BY ANOTHER PUBLISHER OR AN ADVERTISER OF THE NETWORK SERVICE),
FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE
DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS,
BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM. |
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| 9.4 Disclaimer of Warranties.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BOTH
PARTIES DISCLAIM ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED
TO, (A) MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) THAT
THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT A PARTY'S
SECURITY METHODS EMPLOYED WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS,
ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT
OF A PARTY'S "INFORMATION" (WEB SITE). ALL 'INFORMATION'
AND 'COMPUTER PROGRAMS' PROVIDED IN THE COURSE OF THIS AGREEMENT ARE
PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY,
PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER. |
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| 9.5 Benefit of the Bargain.
THE PROVISIONS OF THIS SECTION 9 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT
OF THE BARGAIN REFLECTED IN THIS AGREEMENT. |
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| 10.1 CJ's Indemnification Obligations.
CJ shall defend, indemnify and hold Publisher harmless against all
claims, suits, demands, damages, liabilities, losses, penalties interest,
settlements and judgments costs and expenses (including attorneys fees)
incurred, claimed or sustained by third parties, including but not
limited to Advertisers, for CJ's breach of Section 9.2 ("Claims").
Should any Claim give rise to a duty of indemnification under the provisions
of this Agreement, then Publisher shall promptly notify CJ, and Publisher
shall be entitled, at its own expense, and upon reasonable notice to
CJ, to participate in, control the defense, compromise and to defend
of such Claim. Participation nor control in the defense shall not waive
or reduce any of CJ's obligations to indemnify or hold Publisher harmless. |
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| 10.2 Publisher's Indemnification Obligations.
Publisher shall defend, indemnify and hold CJ and Advertisers harmless
against all claims, suits, demands, damages, liabilities, losses, penalties
interest, settlements and judgments costs and expenses (including attorneys
fees) incurred, claimed or sustained by third parties, including but
not limited to Advertisers, directly or indirectly as a result of (a)
Publisher's breach of or non-compliance with this Agreement, (b) Publisher's
violation of any law, or an alleged violation of law by CJ, that is
a direct or indirect result of Publisher's use of the Network Service
(other than due to CJ's knowing and intentional violation), (c)Publisher's
use of the Network Service, (d) Publisher's participation in any Program,
(e) any content, goods or services offered, sold or otherwise made
available by Publisher to any person, (f) Publisher's acts or omissions
in using, displaying or distributing any internet links obtained from
the Network Service or elsewhere, including but not limited to Publisher's
use of internet links via email distribution, (g) any claim that CJ
is obligated to pay tax obligations in connection with payment made
to Publisher pursuant to this Agreement and/or any Advertiser's Program,
(h) any violation or alleged violation by Publisher of any rights of
another, including breach of a person's or entity's intellectual property
rights, (i) Publisher's use of any content ("Claim(s)").
Should any Claim give rise to a duty of indemnification under this
Section 10.2, the party seeking indemnification shall promptly notify
Publisher, and the party to be indemnified shall be entitled, at its
own expense, and upon reasonable notice to Publisher, to participate
in the defense of such Claim. Participation in the defense shall not
waive or reduce any of Publisher's obligations to indemnify or hold
the party to be indemnified harmless. Publisher shall not settle any
Claim without the party to be indemnified's prior written consent.
Publisher shall indemnify CJ for any reasonable attorneys' fees or
other costs incurred by CJ in investigating or enforcing its rights
under this Agreement. In the context of this Section 10.2 only, the
term "CJ" shall include officers, directors, employees, corporate
affiliates, subsidiaries, agents, and subcontractors. |
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| 11.1 Headings and References.
Headings of Sections are for the convenience of reference only. Words
indicated in quotes and capitalized signify an abbreviation or defined
term for indicated words or terms, including those definitions contained
in the opening paragraph. The content in other Web sites specifically
referenced in this Agreement, such as URLs, is incorporated by this
reference as though fully stated in this Agreement. |
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| 11.2 Relationships of Parties/Third Party
Rights. The relationships of the parties to this Agreement
shall be solely that of independent contractors, and nothing contained
in this Agreement shall be construed otherwise. Nothing in this Agreement
or in the business or dealings between the parties shall be construed
to make them joint venturers or partners with each other. Neither
party shall do anything to suggest to third parties that the relationship
between the parties is anything other than that of independent contractor.
Certain provisions of this Agreement are intended to benefit each
Advertiser that has approved You for membership in its Program, and
reciprocally, You are intended to benefit under each such Advertiser's
Advertiser Service Agreement. You agree that Your rights under the
Advertiser's Advertiser Service Agreement do not exceed the Advertiser's
duties, as Your rights are limited by any defenses, claims and rights
the Advertiser may have. You agree that Your consent is not necessary
to modify any Advertiser Agreement. |
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| 11.3 Dispute Resolution. The
parties will attempt in good faith to resolve through negotiation any
dispute, claim, or controversy arising out of or relating to this Agreement
or breach, termination, enforcement, interpretation or validity thereof,
including the determination of the scope or applicability of this Section
11.3 ("Dispute"). If the Dispute is not resolved through
verbal and written communications, the matter will be submitted to
JAMS, or its successor, for arbitration. Any Dispute submitted to arbitration
shall be determined by arbitration in Santa Barbara, California, USA
before a sole arbitrator, in accordance with the laws of the State
of California for agreements made in and to be performed in that State.
The language of the arbitration shall be English. The arbitration shall
be administered by JAMS pursuant to its Comprehensive Arbitration Rules
and Procedures. Except with respect to a party's indemnification obligations,
the arbitrator will have no authority to award punitive damages or
any other damages not measured by the prevailing party's actual damages,
and may not, in any event, make any ruling, finding or award that does
not conform to the terms and conditions of this Agreement. Judgment
on the arbitration award ("Award") may be entered in any
court having jurisdiction. The arbitrator shall, in the Award, allocate
all of the costs of the arbitration, including the fees of the arbitrator
and the reasonable attorneys' fees of the party that primarily prevails,
against the party who that did not primarily prevail. |
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| 11.4 Choice of Law/Attorneys' Fees.
This Agreement is governed by the laws of the State of California (USA),
except for its conflict of law provisions. Each party may apply to
the state courts in Santa Barbara, California, USA, and, to the extent
that federal courts have exclusive jurisdiction, in Los Angeles, California,
for injunctive relief until such time as the Award is rendered or the
Dispute is otherwise resolved, and the parties agree that those courts
and JAMS arbitration (in accordance with Section 11.3) shall be the
exclusive fora for any such actions related to this Agreement. You
consent to such venue and jurisdiction. The application of the United
Nations Convention on the International Sale of Goods is expressly
excluded. A party that primarily prevails in an action brought under
this Agreement is entitled to recover from the other party its reasonable
attorneys fees and costs. CJ controls and operates its Web site from
its offices in the U.S.A. and access or use where illegal is prohibited. |
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| 11.5 Force Majeure. Neither
party shall be liable by reason of any failure or delay in the performance
of its obligations hereunder for any cause beyond the reasonable control
of such party, including but not limited to electrical outages, failure
of Internet service providers, riots, insurrection, war (or similar),
fires, flood, earthquakes, explosions, and other acts of God. |
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| 11.6 Severability/Waiver. If
any provision of this Agreement is held by any court of competent jurisdiction
to be illegal, null or void or against public policy, the remaining
provisions of this Agreement shall remain in full force and effect.
The parties shall in good faith attempt to modify any invalidated provision
to carry out the stated intentions in this Agreement. The waiver of
any breach of any provision under this Agreement by any party shall
not be deemed to be a waiver of any preceding or subsequent breach,
nor shall any waiver constitute a continuing waiver. |
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11.7 Assignment and Acknowledgement.
Neither party may assign this Agreement without the prior express
written permission of the other party. Notwithstanding the foregoing,
consent of the other party shall not be required for assignment or
transfer made by (a) operation of law, or (b) to an entity that acquires
substantially all of the party's stock, assets or business; notice
of assignment or transfer is required. Your use of the Network Service
is irrefutable acknowledgement by You that You have read, understood
and agreed to each and every term and provision of this Agreement.
CJ may establish from time to time rules and regulations regarding
use of the Network Service as published on the Network Service and
incorporated herein.
IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST
18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
Contact Information:
Commission Junction, Inc.
1501 Chapala Street
Santa Barbara, CA 93101
p (805) 560-0777
f (805) 560-0776 |
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