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(AFFILIATE, PUBLISHER, PARTNER) MEMBERSHIP AGREEMENT
WITH NATIONAL WEB LEADS, LLC
TERMS AND CONDITIONS
November 10, 2009
This (Affiliate, Publisher, Partner) Membership Agreement ("Agreement") is between National Web Leads, LLC, a Delaware corporation ("NWL") and the (Affiliate, Publisher, Partner) providing the registration information. Before you can become a participant in the Program you must first read and agree to all of the terms and conditions below. This is a legally binding document, please read CAREFULLY.
The parties agree as follows:
I. DEFINITIONS
1. Content means information, data, text, documents, software, music, sound, photographs, graphics and video.
2. A "Corporate (Affiliate, Publisher, Partner)" of a person is any other person that, directly or indirectly, controls such person, is controlled by such person, or is under common control with such person, with "control" meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person.
3. An "End User" means an actual or potential consumer, customer or other natural person.
4. An "Engagement" means any type of agreement or arrangement between a Advertiser and any Network (Affiliate, Publisher, Partner) that can be performed on or in relation to the Internet, including (Affiliate, Publisher, Partner) marketing, performance-based linking, insertion order, or any other type of agreement or arrangement.
5. An "Entity" means a sole proprietorship, corporation, partnership, Limited Liability Company, trust, government agency or instrumentality or other Entity recognized by law as a legal person separate from its owners.
6. The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation."
7. "Intellectual Property Rights" means technology, templates, designs, Sites, methodologies, processes, names, strategies, marks, logos, Content, documentation, training manuals, and other materials, as well as any and all patent, trade secret, trademark, copyright and other intellectual property and proprietary rights therein and thereto.
8. A "Link" means any software, software code, programming or other technology or method (or any combination of the foregoing) that (i) creates a hyperlink between two Sites, or (ii) otherwise causes a Web access device to display to its user a banner, button, text-mention, word, phrase, logo or other textual or graphical material that, when activated by a person, results in a Site being served to such person or such person being able to electronically access, receive or obtain Content, products, services or other offerings from the linked Site.
9. "NWL Network" means one or more of the networks operated by NWL and consisting of participating Merchants (i.e., Advertisers), on the one hand, and a proprietary pool of Sites (i.e., Network (Affiliate, Publisher, Partner)s), on the other hand. Through the NWL Network and use of the NWL Offering, such participants may explore, initiate and develop Engagements with each other, typically on a one-on-one basis, and, in turn, to track, report on and/or otherwise manage or have managed such Engagements.
10. "NWL Offerings" means (a) NWL's offerings to be a Network (Affiliate, Publisher, Partner) or Advertiser participating on any NWL Network and (b) offerings provided by NWL or any NWL Related Parties in the form of technology, software, reports and databases, customer support, account management and other client services, symposia, summits and other educational and networking events, as well as any other tools, services, and other resources that may be provided or otherwise made available from time to time.
11. "NWL Related Parties" means NWL corporate (Affiliate, Publisher, Partner)s and its and their contractors, licensors, licensees and suppliers.
12. "Merchant" means any person that owns or operates a Site and/or other business that can acquire customers or other types of End Users by way of the Internet.
13. "Network (Affiliate, Publisher, Partner)" refers to a Site that participates on one or more NWL Networks and, through such participation and use of the appropriate NWL Offerings, desires or makes itself available to be recruited or to enter into Engagements to display, distribute or place Qualifying Links provided by Advertisers for compensation.
14. "Network (Affiliate, Publisher, Partner) Account Area" means, for any NWL Network, the Webpage(s) or other area of the Site having the URL designated from time to time by NWL for use by members of that Network for the purpose of facilitating formation of Qualifying Links, accessing reports and otherwise participating in such NWL Network.
15. "Advertiser" refers to a Merchant that participates on one or more NWL Networks and, through such participation and use of the appropriate NWL Offerings, desires or seeks to recruit Network (Affiliate, Publisher, Partner)s to enter into Engagements with such Merchant in order to display, distribute or place its Qualifying Links for compensation.
16. A "Person" is to be broadly construed and includes any natural person or Entity.
17. A "Qualifying Link" means any type or format of link that is provided or authorized by a Advertiser to be displayed, distributed or placed on or by a Site pursuant to an Engagement and which, through addition and/or use of any technology and/or methodology, can be tracked so that such Advertiser can monitor the impressions, click-throughs and/or other tracked activities achieved by the display, distribution and/or placement of such link. The term Qualifying Link shall also refer to any equivalent link, mechanism or technology that, upon being activated, causes the same result as clicking on a Qualifying Link.
18. A "Tracked Activity" means any type of pre-agreed or predefined activity or result that is sought by a Merchant in relation to a Qualifying Link. The kinds of tracked activities that a Merchant may seek to promote through such arrangements may include, by way of example, impressions, click-throughs, the sale of products or services, the downloading of software, files or other items, the completion of an application, registration or other form, the opening of an account, membership enrollment, or any other kind of action, transaction or activity that can be tracked and reported upon.
19. "Web" or "Internet" or "online" means the global computer network currently referred to as the Internet, including the World Wide Web, and any and all successor networks, irrespective of what wired, wireless or otherwise connected device, platform or technology is used to access it.
20. "Site" means, as the context requires, either (a) one or more Web pages, database, computer files, emails, scripts, software or other application, or other destination, together with supporting files and programming, that are on, provided, or accessible through the Web or works on or in relation to the Web, or (b) a person owning or operating any such Site, or (c) both. A person that owns or operates a Site may have offline businesses which would not preclude it from being a Site for the purposes of this Agreement.
II. REGISTRATION AND (AFFILIATE, PUBLISHER, PARTNER) ASSENT
1. (Affiliate, Publisher, Partner) Assent: (Affiliate, Publisher, Partner) hereby agrees and understands that by (Affiliate, Publisher, Partner)’s registration, use and participation in the NWL Offerings, services and Network that he agrees to and is bound to the terms and conditions herein contained in this Agreement.
2. Registration: (Affiliate, Publisher, Partner) must provide NWL with truthful, accurate and complete registration information. If the registration information changes at anytime, (Affiliate, Publisher, Partner) must immediately notify NWL and update (Affiliate, Publisher, Partner)'s registration information.
3. Verification: NWL may, in its sole discretion, confirm or otherwise verify or check, the truth and accuracy of any registration information provided by (Affiliate, Publisher, Partner). (Affiliate, Publisher, Partner)'s participation in the NWL Network as a Network (Affiliate, Publisher, Partner) does not depend on (Affiliate, Publisher, Partner)'s credit worthiness or financial stability. NWL is not making as part of the registration process, and will not otherwise make, any type of inquiry to any third party regarding any individual's credit history and personal financial information without first obtaining such individual's express prior authorization to do so. If at anytime NWL, in its sole judgment and discretion, determines the (Affiliate, Publisher, Partner) registration information to be misleading, inaccurate or untruthful, NWL may restrict, deny or terminate (Affiliate, Publisher, Partner)'s account, (Affiliate, Publisher, Partner)'s access and use of, and/or any benefits derived from (Affiliate, Publisher, Partner)'s participation on, any NWL Network; NWL may also withhold payment of any commissions and/or other fees that may be or become due or payable to (Affiliate, Publisher, Partner), and may assess charges against such amounts for NWL's activities in connection with the investigation and/or verification of such information and/or otherwise in accordance with this Agreement.
4. Eligibility: To join any NWL Network, (Affiliate, Publisher, Partner) must be an individual who is at least 18 years old or an Entity. (Affiliate, Publisher, Partner) is solely responsible for the expense his own computer equipment and Internet access.
5. Use of the Network: (Affiliate, Publisher, Partner) may use the NWL Networks only for the business purposes contained herein and not for personal, household or family purposes.
III. (AFFILIATE, PUBLISHER, PARTNER) PARTICIPATION
1. Participation: Subject to the terms and conditions in this Agreement, (Affiliate, Publisher, Partner) may use and offer the NWL Offerings to Network (Affiliate, Publisher, Partner)s via the Network (Affiliate, Publisher, Partner) Account Area or otherwise to enter into, track and report on, and/or manage (or have managed) (Affiliate, Publisher, Partner) marketing and/or other types of NWL-tracked Engagements on behalf of (Affiliate, Publisher, Partner) business.
2. Voluntary Participation: (Affiliate, Publisher, Partner) participation in any one or more NWL Networks is as an Online (Affiliate, Publisher, Partner). (Affiliate, Publisher, Partner) participation is purely voluntarily and (Affiliate, Publisher, Partner) may terminate (Affiliate, Publisher, Partner) participation at any time. Neither NWL nor any Advertiser shall be construed or deemed as having solicited, requested or procured (Affiliate, Publisher, Partner) or (Affiliate, Publisher, Partner) services to promote NWL or any Advertiser or its respective trade or business, or goods, products, property, or services.
3. Vendor Services. (Affiliate, Publisher, Partner)(s) are not and shall not, at any time, be deemed to be a vendor, supplier or provider of goods or services to NWL, and neither (Affiliate, Publisher, Partner) participation on any NWL Network, use of any NWL Offerings or receipt of payment of any compensation under any NWL-tracked Engagement shall be construed or be deemed to be an inducement for, solicitation of (Affiliate, Publisher, Partner) to provide any products or services to NWL.
4. Prohibited Activities. In respect or in relation to any Site (or portion thereof) used by (Affiliate, Publisher, Partner) in connection with (Affiliate, Publisher, Partner) participation on any NWL Network, (Affiliate, Publisher, Partner) may not engage in any activity that is or constitutes, or that involves, facilitates, advocates or promotes, one or more of the following: (a) discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability; (b) libelous, defamatory, threatening, harassing, tortuous, or similarly abusive activities; (c) obscene, pornographic, sexually explicit or similar activities; (d) gambling; (e) sale, export or use of illegal substances; (f) terrorism, sedition or other illegal activities; (g) MP3, MPEG and/or other proprietary materials for download, sale or otherwise, in any case without the permission of the owner of the Intellectual Property Rights (h) a conflict or violation of any law or regulation or any Intellectual Property Rights or other rights of any person or Entity; (i) harm to minors in any way; (j) impersonation of any person, including any NWL representative, or misrepresentation of affiliation with any person; or (k) conducting of raffles, contests, lotteries or sweepstakes; (l) Your web site and/or newsletter cannot be 'point, lottery, or rewards' based encouraging users to click on our Advertisers' banners or use our Advertisers to generate revenue for users to win points, get rewards, or other incentives unless expressly approved in writing from NWL and if NWL at any times, sole discretion and judgment, feels that (Affiliate, Publisher, Partner) is in violation of any of the above, NWL may terminate this Agreement immediately.
5. Regulated Business: (Affiliate, Publisher, Partner) represents, warrants and covenants that (Affiliate, Publisher, Partner) businesses and activities will not cause, nor could cause, NWL or any Site with which (Affiliate, Publisher, Partner) has entered into a NWL-tracked Engagement to be or become subject to any law, rule or regulation adversely affecting NWL or such Site, and (Affiliate, Publisher, Partner) shall defend and indemnify NWL and such Sites against any such adverse effect.
6. (Affiliate, Publisher, Partner) agrees not to carry objectionable materials on their web site which would revoke their affiliation as determined by National Web Leads (Affiliate, Publisher, Partner) will only run approved banners and text in their advertising of our programs and will NOT create their own banners or advertising text, unless expressly approved in writing from National Web Leads. Violation of this forfeits your commissions. (Affiliate, Publisher, Partner) WILL NOT spam or send unsolicited email mentioning or promoting the (Affiliate, Publisher, Partner) programs. Any violation of this will result in the (Affiliate, Publisher, Partner) being liable for damages of $1.00 per email sent and other damages as deemed by a court of law. Editing of an Advertiser's program images or copy is strictly prohibited. (Affiliate, Publisher, Partner) will only use approved banners and text to link to an Advertiser's sign-up pages. (Affiliates, Publishers, Partners) will not mislead people to make it seem that they are signing up for an offer that is offered by the (Affiliate, Publisher, Partner) site. (Affiliate, Publisher, Partner) can ONLY use banners and approved text, any other use of link and sign-up processes will result in the loss of all sign ups/leads accrued for the (Affiliate, Publisher, Partner).
IV. ENGAGEMENTS AND QUALIFYING LINKS
1. Use of Qualifying Links: Each Qualifying Link used by (Affiliate, Publisher, Partner) in relation to an NWL-tracked Engagement must include, in unaltered form, the special "tagged" link codes and/or other transaction tracking codes in the manner and format made available or otherwise dictated by NWL that, among other things, associates such Qualifying Link with such Engagement.
2. Valid Referrals Only: (Affiliate, Publisher, Partner) will place or use Qualified Links of an Advertiser only with the intention of delivering valid sales, leads, applications, accounts, clicks or other specified compensable tracked activities for the benefit of such Advertiser. (Affiliate, Publisher, Partner) may not knowingly permit any person to activate a Qualifying Link or inflate the amount of any sought-after or resulting tracked activities through any method or technology that does not actually deliver an End User to the destination Site associated with such Qualifying Link.
3. NWL's Determination of Compensation: NWL in its sole discretion and judgment shall determine a link as being qualified and compensation due to (Affiliate, Publisher, Partner) and all determinations of Qualifying Links and the compensation due to (Affiliate, Publisher, Partner) made by NWL shall be final and binding on (Affiliate, Publisher, Partner). NWL's services do not involve investigating or resolving any claim or dispute involving (Affiliate, Publisher, Partner) and any Advertiser or other third party person. If NWL, in its sole discretion, elects to investigate or otherwise become involved in any such claim or dispute, it shall not thereby undertake, assume or have any duty, obligation or liability to (Affiliate, Publisher, Partner) or any other party to the claim or dispute and (Affiliate, Publisher, Partner) shall indemnify NWL from any and all claims arising out of said claim or dispute.
4. Merchants' Terms and Conditions. In addition to and without limiting (Affiliate, Publisher, Partner)'s obligations under this Agreement, the terms and conditions of the Advertiser's Engagement govern (Affiliate, Publisher, Partner)'s performance of such Engagement including (Affiliate, Publisher, Partner)'s use of the associated Qualifying Links, the tracked activities sought, the compensation that might become payable, and any limitations or restrictions that may apply to (Affiliate, Publisher, Partner)'s promotion of such Advertiser or its Qualifying Links. NWL has no liability or responsibility to review, endorse, police or enforce any such Engagements.
5. Distribution of Qualifying Links: If (Affiliate, Publisher, Partner) currently distributes, or plans to distribute, Qualifying Links to or through Sites other than those owned or operated by (Affiliate, Publisher, Partner) and registered with NWL, (Affiliate, Publisher, Partner) may only do so upon NWL's approval. Such approval may be unreasonably withheld by NWL and may be conditioned upon (Affiliate, Publisher, Partner)'s agreement to additional terms and conditions and additional disclosures.
6. No Modification of Qualifying Links: (Affiliate, Publisher, Partner) will not attempt in any way to alter, modify, eliminate, conceal, cookie stuff, traffic steal or otherwise render inoperable or ineffective the Company's site tags, source codes, links, pixels, modules or other data provided by or obtained from the Company that allow the Company to measure advertisement performance and provide its serviceand/or other technology and/or methodology required or made available by NWL and/or the Advertiser to be used in connection with such Qualifying Link.
7. Tracking Links: NWLwill provide the Advertiser's creative and initial tracking links. (Affiliate, Publisher, Partner) is responsible for hosting all email creative and redirecting from hosted creative to NWL's tracking links. This is necessary to ensure that the NWL does not become blacklisted for any perceived SPAM violations due to the publisher's negligence. In the event this occurs, (Affiliate, Publisher, Partner) will protect, indemnify, defend, and hold harmless NWL and all third parties from and against any and all losses, costs, claims demand, damages, and liabilities, including attorney's fees arising from (Affiliate, Publisher, Partner)’s failure to redirect email creative from hosted creative.
8. Termination of Qualifying Links: NWL or the relevant Advertiser may terminate any Qualifying Links associated with any (Affiliate, Publisher, Partner) marketing programs of, and/or other NWL-tracked Engagements with which (Affiliate, Publisher, Partner) has entered into with Advertiser. (Affiliate, Publisher, Partner) must remove any Qualifying Links after any termination of the corresponding Engagements, including termination or expiration of a relevant Advertiser's participation. If Qualifying Links are not removed, NWL may redirect such links as it determines in its sole discretion, with or without compensation to (Affiliate, Publisher, Partner).
9. Discontinuing Use of Qualifying Links: (Affiliate, Publisher, Partner) may at any time discontinue use of Qualifying Links by removing such Qualifying Links from (Affiliate, Publisher, Partner)'s Site, with or without notice to NWL or, subject to the terms of (Affiliate, Publisher, Partner)s Engagement with the relevant Advertiser, provided, however, that (Affiliate, Publisher, Partner) remain subject to such Engagement and this Agreement until (Affiliate, Publisher, Partner) separately terminates the Engagement or Agreement.
10. NWL as Neutral Host: Participation in any NWL Network is not an endorsement by NWL of any Advertiser or Network (Affiliate, Publisher, Partner). NWL operates the NWL Networks and/or provides the NWL Offerings as a neutral host, and NWL does not regularly or proactively monitor, regulate or police the usage thereof by any of its participants. NWL is not responsible or liable for the acts, omissions, agreements or promises of or by any Advertiser, Network (Affiliate, Publisher, Partner) or other Site using NWL offerings to enter into any arrangement or otherwise work with any other person or Entity.
11. Independent Contractors. NWL is the host of each NWL Network. Advertisers and Network (Affiliate, Publisher, Partner)s are independent parties and NWL does not and shall not have any responsibility or liability for the acts, omissions, promotions, Content or Qualifying Links or other Links of any Advertiser, Network (Affiliate, Publisher, Partner) or other third party, including breaches of Engagements by Advertisers, or for screening or policing the Sites or actions of Advertisers or Network (Affiliate, Publisher, Partner)s.
V. REPORTING
1. Reports and Revisions: (Affiliate, Publisher, Partner) acknowledges and agrees that each Advertiser whose Program (Affiliate, Publisher, Partner) joins shall receive reports from NWL that identify (Affiliate, Publisher, Partner) and may include data about (Affiliate, Publisher, Partner) and (Affiliate, Publisher, Partner)'s Qualifying Links with that Advertiser. If NWL is notified by Advertiser that it believes that its reports about its relationship with (Affiliate, Publisher, Partner) contain an error or omission or otherwise require adjustment, NWL may elect to revise those reports as requested by the Advertiser and make corresponding changes to (Affiliate, Publisher, Partner) Reports in NWL's sole discretion and judgment. (Affiliate, Publisher, Partner) understands that the reports NWL provides (Affiliate, Publisher, Partner) and Advertiser are the basis for calculating the compensation, if any, due to (Affiliate, Publisher, Partner) from Advertiser, any such adjustment by NWL may affect the amount of compensation to which (Affiliate, Publisher, Partner) is entitled.
2. Data Furnished by Advertisers: In providing NWL Offerings, including giving (Affiliate, Publisher, Partner) reports on (Affiliate, Publisher, Partner)'s Network activities, (Affiliate, Publisher, Partner) agrees that NWL relies on data provided by Advertisers and that NWL is not obligated to confirm, and does not warrant or guarantee, the accuracy, truth or completeness of any data provided by Advertisers.
3. Errors: If (Affiliate, Publisher, Partner) believes that any of (Affiliate, Publisher, Partner) Reports for any month contains errors in the data about (Affiliate, Publisher, Partner)'s Engagement with any Advertiser, (Affiliate, Publisher, Partner) must notify NWL in writing within ten days after the end of that month or any shorter period in (Affiliate, Publisher, Partner)'s Engagement. (Affiliate, Publisher, Partner) agrees and understands that NWL, in their sole discretion and judgment shall make a determination within fourteen (14) days of any corrections to the (Affiliate, Publisher, Partner) Reports and (Affiliate, Publisher, Partner) agrees that said determination shall be final and binding upon (Affiliate, Publisher, Partner).
4. No Personal End User Data. In order to provide any of the NWL Offerings, NWL does not require to be provided, nor does it capture, any personally identifiable information about any End User who undertakes tracked activities in relation to (Affiliate, Publisher, Partner) or any Advertiser. (Affiliate, Publisher, Partner) hereby indemnifies and holds NWL harmless from any End User or any other person if (Affiliate, Publisher, Partner), any Advertiser or other third person should provide such information to NWL for whatever reason.
5. Privacy Policy. (Affiliate, Publisher, Partner) will ensure that any and all Sites employed by (Affiliate, Publisher, Partner) in connection with (Affiliate, Publisher, Partner)'s participation in any NWL Network or any NWL-tracked Engagement will feature an easy-to-understand privacy policy, linked, posted conspicuously on Site's home page, with a Link that contains the word "Privacy", "Legal", "Terms" or similar language. Said privacy policy shall, in addition to the disclosures about (Affiliate, Publisher, Partner)'s privacy practices, identify the collection and use of any information (Affiliate, Publisher, Partner) provides or may provide to NWL and to any Advertiser or other Sites or persons with which (Affiliate, Publisher, Partner) has an NWL-tracked Engagement or other arrangement in relation thereto. As to (Affiliate, Publisher, Partner)'s personal information, NWL may use (Affiliate, Publisher, Partner)'s personal information in any manner or for any purpose that NWL determines to be appropriate or necessary in its sole discretion in connection with conducting any activities of or on any NWL Network and in relation to NWL's business. Furthermore NWL may disclose said information to government agencies or officials upon their request, even if not compelled by a subpoena or other legal process, and without any duty on NWL's part to independently confirm that such agencies or officials are legally entitled to such disclosure.
6. Backing Up Data and Other Precautions. Data transfer, conversion, processing and storage are subject to the likelihood of human and machine errors, delays, interruptions and losses and NWL hereby disclaims all warranties and (Affiliate, Publisher, Partner) shall hold NWL harmless from any and all liability that may arise from the above. (Affiliate, Publisher, Partner) is solely responsible for adopting measures to limit the impact of such events, including backing up any reports or data provided to (Affiliate, Publisher, Partner). NWL may, from time to time, with or without notice, change the time period covered, type and/or scope of current or historical data stored by NWL and/or to which it provides (Affiliate, Publisher, Partner) with access.
VI. (AFFILIATE, PUBLISHER, PARTNER) OBLIGATIONS
1. Non Circumvention: (a) (Affiliate, Publisher, Partner) agrees that it will not in any way bypass or circumvent, or attempt to bypass or circumvent, NWL and any NWL Network in connection with any Engagement (Affiliate, Publisher, Partner) may have entered into with any Advertiser. This includes entering into a direct relationship or linking arrangement where NWL-provided Qualifying Links are not used in accordance with this Agreement such that NWL is unable to track and monitor the commissions owing to (Affiliate, Publisher, Partner) under an NWL-tracked Engagement or the fees owing to NWL. (Affiliate, Publisher, Partner) may not enter into any relationship that would result in the avoidance or reduction of the NWL tracking process, the commissions to be paid pursuant to this Agreement, or the fees to be paid to NWL as a result of any tracked Engagement, (b) Further, if NWL brokers an introduction or arrangement between (Affiliate, Publisher, Partner) and any Advertiser through any NWL Offering, (Affiliate, Publisher, Partner) and such Advertiser will track any resulting Engagement through using a NWL Network using NWL-provided Qualifying Links and (Affiliate, Publisher, Partner) agrees that NWL shall be paid under the current NWL Offering. This includes using (Affiliate, Publisher, Partner)'s Network (Affiliate, Publisher, Partner) Account Area to investigate Advertiser terms and contacting such Advertisers directly to enter into Engagements that are not tracked by NWL-provided Qualifying Links. NWL will be deemed to have brokered an introduction or arrangement in any of the following circumstances: (i) such Advertiser recruits or otherwise first contacts (Affiliate, Publisher, Partner) through use of any NWL Offerings; or (ii) (Affiliate, Publisher, Partner) applies to such Advertiser's (Affiliate, Publisher, Partner) marketing program or otherwise first contacts such Advertiser through use of any NWL Offerings; or (iii) at (Affiliate, Publisher, Partner)'s request or the Advertiser's request or with (Affiliate, Publisher, Partner)'s or its express involvement, NWL arranges an introduction or facilitates the consummation of an arrangement between (Affiliate, Publisher, Partner) and such Advertiser through the use of any NWL Offerings, (c)(Affiliate, Publisher, Partner)'s obligations under this Section will survive any termination by (Affiliate, Publisher, Partner) or NWL of (Affiliate, Publisher, Partner)'s participation in any NWL Networks for a period of one (1) year after such termination. Notwithstanding the preceding sentence, (Affiliate, Publisher, Partner)'s obligations under this Section will cease with respect to any individual Advertiser upon the expiration or termination (other than due to breach by such Advertiser) of such individual Advertiser's participation in the relevant NWL Network.
2. Solicitation: (Affiliate, Publisher, Partner) may not use any NWL Offerings in connection with aggregating, soliciting or recruiting Advertisers, Network (Affiliate, Publisher, Partner)s, other Sites or other persons to form or join an (Affiliate, Publisher, Partner) marketing, advertising or similar network.
3. Sublicense: (Affiliate, Publisher, Partner) may not sublicense, rent, lease, sell, resell, outsource or service any NWL Offerings, and any attempt to do so shall be null and void.
4. Reverse Engineering: (Affiliate, Publisher, Partner) will not make unauthorized modifications, reverse engineer, disassemble, decompile or attempt to derive source code of any NWL Offerings.
5. Hacking: (Affiliate, Publisher, Partner) agree not to hack, abuse, adversely interfere with, infect with viruses, worms or other malicious or destructive code, or use or cause to be used in extraordinary and unreasonable or inappropriate ways or amounts that interfere with: any NWL Offerings, including any servers, bandwidth supply, equipment, software and other technological resources provided by NWL.
6. Acceptable Use Policies re: Bulk Email: You are required to follow all laws (state, federal or otherwise) related to bulk email, these Ts&Cs as well as the terms of any third party ISP, hosting company or website You use related to Your sending email pursuant to these Ts&Cs. You are required to follow all laws or other requirements in order to remain an (Affiliate, Publisher, Partner) of the Company and to receive Commissions. While the use of bulk email is not per se illegal, any use of email lists must be done in strict compliance with the law and the terms and conditions of third party ISPs and hosting companies. You need to be aware of the fact that many service providers, such as America Online, Inc., Microsoft (through its MSN and Hotmail services), as well as many other hosting companies may have their own standards and policies when it comes to sending email to their members. Examples of these policies include http://www.aol.com/info/bulkemail.html. You represent that You are familiar with these policies and agree to abide by the their terms and conditions.
7. Spam: We have a strict policy regarding unsolicited commercial electronic mail (“SPAM”) and will not tolerate any SPAM as defined by the CAN-SPAM Act (15 U.S.C. §7701 et seq.); any state laws, or any applicable international laws (by way of example, You should be familiar with laws concerning SPAM, including those set forth in http://www.spamlaws.com/federal/can-spam.shtml). Should We receive complaints of SPAM sent by an (Affiliate, Publisher, Partner), the Company has the right to take any and all steps reasonably necessary to investigate whether the (Affiliate, Publisher, Partner) has improperly sent SPAM and the Company may issue a warning or may suspend or terminate an (Affiliate, Publisher, Partner) at any time based upon the results of the Company’s investigation. The determination of what steps should be taken will be evaluated by the Company on a case by case basis. The factors that will determine the actions taken by the Company may include, but not be limited to, the number of improper emails sent, whether You have received any prior complaints, Your response to any complaints and Your explanation of any complaints.
8. Spyware: (Affiliate, Publisher, Partner) shall not promote, disseminate, or cause to install any kind of "spyware" on any computer, including but not limited to NWL's or End User's computers. In the event that (Affiliate, Publisher, Partner) violates this section NWL may terminate this Agreement immediately.
9. Unsub List: NWL on behalf of Advertiser shall provide (Affiliate, Publisher, Partner) with a list of all users that have unsubscribed from the Network offer and no longer wish to participate in the offer ("Unsub List").(Affiliate, Publisher, Partner) shall use its best efforts to scrub their e-mail list from unsubscribed users of the NWL Offering. The unsubscribe list is property of NWL and (Affiliate, Publisher, Partner) shall gain no interest, right, or title from the use of the Unsub List. Furthermore should (Affiliate, Publisher, Partner) lease, sell, or use the Unsub List, NWL in its sole discretion may terminate this Agreement immediately, cease any and all payments to (Affiliate, Publisher, Partner), and seek any and all remedies under law and equity. If You promote the Company’s Programs using email, Your email lists should be updated regularly to remove any individuals that request removal. You should refrain from using proxies or using deceptive header information that may cause a potential User confusion. We strongly recommend the use of “opt-in” email lists and “double opt-in” whenever possible. Any email recipient should have requested or agreed to receive information regarding the types of business promoted by the Company’s Programs. All house generated lists must have record keeping including IP address and date stamp to prove that the list subscriber has indeed requested mail from the sender’s sites.
10. Third Party Servers/Lists:If You are using a rented or leased list from a third party provider, it should be double opted-in and have a verifiable method for demonstrating the list is kept up to date. We also strictly prohibit you from transmitting e-mail that is relayed from any third party's mail servers without the permission of that third party, or which employs similar techniques to hide or obscure the source of the e-mail. Do NOT do this.
11. Interference: (Affiliate, Publisher, Partner) may not, through downloadable or other technology, replace, intercept, redirect, block, alter or otherwise interfere with the full functioning and intended actions of any Qualifying Link that has been placed or distributed by another Network (Affiliate, Publisher, Partner) including any action that would in any way prevent the behavior or result that would occur or would have occurred had an End User activated such Qualifying Link without (Affiliate, Publisher, Partner)'s interference.
12. Infringing Uses: (Affiliate, Publisher, Partner) may not use any name, trademark, service mark, domain name or other Intellectual Property Rights of any third party in connection with (Affiliate, Publisher, Partner)'s use of any Qualifying Links, any NWL Network or any other NWL Offerings, in any way or for any purpose that infringes or violates any Intellectual Property Rights or other rights of such third party, whether for the purpose of increasing the levels of tracked activities attributable to (Affiliate, Publisher, Partner)'s Qualifying Links or for any other purpose.
13. Fraud/Abuse: (Affiliate, Publisher, Partner) will not, and will not knowingly permit other persons to, engage in any fraudulent, abusive or illegal activity in connection with (Affiliate, Publisher, Partner)'s participation on any NWL Network or in connection with any Advertiser's (Affiliate, Publisher, Partner) marketing program or Engagement. You cannot engage in “harvesting” or “phishing” for email addresses from any public sources such as, but not limited to, chat rooms and message boards, including community websites that prohibit such activity. This practice may be considered an “improper means” under CAN-SPAM Act. You may not use false or misleading subject lines or headers. We also strictly prohibit you from transmitting e-mail that makes use of or contains invalid or forged headers, invalid or non-existent domain names or other means of deceptive addressing ("counterfeit e-mail").
14. Incentivization: (Affiliate, Publisher, Partner) shall not incentivize or make any other offers in conjunction with the NWL Offering without getting NWL's written approval and said approval will be in NWL's sole discretion. NWL may terminate this Agreement immediately and cancel all payments due and owing to (Affiliate, Publisher, Partner) should NWL, in its sole discretion and judgment, believe that (Affiliate, Publisher, Partner) is in violation of this section.
15. (Affiliate, Publisher, Partner) shall not contact Advertiser directly for any reason whatsoever unless written approval is granted by and authorized NWL representative, in NWL's sole discretion. If (Affiliate, Publisher, Partner) contacts Advertiser directly NWL may cease any or all payments due and terminate this Agreement immediately. In the event NWL is in receipt of funds from an Advertiser for the purpose of paying commissions to (Affiliate, Publisher, Partner), and a dispute arises between (Affiliate, Publisher, Partner) and the Advertiser regarding the amount of the funds that are due, NWL will be entitled to return such funds to the Advertiser, and to decline to offer further processing services until such dispute is resolved and NWL is notified, in writing, by all parties, that payments should resume. (Affiliate, Publisher, Partner) agrees that NWL shall have no obligations and shall incur no liabilities to (Affiliate, Publisher, Partner) in connection with any dispute arising from the above.
16. Complaints:Should (Affiliate, Publisher, Partner) conduct e-mail marketing campaigns to its users, (Affiliate, Publisher, Partner) must, upon the request of National Web Leads, be able to supply the name, date, time and IP address where the consumer signed-up and/or gave permission to the (Affiliate, Publisher, Partner) to conduct such e-mail campaign. (Affiliate, Publisher, Partner) is solely responsible for all consumer complaints relating to e-mail campaigns conducted by the (Affiliate, Publisher, Partner). (Affiliate, Publisher, Partner) will respond to all consumer complaints within forty-eight (48) hours of notification, and shall immediately remove any person from its database who makes such request for removal.
VII. (AFFILIATE, PUBLISHER, PARTNER) LICENSING
1. Use of NWL Offerings: For each NWL Network of which (Affiliate, Publisher, Partner) is a member in good standing, NWL grants (Affiliate, Publisher, Partner) a personal, non-exclusive, non-transferable, non-sublicenseable, revocable and limited license and right, subject to the terms of this Agreement to: (a) Participate in any NWL Network for which (Affiliate, Publisher, Partner) have registered as a Network (Affiliate, Publisher, Partner), (b) Access the areas of the relevant Network (Affiliate, Publisher, Partner) Account Area necessary for (Affiliate, Publisher, Partner)'s participation in such NWL Network as a Network (Affiliate, Publisher, Partner), (c) Solely for (Affiliate, Publisher, Partner)'s use in connection with (Affiliate, Publisher, Partner)'s participation in the NWL Network, download any reports made available to (Affiliate, Publisher, Partner) by NWL, (d) Use any software code or other Content that is provided by NWL Solely for the purpose of creating and maintaining Qualifying Links in accordance with this Agreement and (Affiliate, Publisher, Partner)'s Engagements, for such purpose, and no other purpose, but only in the form so provided. All other use of any NWL Network, Network (Affiliate, Publisher, Partner) Account Area, any reports made available to (Affiliate, Publisher, Partner) by NWL and software code or Content, including modification, publication, transmission, transfer or sale of, reproduction, creation of derivative works, distribution, performance, display, incorporation into another Site or mirroring is prohibited.
2. Use of the NWL Trade Name: This Agreement does not grant to (Affiliate, Publisher, Partner) any license or right to use NWL's name or any of its logos, trade or service names or marks, except to the extent required to be used in connection with a URL. Any press release or other public announcement by (Affiliate, Publisher, Partner) regarding this Agreement or any NWL Network or that mentions NWL shall require the prior written approval of NWL, and said approval may be unreasonably withheld by NWL. (Affiliate, Publisher, Partner) agrees that (Affiliate, Publisher, Partner) shall not disparage NWL or any of the NWL Networks or any other participants thereof.
3. Duration of License Rights: The above licenses with respect to any NWL Network are valid only while (Affiliate, Publisher, Partner) remains a member of such NWL Network as a Network (Affiliate, Publisher, Partner) in good standing and comply with this Agreement. NWL may revoke any such license at any time by giving (Affiliate, Publisher, Partner) notice by e-mail or in writing. NWL reserves all rights that are not specifically granted to (Affiliate, Publisher, Partner) by this Agreement.
VIII. NWL LICENSING
1. Use of (Affiliate, Publisher, Partner)'s Content: Other than as provided below, in order to participate in the NWL Network, (Affiliate, Publisher, Partner) is not required to provide NWL with any Content or other materials. Should (Affiliate, Publisher, Partner) do so, by way of uploading, delivering or otherwise making available to NWL any Content and/or other materials (including any Intellectual Property Rights therein and thereto), (Affiliate, Publisher, Partner) agrees to grant, and hereby grants, to NWL a non-exclusive, worldwide, royalty-free, sublicense able, perpetual license to use and store the same including in relation to conducting its business or performing any services in relation to any NWL Network. This Section will survive any termination.
2. Use of (Affiliate, Publisher, Partner)'s Name: NWL shall have the right to refer to (Affiliate, Publisher, Partner) by (Affiliate, Publisher, Partner)'s name in connection with any NWL Network and/or the performance or provision of any NWL Offerings, including in communications sent to actual or prospective participants of the NWL Networks in which (Affiliate, Publisher, Partner) participate.
3. Disclosure of Business Relationship: Nothing in this Agreement shall prevent NWL from making any public or private statements about (Affiliate, Publisher, Partner)'s business relationship with NWL and/or any Advertiser and/or (Affiliate, Publisher, Partner)'s participation in any NWL Network.
4. Use of (Affiliate, Publisher, Partner)'s Logo: Except as expressly provided above, NWL shall not use any of (Affiliate, Publisher, Partner)'s logos and/or other trademarks without (Affiliate, Publisher, Partner)'s prior written approval. Any and all uses of (Affiliate, Publisher, Partner)'s logos and/or other trademarks shall be in accordance with (Affiliate, Publisher, Partner)'s specified usage guidelines.
IX. REPRESENTATION AND WARRANTIES
1. (Affiliate, Publisher, Partner) Representations: (Affiliate, Publisher, Partner) represents, warrants and covenants as follows: (a) (Affiliate, Publisher, Partner) has the legal right to conduct any business to be conducted by (Affiliate, Publisher, Partner) including in respect to any Site(s) participating in any NWL Network; and (b) Any and all information (Affiliate, Publisher, Partner) provided as part of the registration process or otherwise shall be truthful, accurate and complete, irrespective of any independent verification or other determination made by NWL; and (c) This Agreement has been duly and validly authorized, accepted, executed and delivered by (Affiliate, Publisher, Partner) (or (Affiliate, Publisher, Partner)'s authorized representative) and constitutes (Affiliate, Publisher, Partner)'s legal, valid, and binding obligation, enforceable against (Affiliate, Publisher, Partner) in accordance with its terms; and (d) The performance by (Affiliate, Publisher, Partner) of this Agreement and the participation by (Affiliate, Publisher, Partner) in any NWL Network and any relevant Advertiser's Engagement does not and shall not conflict with or violate (i) any law, rule, regulation, order, judgment, decree, agreement or instrument applicable to (Affiliate, Publisher, Partner) or (ii) if (Affiliate, Publisher, Partner) is an Entity, any provision of (Affiliate, Publisher, Partner)'s certificate of incorporation or other organizational documents.
2. Policies and Guidelines: (Affiliate, Publisher, Partner) agrees to abide by all of NWL's policies and guidelines posted on NWL's web site from time to time. (Affiliate, Publisher, Partner) further agrees that NWL may amend, alter, or modify the policies and guidelines posted on the NWL web site at any time and without notice to (Affiliate, Publisher, Partner).
X. NON-DISCLOSURE
1. Confidential Information: (Affiliate, Publisher, Partner) acknowledges that in connection with (Affiliate, Publisher, Partner)'s participation in the NWL Network and/or in one or more Advertisers' Engagements, (Affiliate, Publisher, Partner) will be provided with confidential and proprietary data and information from time to time through reports as well as other NWL Offerings to (Affiliate, Publisher, Partner) through (Affiliate, Publisher, Partner)'s Network (Affiliate, Publisher, Partner) Account Area or otherwise. Such confidential and proprietary data and information may be owned variously by NWL or Advertisers and/or its or their suppliers or contractors. (Affiliate, Publisher, Partner) will only retain ownership of any data and information that (Affiliate, Publisher, Partner) independently collects through (Affiliate, Publisher, Partner)'s Sites without the use of NWL Offerings, provided that any data and information that may be provided by (Affiliate, Publisher, Partner) to NWL shall be deemed to be covered by the licenses granted to NWL under this Agreement.
2. Duty of Care: (Affiliate, Publisher, Partner) will keep all reports, data and other confidential information provided to (Affiliate, Publisher, Partner) through the Network (Affiliate, Publisher, Partner) Account Area or otherwise strictly confidential. Without NWL's prior written consent, (Affiliate, Publisher, Partner) will not disclose any such confidential information to any third party or use any such confidential information other than solely as and to the extent required for (Affiliate, Publisher, Partner) to perform under this Agreement and/or (Affiliate, Publisher, Partner)'s Engagements with any Advertisers.
3. Disclosure of Confidential Information: (Affiliate, Publisher, Partner) may disclose any such confidential information only to (Affiliate, Publisher, Partner)'s employees, officers and directors who need to know such information in order to perform their respective duties; provided that each such person has a legal or contractual obligation to maintain the confidentiality of such information.
4. Legally Required Disclosures: If (Affiliate, Publisher, Partner) receives any document request, interrogatory, subpoena or other legal process (Request) that would, by its terms, require the disclosure of any Confidential Information protected by this Agreement, then promptly upon receipt thereof, and prior to making any response thereto, (Affiliate, Publisher, Partner) will notify NWL in writing of (Affiliate, Publisher, Partner)'s receipt of such Request, and shall provide a copy thereof. Upon receipt of such notice, NWL may seek to intervene in the matter in which the Request was issued to seek protection of the confidentiality provided for by this Section. Absent written agreement signed by NWL, (Affiliate, Publisher, Partner) may not make such disclosure absent an order or directive from the tribunal from which a Request was issued. NWL will be entitled to seek and obtain injunctive relief preventing any breach of (Affiliate, Publisher, Partner)'s obligations under this Section, without the need to show irreparable harm, and without the need to post a bond or undertaking.
XI. FEES AND PAYMENT
1. Advertiser Responsible for Payment: (Affiliate, Publisher, Partner) acknowledges that (Affiliate, Publisher, Partner)'s entitlement to any compensation reported with respect to any Tracked Activity (including if reported) is solely a function of the terms of (Affiliate, Publisher, Partner)'s agreement with the relevant Advertiser and that such Advertiser is solely responsible for its payment. NWL is not liable or responsible for payment or collection, even in the event that NWL performs the function of processing payments to (Affiliate, Publisher, Partner) on behalf of Advertisers. The Company reserves the right to withhold commission payments from Publisher's accounts if funds have not been received from the Advertiser, or fraudulent activity is suspected. There will be a $35.00 bank fee applied with any request to stop payment on a check and issue a replacement check. This $35.00 is deducted from Publishers account balance or replacement check.
2. Payment Terms: Commission rates are subject to change from time to time, without notice upon posting on Our Website. Payments are made in US dollars. A Commission will only be paid if the User to an approved Program website can be tracked by the system from the time of the click on Your Link to the time of the sale. No Commission will be paid if the User's payment to the Program cannot be tracked directly to Your site by Our System or if full payment for services is not made by the User. Company reserves the right, in its sole and exclusive discretion, to alter or modify the Program at any time including the method and terms of all payment benefits to You. Any changes posted to the payout details shall be binding upon You immediately upon posting the changes. It shall be Your obligation to check the payout details to determine if there have been any changes in the Program. (Affiliate, Publisher, Partner) understands that payment by NWL shall be made on net 30 terms. (Affiliate, Publisher, Partner) will receive payment provided that the actions generated are not based upon fraud or any violation of the terms contained in this Agreement. In the event we are unable to collect debt owed to us for commissions generated by You, Our affiliate, you will not hold us liable for rendering said commission payment(s) to you.
3. NWL's Right to Assess Fees: NWL may, at any time upon prior written notice to (Affiliate, Publisher, Partner) as described below, commence charging or assessing fees in relation to any or all NWL Offerings made available to (Affiliate, Publisher, Partner) including (Affiliate, Publisher, Partner)'s participation on any NWL Network(s). Except as otherwise expressly provided in this Agreement, in the event NWL elects to charge or assess fees, (Affiliate, Publisher, Partner) will be notified at least one (1) month in advance in writing by email or posting through the Network (Affiliate, Publisher, Partner) Account Area. (Affiliate, Publisher, Partner) may elect not to pay any such fees by discontinuing (Affiliate, Publisher, Partner)'s participation in all NWL Offerings prior to the commencement of such fees. Any and all fees or other charges may be offset against or debited from any amounts that might be held in account for (Affiliate, Publisher, Partner) by NWL or NWL Related Parties including any amounts that may be due, payable or paid to (Affiliate, Publisher, Partner) by any Advertisers or other third parties.
4. Redirect: In the event You refer any User from a territory which NWL determines cannot participate in the Company’s Programs, NWL may redirect such User(s) to other companies with whom NWL has a relationship in order to generate revenue from such User(s). In such cases, NWL will pay you in accordance with the payout details.
5. Tax: (Affiliate, Publisher, Partner) agrees that (Affiliate, Publisher, Partner) is solely responsible for any and all tax obligations, if any, due to all taxing authorities arising from or in connection with (Affiliate, Publisher, Partner)'s participation in any NWL Offerings, NWL Network or any Advertiser Engagement.
6. Dispute: If You dispute the manner or amount of calculation of Your Commissions with regard to any given payment period, You must inform Company in writing within thirty (30) days of the disputed payment, otherwise You are deemed to have waived Your right to challenge the payment calculation.
XII. LEGAL COMPLIANCE
1. (Affiliate, Publisher, Partner) and (Affiliate, Publisher, Partner)'s (Affiliate, Publisher, Partner)s, officers, directors, employees, consultants, agents and representatives, and the conduct of (Affiliate, Publisher, Partner)'s business, (Affiliate, Publisher, Partner)'s performance under any Engagements with any Advertiser, and (Affiliate, Publisher, Partner)'s use of any NWL Network and/or NWL Offerings shall comply at all times with all applicable federal, state, provincial and foreign laws, ordinances, rules, regulations, orders, judgments and decrees.
XIII. TERMINATION OF ADVERTISERS
1. Any Advertiser's participation in any NWL Network may end or be suspended for a number of reasons, including but not limited to expiration or early termination of its merchant agreement or demand from Advertiser, and Affilliate agrees and understands that NWL may terminate (Affiliate, Publisher, Partner)'s participation in NWL's program without notice. In any event NWL shall endeavor in good faith, but does not guarantee, to give (Affiliate, Publisher, Partner) two (2) days notice (said notice may be via e-mail or phone communication) before NWL "kills links" of any offer being run by (Affiliate, Publisher, Partner).
2. If an Advertiser's participation in any NWL Network ends or is suspended for any reason, its program conducted through such NWL Network shall end or be suspended and NWL may, without notice to (Affiliate, Publisher, Partner), terminate or suspend all Qualifying Links that (Affiliate, Publisher, Partner) has with that Advertiser immediately or, in NWL's discretion, at any time thereafter. NWL shall have no obligation or liability to (Affiliate, Publisher, Partner) because of any such termination or suspension of any Advertiser.
XIV. DISCLAIMER OF WARRANTIES
1. NWL and NWL Related Parties hereby disclaim any and all warranties, express or implied, including any warranty as to accuracy, merchantability, completeness, correctness, security, non-infringement, title, or fitness for a particular purpose of any NWL service, NWL Network or any NWL Offerings or that (Affiliate, Publisher, Partner)'s use of the same will be uninterrupted or error-free, or that any Advertiser will be available (including in the event of being terminated for whatever reason from any NWL Network) or can or will be willing to enter into any Engagement with (Affiliate, Publisher, Partner).
EACH NWL NETWORK AND NWL OFFERING IS PROVIDED "AS IS, WHERE IS" AND "AS AVAILABLE."
XV. LIMITATION ON LIABILITY
1. If (Affiliate, Publisher, Partner) reasonably determines that any NWL Offering or services does not materially meet NWL's obligations under this Agreement, then (Affiliate, Publisher, Partner) must notify NWL in writing within ten (10) days of receiving any such allegedly nonconforming NWL Offerings or services. (Affiliate, Publisher, Partner)'s failure to notify NWL within ten (10) days of the above shall mean that (Affiliate, Publisher, Partner) has accepted such services and NWL Offers, and NWL shall thereafter have no liability whatsoever with respect to such services and NWL Offers. If upon receipt of any notice under this Section, NWL may, at its sole discretion, re-perform the service in question or otherwise provide (Affiliate, Publisher, Partner) with any substitution or replacement services in lieu thereof. Any re-performance or provision of substitute or replacement services shall in no event be construed as an admission that the original service was nonconforming or otherwise improper, and (Affiliate, Publisher, Partner)'s acceptance of the same constitutes (Affiliate, Publisher, Partner)'s sole remedy and in such case constitutes NWL's maximum liability for any such alleged breach of this Agreement.
2. Notwithstanding the above, liability is imposed on NWL or NWL related parties, then (AFFILIATE, PUBLISHER, PARTNER) agree that the total liability of NWL and NWL RELATED PARTIES, and its and their officers, directors, employees, agents, subcontractors and representatives, to (AFFILIATE, PUBLISHER, PARTNER) will not exceed twenty-five dollars ($25.00). (Affiliate, Publisher, Partner) recognizes and acknowledges that this limitation of damages is fair and reasonable, in light of the fact that NWL is providing this service to (Affiliate, Publisher, Partner) at no charge to (Affiliate, Publisher, Partner).
3. None of NWL and NWL related parties will be liable to (Affiliate, Publisher, Partner) (whether in contract or based on warranty, negligence, tort, strict liability or otherwise) for any indirect, incidental, consequential, reliance, punitive or special damages, INCLUDING LOSS OF REVENUE OR PROFITS, even if such person was aware that such damages could result.
4. Any claim or cause of action arising out of (Affiliate, Publisher, Partner)'s use of any NWL Network, this Agreement or the Network Policies and Guidelines must be filed within ninety (90) days after such claim or cause of action arose or is forever barred.
5. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF CERTAIN LIABILITIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF THIS SECTION MAY NOT APPLY TO (AFFILIATE, PUBLISHER, PARTNER).
6. Disclaimers: NWL makes no representations or express or implied warranties with respect to the program, any company services, or items sold through the program (including, without limitation, warranties of merchantability, fitness for a particular purpose, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage).
In addition, we make no representation the operation of our website(s) will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors caused by failure of performance, error omission, interruption, deletion, defect, delay in operation, transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record, whether for reach of contract, tortious behavior, negligence, or under any other cause of action.
Further, we make no warranty, express or implied, with respect to any information delivered hereunder (including, without limitation, implied warranties of merchantability, fitness for a particular purpose or freedom from patent, trademark or copyright infringements, whether arising by law, custom or conduct) or as to the accuracy or completeness of the information and we shall not have any liability to you or to any other person resulting from your use or such third person's use of the information.
You acknowledge and agree that under no circumstances shall company, its employees, independent contractors, authors, agents, representatives, assigns and successors be liable to you, or any other person or entity, for any direct or indirect losses, injuries, special or incidental or consequential damages of any kind (including, without limitation, damages for loss of business profits, business interruption, goodwill, loss of business information, or other incidental or consequential damages or any other pecuniary loss) with regard to any link to any company website, or arising from or in connection with the use of the company’s materials, or due to any mistakes, omissions, delays, errors, interruptions in the transmission, or receipt of company’s services, content or company’s materials, including without limitation any losses due to server problems, computer or other equipment failure, or due to incorrect placement of html., regardless whether based upon breach of contract, negligence or any other claim or cause of action, in the event of any network downtime, computer or technical error we will not be held responsible for any lost hits, signups, traffic or income.
XVI. INDEMNIFICATION
1. (Affiliate, Publisher, Partner) agrees to defend, indemnify and hold harmless NWL and NWL Related Parties, and its and their directors, officers, employees, agents, subcontractors and representatives for and against any and all claims, actions, demands, liabilities, losses, damages, penalties, interest, judgments, settlements, costs and expenses (including reasonable attorneys' fees) that directly or indirectly arise out of or are based on: (a) any misrepresentation or breach of any representation, warranty, or covenant made by (Affiliate, Publisher, Partner) in this Agreement, (b) any conduct, or activity, error or omission by (Affiliate, Publisher, Partner), including in relation to (Affiliate, Publisher, Partner)'s participation on any NWL Network, performance of any NWL-tracked Engagement, or otherwise, (c) any violation by (Affiliate, Publisher, Partner) of any law, regulation or rule, (d) (Affiliate, Publisher, Partner)'s use of any other NWL Offerings, and/or (e) any actual or alleged infringement by (Affiliate, Publisher, Partner) of any Intellectual Property Rights or other rights of any person, (f) or any other claim brought against NWL arising out of (Affiliate, Publisher, Partner)'s actions or omissions.
2. NWL may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by (Affiliate, Publisher, Partner). NWL may participate in the defense of all claims as to which it does not assume defense and control, and (Affiliate, Publisher, Partner) shall not settle any such claim without NWL's prior written consent.
XVII. AMENDMENTS
1. Amendments: Company, in its sole and exclusive discretion, shall have the right at any time to change, alter or modify the Program, including without limitation, any benefits offered under the Program, any Payout Details or any Participating Member Obligations by amending these Ts&Cs or Payout Details. The Company may, but shall not be required to give you notice of these changes and it is Your obligation to review these Ts&Cs and the Payout Details regularly for updates or changes
2. Changes in Service: Upon prior written notice, NWL may add, remove, suspend or discontinue any aspect of any NWL Network's or any other NWL Offering.
3. (AFFILIATE, PUBLISHER, PARTNER)'S CONTINUED USE OF ANY NWL NETWORK AND/OR NWL OFFERING AFTER NOTICE IS GIVEN OF A CHANGE (AND AFTER EXPIRATION OF ANY APPLICABLE PRIOR NOTICE PERIOD) SHALL CONSTITUTE (AFFILIATE, PUBLISHER, PARTNER)'S BINDING AND LEGALLY ENFORCEABLE AGREEMENT TO SUCH CHANGE. IF (AFFILIATE, PUBLISHER, PARTNER) DOES NOT WISH TO ACCEPT ANY SUCH CHANGE, THEN (AFFILIATE, PUBLISHER, PARTNER) MUST TERMINATE (AFFILIATE, PUBLISHER, PARTNER)'S ACCOUNT WITH SUCH NWL NETWORK AND/OR NWL OFFERING AND CEASE USING SUCH NWL NETWORK AND ANY ASSOCIATED NWL OFFERING.
XVIII. TERMINATION
1. Termination: (Affiliate, Publisher, Partner) or NWL may, at any time, with or without cause, terminate this Agreement and (Affiliate, Publisher, Partner)'s participation on any NWL Network or use of any other NWL Offering. (Affiliate, Publisher, Partner) may effect such termination through (Affiliate, Publisher, Partner)'s Network (Affiliate, Publisher, Partner) Account Area or by written notice to NWL subject to actual receipt thereof.
2. Restricted Use: Alternatively, NWL may, in its sole discretion, suspend, limit, restrict, condition or deny (Affiliate, Publisher, Partner)'s access to or use of all or any part of any NWL Network or any NWL Offerings.
3. Upon any termination of this Agreement and/or (Affiliate, Publisher, Partner)'s participation on all NWL Networks: (a) (Affiliate, Publisher, Partner) shall immediately cease to use and remove from any and all Site(s), whether or not owned or operated by (Affiliate, Publisher, Partner), any and all Qualifying Links and all other Content or materials provided to (Affiliate, Publisher, Partner) in connection with (Affiliate, Publisher, Partner)'s participation on such NWL Network or (Affiliate, Publisher, Partner)'s use of any other NWL Offerings, (b) Any and all licenses and rights granted to (Affiliate, Publisher, Partner) under this Agreement shall immediately cease and terminate, (c) NWL may terminate or, in its sole discretion, direct or redirect to any destination Site any and all Qualifying Links continued to be used by (Affiliate, Publisher, Partner) without NWL or any Advertiser incurring any further liability or obligation to (Affiliate, Publisher, Partner), (d) Any and all confidential or proprietary information of NWL (including as applicable any confidential or proprietary information of Advertisers as and to the extent originally provided by NWL) that is in (Affiliate, Publisher, Partner)'s possession or control must be immediately returned or destroyed. If requested by NWL, (Affiliate, Publisher, Partner) will certify in writing and signed by (Affiliate, Publisher, Partner) or an authorized officer as to the return or destruction of all such confidential or proprietary information.
4. NWL may withhold and offset against any and all compensation and/or other fees that are then unpaid to (Affiliate, Publisher, Partner); following assessment of any fees or other charges owing to NWL, and subject to NWL holding any amount it determines in its sole discretion to be needed to support any of (Affiliate, Publisher, Partner)'s indemnification and/or other obligations and/or liabilities under this Agreement, NWL may refund any remaining monies to any of the Advertisers with which (Affiliate, Publisher, Partner) had entered into a NWL-tracked Engagement. Such withholding of such compensation and/or other fees is in addition to any other rights and remedies that NWL or any Advertiser may have in contract, at law or in equity.
5. All rights or remedies arising out of a breach of any terms of this Agreement shall survive any such termination of this Agreement and of (Affiliate, Publisher, Partner)'s participation in any NWL Network or (Affiliate, Publisher, Partner)'s use of other NWL Offerings.
XIX. ENFORCEMENT
1. Governing Law and Jurisdiction: This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The parties agree that exclusive jurisdiction for any disputes arising between the parties to this Agreement shall be brought in the federal and state courts within the State of Florida and both parties waive any defense of personal jurisdiction in those courts.
2. Attorneys Fees and Costs: The parties shall be entitled to recover, in addition to costs and disbursements allowed by law, reasonable attorney's fees, litigation costs, and expenses in connection with enforcement of this agreement, including pre-litigation attorney fees and costs and such fees shall be awarded to the prevailing party. Invalidation of any one of the covenants or terms of this Agreement, by judgment of a court, shall not affect any of the other provisions of this Agreement which shall remain in full force and effect.
3. Arbitration in Florida: Any and all disputes or claims arising out of and/or related to this Agreement, its performance, breach, or interpretation thereof (including issues about its validity or enforceability), shall be exclusively (except as provided below) resolved by binding arbitration utilizing the Commercial Arbitration Rules promulgated by the American Arbitration Association (AAA). For all disputes under three hundred thousand dollars ($100,000.00) one arbitrator shall be selected using AAA's procedures. For all disputes over three hundred thousand dollars ($100,000.00) three (3) arbitrators shall be selected using AAA procedures. The arbitrator(s) shall use all reasonable efforts to minimize discovery and to complete the arbitration proceedings as expeditiously as possible. Depositions shall not be allowed. The Arbitrator(s) shall render a written decision within thirty (30) calendar days of the hearing. The arbitrator(s) shall only determine the issue of entitlement to attorney's fees and shall award attorneys fees, the amount of which shall be determined in accordance with Florida Law. Additionally the arbitrator shall award to the prevailing party all costs associated with the Arbitration incurred by the prevailing party, including but not limited to, filing fee, case management fee, administrative fees, copying, and arbitrators fee, but will not award punitive, incidental, consequential, treble or other multiple or exemplary damages, and the parties hereby agree to waive and not seek such damages. Either party may seek judicial relief to compel the other party to comply with the provisions of this Section, or injunctive or other equitable relief to protect its interests, provided (unless prohibited by applicable law) that the remainder of the dispute or claim is submitted to arbitration. The arbitration shall be held in Lee County, Florida; both parties hereby give their irrevocable consent to jurisdiction of courts of or in the State of Florida, as well as processes of the AAA in Florida. All awards may be filed with one or more courts, state, federal or foreign having jurisdiction over the party against whom such award is rendered or its property, as a basis of judgment and of the issuance of execution for its collection. This agreement does not preclude the parties from seeking injunctive relief prior to arbitration in the proper courts. Furthermore the parties agree that any and all awards and settlements will be confidential and the parties will not communicate, publish, or transmit such information to a third party without consent of all parties to this agreement.
XX. RULES OF CONSTRUCTION
1. Construction: The preparation of this Agreement has been a joint effort of the parties, and each of the parties has participated fully in the negotiation and preparation hereof. Therefore, any rule of judicial construction that this Agreement is to be construed more strictly against one of the parties than the other shall not apply and has no effect.
2. Amendment and Modification: No change, amendment, modification, termination or attempted waiver of any of the provisions set forth herein shall be binding unless made in writing and signed by a duly authorized representative of the respective parties hereto, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein.
3. Non-Waiver: Either party's failure to require the other party's performance of any term or condition of this Agreement shall not constitute a waiver and shall not affect the right of such party to later enforce such provision, unless such waiver is made expressly in writing signed by an authorized representative of the waiving party. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
4. Force Majeure: Neither party shall be liable for service interruptions, delays, failure to perform, damages, losses or destruction, or malfunction of any consequence thereof caused or occasioned by, or due to fire, flood, water, the elements, acts of God, war, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond the effected party's reasonable control. The party so delayed or prevented from performing shall provide prompt notice of such event to the other party and shall exercise good faith efforts to remedy any such cause of delay or cause preventing performance.
5. Good Faith: All parties agree to act in good faith at all times and to abide by all terms and conditions set forth herein in such a manner.
6. Captions: The headings and captions in this Agreement are included for convenience of reference and shall not affect or be considered in the interpretation or construction of any provision of this Agreement.
7. Integration: This Agreement is the entire agreement between the parties pertaining to its subject matter, and supersedes all prior written or oral agreements (including prior versions of this Agreement and any conflicting confidentiality agreements), representations, warranties or covenants between the parties with respect to such subject matter. There are no third party beneficiaries of this Agreement.
8. Modification and Severability: No modification of these Standard Terms and Conditions shall be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative. Any provision of this instrument prohibited by law in any state shall, as to such state, be ineffective to the extent of such prohibition, without invalidating the remaining provisions of this instrument.
9. Assignment: (Affiliate, Publisher, Partner) shall not assign this Agreement and any rights or obligations hereunder without the express written approval of NWL which approval shall not be unreasonably withheld. Any transfer of control of substantially all of the assets or business of Client to a third party by any means, including without limitation, stock acquisition or merger, shall be deemed to be an assignment for purposes of this section. NWL shall be entitled to assign this Agreement without limitation.
10. Notice: All notices, requests, demands, and other communications to NWL hereunder shall be in writing and shall be deemed given at the time such communication is sent by registered or certified mail (return receipt requested), or recognized national overnight courier service, or delivered personally, to the following address (or other address as shall be specified by like notice and made to the attention of the owner):
National Web Leads, LLC.
P.O. Box 707
Estero, Florida 33929
11. Agent Third Party: (Affiliate, Publisher, Partner) shall disclose to NWL if it is acting as an agent for a Third Party, and (Affiliate, Publisher, Partner) agrees to provide NWL written proof of any agency or third party relationship, upon NWL's Request. (Affiliate, Publisher, Partner) further agrees and warrants that if it is acting as an agent or agency that it is authorized to bind, and will bind, the third party to this Agreement, and that the third party will be jointly and severally liable with (Affiliate, Publisher, Partner) for all invoices and payments due and owing to NWL.
12. Survival: Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening.
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