Exhibit 99.3
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Commission Junction Publisher Service Agreement
Introduction
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This Publisher Service Agreement (formerly referred to as Affiliate
Service Agreement, and hereinafter the "Agreement") is made by and
agreed to between Commission Junction, Inc. ("CJ"), and you ("You"). As
an application service provider, CJ facilitates "Affiliate Marketing
Programs" through provision of services ("Network Service") via the
Internet. An "Affiliate 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 e-mail list(s) ("Publisher", formerly referred to as an
"Affiliate") may earn financial compensation ("Payouts") for
"Transactions" (sales and/or "Leads", and in limited circumstances
clicks, mainly for Programs in operation prior to June 1, 2001 and only
through July 31, 2001) made from such Publisher's Web site or
subscription e-mails through a click made by a "Visitor" (generally any
person or entity that is not the Publisher or the Publisher's agent) an
Internet connection ("Link") to a Web site or Web site content operated
by another person or entity ("Advertiser", formerly referred to as a
"Merchant"). The Advertiser compensates the Publisher, in accordance
with this Agreement and the Program Payout specifications.
1 Relationship. In the context of this Agreement, You are referred to
herein as a Publisher. You agree not to:
(a) mislead others;
(b) operate or utilize a Web site or e-mail Link 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 any illegal good or service,
or Link to a Web site(s) that do so; and/or
(c) engage in spamming, indiscriminate advertising or unsolicited
commercial e-mail.
CJ may deem inappropriate based upon the foregoing, and/or on
reasonable Internet business standards as they may evolve, any Web site
or content that You make available to Visitors through e-mail, and
provide You with notice that You are in breach of this Section 1 (with
the opportunity to cure in accordance with Section 6.2 below, except if
Your Web site, e-mail content and/or business activity is illegal). Any
suspected fraudulent, abusive or otherwise illegal content or activity
by You on Your Web site or in Your subscription e-mails, 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 referral to the appropriate law enforcement agencies.
CJ may not review all content on Your Web site or in Your subscription
e-mails. You shall remain solely responsible for Your Web site and
subscription e-mail 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 e-mails.
You may be eligible to apply for and earn money through CJ's Publisher
Referral Program (refer to xxx.xx.xxx for terms and conditions). You
must meet certain qualifications listed on xxx.xx.xxx, apply to the
Program and be accepted by CJ, and, if accepted, place and maintain a
Link from Your Web site Home Page to CJ's current Publisher
registration form.
2.1 Linking to Advertisers. During the Term You may apply to Advertiser
Programs (including the CJ Publisher Referral Program) for the
opportunity to earn Payouts if results are produced 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 e-mails to
Advertiser's Web site or Web site content at Your discretion in
accordance with this Agreement. 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. In the context of the CJ Publisher Referral
Program, CJ is acting as an Advertiser and all provisions herein that
reference "Advertiser" are deemed to refer to CJ.
2.2 Use of Links to Advertisers. You may not place Links to
Advertiser's Web site or Web site content in newsgroups, message
boards, unsolicited e-mail 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.
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, JavaScript popup windows, 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 e-mails, 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 by Linking through the Network Service to the Advertiser's
"Information Page" hosted by Advertiser. Through its Information Page,
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 e-mail. 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 establish Lead parameters on its Information Page, 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, nothing contained on an Advertiser's Information Page
may conflict with terms and conditions contained in this Agreement and
the Advertiser Service Agreement and any such conflicting terms and
conditions shall be void. 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.
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 e-mail 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 e-mail list;
(b) engaging in any illegal activity of any type, including but not
limited to displaying illegal content on its Web Site and/or in its
subscription e-mails or offering any illegal good or service through
its Web Site and/or subscription e-mails;
(c) operation of a Web site or e-mail Link to Web sites that contain or
promote, any of the following content: misleading, abusive, violent,
bigoted, hate-oriented;
(d) engaging in indiscriminate or unsolicited commercial advertising
e-mails;
(e) placing Links to a Your Web site in newsgroups, message boards,
unsolicited e-mail 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, JavaScript popup windows 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.
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 e-mailings, two
types of CJ code must be included in and maintained within the
Advertiser's Links: "Impression Tracking Code" and "Transaction
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
(please 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 Advertiser's negligent or intentional act or omission.
CJ may temporarily deactivate Your Account or terminate You 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.
3.2 Network Service. Subject to Section 3.1, CJ shall provide You with
access to tracking, reporting and support services. Critical
information shall be tracked through the Tracking Code regarding
Transactions that result directly from Links placed by You through the
Network Service to Your Web site or subscription e-mail. You shall be
able to produce informational reports and analyses through the Network
Service. 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, at 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 via CJ's client services help
desk, and 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 the on-line "help" button within Your Account enables CJ to
respond more quickly to Your query.
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 e-mail 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.
3.4 Payment. If on the 20th day of the month for Publishers located in
the US or Canada and on the last day of the month for Publishers
located elsewhere Your Account exceeds CJ's "Minimum Balance Amount",
as set by CJ from time to time (currently US$25 for Publisher's located
in US or Canada and US$75 for Publishers located elsewhere), 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. The number or amount
of Transactions and clicks, credits for Payouts, and debits for
Chargebacks, 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 Chargebacks and You do not have an
adequate Account balance to cover the Chargeback 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 over the Web or 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
Account 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.
Your Account balance shall appear in US Dollars although a courtesy
calculation of foreign currency conversion is enabled through the
Network Service. When enabled, the foreign currency conversion shall be
provided as a convenience and is an estimate only. Payment in Your
local currency may be available (consult the information that is
available through Your Account, or contact xxxxxxxxxxxxxxx@xx.xxx). 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.
Any questions (including disputes) regarding Payouts and/or payment
should be directed in the first instance to: xxxxxxx@xx.xxx. Client
services shall work with internal resources, such as finance, legal,
and senior management, as necessary to answer Your questions.
3.5 Chargebacks. 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 a: product
return; duplicate entry or other clear error; non-bona fide Transaction
where there is no Publisher failure to comply with the Publisher
Service Agreement or this Agreement; or, with respect to a sale,
non-receipt of payment from, or refund of payment to, the Visitor by
the Advertiser ("Chargeback"). Chargebacks 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 ("Chargeback Period"). CJ may apply at any time Chargebacks
for non-bona fide Transactions in circumstances of Publisher or
Sub-Publisher failure to comply with this Agreement or the Advertiser
Service Agreement. An Advertiser may request that a Payout is not
issued on the 20th of the month following the month in which the
Transaction occurred, only in circumstances 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 Chargeback Period (but not beyond).
4.1 Proprietary Rights and Licenses. 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 e-mail 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 on its Information page or by written permission. 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 the 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 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 xxx.xx.xxx) 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 and
use the other's logo with such statements.
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 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 until this Agreement is
terminated.
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/or sublicense 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.
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 Advertisers 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.
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 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
provide Your e-mail address(es) and basic Publisher Account detail
(including but not limited to Web site name (if applicable), date Web
site or subscription e-mail 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 to xxxxx@xx.xxx and xxxxxxxxxx@xx.xxx 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 xxx.xx.xxx
and may be amended from time to time by way of republication, is
incorporated into this Agreement.
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 e-mail 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).
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 e-mail
mailings without the Visitor's express permission (which may be through
the Visitor's membership to Your subscription e-mail or Web site
program), to the extent CJ collects any such information, including,
but not limited to, the Visitor's name, e-mail address, phone number,
or any other personal information.
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 via e- mail with the subject
line of "IMPORTANT LEGAL NOTICE", to: (a) for CJ, "xxxxx@xx.xxx", and,
(b) for You, at the e-mail address listed on Your Account. E-mailed
notices shall be effective upon the logging by sender's server of
delivery confirmation. 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.
6.2 Temporary Deactivation and Termination. This Agreement may be
terminated by Publisher upon 30 days notice, or by a non-breaching
party if a breaching party fails to remedy a breach of this Agreement
within 30 days' written notice, except in where no opportunity to cure
is required to be extended (as specified herein). Your Account may be
deactivated in accordance with Sections 1, 2.2, 2.3, 3.5, 4 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 Marketing 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 Chargebacks (that shall be paid promptly if and when CJ has been
able to verify that no Chargeback 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 Advertiser's Web site or Web
site content (including but not limited to subsequent sales and/or
Leads).
6.3 Survival. The provisions of this Section and Sections 1, 3.4, 3.5,
5, 6, 8.1(a), 9, 10, 11.3, 11.5, and 11.6 shall survive the termination
of this Agreement.
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 e-mail, 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 event that You do
not agree to such Change.
8.1 Remedies.
(a.) Cumulative. No remedy or election shall be deemed exclusive but
shall, wherever possible, be cumulative with all other remedies at law
or in equity.
(b.) Your Remedies. If You believe in good faith that CJ is harming
Your reputation or in breach of any of the following Sections of this
Agreement: 4.2, 5.1, 5.2, 7, 10 and/or 11.2, You must notify CJ in
accordance with Section 6.1 and provide CJ with the opportunity to cure
such breach. You may terminate this Agreement immediately upon notice
to CJ if CJ is in breach of Section 5.3 of this Agreement.
(c) Advertisers/CJ Remedies. An Advertiser may terminate Your or Your
Sub-Publisher's sublicense/participation in the Advertiser's Program
under this Agreement immediately upon notice to CJ if the Advertiser
believes in good faith that You or Your Sub-Publisher is harming the
Advertiser's reputation, or in breach of the following Sections of this
Agreement: 1 (except as noted therein), 2.2, 2.3, 4 and/or 8.2. If CJ
believes in good faith that You are harming CJ's reputation or in
breach of any of the following Sections of this Agreement: 1 (except as
noted therein), 3.1 (except for gross negligence or intentional act or
omission), 3.4, 4.2, 5.1, 10, and/or 11.2, CJ must notify You in
accordance with Section 6.1 and provide You with the opportunity to
cure such breach. CJ may terminate this Agreement, deactivate You or
remove or disable any Links from Your Web site or subscription e-mails
through the Network Service without prior notice if You are in breach
of any of the following Sections of this Agreement: 1 (except as noted
therein), 3.1 (for gross negligence or intentional act or omission),
2.2, and/or 8.2.
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 xxxx, trade dress, or right to offer any service or
good offered on a party's Web site or through its subscription e-mail,
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.
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.
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.
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. 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.
9.4 Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE
PURSUANT TO APPLICABLE LAW, BOTH PARTIES DISCLAIM ALL WARRANTIES
EXPRESS OR 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.
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.
10. Indemnification. Each party ("indemnitor") shall defend, indemnify
and hold the other party ("indemnitee") harmless against all claims,
suits, costs, damages and judgments incurred, claimed or sustained by
third parties, including but not limited to Advertisers, for the
indemnitor's breach of this Agreement and for claims of product
liability and/or malpractice or misfeasance in the performance of
services ("Claims"). Should any Claim give rise to a duty of
indemnification under the provisions of this Agreement, then the
indemnitee shall promptly notify the indemnitor, and the indemnitee
shall be entitled, at its own expense, and upon reasonable notice to
the indemnitor, to participate in, control the defense, compromise and
to defend such Claim. The indemnitor may not settle any claim without
the consent of the indemnitee, except upon terms and conditions offered
or consented to by the indemnitee, which consent shall not be
unreasonably withheld. Neither participation nor control in the defense
shall waive or reduce any obligations to indemnify or hold harmless.
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.
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 (also known as a
"Merchant") that has approved You for membership in its Program, and
reciprocally, You are intended to benefit under each such Advertiser's
Advertiser Service Agreement (also known as a "Merchant 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.
11.3 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. The exclusive forum for any actions related to this
Agreement shall be in the state courts in Santa Barbara, California,
and, to the extent that federal courts have exclusive jurisdiction, in
Los Angeles, California. 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.
11.4 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.
11.5 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.
11.6 Assignment and Acknowledgement. Neither party may assign this
Agreement without the prior express written permission of the other
party. 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 are 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.
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
p (000) 000-0000; (000) 000-0000
f (000) 000-0000
Commission Junction is a Delaware corporation.
For notifications regarding this Agreement: xxxxx@xx.xxx
For questions regarding customer support: "help" button within Your
Account (if you are unable to get into Your Account, e-mail to):
xxxxxxxxxxxxxx@xx.xxx
For questions regarding compliance with Your obligations under this
Agreement: xxxxxxxxxx@xx.xxx
For payment questions: xxxxxxx@xx.xxx
xx Agree
