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Form of Shopping Technologies Addendum [Date] [AFFILIATE NAME] …
Tags: affiliate agreement, affiliate application, affiliate applications, affiliate membership, affiliate name, compliance, dear sirs, future software, host application, including without limitation, linkshare network, membership agreement, merchants, mutual covenants, network affiliates, programming code, receipt, software products, sufficiency, valuable consideration,Pages: 22
Language: english
Created: Thu Dec 12 17:16:36 2002
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Form of Shopping Technologies Addendum
[Date]
[AFFILIATE NAME]
[Address]
Re: Affiliate Membership Agreement between LinkShare Corporation ("LinkShare" or "we" or
"us") and [AFFILIATE NAME] ("Affiliate" or "you" or "your"), together with the "Network
Operating Policies for Affiliates" as may be amended, (collectively, the "Affiliate Agreement")
Dear Sirs/Madams:
Reference is made to the above-captioned Agreement; capitalized and other defined
terms used herein without definition shall have the meanings ascribed thereto in the Affiliate
Agreement. For your ease of reference, a copy of the Affiliate Agreement is attached as
Attachment A. This Affiliate Agreement governs your access to the LinkShare Network as well
as your use and enjoyment of the various tools and services provided by LinkShare to its Network
Affiliates, including access to the opportunities to earn compensation from forming Qualifying
Links with our Network Merchants.
The purpose of this letter agreement is to set forth our understanding of how Affiliate will
insure that any and all versions of any and all existing or future software products and services
(including without limitation any computer other programming code that is an add-on or bundled
with any browser or other host application) that Affiliate distributes, has distributed or otherwise
directly or indirectly makes available (collectively, the "Affiliate Applications") will be in
compliance with the terms of our Affiliate Agreement and the agreements contained in this letter
agreement.
In consideration of the mutual covenants of the parties provided herein and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Affiliate Applications. (a) Affiliate will comply with each of the following:
(i) No Affiliate Application will replace, intercept, interfere, hinder, disrupt
or otherwise alter in any manner the Web user's access, view or usage of, or other aspect
of the Web user's experience at, any Network Affiliate Webpage or in relation to any
Destination Webpage (both as defined below) in a manner that causes or otherwise
results in a different experience from what was otherwise intended by such third party
Network Affiliate;
(ii) No Affiliate Application will block, alter, direct or redirect, or
substitute, insert or append itself to, or otherwise intercept or interfere in any manner
with, any click through or other traffic -based transaction that originated from a Network
Affiliate Webpage in relation to a Destination Webpage as intended by the Network
Affiliate (including without limitation any return visit to the Network Merchant to which
such click through or other traffic reached or intended to reach) with the result of
reducing any compensation or other payment earned by or owing to a third party Network
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TM & © Copyright 2002 LinkShare Corporation. All rights reserved
Affiliate or increasing any payment obligation of any Network Merchant with respect to
any individual transaction;
(iii) No Affiliate Application will be designed or otherwise function (whether
intentionally or unintentionally) in any way that uses or causes to be used, in any
unreasonable or inappropriate manner, amount or otherwise, the server, bandwidth,
equipment, software and/or other component resources of the LinkShare Network;
(iv) No Affiliate Application will automatically or, without obtaining Web
user's consent with full and prominent disclosure satisfactory to LinkShare at the time of
the transaction, manually enable a Web user to modify the operation of his or her
browser (including without limitation by modifying the functionality or behavior of or
replacing any cookies or other aspect of the workings thereof) to block, disrupt or alter
the Web user's intended action in any manner that would contravene the agreements and
intentions of the foregoing subclauses (i) and (ii); and
(v) If any Affiliate Application is at any time held or otherwise determined
to be in violation of any applicable laws, rules or regulations, Affiliate will promptly
notify LinkShare in writing and disable existing copies of, cease distributing, and
otherwise cease or cause to be ceased all use of, such Affiliate Application in relation to
the LinkShare Network until such time if and when any such violation is cured to the
satisfaction of LinkShare in its sole discretion.
(b) The term "Network Affiliate Webpage" means any Webpage of any third party
Network Affiliate participating in the LinkShare Network that includes any Link that is tracked
by LinkShare ("LinkSynergy Link"). For any Network Affiliate Webpage that includes links,
banners, advertisements and other placements from multiple parties and providers in addition to
LinkSynergy Links, the term "Network Affiliate Webpage" as used herein may refer only to the
portion of any such Webpage that contains the LinkSynergy Link provided that the Affiliate
Application shall not use any other portion of such Webpage or the Web user's browser to
contravene the agreements and intentions of this paragraph 1. A "Destination Webpage" means
the Webpage following the Network Affiliate Webpage that is intended, without any redirects or
other intermediary steps (other than those intended by the Network Affiliate responsible for such
Network Affiliate Webpage and/or LinkShare) that is referenced or connected by a LinkSynergy
Link placed, offered or distributed by such Network Affiliate to its end users.
Network Affiliates participating in the LinkShare Network may be identified by Affiliate
through the presence of any type or format of LinkSynergy Link or in relation to such Network
Affiliate Webpage or Destination Webpage or by such other methodology, technology or other
identifier as LinkShare may provide Affiliate written notice of, from time to time, provided that
Affiliate will be responsible only for identifying Network Affiliates based on a methodology,
technology or other identifier to the extent it is provided written notice of the same not more than
once every twelve months and Affiliate is given a reasonable opportunity of at least ninety (90)
days to update any existing versions of Affiliate Applications subject to paragraph 2 below.
2. Modification of Affiliate Applications. (a) Prior to beta-testing or commercially
releasing any new version or other modification of any Affiliate Application, Affiliate will give
LinkShare at least thirty (30) business days to examine and test such new version or other
modification to insure its compliance with the terms of this letter agreement. If LinkShare
discovers at any time that Affiliate has failed to provide LinkShare with an advance opportunity
to examine and test any new version or other modification, such failure will constitute a breach of
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TM & © Copyright 2002 LinkShare Corporation. All rights reserved
this letter agreement and, without limiting any other relief and remedies that may be available to
it and without affecting the continuing obligations contained in this letter agreement, LinkShare
shall have the right to suspend or terminate all or any of Affiliate's rights under the Affiliate
Agreement with or without notice to Affiliate. Further, from time to time, LinkShare may and
shall have the right to request Affiliate to provide it with all current versions and releases of any
or all Affiliate Applications to do compliance testing and Affiliate will cooperate fully with
LinkShare in connection therewith. Affiliate will modify any Affiliate Application to correct (x)
any errors or other unintended results due to the usage or operation of any Affiliate Application in
conjunction with the LinkShare Network or (y) any violation of the terms of this letter agreement
including without limitation the agreements set forth in paragraph 1 above, provided that
LinkShare will also have the right to test any such modifications to any Affiliate Application in
accordance with this paragraph 2. LinkShare shall have no right to test or request changes to any
Affiliate Application that is not used in relation to, or cannot conceivably be used by any person
or entity in any manner that would affect (adversely or otherwise), the LinkShare Network or any
of the Network Merchants or Network Affiliates. Notwithstanding anything to the contrary, if at
any time LinkShare determines that the continued use of any Affiliate Application by any party
adversely affects the operation of the LinkShare Network, LinkShare will have the right to
suspend or terminate the participation of the LinkShare Network by you as an Affiliate and/or, if
possible, such user with notice to you before or after such suspension or termination.
(b) Once any version or other update of any Affiliate Application is approved by
LinkShare, Affiliate will distribute and have distributed or otherwise make available only such
LinkShare-approved versions of Affiliate Applications. Further, you will use reasonable best
efforts to implement download programs and otherwise incentivize any of your other partners,
and any of your and their respective distributors and other agents, and the existing base of Web
users, to substitute or adopt the LinkShare-approved versions of any Affiliate Application in place
of any previous versions of such Affiliate Application. From time to time, LinkShare will have
the right to evaluate the success of any such alterations, successor versions and/or adoption
programs, and you agree to provide us with any reasonably requested infor mation and otherwise
fully cooperate with LinkShare in connection with such evaluation.
3. Representations and Warranties; Indemnities. Each party hereto represents and
warrants that it has full legal and corporate power and authority to enter into this letter agreement
and that this letter agreement is and shall be a legal and binding obligations on such party.
Further, Affiliate represents, warrants and covenants to LinkShare that no Affiliate Application
(as a standalone application or as an add-on to or bundled with any other application) will, when
used in relation to the LinkShare Network (including without limitation with respect to any
Network Merchant or Network Affiliate or any end user or consumer thereof), violate any
applicable laws. Further to and without limiting Section 11.3 of the Affiliate Agreement, you
agree to indemnify and hold harmless, and pay and reimburse, LinkShare and the other Released
Persons for 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 relating to (a) your noncompliance with the representations, warranties,
commitments and obligations you have made in this letter or (b) the past, present or future
distribution and use of any Affiliate Application.
5. Public Announcements; Confidentiality. With respect to the matters covered by this
letter agreement: LinkShare shall have the right to publicly announce the general terms of the
parties' agreement hereunder. Any press releases or other formal announcements shall be
approved in writing by both parties. Pending any such public announcement, you shall maintain
the fact of this letter and the understanding reached by the parties hereby strictly confidential.
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TM & © Copyright 2002 LinkShare Corporation. All rights reserved
Following any such public announcement, you may disclose the subject matter of this letter
agreement only in a manner that is consistent with the terms hereof and with prior public
statements that have be en made by LinkShare or are approved in writing by both parties.
Notwithstanding any public announcements made or approved by LinkShare, the specific terms
of this letter shall be confidential information that may not be disclosed by Affiliate without
LinkShare's prior written consent. Nothing herein, including without limitation any actions taken
by LinkShare as contemplated by this letter, may be inferred, construed, restated or otherwise
used in any manner as a sponsorship or endorsement of any Affilia te Application, and Affiliate
shall not imply, suggest or otherwise state that LinkShare has provided its approval or
certification of any Affiliate Application unless LinkShare provides its express prior written
consent including its approval of any and all such statements that may be made.
5. Miscellaneous. The obligations contained in this letter agreement shall survive any
expiration or termination of the Affiliate Agreement. No amendment or waiver hereof will be
effective unless signed by both parties hereto. No failure or delay in exercising any right or
remedy hereunder will operate as a waiver. You agree that your obligations under this letter
agreement shall apply to your corporate affiliates and you shall cause your corporate affiliates to
abide by all of the obligations contained herein. You acknowledge that, if you breach your
obligations under paragraph 1 or 2 or 4, we will be irreparably harmed and that damages will be
inadequate to compensate us for such breach; accordingly, without limiting any other right or
remedy we may have, we shall be entitled to a decree of specific performance or injunctive relief
with respect thereto. In the event of any conflict between this letter agreement and the Affiliate
Agreement with respect to the subject matter expressly covered hereby, this letter agreement shall
govern, and in all respects, the Affiliate Agreement shall govern. There are no third party
beneficiaries under this letter agreement. To the extent any provision hereof is held to be invalid
or unenforceable, such provision shall be enforced to the full extent permitted by law and the
remaining provisions hereof shall remain in full force and effect. This letter agreement shall be
construed under the internal laws of the State of New York.
If the foregoing accurately summarizes our understanding, please sign and return a copy
of this letter to us by fax at 646 602-0160 for our files. Thank you for your attention.
Sincerely,
By: ___________________________
Name:
Title:
Accepted and agreed,
[Affiliate Name]
By: ___________________________
Name:
Title:
Date:
Attachment A -- Affiliate Agreement
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TM & © Copyright 2002 LinkShare Corporation. All rights reserved
TO JOIN ANY LINKSHARE NETWORK, YOU MUST BE AN INDIVIDUAL OVER THE
AGE OF EIGHTEEN (OR ANY HIGHER AGE REQUIRED UNDER THE LAWS OF YOUR
PLACE OF DOMICILE IN ORDER TO ENTER INTO CONTRACTS), A CORPORATION,
LIMITED PARTNERSHIP, LIMITED LIABILITY COMPANY OR ANOTHER KIND OF
ENTITY RECOGNIZED BY THE LAW AS A LEGAL PERSON SEPARATE FROM ITS
OWNERS. INDIVIDUALS, HOWEVER, MAY NOT JOIN THE LINKSHARE UKSM
NETWORK.
IN ADDITION, YOU MAY USE ANY LINKSHARE NETWORK ONLY FOR A BUSINESS
PURPOSE AND NOT FOR A PERSONAL, HOUSEHOLD OR FAMILY PURPOSE; THE
BUSINESS THAT YOU CONDUCT THROUGH ANY LINKSHARE NETWORK MUST BE
YOUR PRIMARY BUSINESS OR AN INTEGRAL PART OF YOUR PRIMARY BUSINESS;
AND YOUR USE OF ANY LINKSHARE NETWORK MUST BE INTEGRALLY RELATED
TO SUCH BUSINESS.
YOU MAY NOT JOIN OR USE ANY LINKSHARE NETWORK IF YOU DO NOT SATISFY
THE REQUIREMENTS OF THE NETWORK POLICIES REFERRED TO IN THE
FOLLOWING AGREEMENT.
TO BE AN AUTHORIZED MEMBER OF ANY LINKSHARE NETWORK, YOU MUST
AGREE TO THE TERMS OF THE FOLLOWING AFFILIATE MEMBERSHIP
AGREEMENT. PLEASE READ THE AGREEMENT CAREFULLY BEFORE JOINING OR
USING ANY LINKSHARE NETWORK.
BY CLICKING ON THE "ACCEPT" BUTTON OR USING ANY LINKSHARE NETWORK,
YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU
DO NOT ACCEPT THIS AGREEMENT, DO NOT USE ANY LINKSHARE NETWORK.
AFFILIATE MEMBERSHIP AGREEMENT
This Affiliate Membership Agreement is between LinkShare Corporation, a Delaware, U.S.A.
corporation ("LinkShare ," "We" or "Us") and You ("You" or "Member").
In consideration of the mutual covenants and agreements contained herein and other good and
valuable consideration, the receipt and sufficie ncy of which are acknowledged by the parties, the
parties, intending to be legally bound, agree as follows:
SECTION 1. BACKGROUND
1.1. Certain Website owners ("Merchants ") may seek to increase visitor traffic through a
program commonly called an "affiliate program." A Merchant with an affiliate program invites
Website owners or others to join the program and display or distribute the Merchant's advertising
that includes a hyperlink that leads to the Merchant's Website. Persons who join a Merchant's
affiliate program ("Online Affiliates" of that Merchant) receive compensation from the Merchant
based on tracked sales of products or services, application completions or other specified
activities by Web users who activate the hyperlink.
1.2. LinkShare directly or indirectly operates, over the Web, one or more affiliate marketing
networks that have two types of participants: (1) Merchants who join in order to operate an
affiliate program and (2) others who join in order to participate as Online Affiliates in the affiliate
programs of those Merchants.
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TM & © Copyright 2002 LinkShare Corporation. All rights reserved
1.3. You desire to participate in one or more of such networks as a potential Online Affiliate for
Merchants in such network(s), and this Agreement contains the terms and conditions for that
participation.
SECTION 2. DEFINED TERMS
2.1. References to "this Agreement" are to the following, collectively: (i) this Affiliate
Membership Agreement, (ii) LinkShare's Network Policies For Affiliates that are posted on a
LinkShare Webpage identified on the relevant Network Site (as defined in Section 2.3) or
otherwise made accessible to You (the "Network Policies"), (iii) any additional or different terms
specifically applicable to membership in any Network (as defined in Section 2.3) that LinkShare
posts on the relevant Network Site or otherwise makes available and requires that You accept in
order to join or continue to use such Network (the "Additional Terms "), and (iv) any supplement
to this Affiliate Membership Agreement signed by both parties (a "Supplement"), in each case as
such terms may be amended, supplemented or replaced from time to time as provided in Section
5. To review the Network Policies that are currently in effect for the various LinkShare Networks,
click here.
2.2. The term " Web" means the part of the Internet commonly referred to as the World Wide
Web or any replacement or similar network or resource which permits the sharing of electronic
files, graphics or information, regardle ss of how it is accessed by users, whether through
computers, WebTV, cable set-top boxes, cellular telephones or other wireline or wireless device,
platform or technology. A capitalized term used in this Agreement is defined in the provision of
this Agreement first used or in Section 2.3. Unless defined in this Agreement or unless the
context otherwise requires, terms used in this Agreement that have commonly accepted meanings
within the Web-based e-commerce industry are intended to have such meanings. The term
"Website " means a site on the Web and, where the context requires, a person owning or operating
a site on the Web.
2.3. The following terms have the meanings indicated:
"Content" Information, communications, software, photos, text, video, graphics, music, sounds,
images and other material.
"Link" Any software, software code, programming or other technology or method (or any
combination of the foregoing) that (i) creates a hyperlink between two Websites, or (ii) otherwise
causes a Web access devic e to display to its user a "banner," "button," text-mention, word,
phrase, logo or other textual or graphical material that, when "clicked on" or otherwise activated
by a person, results in a Website featured in the link being served to such person (i.e., the screen
of the visitor's Web access device displays Content on the linked Website) or results in such
person being able to electronically access or receive information, files, graphics or other items
from the linked Website.
"LinkShare Network" Any affiliate marketing network now or hereafter operated by LinkShare
or by a corporate affiliate of LinkShare, including the affiliate marketing networks that LinkShare
currently operates under the service names The LinkShare Network ®, B2B LinkShareSM, and
LinkShare UKSM, but excluding any "private label network" that is operated for a specific
Merchant or restricted group of Merchants.
"Network" As of any time, any LinkShare Network, which You have joined in accordance with
LinkShare's requirements and of which You are a member as of such time.
"Network Affiliate" As of any time and with respect to any LinkShare Network, a person which
is a member of such LinkShare Network as a potential Online Affiliate for Network Merchants
under an effective online or written agreement with LinkShare.
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TM & © Copyright 2002 LinkShare Corporation. All rights reserved
"Network Merchant" As of any time and with respect to any LinkShare Network, a person
which is then a member of such LinkShare Network under an effective Merchant Agreement with
LinkShare for purposes of conducting one or more affiliate programs.
"Network Site " For any Network, the Webpage(s) or other area of the Website having the URL
designated from time to time by LinkShare for use by members of that Network for the purpose
of facilitating formation of Qualifying Links, accessing reports and otherwise participating in
such Network.
"Program" An affiliate program or other performance-based marketing arrangement that any
Network Merchant conducts through any Network.
"Program Site" For any Program, a Website that a Network Merchant is authorized to use in the
relevant Network.
"Promotion" A banner, text-mention, advertisement or other material by which a Network
Merchant offers its products or services to Web users or otherwise seeks to attract Web users to
its own Website.
"Qualifying Link" With respect to any Network and any Program in which You participate a
Link that (i) when activated by a viewer results in the viewer being redirected to or served,
through or on the Network Site, a Webpage or duplicate of a Webpage of a Program Site, (ii) You
post on Your Site authorized to be used in such Network or, subject to any prohibitions or
limitations imposed by such Network Merchant, You include in an e-mail message, incorporate
into browser or browser extension software, make available on a "kiosk" or otherwise make
available to Web users, (iii) is of a kind and format for which LinkShare provides its tracking
services for Network Merchants and (iv) is established through the interface of such Network Site
or otherwise as instructed by LinkShare and includes any tracking or other code required by
LinkShare, in each case in accordance with LinkShare's technical guidelines.
"Your Site" For any Network, a Website that You own and operate and have properly registered
for use in such Network.
2.3. The words "include ," "includes" and "including" shall be deemed to be followed by the
phrase "without limitation." The word "or" means "and/or." If, in any provision of this
Agreement, any example is given (through the use of the words "such as," "for example," "e.g."
or otherwise) of the meaning, intent or operation of such provision, such example is intended to
be illustrative only and not exclusive or limiting. The term "person" is to be broadly construed
and includes any natural person or any corporation, trust, association, limited liability company,
partnership, joint venture or other entity. A " corporate affiliate" of any person is any other
person that directly or indirectly through one or more intermediaries controls, is controlled by or
is under common control with such first 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. A "business day" is a weekday in New York City, USA, that LinkShare does not observe
as a holiday. The word "Your" is a possessive pronoun that refers to You and the word "Our" is
a possessive pronoun that refers to LinkShare.
2.4. Whenever the context requires, any pronoun shall include the corresponding masculine,
feminine and neuter forms. Section or other headings or captions shall not affect in any way the
meaning or interpretation of this Agreement. Unless otherwise stated, references in this Affiliate
Membership Agreement to a Section or subsection are to a Section or subsection of this Affiliate
Membership Agreement. All definitions apply equally to both the singular and plural forms of the
terms defined. This Agreement shall be construed according to its fair meaning and not strictly
for or against either party.
SECTION 3. NETWORK MEMBERSHIP
7
TM & © Copyright 2002 LinkShare Corporation. All rights reserved
3.1. By clicking on an " Accept" or similar button on a Network Site or another Website of
LinkShare or by using any Network, You acknowledge that You have read, accepted and agreed
to be bound by the terms of this Agreement (including the Network Policies) with the same force
and effect as if this Agreement were set forth in a written document that had been duly signed and
physically delivered by You and LinkShare, and this Agreement becomes effective when You do
so. In the event of any conflict between the respective express provisions of this Affiliate
Membership Agreement, any applicable Network Policies, any applicable Additional Terms or
any Supplement, the conflict shall be resolved in accordance with the following order of
precedence: (i) Supplement, (ii) Additional Terms, (iii) Network Policies and (iv) this Agreement.
3.2. To use any LinkShare Network as a Network Affiliate, You must register on the page of the
relevant Network Site provided by LinkShare for such purpose. You agree to promptly provide
LinkShare with accurate and complete updated registration information if and as such information
changes. As part of the registration process for any Network, You shall be assigned a unique
alphanumeric password and user name for that Network (Your " Credentials"). LinkShare may
deny access to and use of any LinkShare Network unless or until any preconditions established by
LinkShare and published on the registration area of the relevant Network Site are satisfied.
3.3. You represent and warrant to and agree with LinkShare as follows:
· The information You provide as part of the registration process or otherwise shall be, at
the time provided, accurate and complete.
· You have carefully read this Agreement (including the applicable Network Policies,
Additional Terms and Supplements, if any) and consulted Your own legal counsel to the
extent You deem necessary (or shall have consciously decided not to consult a lawyer).
You fully understand that this Agreement creates legally binding obligations on Your
part.
· This Agreement has been duly and validly accepted, executed and delivered by You and
constitutes Your legal, valid, and binding obligation, enforceable against You in
accordance with its terms.
· The execution and delivery or acceptance or deemed acceptance and performance by You
of this Agreement and the participation by You in any Network and any Program does
not and shall not conflict with or violate (i) any law, rule, regulation, order, judgment,
decree, agreement or instrument applicable to You or binding upon Your assets or (ii) if
You are an entity, any provision of Your certificate of incorporation or other
organizational documents.
· You shall independently evaluate the desirability of participating in any Network or
Program You apply to or join. You agree that in deciding to participate in any Network or
any Program, You shall not rely on any representation, warranty, guaranty or statement
by LinkShare other than any representation expressly set forth in this Agreement and
expressly stated to be a representation.
3.4. You agree not to resell, assign, sublicense or otherwise provide to any third person any of
Your rights or benefits, or transfer or delegate any of Your obligations, under this Agreement or
as a Network Affiliate without the prior written consent of LinkShare, except to the extent
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TM & © Copyright 2002 LinkShare Corporation. All rights reserved
authorized by the Network Policies if You meet the requirements for acting as a "superaffiliate"
set forth in the Network Policies.
3.5. You agree that, during the applicable Restricted Period (as defined below), You shall not
maintain or create any Link outside of a Network with any Network Merchant on terms that
provide for payment to You of compensation for levels of Web user activitie s attributable to such
Link, other than a Qualifying Link through the relevant Network or otherwise enter into any
agreement or arrangement with any Network Merchant intended to reduce the fees that would
otherwise be payable to LinkShare by such Network M erchant. The term "Restricted Period"
means, with respect to any Network Merchant, the period beginning on the effective date of this
Agreement and ending on the first to occur of (i) one year after the date You cease to be a
member of the relevant Network in accordance with this Agreement and (ii) the date such
Network Merchant is entitled, by the express terms of its Merchant Agreement with LinkShare, to
form links with Network Affiliates outside of the relevant Network without restriction. You may
request LinkShare to inform You of the date referred to in clause (ii) of the immediately
preceding sentence with regard to any specific Network Merchant by e-mailing LinkShare at
notices@linkshare.com.
3.6. You agree that You are solely responsible for all tax obligations due to all taxing authorities
arising from or in connection with Your participation in any Network or any Program, including
federal, state, local and foreign withholding taxes, FICA, FUTA, Social Security, Medicare, SUI
and any and all other federal, state, local and foreign taxes. In addition, You agree that payments
to You by a Network Merchant or LinkShare on behalf of a Network Merchant shall be subject to
withholding under any applicable tax law, rule or regulation. You shall promptly provide
LinkShare with any information it reasonably requests in order to determine if withholding is
required. If LinkShare acts for any Network Merchant in disbursing any payment due from it to
You, then You authorize LinkShare to withhold taxes from payments to You that it believes in
good faith are required. Without limiting the generality of the foregoing, You agree that, as
between You and LinkShare, You are solely responsible for calculation and payment or collection
of, accounting for and issuing or o btaining invoices relating to any applicable Value Added
Taxes.
3.7. You understand and agree that participation in any Network will involve establishing
contractual arrangements with LinkShare (including this Agreement) or LinkShare Merchants
that are stored electronically on servers and are formed by means of "clicking on" an accept
button on the LSN Site or a Merchant's Website or through other electronic means. You agree not
to assert that any such contract is invalid or unenforceable solely because it takes such form or
was formed by such means rather than taking the form of a written document formed by the
manual signatures of the parties or another form or method
SECTION 4. MEMBERSHIP SERVICES
4.1. As a Network Affiliate in any Network, You shall be potentially eligible to join the Programs
and receive offers to form Qualifying Links made by one or more Network Merchants who are
members of that Network ("Link Offers "). As described in Section 6, the fact that Network
membership makes You potentia lly eligible to join Programs or receive Link Offers does not
necessarily mean that You shall also meet the eligibility requirements for participation in the
Program or any Link Offer of any particular Network Merchant. Each Network Merchant is
responsible for its own Programs and its own Link Offers, including providing the software code
for the graphical artwork or other materials to use in Links.
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TM & © Copyright 2002 LinkShare Corporation. All rights reserved
4.2. You shall have, on the Network Site for any Network of which You are a member in good
standing, an individual account accessible through the Web by use of Your Credentials.
LinkShare shall periodically post to Your account reports regarding activities tracked by
LinkShare for the Network Merchants with which You from time to time have Qualifying Links
(Your "Affiliate Reports "). Subject to Section 5, the contents, format and frequency of Your
Affiliate Reports for any Network shall be substantially the same as for the comparable reports
that LinkShare provides without separate charge to Network Affiliates in such Network generally
as part of its basic services for such Network, which may vary from time to time in LinkShare's
discretion.
4.3. You shall be responsible for maintaining the confidentiality and security of Your Credentials
and for all usage of Your account. Absent actual receipt of written notice to the contrary from
You, LinkShare may assume that any person accessing any Network Site using Your Credentials
is authorized to do so.
4.4. LinkShare shall not be liable to You as a result of failure by You or any Network Merchant
to use Qualifying Links, including to the extent that such failure results in inaccurate reports or
reduction of the amounts which would otherwise be payable to You by any Network Merchant.
4.5. You acknowledge that the accuracy, completeness and currency (in time) of the data included
in Your Affiliate Reports is a function of the accuracy, completeness and currency of the
underlying data that LinkShare obtains from Network Merchants. LinkShare shall not be
responsible or liable for any errors in or omissions from such underlying data or any Network
Merchant's failure to make or delay in making such data available to LinkShare or for any
intentional or inadvertent deletion or disablement by You or a Network Merchant of any of
LinkShare's tracking code or technology, or any consequences of the foregoing. LinkShare's
obligation, if any, to provide data or Affiliate Reports to You or any Network Merchant is subject
to the provision to LinkShare, on a timely basis, of the necessary data of the kinds and in the
form, format and manner required by LinkShare. LinkShare may rely on any data, notice,
instruction or request furnished to LinkShare by You, any Network Merchant or any other third
party which is believed by LinkShare in good faith to be genuine.
4.6. If a Network Merchant reports a transaction or activity that occurred in a particular month to
LinkShare after such month ends, then LinkShare may, in its discretion, incorporate that event
into Your Affiliate Reports for that month or for some subsequent period.
4.7. You acknowledge and agree that each Network Merchant whose Program You join shall
receive reports from LinkShare that identify You and may include data about You and Your
Qualifying Links with that Network Merchant. If LinkShare is notified by a Network Merchant
that it believes that its reports about its relationship with You contain an error or omission or
otherwise require adjustment, LinkShare may elect to revise those reports as requested by the
Network Merchant and make corresponding changes to Your Affiliate Reports. Since the reports
LinkShare provides You and such Network Merchant are the bases for calculating the
compensation, if any, due to You from that Network Merchant, any such adjustment may affect
the amount of compensation to which You are entitled.
4.8. If You believe that any of Your Affiliate Reports for any month contains errors in the data
about Your relationship with any Network Merchant, You must notify LinkShare and that
Network Merchant within ten days after the end of that month or any shorter period that may be
provided for in Your agreement with that Network Merchant so that, if possible, the matter may
be resolved. If any Affiliate Reports for any month are corrected or adjusted after the end of the
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month, then the period within which You must notify LinkShare of errors in the corrected or
adjusted data shall be ten days after such correction or adjustment is posted or any shorter period
that may be provided for in Your agreement with the relevant Network Merchant. Any dispute
between You and a Network Merchant about any error You report must be resolved by You and
that Network Merchant
4.9. You acknowledge that Your entitlement to any compensation reported with respect to any
tracked or reported activity is solely a function of the terms of Your agreement with the relevant
Network Merchant and that such Network Merchant is solely responsible for its payment. The
fact that a compensation amount is reported for any tracked activity does not necessarily mean
that a payment is due to You from the relevant Network Merchant, since payment may be subject
to conditions established by that Network Merchant, including policies regarding order
cancellation, returned merchandise, receipt of pending credit card authorizations and minimums
for earned compensation before payment is made. All determinations of Qualifying Links and the
compensation due to You made by LinkShare shall be final and binding on You.
SECTION 5. CHANGES IN NETWORK, SERVICES AND MEMBERSHIP TERMS
5.1. LinkShare reserves the right to take, at any time, any of the following actions (each a
"change"):
· Add to, remove or otherwise change the terms or provisions of this Agreement or replace
this Agreement in its entirety.
· Add, remove, suspend or discontinue any aspect of any Network, limit, restrict, condition
or deny access to or use of all or part of any LinkShare Network or otherwise change any
Network or Your right to use any Network.
· Charge fees for continued access to or use of any Network or any aspect thereof or any
services that LinkShare provides or makes available to You.
LinkShare may notify You of such change by posting a notice on the relevant Network Site or, in
its discretion, by e-mail, newsletter, postal mail or personal or overnight delivery. Such change
shall be effective when such notice is posted or otherwise given or any other time specified in
such notice, except that
· If any such change would result in You becoming required to pay fees not previously
payable or increase fees already payable, then such notice of such change shall be given
by one of such means at least thirty days before such change becomes effective.
· In the case of any other change that would, in LinkShare's good faith and reasonable
judgment, materially adversely affect Your rights or obligations under this Agreement,
then such notice of such change shall be given by one of such means at least five business
days' before such change becomes effective, except that shorter advance notice (but not
less than two business days) may be given in a situation that LinkShare believes in good
faith to be an emergency or otherwise have an adverse effect on a Network if a longer
notice were given.
You are responsible for regularly reviewing each Network Site in order to learn of any changes.
YOUR CONTINUED USE OF ANY NETWORK AFTER SUCH NOTICE IS POSTED OR
OTHERWISE GIVEN (AND AFTER EXPIRATION OF ANY APPLICABLE PRIOR NOTICE
PERIOD SPECIFIED ABOVE) SHALL CONSTITUTE YOUR BINDING AND LEGALLY
ENFORCEABLE AGREEMENT TO SUCH CHANGE. IF YOU DO NOT WISH TO ACCEPT
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ANY SUCH CHANGE, THEN YOU MUST WITHDRAW FROM SUCH NETWORK AND
CEASE USING SUCH NETWORK.
5.2. You acknowledge and agree that LinkShare may at any time enroll any person as a Network
Affiliate on terms that differ from those contained in this Agreement, and may also operate other
affiliate marketing networks or programs that are similar to or compete with any Network in
which You are a member.
SECTION 6. PARTICIPATION IN THE AFFILIATE PROGRAMS OF NETWORK
MERCHANTS
6.1. Subject to the terms of its Merchant Agreement with LinkShare, each Network Merchant has
complete discretion in limiting the persons to whom it makes Link Offers or by whom its Link
Offers may be accepted, and in establishing the terms and conditions of its Link Offers and
agreements regarding its Qualifying Links and participation in its Program. In general, to accept
any Link Offer by a Network Merchant, You shall be required to join the Program of such
Network Merchant. Subject to the terms of its Merchant Agreement with LinkShare, each
Network Merchant has complete discretion in setting eligibility and other requirements and
conditions for membership and participation in its Program and Link Offers.
6.2. In order to join the Program or accept a Link Offer of a Network Merchant, You must follow
the instructions and satisfy the requirements of that Network Merchant. In most cases, this will
require, among other things, that You enter into an online or written agreement (an
"Engagement") with such Network Merchant by which You accept, electronically or in writing,
such Network Merchant's terms and conditions for participation in its Program or for accepting a
Link Offer.
6.3. You agree to comply with the Engagements and other terms and requirements for
participation established by each Network Merchant whose Program You join.
6.4. Subject only to compliance with Section 5.1, LinkShare may, with the consent of such
Network Merchant, if required, but without Your prior approval, institute policies or procedures
that have the effect of modifying the terms of Your Engagements with a Network Merchant.
Upon effectiveness, such policy or procedure shall apply to You, notwithstanding any contrary
provision of Your Engagements, and Your Engagements shall automatically be deemed to be
modified to reflect such policy or procedure, without the necessity of any formal amendment of
such Engagements or other action on Your, LinkShare's or any Network Merchant's part. No such
modification, however, may have retroactive effect without Your consent.
6.5. You agree that You shall not:
· Place or use any Link of any Network Merchant except with the intention of delivering
valid sales, leads, applications, accounts, clicks or other specified compensable actions to
that Network Merchant;
· Distribute or display, or authorize or use any third party to distribute or display, any
Qualifying Link or any other Link of any Network Merchant created or obtained through
the Network by means of any browser extension or other software or technology which is
downloaded to or installed on the Web user's personal computer or other Web access
device and which serves advertisements, promotional material or links as an overlay
upon, a substitute for content in, as a "pop-up" keyed by content or key words on a
Webpage requested or viewed by such Web user;
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· Inflate the number of applications, accounts, clicks or other specified compensable
actions or any impressions of any Network Merchant's Webpage, Promotion or other
Content by any method or using any device, program, hidden frames, java pop ups, Web
bot, robot, automatic redirecting of users, autospawning of browsers or any other
technique or means of generating automated click-throughs, requiring visitors to click on
a Network Merchant's Link before entering any area of Your Site(s), by placing or
including Promotions or links on pages of Your Site that automatically reload or go to
another page without interaction from the user (for example, client pull or server push
technology, METATAG reload, or refresh command on page html) or on any page that is
not generally accessible to all Web users (for example, pop-up windows and hidden
frames);
· Resell, assign, sublicense or otherwise provide any third person any of Your rights or
benefits, or otherwise transfer or delegate any of Your obligations, as a participant in any
Program, except to the extent authorized by the Network Policies if You meet the
requirements for acting as a "superaffiliate" set forth in the Network Policies;
· Display, distribute or otherwise make available to Web users or others any Promotion of
or any Link to any Program Site anywhere by any means or method prohibited by such
Network Merchant or that violates any law, rule or regulation or any intellectual or other
rights of such Network Merchant or any third party; or
· Use any name, trademark, service mark, domain name or other intellectual property of
any third party in connection with Your use of the Network, Your participation in any
Program or any Qualifying Link in any way or for any purpose that infringes or violates
any law or any intellectual property or other rights of such third party, whether in order to
increase the levels of compensable activities attributable to Your Qualifying Links or for
any other purpose.
6.6. Network Merchants' offers and Engagements for payment to Network Affiliates of
compensation per click-through or per specified number of click-throughs are subject to any and
all restrictions, limitations and policies that LinkShare may institute at any time and from time to
time. Such restrictions, limitations and policies apply to all such offers and Engagements, even if
not so stated in their terms or even if their terms state something different.
6.7. If You violate any Network policy or engage in any actual or suspected fraudulent,
abusive or illegal activity as a Network Affiliate or participant in any Network Merchant's
Program, LinkShare may suspend or terminate Your membership in, access to and use of
any or all Networks and Network Merchant's programs, and may require that any and all
compensation otherwise due to You from any or all Networks or Network Merchants be
forfeited. Such suspension, termination or forfeiture is in addition to any other rights and
remedies that LinkShare or any Network Merchant may have in contract, at law or in
equity. In addition, such activity may result in referral to the appropriate law enforcement
agencies for investigation and, where appropriate, prosecution.
SECTION 7. TERMINATION OF MERCHANTS' PARTICIPATION IN A NETWORK
Any Network Merchant's participation in any Network may end or be suspended for a number of
reasons, including expiration or early termination of its merchant agreement with LinkShare, and
You shall not necessarily receive any prior notice that such Merchant's participation is ending. If
a Network Merchant's participation in any Network ends or is suspended for any reason, its
Program conducted through such Network shall end or be suspended and LinkShare may, without
notice to You, terminate or suspend all Qualifying Links that You have with that Merchant
13
TM & © Copyright 2002 LinkShare Corporation. All rights reserved
immediately or, in LinkShare's discretion, at any time thereafter. You agree that LinkShare shall
have no obligation or liability to You because of any termination or suspension of the
participation of any Network Merchant in any Network or any of Your Qualifying Links with
such Network Merchant or any consequence thereof (even if LinkShare was notified or otherwise
aware that such consequence could result), whether such termination or suspension is by such
Network Merchant or LinkShare, is with or without cause or occurs with or without notice.
SECTION 8. LINKSHARE IS A HOST ONLY
8.1 LinkShare is the host of each Network. Network Merchants and Network Affiliates are
independent parties and LinkShare does not and shall not have any responsibility or liability for
the acts, omissions, Promotions, Content or Links of any Network Merchant, Network Affiliate or
other third party, including breaches of Engagements by Network Merchants, or for screening or
policing the Websites or actions of Network Merchants or Network Affiliates. Without limiting
the generality of the foregoing:
· The obligation to pay any compensation You earn from Your Qualifying Links is solely
the responsibility of each Network Merchant with which You form those Qualifying
Links, and LinkShare is not liable or responsible for payment or collection. That is true
even if LinkShare at any time acts as a Network Merchant's agent for disbursing checks
or payments and sends You a check or other payment drawn on a LinkShare account.
· The Engagements You enter into with a Network Merchant are solely obligations of such
Merchant, not of LinkShare. If the terms of any such Engagement purport to create any
obligation of liability on the part of LinkShare, those terms shall not bind LinkShare.
8.2 LinkShare's services do not involve investigating or resolving any claim or dispute involving
You and any Network Merchant or other third party. If LinkShare, in its discretion, el cts to
e
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 You or any other party to the claim
or dispute.
SECTION 9. USE OF NETWORK, CONTENT, NAMES AND LOGOS
9.1. For each Network of which You are a member in good standing, LinkShare grants You a
personal, non-exclusive, non-transferable, revocable and limited license and right, subject to the
terms of this Agreement, to:
· Participate in such Network as a Network Affiliate.
· Access the areas of the relevant Network Site necessary for Your participation in such
Network as a Network Affiliate.
· Solely for Your use in connection with Your participation in such Network, download
Your individual Affiliate Reports.
· For the sole purpose of creating and maintaining Qualifying Links in accordance with
this Agreement and Your Engagements, use any software code or other Content of
LinkShare that is provided by LinkShare for such purpose, but only in the form so
provided.
All other use of any Network, Network Site, Affiliate Reports and such software code or Content,
including modification, publication, transmission, transfer or sale of, reproduction, creation of
derivative works, distribution, performance, display, incorporation into another Web site or
mirroring is prohibited. You agree that You shall not alter or modify such licensed code or
Content in any way. This Agreement does not grant to You any license or right to use LinkShare's
name or any of its logos or trade or service names or marks or, except for the limited licenses and
14
TM & © Copyright 2002 LinkShare Corporation. All rights reserved
rights expressly granted by the first sentence of this Section 9.1 while they endure, any of
LinkShare's other intellectual property.
9.2. Your rights and licenses (if any) granted by this Agreement with respect to any Network are
valid only while You remain a member of such Network as a Network Affiliate in good standing
and comply with this Agreement. LinkShare reserves all of its rights in each Network Site and all
such software code, reports and Content and Our other proprietary rights. LinkShare may revoke
any such license at any time by giving You notice by e-mail or in writing.
9.3. You grant to Us a non-exclusive license to utilize Your corporate, service and trade names,
domain name and logos to advertise, market, promote, and publicize in any manner Our rights
hereunder or any Network. This license shall terminate upon the effective date of the expiration
or termination of this Agreement. You also hereby grant to Us a worldwide, perpetual,
irrevocable, royalty-free, sublicenseable (through multiple tiers) right to exercise all copyright
and publicity rights, in any media now known or not currently known, with respect to any
Content You provide to LinkShare.
9.4. You agree to provide LinkShare, promptly following its request, the server log files for Your
Site(s) and any other information or data reasonably requested solely for the purpose of auditing
or confirming activities related to the Network or Your participation in any Program, which
LinkShare shall treat as Your confidential information and use solely for such purpose.
9.5. LinkShare makes no representation whatsoever about any other Website which You may
access through any Network. You understand that when You access a non-LinkShare Website
through any Network, it is independent from LinkShare. LinkShare acts as a passive conduit for
the unfiltered online distribution and publication of Content by the members of a Network and
does not attempt to control the Content that You or visitors to Your Site(s) shall receive or view.
By its very nature, other people's Content may be offensive, harmful or inaccurate, and in some
cases, may be mislabeled or deceptive. LinkShare disclaims control over or responsibility or
liability for the Content on any other person's Website or posted or distributed on or through the
Network or its resources or facilities.
9.6. You represent and warrant to LinkShare that all Content You upload to any Network Site or
otherwise provide or use in connection with any Network is solely owned by You or provided or
used by You with the express authority of the owners, does not infringe upon any other
individual's or organization's rights (including intellectual property rights). By submitting Content
to or for use on any Network Site or otherwise by LinkShare or distributing any Content through
the Network or any of LinkShare's services or facilities, You
· automatically grant to LinkShare a royalty-free, perpetual, irrevocable, non-exclusive
right and license to use, reproduce, sell, modify, adapt, publish, translate, create
derivative works from, distribute, perform and display such Content (in whole or part)
worldwide and to incorporate it in other works in any form, media, or technology; and
· represent and warrant to LinkShare that such Content does not contain any virus, trojan
horse, worm, time bomb, cancelbot or other computer programming routines that are
intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate
any system, data or personal information
9.7. As between You and LinkShare, LinkShare shall own all information about the identities,
postal and e-mail addresses, telephone numbers and names and contact information for Network
Merchants and Network Affiliates (other than Your own) and the transactions conducted by any
such person through any Network.
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TM & © Copyright 2002 LinkShare Corporation. All rights reserved
SECTION 10. RISK MANAGEMENT
10.1. EACH NETWORK AND ANY SUPPORT OR SERVICES FROM LINKSHARE ARE
PROVIDED "AS IS" AND "AS AVAILABLE." TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, LINKSHARE DISCLAIMS ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WARRANTIES
· OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
· THAT THE OPERATION OF ANY NETWORK, NETWORK SITE, SERVER,
EMAILS SENT BY LINKSHARE, OR REP ORTS SHALL BE UNINTERRUPTED OR
ERROR-FREE OR WILL NOT CONTAIN OR INTRODUCE VIRUSES OR OTHER
HARMFUL ELEMENTS OR COMPONENTS,
· AS TO THE ACCURACY, RELIABILITY OR SECURITY OF DATA,
· OF NON-INFRINGEMENT, OR
· ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMA NCE.
ANY LINKS USED OR CONTENT OR OTHER ITEM DOWNLOADED OR OTHERWISE
OBTAINED THROUGH PARTICIPATION IN THE NETWORK OR ANY PROGRAM OF
ANY NETWORK MERCHANT IS DONE AT YOUR OWN DISCRETION AND RISK AND
LINKSHARE SHALL HAVE NO LIABILITY FOR ANY DAMAGE TO COMPUTER
SYSTEMS OR LOSS OF DATA THAT MAY RESULT.
10.2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU (FOR
YOURSELF AND YOUR CORPORATE AFFILIATES) HEREBY RELEASE LINKSHARE
AND ITS CORPORATE AFFILIATES, OFFICERS, DIRECTORS, AGENTS,
SUBCONTRACTORS, AND EMPLOYEES (THE " RELEASED PERSONS") FROM ANY
AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, DEBTS, OBLIGATIONS,
DAMAGES, COSTS, AND EXPENSES OF ANY KIND OR NATURE WHATSOEVER,
WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR
UNDISCLOSED, NOW EXISTING OR HEREAFTER ARISING THAT IN ANY WAY
RESULT FROM, ARISE OUT OF OR RELATE TO
· THIS AGREEMENT,
· YOUR PARTICIPATION IN ANY NETWORK OR ANY MERCHANT'S PROGRAM,
· USE OR MISUSE OF ANY NETWORK OR ANY SUCH PROGRAM,
· RELIANCE ON ANY NETWORK OR ANY SUCH PROGRAM, INABILITY TO USE
ANY NETWORK OR PARTICIPATE IN ANY SUCH PROGRAM,
· THE INTERRUPTION, SUSPENSION OR TERMINATION OF ANY NETWORK,
ANY SUCH PROGRAM OR YOUR ACCESS TO, USE OF OR PARTICIPATION IN
ANY NETWORK OR ANY SUCH PROGRAM, OR
ANY ACT OR OMISSION OF LINKSHARE RELATIVE TO THE FOREGOING, EXCEPT
(AND IN ANY EVENT SUBJECT TO THE EXCLUSIONS AND LIMITATIONS SET FORTH
IN AND OTHER APPLICABLE PROVISIONS OF THIS SECTION 10) ONLY FOR ANY
LIABILITY OF LINKSHARE TO YOU THAT RESULTS PRIMARILY AND
PROXIMATELY FROM LINKSHARE'S WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU
HEREBY WAIVE THE APPLICATION OF ALL EXISTING AND FUTURE LAWS THAT
MAY LIMIT THE EFFICACY OF SUCH RELEASE. IF YOU ARE A CALIFORNIA
RESIDENT, THEN WITHOUT L IMITING THE GENERALITY OF THE IMMEDIATELY
PRECEDING SENTENCE, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542,
WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
16
TM & © Copyright 2002 LinkShare Corporation. All rights reserved
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR." THIS SECTION 10.2 SHALL
SURVIVE THE UNENFORCEABILITY OR OTHER FAILURE OF ANY PROVISION OF
THIS AGREEMENT THAT PURPORTS TO EXCLUDE OR LIMIT REMEDIES OR
LIABILITY.
10.3. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE
THAT IN NO EVENT SHALL LINKSHARE OR ANY OTHER RELEASED PARTY BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, SPECIAL,
EXEMPLARY OR PUNITIVE DAMAGES OR FOR ANY OTHER DAMAGES (HOWEVER
DENOMINATED) FOR OR BASED ON OR MEASURED BY HARM TO BUSINESS, LOST
REVENUES, LOST SAVINGS, LOSS OF OR ON ANY INVESTMENT, LOST PROFITS,
LOSS OF OPPORTUNITY, LOSS OF USE, LOSS OF DATA, LOSS OF GOODWILL, COSTS
OF REPLACEMENT GOODS OR SERVICES OR OTHERWISE. THIS SECTION SHALL
SURVIVE THE UNENFORCEABILITY OR OTHER FAILURE OF ANY PROVISION OF
THIS AGREEMENT THAT PURPORTS TO EXCLUDE OR LIMIT REMEDIES OR
LIABILITY.
10.4. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES
AGREE THAT EACH OF THE RELEASES, DISCLAIMERS, LIMITATIONS AND
EXCLUSIONS CONTAINED IN SECTIONS 10.1 THROUGH 10.4, INCLUSIVE, SHALL
INDEPENDENTLY APPLY REGARDLESS OF (i) THE FORM OF ACTION (INCLUDING
ANY ACTION IN CONTRACT OR BASED ON WARRANTY, NEGLIGENCE, TORT,
STRICT LIABILITY OR STATUTE), (ii) ANY CLAIM OR FINDING THAT ANY BREACH
OF OR DEFAULT UNDER THIS AGREEMENT WAS TOTAL OR FUNDAMENTAL, (iii)
THE TYPE OF DAMAGES, (iv) ANY CLAIM OR FINDING WITH RESPECT TO THE
ADEQUACY, FAILURE, PURPOSE OR SUFFICIENCY OF ANY REMEDY OFFERED OR
PROVIDED FOR UNDER THIS AGREEMENT AND (v) WHETHER A PERSON WAS
INFORMED OR AWARE OF, OR OTHERWISE COULD HAVE ANTICIPATED THE
POSSIBILITY OF, SUCH DAMAGES OR LIABILITY.
10.5. IF, IN A FINAL DECISION OF A COURT OF COMPETENT JURISDICTION (NOT
SUBJECT TO FURTHER APPEAL), IT IS HELD THAT ANY OF THE FOREGOING
RELEASES, DISCLAIMERS, LIMITATIONS OR EXCLUSIONS MAY NOT BE
ENFORCED, EVEN THOUGH THE EXPRESS PROVISIONS HEREOF PROVIDE FOR
SUCH RELEASE, DISCLAIMER, LIMITATION OR EXCLUSION AND THE PARTIES
INTEND SUCH EXCLUSION OR RELEASE TO BE ENFORCED, THEN IN SUCH
JURISDICTION, LINKSHARE'S LIABILITY IS LIMITED TO THE SMALLEST AMOUNT
PERMITTED BY LAW.
10.6. THE OBLIGATIONS OF EACH PARTY ARE SOLELY CORPORATE (OR OTHER
ORGANIZATIONAL) OBLIGATIONS, NO AFFILIATE, STOCKHOLDER, DIRECTOR,
OFFICER, EMPLOYEE, CONSULTANT OR AGENT OF EITHER PARTY SHALL BE
SUBJECT TO ANY PERSONAL LIABILITY WHATSOEVER TO THE OTHER PARTY OR
ANY OF ITS AFFILIATES, STOCKHOLDERS OR CREDITORS OR ANY OTHER PERSON
OR ENTITY, NOR SHALL ANY SUCH CLAIM BE ASSERTED (DIRECTLY,
DERIVATIVELY OR OTHERWISE) BY OR ON BEHALF OF EITHER PARTY OR ANY OF
ITS SUCCESSORS OR ASSIGNS.
10.7. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MEMBER
AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY
17
TM & © Copyright 2002 LinkShare Corporation. All rights reserved
CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO PARTICIPATION IN
ANY NETWORK, THE PROGRAM OF ANY MERCHANT OR THIS AGREEMENT MUST
BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE,
OR BE FOREVER BARRED.
10.8. EACH PARTY ACKNOWLEDGES T HAT EACH OF THE PROVISIONS OF THIS
SECTION 10 CONSTITUTE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE
BARGAIN REFLECTED IN THIS AGREEMENT, AND BUT FOR SUCH PROVISIONS,
LINKSHARE WOULD NOT PERMIT YOU TO ACCESS AND USE ANY NETWORK OR
WOULD REQUIRE YOU TO PAY FEES OR OTHER CONSIDERATION FOR SUCH
ACCESS OR USE THAT EITHER HAVE NOT BEEN REQUIRED OR THAT WOULD BE IN
EXCESS OF ANY THAT SUCH CONSIDERATION NOW OR HEREAFTER REQUIRED.
10.9. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN
WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE
ABOVE EXCLUSIONS, LIMITATIONS, RELEASES AND DISCLAIMERS MAY NOT
APPLY TO YOU. IN PARTICULAR, NOTHING IN THIS AGREEMENT SHALL AFFECT
THE APPLICABLE STATUTORY RIGHTS OF ANY CONSUMER THAT MAY NOT, BY
LAW, BE WAIVED, RELEASED, LIMITED OR EXCLUDED OR RESTRICTED, IN ANY
WAY OR TO ANY EXTENT NOT PERMITTED BY APPLICABLE LAW, ANY LIABILITY
OF LINKSHARE FOR DEATH OR PERSONAL INJURY ARISING FROM THE
NEGLIGENCE OR FRAUD OF LINKSHARE. YOU ACKNOWLEDGE AND AGREE,
HOWEVER, THAT EACH LINKSHARE NETWORK IS DESIGNED FOR USE IN
CONNECTION WITH THE CONDUCT OF A BUSINESS, THAT NONE OF THE
LINKSHARE NETWORKS IS INTENDED TO BE USED BY CONSUMERS AND THAT
YOU SHALL NOT USE ANY NETWORK OR ANY OF LINKSHARE'S SERVICES IN
YOUR CAPACITY AS A CONSUMER.
SECTION 11. TERMINATION; ABSENCE OF UNEXPRESSED EXPECTATIONS; YOUR
INDEMNIFICATION OBLIGATIONS
11.1. Either You or LinkShare, by giving the other party notice, may, at any time and with or
without cause, terminate this Agreement. Upon any termination of this Agreement, You shall no
longer be entitled to use any Network, all licenses and rights granted to You hereunder shall
terminate, You shall immediately cease use of, and remove from Your Site(s), all links created
though any Network and all Content or items provided by or on behalf of LinkShare to You in
connection with any Network and You shall immediately return or destroy all confidential
information and trade secrets of LinkShare in the p