ChartExchange shall be held completely harmless in allegations of misrepresentation of the ChartExchange Product or the ChartExchange Marketing Program by one of its affiliates at any level It shall be deemed impossible to monitor and control the actions of Affiliates in the Field as they present ChartExchange to the Public. ChartExchange shall rely upon the Master Affiliate Online Sales Portal as the definitive representative of its official position on its product and marketing program and any benefits that may or may not be derived therefrom. ChartExchange shall at its own sole discretion launch investigations of a quality assurance nature to seek those who would portray the product or the opportunity in any other light than it is presented on the Master Affiliate Online Sales Portal. If such indiscretion is discovered, action upon that affiliate shall be the termination of their affiliate enrollment without refund or reinstatement at any time.
ChartExchange reserves the sole and exclusive right to modify these terms and conditions when it deems it necessary to do so and may or may not inform you of such. It is your responsibility to continue to monitor these terms and conditions for updates.
Cancellation and Refund Policy:
You are entitled to a full refund of your purchase amount minus the following deductions if applicable if you apply in writing using the Affiliate Help Desk within the first 30 days of your membership. After the 30 day period has expired we will consider that membership a permanent membership that can be cancelled but not refunded. Deduction One: Shipping and Handling. Deduction Two: Product Price, if your Flash Drive and Business Kit have been shipped already you must return them to us at your own expense and in the original unopened condition. If you return the product and business kit to us in their original unopened condition, we will not deduct the product price from your refund. Deduction Three: Any commissions that have been paid out from your affiliate enrollment to another affiliate or any commissions that your affiliate enrollment has been paid by another affiliate will be deducted from the amount of your refund. Deduction Four: You will be deducted any pro rated amount of the current month's transfer network service fee on a dialy basis from your original sign up anniversary date. Deduction Five: any administration fees. Any funds remaining after all these duduction are accounted for will be refunded to you within 90 days of the date and time stamp of your original written refund request.
Upon written notice via the Affiliate Help Desk, any customer who is using the monthly transfer network service who wishes to cancel their monthly service shall be able to do so and receive a pro-rated refund based upon the date and time stamp of the time that notice is received by ChartExchange. Your refund will be processed within 90 business days from the date and time stamp that your written request was received at ChartExchange.
Any Commissions that are showing as due in your back office are forwarded to the next upline member as your affiliate enrollment will be compressed to the next upline affiliate in good standing. If by chance you have requested a refund after you have been paid commissions, these commission amounts will be deducted from your refund.
If for lack of payment your membership is cancelled, you will have the opportunity to be reinstated free of charge within 30 days of your cancellation date. Upon reinstatement should your membership be cancelled again you will be charged a reinstatement fee of $19.95 to cover administration costs involved in your reinstatement. If you initiate a cancellation of your membership by using any opt out link that decision is final. You may not be reinstated.
Affiliate Marketing Program Terms and Conditions:
TO JOIN THE CHARTEXCHANGE Affiliate MARKETING PROGRAM, 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.
IN ADDITION, YOU MAY JOIN THE CHARTEXCHANGE Affiliate MARKETING PROGRAM ONLY FOR A BUSINESS PURPOSE AND NOT FOR A PERSONAL, HOUSEHOLD OR FAMILY PURPOSE.
YOU MAY NOT JOIN THE CHARTEXCHANGE Affiliate MARKETING PROGRAM IF YOU DO NOT SATISFY THE REQUREMENTS OF THE CHARTEXCHANGE Affiliate MARKETING PROGRAM POLICIES REFERRED TO IN THE FOLLOWING AGREEMENT.
TO BE AN AUTHORIZED Affiliate OF THE CHARTEXCHANGE Affiliate MARKETING PROGRAM, YOU MUST AGREE TO THE TERMS OF THE FOLLOWING Affiliate MEMBERSHIP AGREEMENT. PLEASE READ THE AGREEMENT CAREFULLY BEFORE JOINING OR USING THE CHARTEXCHANGE
Affiliate MARKETING PROGRAM.
BY CLICKING ON THE "ACCEPT" BUTTON OR USING THE CHARTEXCHANGE Affiliate MARKETING PROGRAM, YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU CANNOT JOIN THE CHARTEXCHANGE
Affiliate MARKETING PROGRAM.
Affiliate Marketing Program Agreement
This Affiliate Marketing Agreement is between Crosspoint Media Services Inc., a Nevada, U.S.A. corporation, ("the chartexchange Affiliate marketing program," "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 sufficiency of which are acknowledged by the parties, the parties, intending to be legally bound, agree as follows:
SECTION 1. BACKGROUND
1.1. Certain Product Owners ("Merchants") may seek to
increase product sales through a program commonly called an "Affiliate
program." A Merchant with an Affiliate program invites others to join the program and display or distribute the Merchant's
advertising that includes contact information that leads to the Merchant's Master Affiliate Marketing
Website. Persons who join the Merchant's Affiliate marketing program receive compensation from the Merchant
based on tracked sales of products or services using the person's unique Affiliate ID.
1.2 The ChartExchange Affiliate Marketing Program directly or
indirectly operates, over the Web, one or more Affiliate marketing networks and
caters to those who join in order to participate as Affiliates in the
Affiliate marketing program of ChartExchange.
1.3. You desire to participate in the ChartExchange
Affiliate marketing program as a potential affiliate for ChartExchange
in such a fashion, 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 marketing agreement, (ii) ChartExchange’s Policies
For Affiliates that are posted on the ChartExchange Website 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 ChartExchange 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 marketing 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 ChartExchange Networks, please see below.
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, regardless 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:
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"Content"
|
Information, communications, software, photos, text,
video, graphics, music, sounds, images and other material.
|
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"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 device 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.
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"ChartExchange
Network"
|
Any affiliate marketing network now or hereafter operated
by ChartExchange or by a corporate Affiliate of ChartExchange, including the Affiliate marketing networks
that ChartExchange currently operates under the
service name The ChartExchange Affiliate Marketing Program ®.
|
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"Network"
|
As of any time, any ChartExchange
Network, which You have joined in accordance with ChartExchange’s
requirements and of which You are a member as of such time.
|
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"Network Affiliate"
|
As of any time and with respect to any ChartExchange
Network, a person which is a member of such ChartExchange
Network as a potential Affiliate for Affiliates under an
effective online or written agreement with ChartExchange
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"Network Site"
|
For any Network, the Webpage(s)
or other area of the Website having the URL designated from time to time by ChartExchange for use by members of that Network for the
purpose of facilitating formation of Qualifying Links, accessing reports and
otherwise participating in such Network.
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"Program"
|
A Affiliate marketing program or other performance-based marketing
arrangement that any Network Merchant conducts through any Network.
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"Program Site"
|
For any Program, a Website that a Network Merchant is
authorized to use in the relevant Network.
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"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.
|
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"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 ChartExchange
provides its tracking services for Network Merchants and (iv) is established
through the interface of such Network Site or otherwise as instructed by ChartExchange and includes any tracking or other code
required by ChartExchange, in each case in
accordance with ChartExchange 's technical
guidelines.
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"Your Site"
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For any Network, a Website that You own and operate and
have properly registered for use in such Network.
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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 Baton Rouge, Louisiana , USA, that ChartExchange 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 ChartExchange.
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 marketing agreement to a
Section or subsection are to a Section or subsection of this Affiliate marketing 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
3.1. By clicking on an "Accept" or similar button on a
Network Site or another Website of ChartExchange 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 ChartExchange, and this Agreement becomes effective when
You do so. In the event of any conflict between the respective express
provisions of this Affiliate marketing 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 ChartExchange Network as a Network
Affiliate, You must register on the page of the relevant Network Site provided
by ChartExchange for such purpose. You agree to promptly
provide ChartExchange 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").
ChartExchange may deny access to and use of any ChartExchange Network unless or until any preconditions
established by ChartExchange and published on the
registration area of the relevant Network Site are satisfied.
3.3. You represent and warrant to and agree with ChartExchange
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 ChartExchange
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 ChartExchange.
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 activities
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. 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 ChartExchange,
to form links with Network Affiliates outside of the relevant Network without
restriction. You may request ChartExchange 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 ChartExchange at admin@ChartExchange.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, provincial, local and
foreign withholding taxes, FICA, FUTA, Social Security, Medicare, SUI and any
and all other federal, state, provincial, local and foreign taxes. In addition,
You agree that payments to You by ChartExchange
shall be subject to withholding under any applicable tax law, rule or
regulation. You shall promptly provide ChartExchange
with any information it reasonably requests in order to determine if
withholding is required. If ChartExchange disburses
any payment due to You, then You authorize ChartExchange 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 ChartExchange, You are solely responsible for calculation
and payment or collection of, accounting for and issuing or obtaining invoices
relating to any applicable Value Added Taxes including good and services taxes.
3.7. You understand and agree that participation in any Network will involve
establishing contractual arrangements with ChartExchange
(including this Agreement) that are stored electronically on servers and are
formed by means of "clicking on" an accept button on the ChartExchange Site 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. You shall have, on the Network Site, an individual account
accessible through the Web by use of Your Credentials. ChartExchange
shall periodically post to Your account reports
regarding activities tracked by ChartExchange (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 ChartExchange
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 ChartExchange's discretion.
4.2. 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, ChartExchange may assume that any person accessing any
Network Site using Your Credentials is authorized to do so.
4.3. ChartExchange shall not be liable to You as a
result of failure by You to use your Affiliate ID, 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.
4.4. 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
ChartExchange obtains from your Affiliate ID. ChartExchange shall
not be responsible or liable for any errors in or omissions from such
underlying data for any
intentional or inadvertent deletion or disablement by You of any of ChartExchange’s
tracking code or technology, or any consequences of the foregoing. ChartExchange 's
obligation, if any, to provide data or Affiliate Reports to You is subject to
the provision to ChartExchange, on a timely basis, of
the necessary data of the kinds and in the form, format and manner required by ChartExchange. ChartExchange may
rely on any data, notice, instruction or request furnished to ChartExchange by You or any other third party which is
believed by ChartExchange in good faith to be
genuine.
4.5. If a Affiliate ID reports a transaction or activity that occurred in a
particular month to ChartExchange after such month
ends, then ChartExchange may, in its discretion,
incorporate that event into Your Affiliate Reports for that month or for some
subsequent period.
4.6. If You believe that any of Your Affiliate Reports for any month contains
errors in the data about Your relationship with ChartExchange,
You must notify ChartExchange within ten days after
the end of that month or any shorter period that may be provided for in Your
agreement with ChartExchange 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 month, then the period within which
you must notify ChartExchange 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 ChartExchange. Any dispute between You and ChartExchange about any
error you report must be resolved by you and ChartExchange.
4.7. 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 ChartExchange
and that ChartExchange 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 ChartExchange, since payment may be subject to
conditions established by ChartExchange, 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 Affiliate ID's and the compensation due to You made by ChartExchange shall be
final and binding on You.
SECTION 5. CHANGES IN NETWORK, SERVICES AND MEMBERSHIP
TERMS
5.1 ChartExchange 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 ChartExchange
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
ChartExchange provides or makes available to You.
ChartExchange 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 ChartExchange '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 ChartExchange
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 the Master Affiliate Marketing Website 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 ANY
SUCH CHANGE, THEN YOU MUST WITHDRAW FROM SUCH NETWORK AND CEASE USING SUCH
NETWORK.
5.2. You acknowledge and agree that ChartExchange
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.
CHARTEXCHANGE IS A HOST ONLY
6.1 ChartExchange is the host of the ChartExchange Affiliate Marketing Program and Network Affiliates are
independent parties and ChartExchange does not and
shall not have any responsibility or liability for the acts, omissions,
Promotions, Content or Links of any Network Affiliate or other third party, or
for screening or policing the Websites or actions of Network Affiliates.
6.2
ChartExchange 's services do not involve investigating or resolving any
claim or dispute involving You and any Network Participant or other third
party. If ChartExchange, in its discretion, elects to
investigate or otherwise become involved in any such claim or dispute, it shall
not thereby undertake, assume or have any duty, obligation or liability to You or any other party to the claim or dispute.
SECTION 7. USE OF NETWORK, CONTENT,
NAMES AND LOGOS
7.1. ChartExchange 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.
- For the sole purpose of
creating and maintaining Affiliate ID's in accordance with this
Agreement and Your Engagements, use any software code or other Content of ChartExchange that is provided by ChartExchange
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 Solely for Your use in connection with Your participation in such
Network, download Your individual Affiliate Reports 's
name or any of its logos or trade or service names or marks or, except for the
limited licenses and rights expressly granted by the first sentence of this
Section 7.1 while they endure, any of ChartExchange 's
other intellectual property.
7.2. 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. ChartExchange reserves all of its rights in each Network
Site and all such software code, reports and Content and Our other proprietary
rights. ChartExchange may revoke any such license at
any time by giving You notice by e-mail or in writing.
7.3. You agree to provide ChartExchange, 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 ChartExchange shall treat as Your
confidential information and use solely for such purpose.
7.4. ChartExchange makes no representation whatsoever
about any other Website which You may access through
any Network. You understand that when You access a
non- ChartExchange Website through any Network, it is
independent from ChartExchange. By its very nature, other people's Content may
be offensive, harmful or inaccurate, and in some cases, may be mislabeled or
deceptive. ChartExchange 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.
7.5. You represent and warrant to ChartExchange 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 ChartExchange or distributing any Content through the
Network or any of ChartExchange 's services or facilities, You
- automatically grant to ChartExchange 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 ChartExchange 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
7.6.
As between You and ChartExchange, ChartExchange
shall own all information about the identities, postal and e-mail addresses,
telephone numbers and names and contact information for Network Affiliates
(other than Your own) and the transactions conducted by any such person through
any Network.
SECTION 8. RISK MANAGEMENT
8.1. EACH NETWORK AND ANY SUPPORT OR SERVICES FROM CHARTEXCHANGE ARE PROVIDED
"AS IS" AND "AS AVAILABLE." TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, CHARTEXCHANGE DISCLAIMS ALL WARRANTIES AND
CONDITIONS, EXPRESS OR IMPLIED, LEGAL, STATUTORY OR OTHERWISE, INCLUDING
WARRANTIES AND CONDITIONS
- OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE,
- THAT THE OPERATION OF ANY
NETWORK, NETWORK SITE, SERVER, EMAILS SENT BY CHARTEXCHANGE, OR REPORTS
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 PERFORMANCE.
ANY
LINKS USED OR CONTENT OR OTHER ITEM DOWNLOADED OR OTHERWISE OBTAINED THROUGH
PARTICIPATION IN THE NETWORK IS DONE AT YOUR OWN DISCRETION AND RISK AND CHARTEXCHANGE
SHALL HAVE NO LIABILITY FOR ANY DAMAGE TO COMPUTER SYSTEMS OR LOSS OF DATA THAT
MAY RESULT.
8.2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU (FOR YOURSELF AND
YOUR AffiliateS) HEREBY RELEASE CHARTEXCHANGE AND ITS CORPORATE
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,
- 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 CHARTEXCHANGE
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 8) ONLY FOR ANY LIABILITY OF CHARTEXCHANGE
TO YOU THAT RESULTS PRIMARILY AND PROXIMATELY FROM CHARTEXCHANGE'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 LIMITING 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 EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST
HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." THIS SECTION 8.2
SHALL SURVIVE THE UNENFORCEABILITY OR OTHER FAILURE OF ANY PROVISION OF THIS
AGREEMENT THAT PURPORTS TO EXCLUDE OR LIMIT REMEDIES OR LIABILITY.
8.3. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT IN NO
EVENT SHALL CHARTEXCHANGE 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.
8.4. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES AGREE THAT
EACH OF THE RELEASES, DISCLAIMERS, LIMITATIONS AND EXCLUSIONS CONTAINED IN
SECTIONS 8.1 THROUGH 8.4, 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.
8.5. 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, CHARTEXCHANGE'S LIABILITY IS LIMITED TO THE SMALLEST AMOUNT
PERMITTED BY LAW.
8.6. 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.
8.7. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MEMBER AGREES THAT
REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION
ARISING OUT OF OR RELATED TO PARTICIPATION IN ANY NETWORK OR THIS AGREEMENT
MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE, OR BE
FOREVER BARRED.
8.8. EACH PARTY ACKNOWLEDGES THAT EACH OF THE PROVISIONS OF THIS SECTION 8
CONSTITUTE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS
AGREEMENT, AND BUT FOR SUCH PROVISIONS, CHARTEXCHANGE 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.
8.9. 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 CHARTEXCHANGE FOR
DEATH OR PERSONAL INJURY ARISING FROM THE NEGLIGENCE OR FRAUD OF CHARTEXCHANGE.
YOU ACKNOWLEDGE AND AGREE, HOWEVER, THAT EACH CHARTEXCHANGE NETWORK IS DESIGNED
FOR USE IN CONNECTION WITH THE CONDUCT OF A BUSINESS, THAT NONE OF THE CHARTEXCHANGE
NETWORKS IS INTENDED TO BE USED BY CONSUMERS AND THAT YOU SHALL NOT USE ANY
NETWORK OR ANY OF CHARTEXCHANGE'S SERVICES IN YOUR CAPACITY AS A CONSUMER.
SECTION 9. TERMINATION; ABSENCE OF
UNEXPRESSED EXPECTATIONS; YOUR INDEMNIFICATION OBLIGATIONS
9.1. Either You or ChartExchange, by giving
the other party notice, may, at any time and with reasonable and defined 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 ChartExchange to You in connection
with any Network and You shall immediately return or destroy all confidential
information and trade secrets of ChartExchange in the
possession or control of You or any of Your employees, representatives or
agents. Subject to Section 8, all rights or remedies arising out of a breach of
any terms of this Agreement shall survive any termination of this Agreement or
Your participation in any Network. Your representations and warranties in this
Agreement shall survive execution, delivery, acceptance, performance,
expiration or termination of this Agreement.
9.2. You and ChartExchange desire to avoid the
uncertainty and the potential for discord that would exist if the unstated
expectation of either of the parties could be used to gain advantage through
litigation, or expectations stated or expressed outside the confines of this
Agreement could become actionable even though the other party does not agree
with those expectations or has not assented to them. You and ChartExchange, therefore, agree that (i)
it is unreasonable for either party to have or rely on an expectation that is
not reflected in this Agreement, (ii) either party that has or develops an
expectation contrary to or in addition to the contents of this Agreement has a
duty to immediately inform the other party and promptly seek to have this
Agreement amended to reflect the expectation; and (iii) the failure of a party
who has or develops an expectation contrary to or in addition to the contents
of this Agreement to obtain an amendment shall be evidence that the expectation
was not reasonable and estops that party from
asserting that expectation as a basis for any claim against the other party.
Neither party has a duty to agree to any such proposed amendment.
9.3. You agree to indemnify and hold harmless ChartExchange
and the other Released Persons for and against any and all claims, actions,
demands, liabilities, losses, damages, penalties, interest, judgments,
settlements, costs and expenses (including reasonable attorneys' fees) that
directly or indirectly arise out of or are based on (i)
any misrepresentation or breach of any warranty, covenant or agreement made by
You in this Agreement or any Engagement, (ii) operation of any of Your Site(s),
(iii) any violation by You of any law, regulation or rule, (iv) Your use of any
Network, (v) any claim related to any of Your Site(s), Your acts or omissions,
Your participation in any Network or any Program, any Content, goods or
services offered, sold or otherwise made available by You to any person, or
Your acts or omissions in using, displaying or distributing any Links obtained
or formed through any Network, (vi) any claim that ChartExchange
is obligated to pay tax obligations in connection with compensation paid to You
pursuant to any such program, (vii) any violation or alleged violation by You
of any rights of another, including Your use of any Content, trademarks,
service marks, trade names, copyrighted or patented material, or other
intellectual property used in connection with Your Site(s) or (viii) any claim
of any violation by ChartExchange or any other Released
Person of any law, rule or regulation that is a direct or indirect result of
Your use of any Network or the provision of ChartExchange
's gathering or storage of data or tracking, reporting or other services, other
than any knowing and intentional violation by ChartExchange
or other such Released Person. ChartExchange reserves
the right, at its own expense, to assume the exclusive defense and control of
any matter otherwise subject to indemnification by You,
but doing so shall not excuse Your indemnity obligations. ChartExchange
shall have the right to participate in the defense of all claims as to which it
does not assume defense and control, and You shall not settle any such claim
without ChartExchange 's prior written consent. You also agree to indemnify ChartExchange for any reasonable legal fees or other costs
incurred by ChartExchange, acting reasonably, in
investigating or enforcing its rights under this Agreement.
SECTION 10. CHARTEXCHANGE MAY REQUIRE BINDING
ARBITRATION
You agree that, if requested by ChartExchange, any
controversy between You and, or by You against, ChartExchange
or any of the other Released Parties directly or indirectly arising out of or
relating in any way to this Agreement or any Network or Program (including the
performance, construction or breach of this Agreement) shall be submitted to
and finally settled by binding arbitration before a single arbitrator
reasonably satisfactory to both parties in accordance with the commercial
arbitration rules of the American Arbitration Association then in effect. Any
such controversy or claim so submitted to arbitration shall be arbitrated on an
individual basis, and shall not be consolidated in any arbitration with any
claim or controversy of any third party. The arbitration shall be conducted in
the city of Baton Rouge, Louisiana and
judgment on the arbitration award may be entered into any court having
jurisdiction. Either You or ChartExchange may seek
any interim or preliminary injunctive relief from a court of competent
jurisdiction in Louisiana necessary to protect its
rights or property pending the completion of arbitration. If you are not
residing in the United States at the time of any such controversy or claim, You
agree to the following additional provisions:
(i) You waive any objection to the place designated
above for the arbitration;
(ii) You agree to the personal jurisdiction and venue of the federal and state
courts sitting in Baton Rouge, Louisiana, U.S.A. to
interpret and enforce the arbitration provisions of this Agreement; and
(iii) all arbitrations shall be held in the English language.
You expressly acknowledge that You understand that if ChartExchange
requires arbitration:
(i) the decision in the arbitration shall be final
and binding on the parties;
(ii) except as provided above as to injunctive relief, you are waiving your
right to seek remedies in court, including the right to jury trial;
(iii) pre-arbitration discovery is generally more limited than and different
than in court proceedings; and
(iv) the arbitrators' award is not required to include factual findings or
legal reasoning and any party's right to appeal or to seek modification of
rulings by the arbitrator is strictly limited.
SECTION 11. MISCELLANEOUS
11.1. Independent Contractors. The
parties are independent contractors and nothing in this Agreement shall confer
upon either party any authority to obligate or bind the other in any respect.
Neither this Agreement nor any course of dealing between the parties shall
confer upon You any exclusive right with respect to any Network or ChartExchange 's
software or services.
11.2. Force Majeure. ChartExchange
shall not be liable to You by reason of any failure or delay in the performance
of its obligations hereunder on account of strikes, shortages, riots,
insurrection, fires, flood, storm, explosions, acts of God, war, governmental
action, labor conditions, earthquakes, interruptions in telecommunications
services or Internet access, or any other cause which is beyond the reasonable
control of ChartExchange, whether or not similar to
the foregoing.
11.3. Assignability. Neither the rights nor
the obligations arising under this Agreement are assignable or transferable by You, and any such attempted assignment or transfer shall be
void and without effect. ChartExchange may assign
this Agreement to any successor, affiliate or assign. If ChartExchange
sells or otherwise transfers ownership of any Network to any corporate
affiliate of ChartExchange, a joint venture in which ChartExchange has an equity interest or an entity which
licenses ChartExchange 's technology or any other
third party, then ChartExchange may assign this
Agreement, insofar as it relates to such Network, to such transferee, whereupon
the rights, obligations and liabilities of ChartExchange
under this Agreement, insofar as it relates to such Network, shall be those of
such third party and not of ChartExchange, but this
Agreement, insofar as it relates to each other Network, shall continue in
effect as binding obligations of You and ChartExchange.
11.4. Sever ability; Waiver of Conflicting Laws. If any provision of
this Agreement, or its application to any person or circumstance, is held by a
court with jurisdiction to be invalid or unenforceable, the remaining
provisions hereof, or the application of such provision to persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect. Such court may substitute
therefore a suitable and equitable provision to carry out, so far as may be
valid and enforceable, the intent and purpose of the invalid or unenforceable
provision. If any provision of this Agreement shall be judicially
unenforceable in any jurisdiction, such provision shall not be affected with
respect to any other jurisdiction. If any provision of this Agreement is or
shall become inconsistent with or unenforceable under any provision of
applicable law that may be waived or the applicability of which may otherwise
be varied or excluded by You or by You and ChartExchange,
then You or You and ChartExchange (as the case may
be) hereby waive or exclude the applicability of such provision of law. Without
limiting the generality of the immediately preceding sentence, to the maximum
extent permitted by applicable law, the parties agree that the provisions of
the Uniform Computer Information Transactions Act, as it may have been or
hereafter may be in effect in any jurisdiction, shall not apply to this
Agreement or any course of dealing between the parties.
11.5. Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by the laws of the United
States of America and the
State of Louisiana. Each
party consents to the jurisdiction of the Federal and Louisiana
State courts sitting in Baton Rouge, Louisiana,
U.S.A. (and the appellate courts to which judgments of such Federal and State
courts may be appealed), and agrees to commence any litigation hereunder in one
of those courts.
11.6. Waiver of Trial by Jury. Each party waives, to the fullest extent permitted
by applicable law, any right it may have to a trial by jury in respect of any
action, suit or proceeding arising out of this Agreement.
11.7. Entire Agreement; Third Party Beneficiaries. This Agreement is the
entire agreement between the parties pertaining to its respective subject
matter, and all written or oral agreements, representations, warranties or
covenants, if any, previously existing between the parties with respect to such
subject matter are canceled. The statements made by ChartExchange
on any of its Websites or otherwise than in an express provision of this
Agreement are not representations or warranties and do not create contractual
obligations. If, prior to the date of this Agreement, the parties have entered
into a separate confidentiality agreement and there is any conflict or
inconsistency between this Agreement and such separate confidentiality
agreement, the terms of this Agreement shall prevail and govern with respect to
the information provided pursuant to this Agreement. Except as provided in
Section 8 with respect to the Released Parties, there are no third party
beneficiaries of this Agreement. Without limiting the generality of the
immediately preceding sentence, if this Agreement requires that You refrain
from acting in ways that may violate the rights or otherwise harm third parties
or requires that You take an action (such as maintaining a privacy policy) that
may be considered to indirectly benefit third parties, that requirement is
included for the purpose of defining the conditions upon which You are
authorized to use any Network, to permit ChartExchange
to terminate this Agreement or pursue other remedies for its own benefit if You
behave contrary to such requirement and to insure that You will be responsible
if any claim is made against ChartExchange by any
third party because of any of Your acts or omissions. Such requirement is not
intended, however, to create any right on the part of, or any duty, obligation
or liability on the part of ChartExchange to, any
third party, including any obligation to monitor Your compliance with any such
requirement or take action if You do not comply. To the extent that, under
applicable law and notwithstanding the foregoing statement of intent, the
inclusion of any such requirement in this Agreement is held to create any such
duty, obligation or liability or to confer upon ChartExchange
any deemed control over You or responsibility for Your acts or omissions, then
such requirement shall be deemed to be stricken from this Agreement with the
same effect as if it was never a part hereof, without, however, affecting any
of Your indemnification obligations with respect to any claim arising out of
Your acts or omissions that would otherwise violate such requirement or any of ChartExchange 's rights or remedies otherwise available.
11.8. Amendments and Waivers. Any amendments of this Agreement must be
in writing and signed by both parties. No failure or delay in exercising any
power, right, or remedy under this Agreement shall operate as a waiver. A
waiver on the part of ChartExchange, to be effective,
must be written and signed by an officer of ChartExchange
and physically delivered to You.
11.9. Remedies Are Cumulative. Unless otherwise expressly stated in this
Agreement, all remedies available under or with respect to this Agreement
(including any right to terminate this Agreement granted in this Agreement) are
cumulative and in addition to all other remedies, if any, available at law or
in equity. The exercise of any right to terminate this Agreement or suspend
access or service granted a party in this Agreement shall not result in a
breach of this Agreement by such party, and neither the exercise of such right
nor any consequence thereof shall give rise to or be the basis for any claim by
or liability to the other party, whether in contract, tort or otherwise, even
if the terminating party was informed or aware of, or otherwise could have
anticipated the possibility of, such consequence.
11.10. Public Statements. Any press release or other public announcement
by You regarding this Agreement or any ChartExchange Network or that mentions ChartExchange
shall require the prior approval of ChartExchange.
You agree that You shall not disparage ChartExchange or any of the ChartExchange
Networks.
11.11. Exercise of Discretion. Where this Agreement states that any
consent, approval, agreement or other discretionary action on the part of ChartExchange is in its discretion, then such consent,
approval, agreement or other action can be withheld for any reason or no reason
or conditioned in any manner desired by such party, in each case in such
party's sole and absolute discretion.
11.12. Citizens or Residents Outside of the U.S.A. Information ChartExchange publishes on the Web may contain references or
cross references to ChartExchange 's products, programs and services that are not announced
or available in Your country. Such references do not imply that ChartExchange intends to announce or make available such
products, programs or services in Your country. ChartExchange makes no representations or warranties that
any ChartExchange Network, the Content on ChartExchange 's Website(s), ChartExchange
's products or services are appropriate or available for use in other
locations, and access to or use of them from or in territories where their
Contents are illegal or where access or use would subject ChartExchange
to taxes, laws or regulations that otherwise would not apply or to the
jurisdiction of any court or other governmental authority to which it would not
otherwise be subject is prohibited. You are, in any event, responsible for
compliance with all laws and regulations that apply to Your use of any Network
or ChartExchange 's products or service.
© Crosspoint Media Services, Inc., ChartExchange.com. All Rights Reserved.
ADDENDUM
TO THE Affiliate MARKETING PROGRAM AGREEMENT
EFFECTIVE JANUARY
1, 2005
This
Addendum to the Affiliate Marketing Agreement (including the Network Operating
Policies and Procedures), effective as of January 1, 2005,
amends and supplements your obligations thereunder in
accordance with the terms thereof.
1.
BACKGROUND. This Addendum addresses, in main, the
following subjects:
(a) Your
use of Email and/or other electronic messages
in connection with your continued participation on any ChartExchange
Network, including new requirements based on recently enacted federal
legislation in the United States; and
(b) Your
use of plug-ins, pop-up engines and/or other download technology in connection
with your participation on any ChartExchange
Network.
Pursuant to
the Affiliate Marketing Agreement, you agreed to allow ChartExchange
to add to or otherwise change the terms of the Agreement at any time. This Addendum, delivered to you by email
and/or other permitted methods, constitutes notice to you of our intent to do
so. If you continue to use The ChartExchange Network as an affiliate after receipt of this
notice, your continued use will constitute your binding and legally enforceable
agreement to the terms of the Amendment.
2. USING
ELECTRONIC OR OTHER TYPES OF MESSAGES.
Without limiting the generality of the foregoing or any other
obligations you have under the Affiliate Marketing Agreement and Network
Operating Policies and Procedures and any obligations you may have under your
Engagements with any Network Merchants, if you use email and/or, as applicable,
mobile service messages (SMS), instant messaging (IM) or other types of
electronic messages (individually and collectively, "electronic
messages") in connection with your participation on the ChartExchange
Network and/or in any Network Merchant's Program, you agree as follows:
(a) Except
as expressly authorized by any Network Merchant or other relevant party, any
and all such electronic messages initiated or sent by you or on your behalf
must:
--
Identify you as the
sender and may not suggest or imply, or mislead or be likely to mislead a
recipient into believing that ChartExchange
is a sender or sponsor of, or has procured you to send, such electronic
messages. To be clear, you may not use a
return address, subject heading, header information or message contents that
misleads or confuses or is likely to mislead or confuse a recipient as to you
being the sender;
-- Feature
the service or product offering(s) that you are offering the recipient (and not
those of ChartExchange)
as its primary contents and purpose;
-- Contain
a valid physical postal address for you (and not any other person or entity
including any other Network Affiliate or ChartExchange);
-- Be
clearly and conspicuously identified as an advertisement or solicitation,
unless you have received affirmative consent to send electronic messages to
that recipient.
(b)
You will implement and
employ in connection with each electronic message sent by you or on your behalf
an effective mechanism and procedure for any recipient of such electronic
message to be able to request during the following thirty (30) days at a
minimum not to receive further electronic messages from you or those sending
electronic messages on your behalf and except as otherwise expressly permitted
by applicable law, such request shall be heeded within ten (10) business days
of receipt of such request (collectively, an "opt-out procedure").
-- You
will insure that such opt-out procedure is fully compliant with any and all
applicable laws, rules and regulations, including the requirements of the Can
Spam Act of 2003 (Public Law No. 108-187).
-- Pursuant
to or in addition to the requirements of the Can Spam Act of 2003, such opt-out
procedure, you must also provide a means to share, and will promptly share upon
ChartExchange 's request, the email, SMS, IM
or other address of any recipients that exercised such opt-out procedure with ChartExchange
that are promoted in any electronic message giving rise to such opt-out
request. You may not sell any lists of
recipients that have exercised such opt-out procedure.
(c)
You may not use any
Qualifying Links (or any equivalent link or mechanism that, upon being
activated, causes the same result as clicking on a Qualifying Link) in any
electronic message unless:
-- you have received the express authorization of ChartExchange
to use email or other electronic messages, as applicable, to promote your
Affiliate ID; and
-- any
and all such electronic messages complies in all respects with this Addendum,
the Affiliate Marketing Agreement, including the Network Operating Policies
and Procedures, and any and all applicable laws.
-- Further,
except as expressly authorized by ChartExchange,
any and all electronic messages initiated or sent by you or on your behalf may not:
-- Identify
any other person or entity, including ChartExchange
or other Network Affiliate, as a sender or sponsor of any electronic message
sent by you or on your behalf; nor
-- Contain
content which has as its primary purpose the promotion of ChartExchange,
Network Affiliate (other than you), whether or not any Affiliate ID is
used. All electronic messages sent by
you or on your behalf must feature the service or product offering you are
providing as its primary purpose; nor
-- Contain
sexually-oriented material without placing waning labels and otherwise
complying with applicable laws including the Can Spam Act of 2003 in all
respects; nor
-- Be
sent by or through any computer without authorization, including by relay or
retransmission, or contain false header information regarding the transmitting
computers and transmission path including the originating electronic mail
address, domain name or Internet Protocol address.
-- Should
you be expressly authorized to promote any Affiliate ID using an electronic
message, in addition to any other applicable terms of the relevant Engagement,
you agree to comply with the Can Spam Act of 2003 and any rules and regulations
that are promulgated by any governmental authority in respect thereof and any
and all orders, judgments and decrees of any court, agency or other authority
relating thereto and any other applicable foreign, federal, provincial, state,
or local law applicable to the use or transmission of electronic message. While some of the requirements of the Can
Spam Act of 2003 are set forth as contractual obligations hereunder, compliance
with the above provisions shall not be construed as or deemed to be sufficient
to comply with any such or other applicable law.
(d)
You shall provide ChartExchange
with any information requested by ChartExchange
at any time, including evidence that you have complied with all required
opt-out procedures and other aspects of your compliance herewith. Further, you authorize ChartExchange
to provide any information, including confidential information, and otherwise
make any disclosures that ChartExchange
determines to be necessary or appropriate about you or your participation or
activities on or in relation to any ChartExchange
Network or your use of any ChartExchange
-provided resources to any local, state, provincial, federal or foreign
governmental authority or Internet Service Provider bringing or contemplating
the bringing of any action or conducting any investigation in relation to the
enforcement of any applicable laws, including the Can Spam Act of 2003.
3. NOT
AN EMAIL OR OTHER SERVICE PROVIDER. Your
participation in any one or more ChartExchange
Networks is as a Affiliate. Your
participation is purely voluntarily and you may terminate your participation at
any time.
(a) ChartExchange
shall not be construed or deemed as having "procured" you or your
services to send or initiate any email or other types of electronic messages
(as defined in Paragraph 2 above) to any computer, including for the purposes
of promoting ChartExchange
or its respective trade or business, or goods, products, property, or services.
(b) You
are not and shall not, at any time, be deemed to be a vendor, supplier or
provider of goods or services to ChartExchange.
(c) Neither
your participation on any ChartExchange
Network (including your use of any resource made available and earning or
receiving of any commissions or other monies) shall be construed as or deemed
to be an inducement for, solicitation of, or payment or provision of other
consideration to, you to provide any products or services to ChartExchange.
4.
USING PLUG-INS, POP-UP
ENGINES AND OTHER DOWNLOAD TECHNOLOGY
(a)
No Interference. If
you make available, directly or indirectly through any of your
"Partners" (as defined in Paragraph 4(c) below) any downloadable or
other technology, you agree to insure, and hereby insure, that such technology
does not and will not "Interfere"
(as defined in Paragraph 4(c) below) during your participation on any ChartExchange Network and afterwards, except with "an end
user's express and informed consent" (as defined in Paragraph 4(c) below),
with any of the following:
-- any
Network Affiliate's Web-based links, advertisements, sites or other commercial
offerings in any manner that is contrary to such party's intentions; or
-- any Engagement (including the click-through and any
subsequent activity) tracked by ChartExchange;
or
-- the tracking technology or network resources offered by ChartExchange
to its Network Affiliates and other participants or users.
(c)
Defined Terms.
"Partner"
may mean, variously, a corporate Affiliate, developer, Affiliate, enterprise
user, retailer, reseller or other provider or agent, together with any of their
respective corporate Affiliates.
"Interfere" (and its other
grammatical variations) means, variously, to, whether intentionally or
unintentionally:
-- replace,
intercept, redirect, disrupt, block, alter or otherwise adversely affect
(including by opening a pop-up or new window or using other types of diverting
or disruptive mechanism); or
-- substitute,
insert or append; or
-- modify
the behavior or functionality, or simulate, copy or assume control of, or
create a substitute or derivative version of, any browser, plug-in, email,
software, file or other platform or technology provided by any third party; or
-- cause
an error or unintended result to occur; or
-- cause the parties involved or affected to violate any
applicable laws; or
-- aids,
abets, contributes, facilitates or supports any third party to do any of the
foregoing;
in each case, including but not
limited to (x) in relation to any Engagement, tracking code, cookie,
file, data record, sale, clickthrough, commercial
activity or other action or transaction facilitated or intended by the target
of such interference or (y) with the result of reducing any payment
owing to a third party or increasing any payment obligation by any third party.
"end user's express and informed consent"
refers to and requires (a) a reasonable opportunity to view and expressly
consent to the download and use, including the rejection and removal, of any
technology subject to this letter agreement, (b) full and prominent disclosure
at the time of the relevant action or transaction originally intended by the
target of such Interference sufficient, in ChartExchange
's reasonable good faith determination, to insure that any choice to Interfere
is fully informed as to the benefits and potential consequences, and (c)
disclosure and consent that are consistent with any and all applicable
laws.
(d) If
you have already executed ChartExchange 's Anti-Predatory Advertising
Addendum, this Addendum does not supercede such Anti-Predatory Advertising Addendum
and it will continue to govern in respect of your use of download technology.
5. COMPLIANCE WITH LAWS. You shall at all times insure that you and
your Affiliates, officers, directors, employees, consultants, agents and
representatives, the conduct of your business, and your use of any ChartExchange
Network in any manner must at all times comply with all applicable federal,
state, provincial and foreign laws, ordinances, rules, regulations, orders,
judgments and decrees. Without limiting
the generality of the foregoing, such laws shall include without limitation any
state and federal laws dealing with the transmission and labeling of commercial
and/or other electronic mail messages, laws relating to fraud or predatory or
abusive business practices, and rules and regulations that are, from time to
time, established by governmental agencies.
6. GENERAL. This
Amendment shall be deemed to be an amendment and part of the Affiliate Marketing Agreement including the Network Operating Policies and Procedures,
the terms of which are incorporated by reference herein. If there is any conflict between this
Amendment and the Affiliate Marketing Agreement in relation to the subject
matter expressly covered hereby, this letter agreement will govern and in all
other respects the Affiliate Marketing Agreement will govern, provided,
however, that if you have previously executed ChartExchange 's Anti-Predatory Advertising
Addendum, then such Anti-Predatory Advertising Addendum shall govern with
respect to the subject matter contained in Paragraph 4. 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 laws of the State of Louisiana
without regard to conflicts of law principles.
NETWORK OPERATING POLICIES FOR AffiliateS
EFFECTIVE AS OF FEBRUARY 1st, 2005
Crosspoint Media Services, Inc., a Nevada U.S.A. corporation, "CMS" ("ChartExchange",
“ETI”, “the company” "we" or "us"), offers a Affiliate marketing network ("Networks" “Network”) that is
operated by it directly or by one or more corporate Affiliates or joint
ventures or other entities in which it has an equity interest, including the
Affiliate marketing networks that ChartExchange currently
operates under the name “The ChartExchange Affiliate
Marketing Program.
These Network Operating Policies For Affiliates ("these Policies") apply to
any person ("you") who participates in any Network as a
Network Affiliate on or after the Effective Date stated above. By joining or
using any Network as a Network Affiliate, you agree to all of these Policies
and represent and warrant that you satisfy and are in compliance with all
qualifications, conditions and requirements for Network Affiliates in such
Network stated in these Policies.
CERTAIN TERMS USED IN THESE POLICIES
The word "our" is a possessive pronoun that refers to ChartExchange and the word "your" is a possessive
pronoun that refers to you.
The term "compensated action" means, for any Network, the
kind(s) of Web user activities or actions through Affiliate ID's that form
the bases for the Network Affiliate compensation structure(s) from time to time
selected by ChartExchange, provided that each such
activity is one that ChartExchange tracks.
References in these Policies to "your Affiliate Agreement" are
references to the following, collectively: (i) the
Network Distributoprship Marketing Agreement or other form of agreement ChartExchange uses to enroll Affiliates of a Network
that you accept online at Network Site or otherwise, (ii) these Policies (iii)
any additional or different terms specifically applicable to membership in any
Network that ChartExchange 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, in each case as such terms may be
amended, supplemented or replaced from time to time. Unless otherwise defined
in these Policies, terms used in these Policies that are defined in your
Affiliate Marketing Agreement referred to in clause (i)
of the preceding sentence have the respective meanings given to them in that
agreement.
YOU ARE RESPONSIBLE FOR ANY
EQUIPMENT, INTERNET SERVICE AND OTHER ITEMS YOU NEED TO USE A NETWORK
You are solely responsible for procuring all items required and bearing all
costs and expenses in connection with using or preparing to use any Network,
including procuring, at your expense, all necessary servers, URLs, Websites,
Internet connections and other items needed. You are solely responsible for the
design, creation, development, operation and maintenance of your Website(s).
USE OF NETWORKS AND COMMUNICATION SERVICES GENERALLY
Participation as a Network Affiliate in any Network involves use of areas of
the relevant Network Site. ChartExchange may also
provide Network Affiliates with the use of bulletin board services, chat areas,
forums, e-mail postings, e-mail service or other message or communication facilities
designed for communication with other members of the Network (collectively,
"Communication Services"). Network Affiliates may use any
available Communication Service only to post, send and receive messages and
materials that are directly related to the Network and are consistent with the
purpose for which the particular Communication Service is provided. Use must
comply with ChartExchange 's terms and conditions and all applicable laws, including
anti-spamming and privacy laws.
Without limiting the generality of the foregoing, you agree not to use any
Network, any Communication Service or facilities or resources of ChartExchange or any Network to:
- Advertise or offer to sell or
buy any goods or services, unless we specifically authorize such messages;
- Advertise, promote, market or
solicit participation in, or otherwise for the benefit of, any affiliate
marketing network, technology or services other than those of ChartExchange or its corporate Affiliates or
licensees;
- Defame, abuse, harass, threaten
or otherwise violate the legal rights (such as rights of privacy and
publicity) of others;
- Conduct or forward illegal
contests, pyramid schemes or chain letters;
- Publish, post, distribute,
disseminate or Link to any: (i) inappropriate,
profane, defamatory, infringing, obscene, indecent or unlawful topic,
name, material or information; (ii) software or other material protected
by intellectual property laws, rights of privacy or publicity, or other
proprietary rights, unless you own, control such rights or have received
all necessary consents for your use of such software and other materials;
(iii) software or other material that contains viruses, corrupted files,
or that may or are intended to damage the operation of another's computer
(e.g., "cracks" or other programs written to defeat the security
measures of any computer, system or programs);
- Sell or distribute any product
or service, other than the products and services of Network Merchants with
whom you have Engagements in accordance with the terms of such Engagements
and your Affiliate Marketing Agreement;
- Harvest or otherwise collect
information about third parties, including e-mail addresses, without the
express consent of such third parties;
- Violate any applicable laws,
regulations or rules or any third party's rights; or
- Contact Network Merchants or
Network Affiliates for any purpose unrelated to such Network, including
making unsolicited offers to buy or sell goods, propagating chain letters
or jokes, or other unrelated contact.
We may refuse to permit any use of
any Communications Service, Network or other resource or facility of ChartExchange that, in our reasonable judgment, is
inconsistent with these Policies or unsuitable or inappropriate.
You should consider all of your communications made or received through use of
any Communication Service as public and not private communications and,
therefore, as susceptible to being read by others without your knowledge or
permission. ChartExchange specifically disclaims any
liability with regard to the Communication Services and any actions or
consequences resulting from your use of any Communication Service.
OUR RELIANCE ON DATA FURNISHED BY
OUR NETWORK; DATA BACKUP; INTERRUPTIONS YOU CAUSE
We Rely on Data Our Network Produces
In providing our services, including giving you reports on your Network
activities, we necessarily rely on data that we obtain from our Network. ChartExchange is not obligated to confirm, and does not
warrant or guarantee, the accuracy, truth or completeness of the data we obtain
from our Network or include in your reports, or any other information we may
provide that incorporates or relies on such data.
Performance of ChartExchange 's services depends on
its receipt and use of the necessary data regarding your use of your Affiliate ID and its activation by viewers and their
actions and transactions that occur or originate on the Websites of ChartExchange after
activation. Persons who enter in your Affiliate ID will be
directed to the ChartExchange Website designated by
that Affiliate ID. If that person then completes a purchase of a product or
service or engages in another transaction or activity which entitles you to
compensation under your Engagement with ChartExchange,
ChartExchange provides data to prepare reports to
you. You acknowledge and agree that ChartExchange 's policy is to treat a Web user that activates a
Affiliate ID with ChartExchange as a customer of ChartExchange, and not as a customer of yours.
Backing Up Data and Other Precautions
Data transfer, conversion, processing and storage is subject to the likelihood
of human and machine errors, delays, interruptions and losses. ChartExchange is not liable for any such events or their
consequences, unless caused by its willful misconduct or gross negligence and
then subject to the liability limits and exclusions contained in your Affiliate Marketing
Agreement. You are solely responsible for adopting measures to limit the impact
of such events, including backing up your data, adopting methods for replacing
or reconstructing lost data, regularly reviewing and confirming the accuracy of
the reports we provide and notifying us of errors on a timely basis.
Interruptions or Errors You or a Network Merchant Causes
ChartExchange shall not be liable or responsible for
any interruption or failure of Network access or services or any errors in
tracking or reporting (or for any consequences of the foregoing) that results
from (i) any software, system or technology that you
use in combination or conjunction with ChartExchange 's
software, systems or technology, (ii) any modification of or change in the
software, systems or technology you use for any of your Websites or business;
or (iii) other problems or errors that are caused or are specific to you (as
opposed to being generic to ChartExchange 's
proprietary software). The foregoing does not limit or otherwise affect any
other disclaimer, exclusion or limitation of liability or responsibility on the
part of ChartExchange, nor create any duty or
obligation not expressly created by your Affiliate Marketing Agreement.
LANGUAGE AND CURRENCY
Language
In the case of the
ChartExchange Network:
- the human-readable form
of all written, electronic or telephonic notices, communications,
materials or submissions made or provided by you to ChartExchange
must be in the English language, and
- the
reports made available to you by ChartExchange
and any other written, electronic or telephonic notices, communications,
materials or submissions made or provided by ChartExchange
to you need only be in the English
language.
Currency
ChartExchange Network. In the case
of the ChartExchange Network, unless ChartExchange otherwise determines, we shall provide our
tracking and reporting services only for Programs, Qualifying Links and Tracked
Activities that use the United States Dollars as the currency and render
merchant and affiliate reports only in the United States Dollar.
CONTENT YOU PROVIDE
You grant ChartExchange a royalty-free license to use
the Content you post, upload, input or submit in connection with your use of
any Network, any Network Site or any Communication Service, and to publish your
name in connection with your submission. By posting messages, uploading files,
inputting data, submitting any feedback or suggestions, or engaging in any
other form of communication with or through any Network Site or Communication
Service, you represent and warrant to us that you own or otherwise control the
rights necessary to do so and to grant us the license set forth above, and you
shall defend and indemnify us and our suppliers from any third party claim
related to a breach of any of the foregoing representations or warranties.
TAX RELATED INFORMATION YOU MUST PROVIDE
Participation in the Network or any Program of any Network Merchant and payment
of compensation you earn from any Network Merchant is conditioned upon your
satisfactory completion of any Internal Revenue Service and other, federal
state, local or foreign tax forms that we or such Network Merchant, in our or
its discretion, determines to be necessary or appropriate. You agree that if
requested by ChartExchange, you shall promptly
complete, sign and provide to ChartExchange Internal
Revenue Service Form W-9, and any other tax forms that ChartExchange,
in its discretion, determines to be necessary or appropriate. You shall not be
entitled to payment of any compensation otherwise due unless and until you
provide the necessary and appropriate Internal Revenue Service or other tax
forms. It is each Network Affiliate's (and not ChartExchange 's) obligation
to ensure that the Network Distriobutor obtains, completes in full and provides ChartExchange with the necessary and appropriate IRS or
other tax forms.
Without limiting the generality of the foregoing, if requested in the
registration area for Network Affiliates or otherwise by ChartExchange,
you shall promptly furnish ChartExchange with your
Internal Revenue Service taxpayer identification number (or your social
security number, if you do not have a taxpayer identification number), any VAT
registration number you may have or any similar number used for tax purposes in
any jurisdiction, and you authorize ChartExchange to
provide each such number to the IRS and any tax collection entity that may ask
for it or need it to process your tax burden based on business you have
conducted using ChartExchange resources.
PRIVACY POLICY; CUSTOMER DATA
Our Use or Disclosure of Information About You
ChartExchange does not warrant or guarantee that your
private communications and personally identifiable information shall not be
disclosed to third parties, and you should not expect that your personally
identifiable information or private communications will remain private. By way
of example, you acknowledge that we may, and you authorize us to, do the
following:
- As part of its services
to you, ChartExchange may use any information
about you that you provide to us or that we otherwise obtain, including
your identity, domain names and URLs, postal and e-mail addresses, telephone
number and other contact information and information about the kinds or
volumes of business and activities that you conduct through any Network.
- ChartExchange may
disclose information about you and your activities to government agencies
or officials or other third parties if we believe such disclosure to be
required or advisable under applicable law or regulations.
- ChartExchange may
send e-mail and off-line communications to you for the purposes of
administering and managing or otherwise related to any Network, including
informing you of changes in offers, contests or promotions by ChartExchange or changes or additions to any Network.
- ChartExchange may
also send e-mail and off-line communications to you for the purposes of
new or additional networks, products, services or programs offered by ChartExchange or third parties or otherwise providing
you with information believed to be of interest to you. If you do not want
to receive e-mail or other communications of this kind from us, then you
may "opt out" by following any instructions for doing so posted
on the Website we use for that relevant Network or sending ChartExchange a written or email notice to that effect
which specifically states that it is an election to opt out of receiving
promotional messages from ChartExchange. Any
such opt out for which notice is properly given shall be effective on the
thirtieth day after its actual receipt by ChartExchange.
- ChartExchange
reserves the right to use and disclose to third parties for any purpose
information about activities through and usage of the Networks.
- In the event that ChartExchange sells or transfers ownership, operation
or control of any or all of the Networks or engages any subcontractor or
agent to operate any Network or provide any service related to any
Network, ChartExchange reserves the right to
transfer or disclose all of its data to the buyer, subcontractor or agent.
In addition to the foregoing, ChartExchange may make its database of user information
(including email addresses) available to other persons for promotions of and
solicitations for their goods or services that may be of interest to the ChartExchange community.
You understand that your uploads and transmissions may
be intercepted and used by third parties, and that all the risk associated
therewith is solely yours.
Certain Liability Disclaimers
ChartExchange disclaims any and all responsibilities,
obligations and liability to you or the visitors to any of your Websites with
regard to the information it acquires as a result of any Affiliate ID or its
use or disclosure.
ChartExchange shall not be in breach or violation of
your Affiliate Marketing Agreement or otherwise liable if it is unable to provide any of
its services that are dependent upon the provision of any information by you,
any Network Merchant or any other third party that is not provided to it
because of restrictions imposed by your or any Network Merchant's privacy
policies or applicable law or for any other reason.
ChartExchange shall not be responsible or liable for
any use or disclosure made by any third party of information used or disclosed
as contemplated by these Policies or your Affiliate Marketing Agreement.
Restrictions on Your Use and Disclosure of ChartExchange
Confidential Information and Trade Secrets
You acknowledge that in the course of your participation in any Network, we may
(but are not obligated to) provide you with or give you access to confidential
and proprietary information and trade secrets of ChartExchange.
A trade secret generally consists of valuable, secret information or ideas that
a party collects or uses in order to keep its competitive edge and include
system designs, software (including source and object code and documentation),
operating processes and any other proprietary technology and intellectual
property. Confidential information generally consists of all other
competitively sensitive information kept in confidence by ChartExchange
and includes
- the kinds or volumes of
business and activities that ChartExchange conducts
through any Network or any other information about the relationships or
business conducted between or among any of ChartExchange’s
Network Affiliates;
- ChartExchange 's
know-how, show-how or other information concerning the operation of
Affiliate marketing programs;
- reports or studies provided by ChartExchange;
- information regarding the
performance or reliability of any Network; and
- other
information obtained by you from ChartExchange
or through use of any Network.
Trade secrets and confidential
business information, however, shall not include information that (i) is in or enters the public domain without breach by you
of these Policies or your Affiliate Marketing Agreement, (ii) you lawfully receive from a
third party without restriction on disclosure and without breach of a nondisclosure
obligation or (iii) you knew prior to receiving such information from ChartExchange or you develop independently without use of ChartExchange 's trade secrets or confidential information,
in each case as shown by contemporaneous written records.
You agree that you shall not disclose any trade secrets or confidential
information of ChartExchange that you receive, access
or learn in the course of performance of your Affiliate Marketing Agreement or your
participation in any Network, shall take all reasonable measures to maintain
the confidentiality of all such trade secrets and confidential information in
your its possession or control and shall not use any such trade secrets or
confidential information for any purpose otherwise than to the extent reasonably
necessary to perform your obligations or exercise your rights under your
Affiliate Agreement.
GIVING OFFICIAL NOTICES
Any notice required or permitted to be given under your Affiliate Marketing Agreement or
these Policies or otherwise may be delivered by hand, deposited with an
overnight courier, sent by confirmed facsimile or mailed by registered or
certified mail, return receipt requested, charges (if any) prepaid and
addressed to the intended recipient at such person's address or telecopier number indicated below, or to such other address
or number as such party may from time to time specify by notice to the other
party as provided in this Section. Notices given or other communications made
by ChartExchange may also be given or made by e-mail.
- If to ChartExchange with regard to any Network, to it at the
postal address, telecopier
number or e-mail address from time to time specified on the relevant
Network Site for such purpose.
- If to you, to it at the
postal address, telecopier
number or e-mail address most recently provided to ChartExchange
as part of your registration data.
All notices and other communications
given as provided above shall be deemed to have been given and received (i) when delivered by hand or transmitted by confirmed
facsimile or, when authorized, sent by e-mail; or (ii) the next business day
after the same are sent by a reliable overnight courier service, with
acknowledgment of receipt requested, except that a notice of a change of the
notice address of a party shall not be effective until received by the other
party and a notice from you about a change in your registration data or of any
other event that affects ChartExchange's ability to
perform its services or obligations shall not be effective until actually
received by ChartExchange.
CHANGES TO THESE POLICIES
In addition to any discretion given to it under your Affiliate Marketing Agreement, ChartExchange reserves the right to add to, remove or
otherwise change the terms of these Policies, in whole or in part.
ChartExchange 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 five business days' before such change
becomes effective.
- In the case of any other
change that would, in ChartExchange '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 may be given in a
situation that ChartExchange believes in good
faith to be an emergency or otherwise have an adverse effect on the
Network if a longer notice were given.
You
are responsible for regularly reviewing any 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 ANY SUCH
CHANGE, THEN YOU MUST WITHDRAW FROM SUCH NETWORK AND CEASE USING SUCH NETWORK.
MISCELLANEOUS
If any provision of these Policies states that ChartExchange
"may" or has the right to take an action or that any action requires
the consent or approval of ChartExchange, then the
decision as to whether to take such action or give such consent or approval is
within the sole and absolute discretion of ChartExchange,
which may decline to take such action or withhold such consent or approval for
any reason or no reason or condition the taking of such action or the granting
of such consent or approval in any manner it desires.
There are no third party beneficiaries of these Policies. Without limiting the
generality of the immediately preceding sentence, if these Policies require
that you refrain from acting in ways that may violate the rights or otherwise harm
third parties or require that you take an action (such as maintaining a privacy
policy) that may be considered to indirectly benefit third parties, that
requirement is included for the purpose of defining the conditions upon which
you are authorized to use any Network, to permit ChartExchange
to terminate your Affiliate Marketing Agreement or pursue other remedies for its own
benefit if you behave contrary to such requirement and to insure that you will
be responsible if any claim is made against ChartExchange
by any third party because of any of your acts or omissions. Such requirement
is not intended, however, to create any right on the part of, or any duty,
obligation or liability on the part of ChartExchange
to, any third party, including any obligation to monitor your compliance with
any such requirement or take action if you do not comply. To the extent that,
under applicable law and notwithstanding the foregoing statement of intent, the
inclusion of any such requirement in these Policies is held to create any such
duty, obligation or liability or to confer upon ChartExchange
any deemed control over you or responsibility for your acts or omissions, then
such requirement shall be deemed to be stricken from these Policies with the
same effect as if it was never a part hereof, without, however, affecting any
of your indemnification obligations with respect to any claim arising out of
your acts or omissions that would otherwise violate such requirement or any of ChartExchange 's rights or remedies otherwise available.
All definitions apply equally to the singular and plural forms of the terms
defined. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase
"without limitation." If 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 word
"or" means "and/or." The term "person" is to be
broadly construed and includes any natural person, corporation, trust,
association, limited liability company, partnership, joint venture or other
entity and any government or government agency or instrumentality. 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. Whenever the context
requires, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The headings of subdivisions of these Policies shall not affect
in any way the meaning or interpretation of these Policies.
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