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BRAINFOX AFFILIATE NETWORK PROGRAM AGREEMENT
This BrainFox Affiliate Network Program Agreement, including without limitation the BrainFox FAQs located at http://affiliate.brainfox.com/faqs.htm, and the Brainfox Privacy Policy located at http://www.brainfox.com/privacy/ which are incorporated herein by reference (collectively, "Agreement") contains the complete terms and conditions that apply to your participation in the BrainFox Affiliate Network (as defined below), your participation in its program ("BrainFox Affiliate Program") and the establishment of links from your web site(s) to the network of sites containing BrainFox search results and other paid listings content ( collectively, the "BrainFox Network") You may also be referred to herein as "PARTICIPANT", "You" or "Party". BrainFox, including its affiliated companies (collectively, "Brainfox") may also be referred to as "We" or "Us".
1.The BrainFox Affiliate Program:
(a) As a PARTICIPANT, we will make available to you a variety of graphic, product, textual and other links as determined by BrainFox (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which, subject to the terms and conditions of this Agreement, you may display as often and in as many areas of your web site(s) as you desire. The Links will serve to identify your site as a PARTICIPANT of the BrainFox Network and will establish a link from your web site(s) to the BrainFox Network for your participation in the Brainfox Affiliate Program. You agree that you will display on your web site(s) only those Links that are provided to you by Brainfox through the BrainFox Network; (b) To commence the process of enrolling as a PARTICIPANT in the BrainFox Affiliate Program, you will submit an enrollment application via our Web Site or as otherwise authorized by Brainfox and (c) you will provide accurate and complete information in the enrollment application. We will evaluate your application and notify you of your acceptance or rejection; which determination shall be in our sole discretion. You agree that during the Restricted Period (as defined below), You shall not maintain or create any Link(s) to web site(s) that are part of the BrainFox Network (or were part of the BrainFox Network at any time during the Restricted Period) that provide for payment to You, including without limitation becoming a subaffiliate of another member of the BrainFox Affiliate Program. "Restricted Period" means the period beginning on the date your enrollment application is accepted by Brainfox and ending on the date that is one year after the date that You cease to be a member of the BrainFox Affiliate Program.
2. Term:
(a) This Agreement is conditioned upon and will become effective on our acceptance of your enrollment application and your acceptance of the terms of this Agreement. By joining or participating in the BrainFox Affiliate Program you acknowledge that You have read this Agreement and agree to abide by all the terms of this Agreement, which may be amended from time to time in the sole discretion of Brainfox. We will notify You of any amendment by posting a notice on the BrainFox Web Site, located at www.brainfox.com, or, in our sole discretion, by e-mail, and Your continued participation in the BrainFox Affiliate Program after such notice is posted or sent via e-mail shall constitute your binding and legally enforceable agreement to such amendment and acceptance of the Agreement as amended. Either party may terminate this Agreement at any time, with or without cause by giving the other party notice of termination. Upon termination, the provisions of this Agreement that are intended to survive shall so survive.
(b) PARTICIPANT is only eligible to earn commissions on "Valid Clicks" (defined below), as determined solely in Brainfox's discretion, which are completed during the term of this Agreement. "Valid Clicks" are clicks on the BrainFox Network directly from Your Links that bring the end user to a fully loaded page and that (a) do not result from applying repeated manual or mechanically automated clicks on a mouse or a keyboard or other non-human click generation processes (including robots, spiders, scripts or other software); (b) do not result from methods that Brainfox determines to be fraudulent in nature or resulting from incentives or misleading or coercive means; and (c) are not from IP addresses or URLs that have been previously blocked by Brainfox. Brainfox may withhold PARTICIPANT'S final commission payment for a reasonable time to ensure that the clicks are Valid Clicks and that the correct amount is paid. PARTICIPANT will notify Brainfox promptly if it anticipates an increase or decrease in the number of Valid Clicks by more than 15% of the then-current monthly average.
3. Commissions:
(a) For Valid Clicks utilizing BrainFox's approved tracking links each calendar month Brainfox will pay to PARTICIPANT the following commission based on the number of Valid Clicks according to the following schedule: (i) 35% of Net Revenue for 0 - 100,000 Valid Clicks; (ii) 40% of Net Revenue for 100,001 to 250,000 Valid Clicks; (iii) 45% of Net Revenue for 250,001 - 500,000 Valid Clicks; and (iv) 50% of Net Revenue for 500,001 or greater Valid Clicks. "Net Revenue" is revenue actually received by Brainfox for Valid Clicks less bad debt, refunds, chargebacks, invoice and traffic adjustments. PARTICIPANTS are responsible for using our tracking code in the manner designated by Brainfox to ensure accurate tracking of Valid Clicks. You agree not to alter the tracking code in any way.
(b) Brainfox will pay you or cause you to be paid, through the BrainFox Affiliate Network, within forty five (45) days after the end of each calendar month in accordance with the above mentioned commission structure provided total commissions due to you for such month exceed Fifty Dollars ($50). The check (or other alternate payment method as selected by Brainfox) will be for the applicable commission (less any taxes required to be withheld pursuant to applicable law). For any calendar month in which your commissions do not exceed Fifty Dollars ($50), Brainfox shall have the option to pay same or to withhold such payment and add such commissions to the next calendar month and pay to you your commissions when they exceed Fifty Dollars ($50). Furthermore, you will be given a user name and password that will enable you to review information regarding your Valid Clicks and earned commissions. You agree to use all reasonable commercial efforts to keep Your user name and password secure.
4. Restrictions on Using Others to Distribute Links:
Your rights and licenses as a member of the BrainFox Affiliate Network are personal to You. Except to the extent expressly permitted herein, unless You satisfy the requirements for "Superaffiliates", you may not authorize any other person to use the Links to the BrainFox Affiliate Network. To act as a Superaffiliate, you must send a request to affiliates@brainfox.com and provide Brainfox with all information that it requests, including information about You, the person(s) and company(s) to whom You wish to provide Links, the domain names and IP addresses of such person(s) and company(s), the manner in which You plan to provide Links to such person(s), whether You intend to charge those person(s) for access to the Links, and other material terms of Your proposal. Brainfox may deny your request or grant it only subject to certain terms. Your request will be deemed denied unless you receive a written or email notice from Brainfox that expressly states that You are permitted to act as a Superaffiliate for the submitted subaffiliates. And, unless Brainfox otherwise agrees in writing, such permission shall only extend to providing Links to the person(s) and company(s), in the manner and on the terms stated in Your request to Brainfox. For additional subaffiliates, a separate Superaffiliate request will need to be filed with and accepted by Brainfox. If you are permitted to act as a Superaffiliate, then you agree to the following:
(a) You shall be solely responsible for entering into and performing any necessary or desirable contracts with subaffiliates;
(b) You shall not in Your contracts with subaffiliates or other members of the BrainFox Affiliate Program, purport to create any obligation or liability on the part of Brainfox;
(c) You shall cause Your subaffiliates to comply with the provisions of this BrainFox Affiliate Program that would apply to You, with respect to Your own use of the Links that you make available to them;
(d) You shall promptly upon the request of Brainfox cease providing any or all Links to any subaffiliates;
(e)You shall not make to any subaffiliate any representation or warranty or statement about Brainfox, the BrainFox Affiliate Program, the BrainFox Network or other services or products offered by Brainfox;
(f) Subaffiliates shall not be parties to, nor third party beneficiaries of, your BrainFox Affiliate Program Agreement and Brainfox shall have no obligation or liability to any subaffiliate;
(g) You shall ensure that Your contracts and agreements with subaffiliates expressly extend to Brainfox the benefit of all warranty and liability disclaimers, limits and exclusions and all indemnification rights granted to You;
(h) You shall not use any Links to conduct any illegal pyramid or other fraudulent scheme or otherwise violate any applicable law, rule or regulation;
(i) You shall promptly provide Brainfox with such information concerning Your activities and arrangements as a Superaffiliate as Brainfox may reasonably request in order to assess Your compliance with the provisions of this Agreement.
5. Legal Compliance; Representations and Warranties:
PARTICIPANT shall operate its web site(s), conduct any promotional and advertising activities (e.g. email and telemarketing campaigns), and render its services in compliance with all applicable laws, rules and regulations, and PARTICIPANT will be solely responsible for obtaining all required governmental authorizations necessary for its web site(s) and the full performance of its services as provided for under this Agreement. PARTICIPANT hereby further represents and warrants that:
(a) it has full power and authority to enter into this Agreement and to perform its obligations hereunder;
(b) it has obtained all permits, licenses, and other governmental authorizations and approvals required for its performance under this Agreement;
(c) its web site(s), promotional activities, and the services to be rendered by PARTICIPANT under this Agreement neither infringes nor violates any patent, copyright, trade secret, trademark, or other proprietary or privacy right of any third party;
(d) the execution, acceptance, delivery and performance by PARTICIPANT of this Agreement, and its consummation of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule or regulation to which it is subject, (ii) any order, judgment or decree applicable to PARTICIPANT or binding upon its assets or properties;, or (iii) any agreement or other instrument applicable to PARTICIPANT or binding upon its assets or properties;
(e) PARTICIPANT is the sole and exclusive owner of PARTICIPANT'S Marks, as defined herein, and has the right and power to grant Brainfox the license to use PARTICIPANT'S Marks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to it or binding upon its assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any person or entity;
(f) there is not pending, or to the best of PARTICIPANT'S knowledge, any threatened claim, action, or proceeding against PARTICIPANT, or any of its affiliates , with respect to the execution, delivery or consummation of this Agreement, or with respect to the PARTICIPANT'S Marks, and, to the best of its knowledge, there is no basis for any such claim, action or proceeding and
(g) PARTICIPANT will fully comply with all applicable laws, rules and regulations applicable to privacy and the sending of unsolicited commercial emails (UCE or SPAM), telemarketing, direct mail and other communications to consumers and other third parties.
6. Maintenance; Representations and Warranties:
(a) PARTICIPANT shall monitor and periodically test the general availability and operation of its web site(s) and will ensure that its web site(s) will perform adequately so that customers will be able to access the BrainFox Network PARTICIPANT is solely responsible for the development, operation and maintenance of its web site(s). Such responsibilities include, but are not limited to, the technical operation of PARTICIPANT'S web site(s) and all related equipment; the accuracy and propriety of all materials and content posted on PARTICIPANT'S web site(s).
(b) PARTICIPANT represents and warrants that its web site(s), including all materials and content therein, does not and will not (i) violate any laws, rules or regulations; (ii) violate or infringe upon the rights of any third party including, without limitation, copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; ; (iii) violate any laws regarding unfair competition, anti-discrimination or false advertising; (iv) promote violence or contain hate speech, (v) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious program routines; or (vi) be libelous, harmful, threatening, abusive, harassing, defamatory, derogatory or otherwise illegal (vii) be operated more than 20% in a language other than English.
(c) PARTICIPANT shall not (i) include any of the BrainFox Marks (as defined in Section 9), or variations or misspellings thereof in any of PARTICIPANT'S domain names or any metatags; (ii) make any press releases or other public statements regarding the BrainFox Affiliate Program, Brainfox or the BrainFox Network without first obtaining the express written approval of Brainfox; (iii) disparage the BrainFox Affiliate Program, the BrainFox Network or Brainfox; (c) Brainfox disclaims all liability for all matters set forth in Section 5 and 6. Further, PARTICIPANT will indemnify and hold Brainfox, its parent company, subsidiaries, affiliates and their respective officers, directors, shareholders and employees free and harmless against and from all claims, damages, losses, liabilities and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of PARTICIPANT'S web site(s).
(d) Brainfox reserves the right, in its sole discretion, to monitor PARTICIPANT'S web site(s), at any time and from time to time, to ascertain whether PARTICIPANT is in compliance with the terms of this Agreement.
7. DISCLAIMER:
YOUR ACCESS AND USE OF THE BRAINFOX AFFILIATE NETWORK PROGRAM, THE BRAINFOX NETWORK AND ANY CONTENT AT YOUR SOLE RISK. WE PROVIDE THE BRAINFOX NETWORK AND THE CONTENT ON AN "AS IS," AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR NON-INFRINGEMENT. WE MAKE NO REPRESENTATIONS OR WARRANTIES CONCERNING THE INFORMATION, PRODUCTS OR SERVICES PROVIDED BY THIRD PARTIES ACCESSIBLE ON OR THROUGH THE BRAINFOX AFFILIATE NETWORK PROGRAM, THE BRAINFOX NETWORK OR THE CONTENT OR OTHER BRAINFOX PRODUCTS OR SERVICES. NEITHER WE NOR OUR DIRECTORS, OFFICERS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, CONTRACTORS, THIRD PARTY VENDORS, FACILITIES, INFORMATION PROVIDERS, LICENSORS, NOR ANY EXCHANGES, CLEARING ORGANIZATIONS OR OTHER SUPPLIERS PROVIDING DATA, INFORMATION, OR SERVICES (EACH A "PROVIDER") MAKE ANY REPRESENTATION OR WARRANTY: (A) AS TO THE TIMELINESS, SEQUENCE, ACCURACY, COMPLETENESS, RELIABILITY OF THE BRAINFOX AFFILIATE NETWORK PROGRAM, THE CONTENT OR THE BRAINFOX NETWORK OR ANY INFORMATION, SERVICE OR TRANSACTION PROVIDED THEREBY, OR (B) THAT THE BRAINFOX AFFILIATE NETWORK PROGRAM OR THE BRAINFOX NETWORK WILL BE AVAILABLE OR WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, OR (C) THAT ERRORS OR DEFECTS RELATED TO THE BRAINFOX NETWORK WILL BE CORRECTED. WE ALSO DO NOT WARRANT THAT THE INFORMATION AVAILABLE THROUGH THE BRAINFOX NETWORK OR THE CONTENT IS APPROPRIATE, ACCURATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. The above exclusions may not apply in jurisdictions that do not allow the exclusion of certain implied warranties.
8. Privacy:
You consent to the use and collection of Your information is in accordance with Brainfox's Paid Listings Privacy Policy located at http://brainfox.com/privacy-policyhtml l. This Privacy Policy is part of this Agreement and you agree that the use of data as described in this Privacy Policy is not an actionable breach of your privacy or publicity rights.
9. Licenses:
(a) Brainfox hereby grants to PARTICIPANT solely during the term of this Agreement a limited, non-exclusive, non-transferable, royalty-free, revocable license to (i) access the BrainFox Network through the Links solely in accordance with the terms of this Agreement and (ii) solely in connection with such Links, to use the BrainFox trademark and logo (collectively the "BrainFox Marks"), for the sole purpose of referring end users to the BrainFox Network. You may not alter, modify, amend, or change the BrainFox Marks in any way. You are only entitled to use the Marks to the extent that this Agreement provides and only while this Agreement remains in full force and effect No right, property, license or interest in any BrainFox Marks is intended to be given to or acquired by PARTICIPANT by the execution or the performance of this Agreement. Brainfox may revoke this license at any time, by giving you written notice. PARTICPANT agrees to use the BrainFox Marks solely in accordance with Brainfox's trademark usage guidelines and as provided in the BrainFox Affiliate Network interface and the XML feeds. PARTICIPANT agrees that it will not alter, modify, or change the BrainFox Marks in any way. All goodwill arising from the use of the BrainFox Marks shall inure solely to the benefit of Brainfox and its subsidiaries or affiliated companies, as applicable. All intellectual and proprietary property and information, supplied or developed by Brainfox shall be and remain the sole and exclusive property of Brainfox. Upon termination of this Agreement, PARTICIPANT shall immediately cease using and return to Brainfox any and all such property and information it receives from Brainfox. and, without limiting the foregoing, immediately cease use of the Marks. Participant agrees not to contest or challenge the Marks or to use any confusingly similar marks.
(b) PARTICIPANT grants to Brainfox during the term of this Agreement a non-exclusive, non-transferable, royalty-free license to access the PARTICIPANT web site through the Links; and (ii) use PARTICIPANT'S trade name, titles, logos, trademarks, service marks, products and similar identifying material relating to PARTICIPANT (the "PARTICIPANT'S Marks"), to advertise, market, promote and publicize in any manner this Agreement, the transactions contemplated hereunder or Brainfox's rights hereunder; provided, however, that Brainfox shall not be required to advertise, market, promote or publicize, in any manner, this Agreement, the transactions contemplated hereunder, or PARTICIPANT'S Marks. All use of the PARTICIPANT'S Marks shall be in accordance with PARTICIPANT'S trademark usage guidelines and shall inure to the benefit of PARTICIPANT.
10. Confidentiality:
Pursuant to this Agreement, the Parties may disclose to one another certain information ("Information") which is considered by the disclosing party to be proprietary or confidential information, including, without limitation, the terms of this Agreement, business, marketing and financial information, customer and vendor lists, and pricing and sales information. All such Information shall remain the sole property of the disclosing party, and its confidentiality shall be maintained and protected by the receiving party with the same degree of care as the receiving party uses for its own confidential and proprietary Information and the receiving party shall not disclose such Information to any third party without the prior written consent of the disclosing party. The restrictions of the use or disclosure of any Information shall not apply to any information: (i) after it has become generally available to the public without breach of this Agreement by the receiving party; (ii) is independently developed by receiving party; (iii) is rightfully in the receiving party's possession prior to disclosure to it by the disclosing party; (iv) is rightfully received by receiving party from a third party without duty of confidentiality; or (v) is disclosed under operation of law or pursuant to legal or regulatory process.
11. LIABILITY:
LIABILITY: NEITHER BRAINFOX NOR SUBSIDIARIES, OR AFFILIATED COMPANIES SHALL HAVE ANY LIABILITY HEREUNDER FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT OR BUSINESS OPPORTUNITIES, WHETHER OR NOT BRAINFOX KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGE MIGHT BE INCURRED. FURTHERMORE, BRAINFOX'S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREUNDER WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF RECOVERY SHALL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO PARTICIPANT UNDER THIS AGREEMENT.
12. Indemnification:
PARTICIPANT agrees to indemnify, defend and hold harmless Brainfox, its parent, subsidiaries, affiliated companies, successors and assigns and their respective officers, directors, shareholders and employees, from and against any and all losses, liabilities, damages, actions, claims, expenses and costs including, without limitation, reasonable attorneys' fees, which result or arise from or are based on (i) the negligence of PARTICIPANT, its agents, servants and/or employees, (ii) PARTICIPANT'S breach of this Agreement or any of the terms hereunder, (iii) any breach of a representation or warranty, or breach of a covenant or agreement made by PARTICIPANT herein, or in the Enrollment Application, (iv) any claim that Brainfox's use of PARTICIPANT'S Marks infringe on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (v) any claim related, in any way, to PARTICIPANT'S web site(s), including, without limitation, content therein not contributed directly by Brainfox as well as, any and all promotional and advertising activities conducted by, or on the behalf of, PARTICIPANT and any goods or services offered, sold or otherwise made available through PARTICIPANT'S web site(s); or (vi) PARTICIPANT'S acts or omissions as a Superaffiliate or any of the acts or omissions or any subaffiliate directly or indirectly related to any Links obtained through the BrainFox Affiliate Network that PARTICIPANT provided or permitted such subaffiliate to use.
13. Independent Parties:
Nothing contained herein shall imply any partnership, joint venture or agency relationship between the Parties and neither Party shall have the power to obligate or bind the other in any manner whatsoever, except to the extent herein specifically provided.
14. Binding Effect; Benefit:
This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns. Nothing in this Agreement, expressed or implied, is intended to confer on any person or entity other than the Parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
15. Severability:
If any provision of this Agreement shall be declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement shall not be affected and shall remain in full force and effect.
16. Notices:
Any notices required or permitted under this Agreement may be sent electronically to you at your email address as provided in the BrainFox Affiliate Network and posted in the BrainFox Affiliate Network and shall be deemed duly made and received when sent.
17. Force Majeure:
Except as otherwise expressly provided in this Agreement, Brainfox shall not be liable for any breach of this Agreement or for any delay or failure of performance resulting from any cause beyond such Party's reasonable control, including without limitation, the weather, strikes or labor disputes, war, terrorist acts, riots or civil disturbances, government regulations, acts of civil or military authorities, or acts of God.
18. Entire Agreement:
This Agreement constitutes (a) the binding agreement between the Parties; (b) represents the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior agreements; and (c) may not be modified or amended except in a writing signed by the Parties. Notwithstanding anything to the contrary contained herein, Brainfox. may modify and change any of the terms and conditions of this Agreement, at any time in its sole discretion. We will notify You of any such modification or change as provided for in Section 2 (a) hereof. Modifications and changes may include, without limitation, changes in the scope of available commission fees and payment procedures. If any modification or change is unacceptable to PARTICIPANT, PARTICIPANT'S only recourse is to terminate this Agreement. Your continued participation in the BrainFox Affiliate Program after the notice is posted or sent pursuant to Section 2(a) hereof, will constitute Your legally binding acceptance of the modification or change.
19. Governing Law:
Jurisdiction. This Agreement shall be governed by, and construed in accordance with the laws of the State of New York without regard to conflicts of law principles thereof. You hereby submit to the exclusive jurisdiction and venue of the appropriate State and Federal courts located in New York, New York, with respect to all matters arising out of or relating to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Last Updated June 22, 2006
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