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In consideration for your participation in the Affiliate Program (the “Program”) maintained by ClicktoFax, Inc. (“ClicktoFax”, “we”, “our” or “us”), You agree to comply with these Terms and Conditions (“Agreement”). The content in other websites specifically referenced in this Agreement, such as URLs, is incorporated by this reference as though fully stated in this Agreement.
2. Capacity. You hereby represent and warrant that you are an adult of at least eighteen (18) years of age and that, if you are agreeing to the terms and conditions of this Agreement on behalf of a legal entity (corporation, partnership, or the like), you have actual authority, and are duly authorized, to enter this Agreement.
3. Modification Of This Agreement and Compensation Structure. We may modify this Agreement and the terms and conditions set forth herein as well as the compensation structure at any time and for any reason. Such modifications shall take effect prospectively seven (7) days from the posting of such change. If you do not agree to be bound by any modification to this Agreement, your sole option and remedy is to terminate this Agreement.
4. Your Responsibilities and Warranties. You warrant that (a) you will not make any false or misleading representations with regard to our products or services and shall avoid deceptive, misleading and/or unethical practices including the “slamming” of customer accounts; (b) you will not enter into any contract or obligation of any kind on behalf of ClicktoFax; (c) your Website will not, in any way, copy or resemble the look and feel of our Website and that you will not create the impression that your Website is our Website or a part of our Website; (d) you will not frame or permit the framing of any page of our Website; (e) you are solely responsible for the development, operation, and maintenance of your Website, including maintenance of the electronic links to the our Website and the immediate repair of any “broken” links and, except for the Links we provide to you, for all content appearing on your Website; (f) you assume sole responsibility for the accuracy of the content of your Website, including, without limitation, descriptive claims, warranties, guarantees, and ensuring that the content on your Website; (g) the operation of your Website does not infringe or violate any right of any third party; (h) you will not place or cause to be placed on your Website anything which is obscene, threatening, malicious, or which infringes on or violates any applicable law or regulation or any proprietary, contract, moral, privacy or other third party right, or which otherwise exposes you and/or us to civil or criminal liability; (i) you will comply with all applicable laws, rules and regulations, including any Internet regulations or policies in connection with your Website; or (j) will immediately notify us of any demand, claim, or action by a third party insofar as such demand, claim or action alleges that your Website, its content or its operation does not meet the requirements of this Section.
Further, you understand and agree that (a) the Link between your Website and our Web Site must be a direct Link (e.g., no interstials, pop-up windows or redirects); (b) the Link may not be framed or co-branded by you; and the Link may not contain any trojan horses, worms, time bombs, viruses or other harmful programming routines; (c) you must use own web address as the display URL and you may not promote via downloadable applications; (d) (already stated in Section 4) , you must have express written permission to use another party’s trademarks or trade names, copyrighted or other proprietary material, or any deceptively similar version of them, on your web site, in a metatag or other similar search engine ranking device on your Website or web pages under your control; (e) you may not change the URL for your Site from the URL submitted below or add our Links to other web sites without our prior written consent; (f) you may not, under any circumstances, charge visitors to your Website any fee or compensation for access to our products or services; (g) you are not authorized to accept orders for new ClicktoFax services on our behalf and all agreements for our services shall be concluded by direct agreements between any lead and us; (h) you may not use “unbranded” or generic links on your Website that link to our Website; (i) it is your responsibility to ascertain whether any copyright, patent or other licenses are necessary and to obtain any such licenses to serve and/or create, compress or download such media and content; (j) you will use only those materials for which you have the necessary patent, copyright and other permissions, licenses, and/or clearances. You understand and agree that you are responsible for any income and other taxes required under applicable laws arising out of monies received by you pursuant to this Agreement and that we may file a Form 1099 with the IRS and will provide the IRS Form 1099 to you when appropriate. Each party is solely and separately responsible for its own taxes, user fees, or similar levies.
5. Qualified Lead Defined. For the purposes hereof, a “Qualified Lead” shall mean a new customer generated directly by your lead generation efforts if: (i) such customer is successfully entered into our billing system for ClicktoFax service after appropriate credit checking and remains a paying customer for at least 30 days; (ii) the customer order is verified in accordance with our credit and verification requirements; and (iii) such customer is not an existing ClicktoFax customer, a customer with a pending order, or a customer who had or applied for an ClicktoFax account within one hundred eighty (180) days before the lead was submitted to us. Notwithstanding anything contained herein to the contrary, only payment will be made per Qualified Lead regardless of the number of ClicktoFax accounts the potential customer orders. We reserve the right to reject any lead, sale, or order for any reason. A Qualified Lead must meet all of the following conditions: (i) it must result from a direct internet Link from your Website to our Website; (ii) it must not be duplicative of leads received from the same visitor or same household within six (6) months of the date you submit the lead; and (iii) the lead must be received by us during the term of this Agreement, prior to termination. You agree that you will not employ any means, method or device to artificially inflate the number of leads submitted to our Site or to submit non-bona fide leads. Determination of whether the lead is a Qualified Lead shall be made solely by us. We may chargeback to you (e.g., debit or offset from any amounts owed) any fees paid or credited to you with respect to leads that were not Qualified Leads or paid in error; you hereby consent to the same. Once the visitor to your Website clicks on the Link to our web Site thereby requesting to establish a direct Link to the our Website, you agree not to employ any means, method or device (including, but not limited to, spyware or cookies) to monitor, track or record information regarding the lead’s usage of our Website. Notwithstanding any other provision of this Agreement, we shall be the sole owner of all names, addresses, transaction data and other non-public personal information gathered on our Website and through the Link to the our Website. All information or data contained in the Link between your Website and our Website shall be deemed our confidential information.
6. Your Responsibility for Your Agents. You will not make any commitments or representations on behalf of ClicktoFax with regard to any relationship you enter into with Your Sub-Publishers or any other third parties (collectively, “Agents”) in connection with your promotion of an ClicktoFax site. You will ensure that your Agents agree to terms and conditions that are at least as restrictive as the PSA and this Agreement, subject to applicable law. Any violation by your Agents of the terms and conditions of this Agreement shall constitute a violation by you, and ClicktoFax shall have full recourse against you with respect to such a violation.
7. Our Website, Products, Services and Customers. We may modify our website, products and services at any time, with or without notice to you and/or our customers. We shall have complete discretion in establishing the terms and conditions applicable to our products and services. You acknowledge and agree that customers who buy products or services from us on or through our Website shall be deemed to be our customers and our rules, policies, and operating procedures concerning customer orders, customer service, and the sale of products and services on or though our Website shall apply to those customers. We shall determine, in our sole and absolute discretion, the products and services to be sold on or through our Website and the prices to be charged for such products and services. You understand that while we will make reasonable commercial efforts to keep our website operational during normal business hours, certain technical difficulties may, from time to time, result in temporary service interruptions and that it is normal to have a certain amount of system downtime and operational irregularities and that we will not be liable for any of the consequences of such circumstances, including lost or underreported bounty payments. Except as specifically set forth by us, no other ClicktoFax products or services may be offered to potential customers under this Program and no payments will be paid to you for such services.
8. Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, OUR PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND WE DISCLAIM ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT OUR SECURITY METHODS EMPLOYED WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (E) AGAINST INTERFERENCE WITH ENJOYMENT OF OUR PRODUCTS OR SERVICES. FURTHER WE DO NOT WARRANT THAT OUR INTERNET SITE OR LINKS THERETO DO OR WILL MEET YOUR REQUIREMENTS, THAT OUR INTERNET SITE WILL ALWAYS BE AVAILABLE, OR THAT IT WILL BE UNINTERRUPTED, TIMELY, SECURE OR OPERATED WITHOUT ERROR.
9. Limitation of Liability. ANY LIABILITY OF CLICKTOFAX UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF OUR PAYMENTS PAID AND PAYABLE TO YOU DURING THE THREE MONTHS PRIOR TO THE DATE YOUR CLAIM AROSE. YOU AGREE THAT WE ARE NOT LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, TORT, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
10. Indemnification. You will defend, indemnify and hold harmless ClicktoFax and its affiliates, parent entities, directors, officers, employees and agents, from and against any and all claims, costs, losses, damages, judgments and expenses (including reasonable attorneys’ fees as incurred) (collectively, “Claims”) resulting from, arising out of, or in any way connected with (a) your having viewed, downloaded, installed, copied, transmitted or otherwise used any materials in connection with your operations in violation of another party’s rights or in violation of any law, rule or regulation; (b) your violation of any terms of this Agreement; (c) your negligence or misconduct; (d) any injury to persons or damages to property caused directly or indirectly by your negligent or intentional acts or omissions; (e) your unauthorized use of any third party’s intellectual property or confidential information; (f) any claim related to the development, maintenance, operation or content of your Website; (g) any misrepresentation made by you or on your Website or any other web pages under your control or direction, and (h) any taxes due on the payments made to you under this Agreement. You agree that we shall have sole and exclusive control over the defense and settlement of any such third party claim. We agree to promptly notify you of any such claim of which we become aware and you shall: (a) at your expense, provide reasonable cooperation to us in connection with the defense or settlement of any such claim; and (b) at your expense, be entitled to participate in the defense of any such claim.
11. Publicity. You agree that you will not publish, distribute, post, broadcast, display or permit any written material that makes reference to ClicktoFax without first submitting such material to us for approval and receiving express prior written consent which shall be in our sole and absolute discretion. Submissions for such approval may be made via e-mail to: info@ClicktoFax.com. However, we may identify you or your site as a participant in the Program without providing you prior notice or obtaining your specific written consent. Such identification may be oral, written, or electronic, and may include (but is not limited to) public announcements, promotional materials, internal and external reports, and public filings.
12. Limited Trademark & Content License. We hereby grant you a limited, worldwide, non-exclusive, non-transferable, non-assignable right to use our trademarks and content (text and images) contained within the Links as specified in this Agreement (“Materials”). You agree (a) not to create a unitary composite mark involving any of our trademarks without the prior, written approval in each instance; (b) that you will display symbols and notices clearly and sufficiently indicating the trademark status and ownership of our trademarks in accordance with applicable trademark law and practice; (c) that nothing in this Agreement shall create for you any other right, title or interest in our trademarks, content or in any of our other names, trademarks, service marks, design marks, symbols and/or other indicia of origin; (d) you will not make any use of such for any purpose without our prior written approval; (e) not to do anything contesting or impairing any of our trademark rights; (f) to promptly notify us of any unauthorized use of our Materials of which you have actual knowledge; (g) that all such use of our Materials shall inure solely to our benefit; (h) that you will not modify any of our Materials without our prior written approval; (i) not to use any name or mark substantially similar to any of our trademarks as part of any domain name without our prior written approval; and (j) that you will not bid upon any domain name which includes any of the names listed at http://www.ClicktoFax.com and that you will not bid on any name similar to any such names. Upon the termination of this Agreement or upon our written request, you agree to cease and desist from all use of our trademarks and content. For the purpose of linking from your Website to our Website, you agree to display on your Website only those Links that are provided by us without modification of any kind. You agree promptly to substitute expired Links with any new Links we provide to you from time to time. You agree that neither your Links nor the operation of your Links shall alter the look, feel, or functionality of our Website.
13. ONGOING COMPLIANCE. Your continuing compliance with this Agreement is a condition of continuing participation in the Program. We reserve the right to review and audit your Website from time to time to determine if you are in continued compliance with this Agreement. Your Website must be and remain fully functional. We may reject or terminate you if your Website is not live, is “under construction”, or if your Website is a personal homepage or personal Website.
14. Termination. Either party may terminate this Agreement, without cause or penalty, by providing to the other party seven (7) days prior written notice. We may terminate this Agreement immediately in the event that you: (i) breach any other intellectual property right, provision of this Agreement, or other of our common law intellectual property rights; (ii) we have reasonable concerns that your use of our materials is diluting, tarnishing or blurring the value of our trademarks, service marks, and/or trade names, and/or may be a breach of our other intellectual property rights; or (iii) ( you breach any other material term of this Agreement. Notification by email shall constitute a written and immediate form of notification.
Upon any termination whether with or without cause: (i) you shall immediately discontinue use of our materials and shall within three (3) days return to us, or certify destruction of, all full or partial copies of our materials; (ii) our acceptance of additional leads obtained through you shall not constitute a continuation or renewal of this Agreement or a waiver of such termination, (iii) you shall be entitled only to valid unpaid amounts earned by you on or prior to the date of termination; (iv) you shall in no event be entitled to payments with respect to any leads delivered after the date of termination; and (iv) all rights and licenses granted hereunder shall immediately terminate.
15. Relationships of Parties/Third Party Rights. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing in these terms and conditions or in the business or dealings between the parties shall be construed otherwise. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor.
16. Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, riots, insurrection, war (or similar), acts of terror, fires, flood, earthquakes, explosions, and other acts of God.
17. Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
18. Assignment and Amendment. You may not assign this Agreement without our prior express written permission. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a “click through” acknowledgement of assent.
19. Survivability. All provisions of this Agreement which by their sense or nature should be deemed to survive any termination or expiration of this Agreement shall so survive including but not limited to Sections 4, 8-11, 14, 17 through 22.
20. Notice & Delivery. Under this Agreement, if one party is required to deliver or submit something to the other, or give notice, such delivery and such notice shall be given to you by the mailing address specified in the Application and to us by mail to ClicktoFax, Inc.; Attention: Legal, 555 Bryant Street #101, Palo Alto CA 94301.
21. Entire Agreement. This Agreement contains the entire agreement between the parties as to the subject hereof. This Agreement supersedes all prior oral and written agreements between the parties as to the subject hereof.
22. Arbitration and Jurisdiction. You and ClicktoFax agree that the exclusive remedy for all disputes and claims relating in any way to, or arising out of, this Agreement (including the arbitrability of any claim or dispute and the enforceability of this paragraph) (“Dispute”), shall be final and binding arbitration. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) before one arbitrator. You and ClicktoFax may litigate in court only to compel arbitration under this Agreement or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrator. The arbitration shall be held at any reasonable location near your business by submission of documents, by telephone, online or in person whichever method of presentation you choose. If you prevail in the arbitration of any Dispute with us, we will reimburse You for any fees you paid to AAA in connection with the arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered thereon in any court of competent jurisdiction. Except as specifically set forth below, should either party bring a Dispute in a forum other than AAA without the prior written consent of the other party, the arbitrator may award the other party its reasonable costs and expenses, including attorneys’ fees, incurred in staying or dismissing such other proceedings or in otherwise enforcing compliance with this dispute resolution provision. To the extent that you have breached or have indicated your intention to breach this Agreement in any manner which violates or may violate our intellectual property rights, or may cause continuing or irreparable harm to us (including, but not limited to, any breach that may impact our intellectual property rights), we may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction. You must commence an arbitration by filing a demand for arbitration with the AAA within ONE (1) YEAR after the date you first know or reasonably should know of the act, omission or default giving rise to the claim; and you will have no right to any remedy for any claim not asserted within that time period (If applicable law prohibits a one-year limitations period for asserting claims, the claim must be asserted within the shortest time period in excess of one year that is permitted by applicable law.). To the fullest extent permitted by applicable law: no arbitration under or related to this Agreement shall be joined to an arbitration involving any other party, whether through class arbitration proceedings or otherwise; no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless determined in another proceeding between you and us); and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between you and us). This Agreement shall be governed by the laws of the State of Ohio and the Federal Arbitration Act, without regard to conflicts of law provisions, and you hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of Ohio.
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