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Affiliate Terms and Conditions
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Date of Last Revision: February 18, 2009.
ALLSHOPPING.CA AFFILIATE TERMS & CONDITIONS
1. LICENSE
1.1 Subject to the terms and conditions of this Agreement, ALLSHOPPING.CA and Affiliate grant each other a limited, non-exclusive, non-transferable, non-sublicenseable, worldwide, royalty-free license, including any necessary trademark licenses, to use any graphic banners, names, logos, product descriptions submitted by one party to the other as a return Link to the other party's Web Site and in promotional and marketing materials (unless otherwise specified herein), content directories and indexes, and electronic and printed advertising, publicity, press releases, newsletters and mailings about the parties. Affiliate shall not issue a press release or other publication containing information about AllShopping.ca or referring to this Agreement or its terms without AllShopping.ca's prior written consent. Notwithstanding the foregoing, the parties shall not use or exploit in any manner each other’s trademarks except in such manner and media in accordance with a party’s trademark usage guidelines which may be provided to the other party from time to time, or otherwise as the granting party may consent to in writing, which consent shall not be unreasonably withheld or delayed. AllShopping.ca may revoke or modify any such consent without notice for reasons it deems appropriate.
1.2 INTELLECTUAL PROPERTY RIGHTS.
Each party represents and warrants that it owns all Intellectual Property Rights necessary to execute their respective obligations under this Agreement and has the right to grant the licenses specified in this Agreement. The parties represent and warrant that the use and license of the rights granted hereunder do not infringe upon any third party right, including but not limited to third party Intellectual Property Rights and contractual rights.
1.3 OWNERSHIP RIGHTS. The parties shall retain all of their respective Intellectual Property Rights including, without limitation, rights in their names and logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future. Upon termination or expiration of this Agreement, the parties will immediately cease all display and use of the other party’s Intellectual Property except as permitted by law or as permitted herein. AllShopping.ca shall be permitted to continue to distribute marketing materials and brochures that were printed before the termination or expiration of the Agreement and that contain the Affiliate's trademark(s) and logo(s) to the extent that such marketing materials and brochures are not specific solely to Affiliate and contain the trademarks and logos of other Affiliates on the AllShopping.ca Web Site(s). As owner of all data collected in relation to the Affiliate rating system on AllShopping.ca Web Site, AllShopping.ca reserves the right to display/use such data, including displaying Affiliate’s name, after termination of this Agreement.
2. AFFILIATE CLICKS, PAYMENTS AND TAXES
2.1 AFFILIATE PAYOUT TERMS. Affiliate payouts are as follows: $0.25 CPC for display ad clicks, $0.25 for shopping clicks and $0.20 for text ad clicks. Payouts will only be rewarded for valid clicks (please refer to definition below). The aforementioned payout structure can change at any time without notice as per market conditions. AllShopping.ca reserves the right to withhold or deny payments due to fraudulent Affiliate traffic and on terms deemed fit by AllShopping.ca. In the event that Affiliate’s traffic is found to be fraudulent, the Affiliate will not be paid, and the account will be cancelled immediately.
"Valid Clicks" are clicks on the AllShopping.ca Network directly from Affiliate’s Links that bring the end user to a fully loaded page and maintain a reasonable ratio of searches / impressions versus clicks on a per I.P. address basis or other measuring methods. Clicks that are fraudulent in nature or resulting from incentives or misleading or coercive means will be deemed non-payable and can result in account termination. Traffic from IP addresses or URLs that have been previously blocked by AllShopping.ca will not be counted. AllShopping.ca may withhold Affiliate’s commission payment for a reasonable time to ensure that the clicks are valid and that the correct amount is paid.
2.2 TAXES. The payments required to be made under this Agreement do not include any amount for taxes, duties or levies (including interest and penalties) which may be owed by either party. Affiliate shall reimburse AllShopping.ca and agrees to indemnify, defend and hold AllShopping.ca harmless for all sales, use, VAT, excise, property or other taxes, duties or levies (including penalties and interest) which AllShopping.ca is required to collect or remit to applicable tax authorities. This Section shall not apply to taxes on AllShopping.ca’s income or any taxes for which Affiliate is exempt, provided Affiliate has furnished AllShopping.ca with a valid tax exemption certificate to prove such exemption.
3 CHANGES TO AGREEMENT. In the event that AllShopping.ca determines that the terms of this Agreement require modification, it shall notify Affiliate of any proposed changes. If Affiliate fails to inform AllShopping.ca in writing that it does not agree to the proposed changes within the ten (10) days of the date of the notification, Affiliate shall be deemed to have accepted the new terms of the Agreement, which shall then become binding on the parties.
4 TERM & TERMINATION. This Agreement will remain in effect until terminated by either party. AllShopping.ca or Affiliate may terminate this Agreement (a) immediately upon any breach or violation of this Agreement, or (b) at will upon three (3) days’ prior written notice to the other party.
5 CONFIDENTIALITY. Each party (the "Receiving Party") undertakes to retain in confidence the terms of this Agreement and all other non-public information and know-how of the other party disclosed to or acquired by the Receiving Party pursuant to or in connection with this Agreement which is either designated as proprietary and/or confidential or by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential ("Confidential Information"); provided that each party may disclose the terms and conditions of this Agreement to its legal and financial advisors in the ordinary course of its business. Each party agrees to use commercially reasonable efforts to protect Confidential Information of the other party, and in any event, to take precautions at least as great as those taken to protect its own confidential information of a similar nature. Affiliate acknowledges that the terms of this Agreement are Confidential Information of AllShopping.ca. The foregoing restrictions shall not apply to any information that: (a) was known by the Receiving Party prior to disclosure thereof by the other party; (b) was in or entered the public domain through no fault of the Receiving Party; (c) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality; (d) is required to be disclosed by applicable laws or regulations (but in such event, only to the extent required to be disclosed and only after written notification to the other party and affording the other party the opportunity to seek a protective order to protect its Confidential Information); or (e) is independently developed by the Receiving Party without reference to any Confidential Information of the other party. Upon request of the other party, or in any event upon any termination or expiration of this Agreement, each Receiving Party shall return to the other all materials, in any medium, which contain, embody, reflect or reference all or any part of any Confidential Information of the other party. Each party acknowledges that breach of this provision by it would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party shall be entitled to seek injunctive relief to enforce the provisions of this Section.
6 WARRANTIES.
a. Each party warrants: (i) it has the full corporate right and authority to enter into this Agreement and to perform the acts and obligations required of it hereunder; (ii) its execution of this Agreement by such party and performance of its obligations hereunder, do not and will not violate any agreement to which it is a party or by which it is bound; and in performance under and related to this Agreement, the parties shall comply with all applicable laws, rules and regulations (including, without limitation, privacy, export control and obscenity laws); and (iii) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms.
b. Affiliate warrants that it will exercise its best efforts to ensure that the Affiliate Web Site and the content contained thereon will not contain any material that is obscene, pornographic, profane, fraudulent, libelous or defamatory. Affiliate warrants that the content on and in the Affiliate Web Site will not infringe any Intellectual Property Rights or other rights of any third party. AllShopping.ca shall in no way be restricted from exercising all other rights and remedies available to it under law or this Agreement.
7 INDEMNIFICATION. Affiliate shall indemnify, defend and hold harmless AllShopping.ca and its Affiliates, and its and their directors, officers, employees and agents, from any and all liability, damage, or expense (including reasonable attorneys' fees) under any claim or suit brought by a third party arising out of products and services sold or offered by Affiliate, or arising out of a breach, or alleged breach, of any of Affiliate's representations, warranties or obligations herein or on the Affiliate Web Site, including but not limited to (a) any infringement claim asserted by a third party resulting from AllShopping.ca’s or its Affiliate’s use of Affiliate’s Intellectual Property and/or content in a PLS as provided for under this Agreement, (b) a claim by any third party that any product listed by Affiliate on the AllShopping.ca Web Site was created, obtained or sold by any party in violation of any federal, state or local law or regulation, (c) any inaccurate, deceptive, or misleading information provided to AllShopping.ca or Users by Affiliate, including but not limited to, the information contained in the PLS or (d) Affiliate’s refusal to honor terms set forth on the AllShopping.ca Web Site. Affiliate agrees to indemnify AllShopping.ca and its Affiliates from any and all liability, damages or consequences from any omission, acts or errors by Affiliate arising under this Agreement.
Except as stated otherwise in this Agreement, AllShopping.ca shall indemnify, defend and hold harmless Affiliate and its Affiliates, directors, officers, employees and agents, from and against any and all liability, claims, loss, damages, injury or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of AllShopping.ca’s representations, warranties or obligations herein.
8 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. ALLSHOPPING.CA’S AGGREGATE LIABILITY TO AFFILIATE HEREUNDER (WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OF ALLSHOPPING.CA) UNDER THIS AGREEMENT SHALL NOT EXCEED THE COMPENSATION RECEIVED BY ALLSHOPPING.CA FROM AFFILIATE HEREUNDER.
9 DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED WARRANTY OF AFFILIATEABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE), AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY CLAIM IN TORT (INCLUDING NEGLIGENCE), IN EACH CASE, REGARDING ITS OWN WEB SITES OR THOSE OF ITS AFFILIATES, OR ANY PRODUCTS OR SERVICES DESCRIBED THEREON. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AFFILIATE ACKNOWLEDGES THAT THE ALLSHOPPING.CA WEB SITE IS PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND. AFFILIATE ACKNOWLEDGES THAT ALLSHOPPING.CA MAKES NO WARRANTY THAT IT WILL CONTINUE TO OPERATE ITS WEB SITES OR OFFER THE CONTENT IN THEIR CURRENT FORM, THAT ITS WEB SITES OR THE CONTENT WILL BE ACCESSIBLE WITHOUT INTERRUPTION, THAT THE WEB SITES OR THE CONTENT WILL MEET AFFILIATE’S REQUIREMENTS OR EXPECTATIONS, OR THAT THE CONTENT, SOFTWARE OR ANY OTHER MATERIALS ON THE ALLSHOPPING.CA WEB SITE ARE FREE FROM ERRORS, DEFECTS, DESIGN FLAWS OR OMISSIONS.
10 AUDIT. AllShopping.ca shall have the sole responsibility for the calculation of statistics and reporting, which may include numbers of Click-thrus, time of Click-thru, and destination URL of each Click-thru. In the event that Affiliate disagrees with any such calculation, a written request should be sent during the term of the Agreement and within fifteen days of its receipt of the applicable invoice from AllShopping.ca. AllShopping.ca can provide Affiliate with the results of the audit, which shall be final and binding on the parties. In the event that a discrepancy in the number of Click-thrus is discovered, during the course of the audit, AllShopping.ca will issue an adjusted payment based on the correct number of Click-thrus.
11 GOVERNING LAW AND CHOICE OF VENUE. This Agreement shall be governed by, and construed in accordance with, the laws of the Province of Quebec, excluding its provisions on conflicts of laws. The parties hereby submit to the jurisdiction of, and waive any venue objection to, the Canadian District Court for the District of Quebec and the Courts located in Montreal, Quebec, in any litigation arising out of this Agreement.
12 SEVERABILITY. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect. If any provision of this Agreement shall, for any reason, be determined by a court of competent jurisdiction to be excessively broad or unreasonable as to scope or subject, such provision shall be enforced to the extent necessary to be reasonable under the circumstances and consistent with applicable law while reflecting as closely as possible the intent of the parties as expressed herein.
13 HEADINGS. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
14 INDEPENDENT CONTRACTORS. Affiliate and AllShopping.ca are independent contractors under this Agreement, and nothing herein shall be construed to create a partnership, joint venture, franchise or agency relationship between Affiliate and AllShopping.ca. Neither party has any authority to enter into agreements of any kind on behalf of the other party.
15 NOTICE. Any notice or other communication required or permitted to be given hereunder shall be given in writing and delivered in person, sent via confirmed facsimile or e-mail, or delivered by recognized courier service, properly addressed, to the individual signing this Agreement on behalf of the applicable party and shall be deemed effective upon receipt. Either party may from time to time change the individual to receive notices or its address by giving the other party notice of the change in accordance with this section.
16 ETHICAL CONDUCT. Affiliate shall refrain from activities that are illegal, unethical or which might bring either party into disrepute, or which might constitute or represent a serious conflict of interest, or which might give the appearance of impropriety. Affiliate agrees to comply with all applicable laws and regulations including those dealing with Internet commerce and privacy. Breach of this obligation by Affiliate will entitle the AllShopping.ca to the immediate removal of Affiliate from the AllShopping.ca Web Site and termination of this Agreement.
17 FORCE MAJEURE. Neither party shall be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of service, resulting directly or indirectly from acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophes or any other occurrences which are beyond such party's reasonable control.
18 NON-WAIVER. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
19 ASSIGNMENT. Affiliate may not assign this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of AllShopping.ca; except that either party may, without the other party's consent, assign this Agreement or any of its rights or delegate any of its duties under this Agreement to any purchaser of all or substantially all of such party's assets or to any successor by way of merger, consolidation or similar transaction. Subject to the foregoing, this Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and assigns.
20 OTHER TERMS AND CONDITIONS. The parties hereto may choose to incorporate other terms and conditions into this Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter to this Agreement, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
I agree to all the terms listed above.
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