| 1.0 |
ADVERTISING AND CUSTOMER GENERATION SERVICES |
| |
|
|
| 1.1 |
Advertisements |
| |
|
| |
(a) |
As used in this Agreement, the term “Advertisements” shall include creative graphics, emails, display ads, hyperlinks, web pages, and/or other advertising material designed to generate customers for Legacy’s products (“Legacy Products,” as hereinafter defined), as well as any related intellectual property contained within the Advertisements, including without limitation any computer code associated with the Advertisements and all related copyrights, trademarks, and service marks. The term “Advertisements” does not include the Legacy Affiliate Newsletter, as issued by Legacy from time to time. |
| |
|
|
| |
(b) |
Legacy authorizes Affiliate to market Legacy Products using only (a) the exact Advertisements made available by Legacy through the Legacy Publishing Affiliate Center, and/or (b) Testimonials (as defined in Section 2.7 of this Agreement) developed by Affiliate in accordance with the terms of the Agreement. If Affiliate uses Advertisements made available by Legacy through the Legacy Publishing Affiliate Center, Affiliate is prohibited from modifying, altering, or otherwise changing any Advertisement without the prior written consent of Legacy. Notwithstanding the foregoing, Affiliate shall honor creative changes to any Advertisement requested by Legacy within twenty-four (24) hours of such request. |
| |
|
|
| |
(c) |
Affiliate is prohibited from using the Legacy Affiliate Newsletter and any content contained therein to promote Legacy Products without the prior express written consent of Legacy. |
| |
|
|
| 1.2 |
Domain Name Registration; Labeling |
| |
|
|
| |
(a) |
Except as expressly authorized by Legacy in its sole discretion, Affiliate is prohibited from (i) using or incorporating into any domain name or subdomain name or URL of Affiliate the name, trademark, service mark, logo or other mark (collectively, “Marks”) of the relevant Legacy Product or any of the prohibited keywords listed in Section 1.5 of this Agreement and (ii) labeling, identifying or otherwise characterizing any web page hosted by Affiliate as an “official site” (or other similar designation) of the relevant Legacy Product. |
| |
|
|
| |
(b) |
Affiliate shall register with Legacy all active domain names, subdomain names and URLs used by Affiliate to market Legacy Products. Affiliate shall update its list of registered domain names, subdomain names, and URLs in real time to ensure that the list is complete and accurate at all times. |
| |
|
|
| 1.3 |
Privacy Policy. Each web site hosted by Affiliate shall include a clear and conspicuous privacy policy that complies with the requirements of Cal. Bus. & Prof. Code § 22575-22597 and specifically states that any customer information collected through the Affiliate web site may be shared with outside third parties for marketing, order fulfillment, and any other purposes. |
| |
|
|
| 1.4 |
Intellectual Property. Legacy hereby grants to Affiliate a limited, non-exclusive, revocable, worldwide right and license to use, distribute, and publicly display the Advertisements and/or any intellectual property rights therein, including any and all trademarks, service marks, trade dress, logos, copyrights, publicity rights or other intellectual property utilized in the Advertisements and any components thereof (collectively, “Legacy IP Rights”). Legacy reserves the right to grant other Legacy licensees Legacy IP Rights that are not identical to those granted to Affiliate. Affiliate understands and agrees that the right and license granted herein are non-exclusive and that Legacy or other licensees of Legacy may use, distribute, and publicly display the Advertisements and/or any Legacy IP Rights therein. Notwithstanding the foregoing, upon written notice from Legacy, Affiliate shall take down any Legacy IP as requested by Legacy within twenty-four (24) hours of such request. |
| |
|
|
| |
Nothing in this Agreement shall transfer or be deemed to transfer to Affiliate any ownership of Legacy IP Rights nor grant or be deemed to grant to Affiliate any right or license other than the limited right and license as stated in this Section 1.4. This right and license shall terminate upon termination of this Agreement for any reason. |
| |
|
|
| 1.5 |
Prohibited Keywords |
| |
|
| |
(a) |
As used in this Agreement, “Prohibited Keywords” means the keywords listed in this Section 1.5, as amended or modified by Legacy from time to time. Legacy shall have the sole right to add additional Prohibited Keywords or otherwise modify this Section 1.5 at any time and may do so without prior notice to Affiliate. |
| |
|
|
| |
(b) |
Affiliate bid terms may not contain any of the Prohibited Keywords listed in this Section 1.5. Affiliate shall comply with all other prohibitions respecting or involving Prohibited Keywords as specified in this Agreement. |
| |
|
|
| |
(c) |
Trademarked Product/Brand Names and Company Name |
| |
|
|
| |
|
The Total Transformation®
Total Focus®
The Us Factor™
Legacy Publishing Company |
| |
|
|
| |
(d) |
Non-Trademarked Keywords |
| |
|
|
|
| |
|
total transformation
the total transformation
total transformation program
the total transformation program
totaltransformation.com
thetotaltransformation.com
totaltransformationprogram
thetotaltransformation
total transformation child behavior
total transformations
transformation program
transformationprogram
transformationprogram.com
totaltransformations
totaltransformations.com
thetotaltransformation
james leemin
james leahman
james lehmans
james lemans
james leemans
jane lehman
jane lehmans
dr lehman
dr leeman
Total focus
Total focus program
Focus program
The total focus
The total focus program
The focus program
Try total focus
Try total focus program
Try focus program
Totalfocus
Totalfocusprogram
Focusprogram
Thetotalfocus
Thetotalfocusprogram
Thefocusprogram
Trytotalfocus
Trytotalfocusprogram
Tryfocusprogram
Trytotalfocus.com
www.trytotalfocus.com
totalfocus.com
www.totalfocus.com
totalfocus.org
www.totalfocus.org
totalfocus.net
www.totalfocus.net
Robert Myers
Robert F. Myers
Dr. Robert Myers
Dr. Robert F. Myers
Robert Myers Ph.D.
Robert F. Myers Ph.D. |
thetotaltransformationprogram
total transformations program
total transformations programs
james lehman
james lehman total transformation
james leeman
james leman
total transformation program james lehman
total transformation by james lehman
jameslehman
jim lehman
james lehmon
james leemon
james lehmen
james lehmin
legacy parenting
legacy parenting company
legacyparenting.com
legacyparenting
legacyparentingcompany
legacyparentingcompany.com
www.legacyparentingcompany.com
www.legacyparenting.com
legacy publishing
legacy publishing company
legacypublishingcompany.com
legacypublishingcompany
legacypublishing
www.legacypublishingcompany.com
Joseph Melnick
Joseph Melnick, Ph.D.
Joseph Melnick Ph.D.
Joseph Melnick PhD
Joe Melnick, Ph.D.
Joe Melnick Ph.D.
Joe Melnick PhD
Joe Melnick
the us factor
theusfactor
us factor online
usfactoronline
the us factor online
theusfactoronline
us factor
usfactor
the us factor program
theusfactorprogram
us factor program
usfactorprogram
www.theusfactor.com
theusfactor.com
the us factor secret to loving well
us factor secret to loving well
the us factor the secret to loving well
us factor the secret to loving well |
| |
|
|
| 2.0 |
ADVERTISING REQUIREMENTS |
| |
|
|
| 2.1 |
General Requirements. As required under Section 1.2(b) of this Agreement, Affiliate shall provide Legacy with a current list of all web sites used by Affiliate to promote, display or transmit the Advertisements. Affiliate is responsible for ensuring real-time updates to such list. |
| |
|
|
| 2.2 |
Advertising Restrictions. Affiliate agrees that any Affiliate web sites or other media properties used to promote, display or transmit the Advertisements or otherwise generate orders for any Legacy Product (including without limitation search engine text ads) shall comply with the following requirements: |
| |
|
|
| |
(a) |
not infringe upon the personal rights, trademark, service mark, trade dress, trade name, logo, publicity right, copyright, or other intellectual property of any third party; |
| |
|
|
| |
(b) |
not contain content that Legacy in the sole discretion has determined is an invasion of privacy, degrading, libelous, unlawful, deceptive, profane, obscene, pornographic, tends to ridicule or embarrass, or is in bad taste; |
| |
|
|
| |
(c) |
not offer incentives, points, rewards, cash, or prizes to consumers in return for their response to one or more Advertisements unless the terms and conditions of the offer are clearly and conspicuously presented to the consumer in accordance with federal and state regulatory laws, regulations, and guidelines; |
| |
|
|
| |
(d) |
not include content that is deceptive or misleading or otherwise fails to comply with applicable federal and state consumer protection laws; |
| |
|
|
| |
(e) |
not constitute any advertising via facsimile or telemarketing (including without limitation by use of prerecorded or artificial voice messages); |
| |
|
|
| |
(f) |
not constitute any advertising to wireless devices or portable electronic devices by text messaging in any form (including without limitation SMS, Smart Messaging, EMS, and MMS); |
| |
|
|
| |
(g) |
not promote any illegal activity including without limitation the promotion of gambling, illegal substances, software piracy, or hacking; and |
| |
|
|
| |
(h) |
not specify prices for Legacy Products, except where Affiliate has received from Legacy express written authorization to specify such prices. |
| |
|
|
| 2.3 |
Email Marketing. If Affiliate distributes the Advertisements by email, Affiliate shall: |
| |
|
|
| |
(a) |
Obtain the written approval of Legacy prior to sending any email or initiating any email campaign involving the sending an email that promotes the advertisement of a Legacy Product, and comply with any further instructions provided by Legacy at that time (including, without limitation, instructions for using Legacy opt-out lists). |
| |
|
|
| |
(b) |
Remove from the transmission list any email address associated with a wireless domain name, as listed on the then-current list of wireless domains maintained by the Federal Communications Commission. |
| |
|
|
| |
(c) |
Ensure that each email message that Affiliate distributes includes: (i) clear and conspicuous notice of the recipient’s right to opt-out of receiving future commercial messages from the “sender” of the message (as that term is defined under the CAN-SPAM Act); and (ii) a functional electronic mechanism that the recipient can use to make such an opt-out request, in compliance with the requirements of the CAN-SPAM Act and Federal Trade Commission regulations implementing the CAN-SPAM Act. |
| |
|
|
| |
(d) |
Ensure that “subject” and “from” lines used in any email that Affiliate distributes are truthful and non-misleading and neither otherwise violate the CAN-SPAM Act and any applicable state laws nor infringe upon the intellectual property rights of any third party. Affiliate shall use any “subject” and “from” lines provided by Legacy and is prohibited from removing or altering “subject” and “from” lines provided by Legacy. |
| |
|
|
| 2.4 |
Prohibitions on Search Engine Optimization. If Affiliate distributes Advertisements or otherwise promotes the Advertisements or Legacy Products using search engine optimization techniques, including without limitation search engine text ads, Affiliate shall not: |
| |
|
|
| |
(a) |
Use any technique, including but not limited to keyword bidding, that generates paid search results based on any Marks of Legacy, any Legacy Product name or any of the Prohibited Keywords identified in Section 1.5 of this Agreement; |
| |
|
|
| |
(b) |
Purchase CPC advertising on Google, Yahoo! and MSN that directs traffic, using Affiliate’s URL, to any Legacy domain name or URL (“Legacy Landing Page”) listed in Section 1.5 of this Agreement; and |
| |
|
|
| |
(c) |
List or advertise any Legacy Product on eBay, including eBay Classified Ads, without the prior express written consent of Legacy. |
| |
|
|
| 2.5 |
Complaint Notification. Affiliate must notify Legacy of any complaint received by Affiliate regarding any of the marketing practices described herein within twenty-four (24) hours of Affiliate’s receipt of such complaint. |
| |
|
|
| 2.6 |
Failure to Comply. Without limiting any other remedies specified in this Agreement or otherwise available to Legacy, Affiliate’s failure to comply with the requirements of this Section 2.0 will result in non-payment of the commission due for any Qualifying Order (as hereinafter defined) associated with the Advertisement and may result in termination of this Agreement, in Legacy’s sole discretion. |
| |
|
|
| 2.7 |
Use of Testimonials: As used in this Agreement, “Testimonial” means any advertising message (including but not limited to consumer testimonials, celebrity or expert endorsements, blogs, verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name, logo or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experience of a party other than Legacy. The party whose opinions, beliefs, findings, or experiences the message appears to reflect shall be called the “Endorser” in this Agreement. An Endorser may be an individual, group, or institution. Affiliate shall not use any Testimonial intended to generate sales for Legacy Products unless such Testimonial complies with (a) current Federal Trade Commission guidelines concerning the use of endorsements and testimonials in advertising (16 CFR Part 255 of the Code of Federal Regulations) and, (b) the advertising requirements stated in Sections 2.1 – 2.6 of this Agreement as if the advertising requirements apply directly to Testimonials. Without limiting the foregoing requirements:
(a) Testimonials must reflect the honest opinions, findings, beliefs and/or experience of the Endorser, and may not convey an express or implied representation that would be deceptive if made directly by Legacy.
(b) The Testimonial may not be presented out of context or reworded so as to distort in a material way the endorser’s opinion or experience with the Legacy Product.
(c) If the Testimonial represents that the Endorser uses the Legacy Product, the Endorser must have been a bona fide user of it at the time the Testimonials was given.
(d) No Testimonial containing statements reflecting the objective experience of an individual or group on a central or key attribute may claim that the experience is representative of what consumers will generally achieve.
(e) If the Endorser was or will be paid for his/her Testimonial, or there is or was any other material connection between the Endorser and Affiliate, Affiliate must include in the Advertisement a disclosure that the Endorser has been paid for his/her Testimonial or otherwise disclose the material connection between Endorser and Affiliate.
(f) If the Testimonial contains an endorsement of a Legacy Product, Affiliate must disclose that he/she may earn compensation for sales of the Legacy Product endorsed in the Testimonial.
(g) If a Testimonial represents, directly or by implication, that the Endorser is an expert, then the Endorser's qualifications must in fact give him/her the expertise that he/she is represented as possessing with respect to the endorsement.
(h) Affiliate may use the Testimonial only as long as Affiliate has good reason to believe that the Endorser continues to subscribe to the views presented.
|
| |
|
| 3.0 |
PROHIBITED PRACTICES |
| |
|
|
| 3.1 |
Affiliate shall not engage in any activity to fraudulently generate orders for any Legacy Product or for the purpose of fraudulently earning commissions on sales of any Legacy Product. Legacy reserves the right to research, monitor and audit Affiliate’s web site(s) and advertising practices, including Affiliate’s use of the Advertisements, and to determine, in Legacy’s sole discretion, whether Affiliate is in compliance with the terms and conditions of this Agreement, including but not limited to the prohibitions specified in this Section 3.0. If Legacy detects fraudulent activity, Affiliate’s account will be suspended pending further investigation by Legacy and any payments due to Affiliate under Section 4.0 of this Agreement will be withheld until such time as Legacy in its sole discretion determines that Affiliate has not engaged in any fraudulent activity. If Legacy determines that Affiliate has fraudulently generated orders for Legacy Products or otherwise engaged in deceptive practices to fraudulently earn commissions on Legacy Products, Affiliate shall forfeit all commissions paid and unpaid as of the date of such discovery and this Agreement will automatically terminate. |
| |
|
|
| 3.2 |
The use of deceptive practices by Affiliate to promote Legacy Products, including but not limited to the following practices, is strictly prohibited: |
| |
|
|
| |
(a) |
Redirects, including click counters, “tinyurl”, frames, iframes or any other measure to automatically call affiliate tracking code for a visitor to the Affiliate’s web site; |
| |
|
|
| |
(b) |
Any intervening windows, including but not limited to “pop-up” or “pop-under” windows; |
| |
|
|
| |
(c) |
Serving Advertisements, or driving traffic to Advertisements, using spyware, adware, parasiteware or any downloadable application; |
| |
|
|
| |
(d) |
Any method to generate impressions, clicks, or transactions that are not initiated by the affirmative action of a consumer; and |
| |
|
|
| |
(e) |
Deceptive software download or computer setting practices, including but not limited to, installing software without the user’s knowledge, changing a user’s home page without securing the user’s permission; and offering downloadable software that does not include an uninstaller or that cannot be uninstalled by Windows Add/Remove Programs. |
| |
|
|
| 3.3 |
THE FOREGOING PRACTICES, TOGETHER WITH ANY UNAUTHORIZED USE OF THE ADVERTISEMENTS, IS STRICTLY PROHIBITED AND WILL RESULT IN TERMINATION OF THIS AGREEMENT AND EXPULSION FROM THE LEGACY AFFILIATE MARKETING PROGRAM WITHOUT PAY. ALL RIGHTS NOT EXPRESSLY GRANTED BY LEGACY ARE HEREBY RESERVED. |
| |
|
|
| 4.0 |
PAYMENT TERMS |
| |
|
|
| 4.1 |
Qualifying Products. For purposes of this Agreement, each of the following Legacy Products is a “Qualifying Product”: The Total Transformation,® Total Focus® and The Us Factor.™ |
| |
|
|
| 4.2 |
Qualifying Orders. Legacy will pay Affiliate a commission based on the Affiliate Commission Structure specified at http://affiilates.legacypublishingcompany.com/CommissionStructure.php, for Qualifying Orders provided to Legacy pursuant to this Agreement. A “Qualifying Order” is defined as a shipped sale of one or more Qualifying Products that: (a) was received through any Legacy website through a properly configured Affiliate banner or link; (b) was placed by a Customer who accepted Legacy cookies; and (c) is not already be included in Legacy’s database, including any suppression files maintained by Legacy (“Duplicates”). The determination of whether a Customer order is a Qualifying Order shall be based on Legacy data and made by Legacy in its sole discretion. |
| |
|
|
| 4.3 |
Payment. Legacy will mail payment of the commission earned by Affiliate on a monthly basis, along with monthly data (“Payment Data”) used by Legacy to determine Affiliate’s compensation, according to the following schedule: Commissions will be paid on the tenth (10th) day of the calendar month following a 40-day pending sales period that begins on the first (1st) day after Affiliate’s placement of a Qualifying Order. If, during the 40-day pending sales period, the Customer cancels the Qualifying Order, returns the Legacy Product, requests a refund and/or stops payment under any circumstances, the Qualifying Order shall be immediately deemed void and no commission shall be earned by or due to Affiliate for such order. |
| |
|
|
| 4.4 |
Invalid Orders. No commission shall be earned by or due to Affiliate for any of the following: |
| |
|
|
| |
(a) |
Orders that contain invalid lead data, inadequate data, falsified data, and/or fraudulent data; |
| |
(b) |
Orders returned or canceled by Customers within the 40-day pending sales period; |
| |
(c) |
Fraudulently generated orders; |
| |
(d) |
Orders placed through improperly configured text or banner links to any Legacy Landing Page identified in Section1.5 of this Agreement; |
| |
(e) |
Orders placed through properly configured text or banner links by Customers who refuse to accept cookies issued by Legacy; |
| |
(f) |
Orders placed by any means other than a properly configured banner or link to the web sites, including phone and word of mouth referrals, except where Legacy has given its prior express authorization of such method; |
| |
(g) |
Orders placed through or by means of any Advertisement that does not include promotional codes or other source codes provided by Legacy for tracking purposes; and |
| |
(h) |
Sales purchased for resale by Affiliate or any other person or entity. |
| |
|
|
| 4.5 |
Multiple Affiliate Referrals. No commission will paid to Affiliate if its banner or link was not the last affiliate banner or link used by the customer to access a Legacy Landing Page and purchase a Qualifying Product. |
| |
|
|
| 4.6 |
Offset or Refund of Commission Paid. Legacy reserves the right to offset from any unpaid commission earned or due to Affiliate for a Qualifying Order, or to demand a refund from Affiliate, an amount equal to any commission paid to Affiliate for a sale that Legacy thereafter and in its sole discretion determines was an Invalid Order. |
| |
|
|
| 4.7 |
Expiration or Termination of the Agreement. Commissions earned through the date of expiration or termination of this Agreement shall be payable only if the sales in question satisfy the requirements of Sections 4.2 and 4.3 of this Agreement and are not determined by Legacy in its sole discretion to be an Invalid Order. Legacy reserves the right to withhold payment of the final commission amount to Affiliate for a reasonable period of time to determine whether any of the sales in question include an Invalid Order. |
| |
|
|
| 4.8 |
Disputes. In the event that Affiliate disputes the Payment Data, Affiliate shall within ten (10) calendar days of receipt of Payment Data notify Legacy in writing and provide documentation supporting its claim. Legacy shall in good faith, consider such documentation, but shall have the sole authority to determine the correct number of Qualifying Orders eligible for payment of commission. If Affiliate fails to submit a dispute as required by this Section 4.8, then the Payment Data in question shall be deemed conclusive and accurate and to be accepted as such by Affiliate without further right of Affiliate to dispute the Payment Data. |
| |
|
|
| 5.0 |
DATA OWNERSHIP; DATA SECURITY |
| |
|
|
| 5.1 |
Data Ownership and Use. Affiliate agrees that any information collected by Affiliate regarding an order of a Legacy Product (“Order Information”) and any information created, compiled analyzed and/or derived by Legacy from such Order Information is the sole and exclusive property of Legacy and Legacy shall hold exclusive ownership rights in the Order Information. Affiliate shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make the Order Information available to any third parties. Order Information shall be considered confidential information subject to Section 11.0 of this Agreement. Unless otherwise specified by Legacy in writing to Affiliate, Affiliate shall permanently delete all records of Customer Order Information from their respective files within seven (7) calendar days after such information has been collected and properly transferred to Legacy. |
| |
|
|
| 5.2 |
Confidentiality. In addition to the confidentiality provisions set forth in this Agreement, and subject to applicable law or court order and the other requirements of this Agreement, Affiliate agrees (a) to use at least the same level of care to maintain the confidentiality of Order Information as it uses to preserve the confidentiality of its own confidential information, and (b) except as otherwise allowed in this Agreement, to refrain from disclosing, selling, or otherwise distributing or sharing the Order Information to or with any third parties without obtaining Legacy’s prior written consent. |
| |
|
|
| 6.0 |
TERM AND TERMINATION |
| |
|
|
| |
The term of this Agreement will commence on the Effective Date and terminate when this Agreement is terminated by either Party (“End Date”). Either Party may terminate this Agreement at any time without or with cause upon prior written notice to the other Party of such termination. Subject to Section 4.0 of this Agreement, Legacy shall be responsible for any unpaid commission due to Affiliate for Qualifying Orders delivered to Legacy through the End Date of this Agreement. |
| |
|
|
| 7.0 |
COMPLIANCE WITH LAWS AND REGULATIONS |
| |
|
|
| 7.1 |
Affiliate will perform the Services in compliance with all applicable laws and regulations, including without limitation the CAN-SPAM Act of 2003 and other federal and state consumer protection laws and regulations. |
| |
|
|
| 7.2 |
Affiliate represents and warrants that it has disclosed the existence of any past federal or state decrees, orders, or consent agreements, and any pending formal or informal government investigations involving Affiliate, its officers, directors, or principals. |
| |
|
|
| 7.3 |
Affiliate represents and warrants that: |
| |
|
|
| |
(a) |
Affiliate is not presently the subject of any investigation or prosecution by the Federal Trade Commission, any other federal or state governmental body or agency, or any industry regulatory authority including without limitation the National Advertising Division of the Better Business Bureau, and, to the best of its knowledge, no such investigation or prosecution is threatened; and |
| |
(b) |
If Affiliate becomes involved or named in any action, investigation, complaint or other proceeding by or before any governmental or regulatory authority, or any private party, Affiliate will immediately provide notice to Legacy of such action, investigation, complaint or other proceeding, in which event Legacy may terminate this Agreement immediately and without notice to Affiliate. |
| |
|
|
| 7.4 |
Affiliate has obtained all necessary permits, licenses, authorizations, or other registrations required to conduct its business activities. |
| |
|
|
| 8.0 |
REPRESENTATIONS AND WARRANTIES |
| |
|
|
| 8.1 |
Affiliate represents and warrants that: (a) he/she was at least 18 years of age on the effective date of this Agreement; and (b) this Agreement has been duly and validly executed and delivered by Affiliate and constitutes the legal, valid and binding obligation of Affiliate, enforceable against Affiliate in accordance with its terms. |
| |
|
|
| 8.2 |
Legacy represents and warrants that: (a) it is a corporation duly incorporated, validly existing and in good standing under the laws of its state of incorporation; (b) it has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement; (c) this Agreement has been duly and validly executed and delivered by such Party and constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; (d) the execution, delivery and performance of this Agreement by such Party will not constitute a violation of any applicable law or regulation or any judgment, order or decree, a material default under any material contract by which it or any of its material assets are bound or an event that would, with notice or lapse of time, or both, constitute such a default. |
| |
|
|
| 8.3 |
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY OTHER WARRANTY REGARDING QUALITY, ACCURACY, COMPLETENESS, RELIABILITY OR PERFORMANCE. |
| |
|
|
| 9.0 |
INDEMNIFICATION |
| |
|
| |
Affiliate agrees to indemnify, defend, and hold Legacy harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to: (a) any failure by Legacy to track Customers who set their browsers to accept cookies and followed properly configured Affiliate links or banners; (b) any interruption(s) of service involving Legacy web sites; (c) any breach or alleged breach by Affiliate, its employees, agents or contractors of any obligations, representations or warranties contained in this Agreement; and (d) the gross negligence or willful misconduct of Affiliate or of any employee, agent, or contractor of Affiliate. |
| |
|
|
| 10.0 |
LIMITATION OF LIABILITY |
| |
|
|
| |
NO PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR REVENUES, COST OF CAPITAL, OR LOSS OF BUSINESS REPUTATION OR OPPORTUNITY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING SUCH . THE LIABILITY OF LEGACY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS RECEIVED BY AFFILIATE FROM LEGACY HEREUNDER. |
| |
|
|
| 11.0 |
CONFIDENTIALITY |
| |
|
|
| 11.1 |
Confidential Information. For purposes of this Agreement, the term “Confidential Information” means non-public information that either Party designates as being confidential or which, under the circumstances surrounding disclosure, reasonably ought to be treated as confidential, including without limitation, the terms of this Agreement. Confidential Information disclosed to a Party by any employee, agent, representative, or affiliate of the other Party is covered by this Agreement. Confidential Information shall not include any information that: (i) is or subsequently becomes publicly available without a breach of any obligation of confidentiality owed to a Party under this Agreement or by any third party; (ii) was already known to a Party prior to the other Party’s disclosure of such information so long as such information already known to a Party can be substantiated by third party data or documentation; (iii) became known to a Party from a source other than the other Party and other than by a breach of an obligation of confidentiality owed to the Party by such source and confirmation is verifiable with such third party; or (iv) is independently developed by a Party so long as documentation is available to verify such independent development. Without limiting the foregoing, the payment terms of this Agreement shall be deemed Confidential Information. |
| |
|
|
| 11.2 |
Non-Disclosure. Neither Party shall disclose any Confidential Information to third parties for at least five (5) years following the termination of this Agreement; provided, however, that a Party may disclose Confidential Information to its professional advisors on a need to know basis if such advisors have agreed to keep such information confidential in the same or a substantially similar manner as provided for in this Agreement. Neither Party shall use any Confidential Information except as expressly permitted by, or as required to achieve the purposes of, this Agreement. Each Party shall take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information of a similar nature, to keep confidential the Confidential Information. Notwithstanding anything contained in this Section 11.0 to the contrary, a Party may disclose Confidential Information in accordance with a judicial or other governmental order or as may be required by statute; provided, however, that a Party so disclosing Confidential Information (the “Disclosing Party”) will give the other Party (the “Protected Party”) as much advance notice as reasonably possible of any such disclosure so that the Protected Party may seek a protective order or other remedy. The Disclosing Party will comply with any protective order or equivalent relating to the Confidential Information. In the event such a protective order is not obtained, the Disclosing Party will use its reasonable best efforts to ensure that only the minimum portion of the Confidential Information necessary to comply with the law is disclosed. The Parties agree that monetary damages for breach of confidentiality under this Section may not be adequate and the non-breaching Party shall be further entitled to injunctive relief. |
| |
|
|
| 12.0 |
NON-DISPARAGEMENT |
| |
|
|
| 12.1 |
Affiliate agrees that, during the term of this Agreement and for five (5) years thereafter, Affiliate shall not disparage or make negative statements (or induce or encourage others to disparage or make negative statements) about any Legacy Product and/or Legacy or any of its past or present officers, directors, agents, employees, attorneys, successors and assigns, including, without limitation, disparaging any of such parties in connection with disclosing the facts or circumstances surrounding the termination of this Agreement by Legacy. For the purposes of this paragraph, the term “disparage” means any comments or statements which may tend to injure the business reputation or relationships of Legacy and/or which are critical, derogatory, detrimental or otherwise may tend to injure the reputation of any Legacy Product. |
| |
|
|
| 12.2 |
Affiliate acknowledges and agrees that this prohibition extends to statements, written or verbal, made to anyone through or by means any media, including but not limited to, any bulletin boards, chat rooms, blogs or other online forums. |
| |
|
|
| 12.3 |
Affiliate understands and agrees that this Section 12.0 is a material provision of this Agreement and that any breach of this Section shall be a material breach of this Agreement, and that Legacy would be irreparably harmed by violation of this provision. |
| |
|
|
| 13.0 |
GENERAL PROVISIONS |
| |
|
|
| 13.1 |
Governing Law; Modification; Entire Agreement |
| |
|
|
| |
(a) |
This Agreement shall be governed by and construed in accordance with the laws of the State of Maine without giving effect to its conflict of laws principles. Any controversy or claim arising out of this Agreement shall be submitted to the jurisdiction of the federal and state courts located in Maine, and the Parties irrevocably agree to submit to the exclusive jurisdiction of any such court. |
| |
|
|
| |
(b) |
Legacy may modify or amend this Agreement in whole or in part without the prior consent of Affiliate by posting notice of such modification or amendment on http://affiliates.legacypublishingcompany.com/terms_new.php. The continued performance by Affiliate of the Services following the posting by Legacy of any change notice or new agreement shall constitute Affiliate’s binding acceptance of the modification, amendment or new agreement. |
| |
|
|
| |
(c) |
This Agreement shall constitute the complete and entire expression of the agreement between the Parties, and shall supersede any and all other agreements, whether written or oral, between the Parties. Email correspondence shall not be considered binding or a part of this Agreement. |
| |
|
|
| 13.2 |
Severability. In the event that any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable by any court, arbitrator, or arbitration panel having competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable, comes closest to the intention of the Parties underlying the invalid, illegal or unenforceable provision. |
| |
|
|
| 13.3 |
Independent Contractors. The Parties shall at all times be independent contractors with respect to each other in carrying out this Agreement, and nothing herein renders them partners, joint venturers or employer and employee. Each Party shall be solely responsible for its own employees in connection with performance under this Agreement, and all salaries, wages, and benefits owed thereto. |
| |
|
|
| 13.4 |
Assignment. Neither Party may assign nor transfer this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld. Subject to the foregoing restriction, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by each Party and their respective successors and assigns. |
| |
|
|
| 13.5 |
Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement. |
| |
|
|
| 13.6 |
Notices. All notices required by this Agreement shall be in writing (email and facsimile acceptable) and deemed to have been effectively given and received: (a) five (5) business days after the date of mailing; (b) when transmitted, if sent by email or facsimile, provided, however as to the latter, that confirmation of facsimile transmission is produced by the sending machine; or (c) when delivered personally or sent by express courier service. Notices to the Parties shall be addressed as specified below: |
| |
|
|
| |
To Legacy: Nathan O'Leary
Legacy Publishing Company
10 Speirs Street
Westbrook, ME 04092
Tel: (207) 856-5600
Fax: (888) 589-6394
Email: affiliatelegal@legacypublishingcompany.com |
| |
|
|
| |
To Affiliate: Name:
Address:
Tel:
Fax:
Email: |
| |
|
|
| 13.7 |
Force Majeure. Neither Party shall be liable for delay or failure to perform any of its obligations hereunder to the extent that such delay or failure arises from any cause beyond that Party’s reasonable control. Performance times shall be considered extended for a period of time equal to the time lost because of such delay or failure. A Party affected by force majeure shall promptly advise the other of the circumstances and shall seek to mitigate the impact of the force majeure as promptly as possible. |
| |
|
|
| 13.8 |
Rights and Remedies. Unless otherwise specified, the rights and remedies granted to a Party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity. |
| |
|
|
| 13.9 |
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute on and the same instrument. |
| |
|
|
| |
The foregoing is agreed to by:
LEGACY PUBLISHING COMPANY |
AFFILIATE |
By: _____________________________________
(Signature) |
By: _____________________________________
(Signature) |
Name: ___________________________________
(Print or type) |
Name: ___________________________________
(Print or type) |
Title: ____________________________________ |
|
Date: ____________________________________ |
Date: ____________________________________ |
|
| |
|
|
