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LITTLE TIKES GIVING INDIVIDUAL
TERMS AND CONDITIONS
PLEASE
READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE PARTICIPATING IN THE LITTLE
TIKES GIVING PROGRAM (AS DEFINED BELOW) AND/OR USING THE LITTLETIKESGIVING.COM
SITE. By participating in the Little Tikes Giving Program and/or using the
LittleTikesGiving.com Site, you signify your assent to these terms and
conditions. If you do not agree to these terms and conditions, please do not
participate in the Little Tikes Giving Program or use the LittleTikesGiving.com
Site. We reserve the right, at our discretion, to change, modify, add to or
remove portions of these terms and conditions at any time. We also reserve the
right to terminate our participation in this Program at any time.
You agree to receive notification of modifications to this Agreement via
the LittleTikesGiving.com site. If you continue to use LittleTikesGiving.com
Site and/or participate in the Little Tikes Giving Program following the
posting of any changes to these terms or conditions, your continued use or
participation will mean you accept these changes and agree to be bound by the
new terms. Please check these terms and conditions periodically for changes.
LITTLE TIKES GIVING - ONLINE
SHOPPING
Little Tikes Giving operated interactive online shopping
that enables Little Tikes Giving users (“Users”) to access the website of
Little Tikes Giving and to purchase items. Little Tikes Giving Online Shopping
enables users to direct contributions, which are generated by their purchases,
to one of the Little Tikes Giving enrolled schools, childcare centers, or youth
organizations (ORGANIZATION). The amount of the contribution will be in
accordance with Little Tikes Giving’ policy in effect at the time a purchase is
made. User must designate an enrolled school or youth organization to receive
contributions generated by the User’s purchases prior to making any such
purchases; otherwise, the contributions will not be credited to the enrolled
organization.
Where
ORGANIZATION is inactive with Little Tikes Giving but earns contributions from
purchases made by consumers, ORGANIZATION has 180 days from the last day of the
quarter where the contributions were earned to activate with Little Tikes
Giving to receive said contributions. If ORGANIZATION does not activate within
180 days from the last day of the quarter where the contributions were earned,
ORGANIZATION forfeits all rights to these contributions. Active ORGANIZATION is
defined as a school or youth organization who has registered with Little Tikes
Giving via the LittleTikesGiving.com and CommissionJunction.com Site, assigns a
volunteer to promote the program to their supporters, and agrees to the terms
of said License Agreement.
To
generate a contribution, a User must follow a link on the LittleTikesGiving.com
Site to the LittleTikes.com Site, make a purchase, accept delivery and make
payment for the purchase. The amount of contributions payable vary depending on
the item purchased. Contributions may be subject to other terms and conditions
issued by LittleTikesGiving.com. The contributions will be in accordance with
the contribution percentages listed on the LittleTikesGiving.com Site at the
time of the User’s purchase.
RESTRICTIONS
User
is not authorized to make any representations or warranties to an enrolled
school or non-profit youth organization regarding the contributions or the Little
Tikes Giving Program. The contributions are made by Little Tikes and are not
tax-deductible by User.
INTELLECTUAL PROPERTY
The trademarks, logos and services marks (“Marks”) displayed
on the LittleTikesGiving.com and LittleTikes.com site are the property of
Little Tikes. Users are prohibited from using any Marks for any purpose without
written permission of Little Tikes. All information and content including any
software programs available on or through the LittleTikesGiving.com and
LittleTikes.com Site (“Content”) is protected by copyright. Users are
prohibited from modifying, copying, distributing, transmitting, displaying,
publishing, selling, licensing, creating derivative works or using any Content
available on or through the LittleTikesGiving.com and LittleTikes.com Site for
commercial or public purpose.
GENERAL
You will receive contributions from online shopping based on
the net price of eligible goods purchased, excluding tax, shipping and handling
or any special services.
Purchases
must be completed online. Any purchase charged at a store location or by
telephone will not be credited.
To determine
eligibility of tax deductibility, please consult your personal tax advisor.
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Commission Junction Terms and Service
Agreement
Commission Junction Publisher Service
Agreement
Introduction
This Publisher Service Agreement ("Agreement") is made by and agreed to
between Commission Junction, Inc., a Delaware corporation, located at 530 East
Montecito Street, Santa Barbara, CA 93103, USA ("CJ"), and you ("You"). As an
application service provider, CJ facilitates "Performance Marketing Programs" by
providing services ("Network Service") via the Internet. A "Performance
Marketing Program" ("Program") is where a person, entity, affiliate or its
agent, operating "Web site(s)" (internet domain, or a portion of a domain)
and/or other promotional methods to drive traffic to another's Web site or Web
site content ("Publisher") may earn financial compensation ("Payouts") for
"Transactions" (actions by Visitors as defined by the Advertiser) referred by
such Publisher via an action made by a "Visitor" (any person or entity that is
not the Publisher or the Publisher's agent) through an Internet connection
("Link") to a Web site or Web site content operated by another person or entity
("Advertiser") from an Advertiser authorized promotional method used by such
Publisher. The Advertiser compensates the Publisher, in accordance with this
Agreement and the Program Payout specifications.
1. Participation in Programs.
(a) Acceptance by Advertiser.
During this Agreement You may apply to Advertiser Programs for the opportunity
to earn Payouts by promoting Advertisers in accordance with the Advertiser's
Program terms and complying with this Agreement. Upon approval by the Advertiser
for acceptance into its Program, You may display (and remove) Links to
Advertiser's Web site or Web site content in accordance with the Advertiser's
Program terms and this Agreement. An Advertiser's acceptance of You extends only
to the entity, or individual, that enters into this Agreement with CJ.
(b)
Program Terms. The details of an Advertiser's Program shall be available
through the Network Service. Transactions qualifying for a Payout are defined by
the Advertiser. Advertisers may change any Payout rate upon no less than 7 days
written notice through the Network Service with effect from the 8th day (or such
later date as specified by Advertiser).
(c) Additional Terms.
Publishers and Advertisers may enter into direct contractual relationships
through the apply to join process in the form of a click-through agreement
hosted by CJ (“Click-through Agreement”) or in the form of an offer made to You
by Advertiser via the members' area on the Network Service (“Offer”). It is Your
obligation to review and accept or decline a Click-through Agreement or Offer
when such is presented to You. If accepted by You, compliance with the
Click-through Agreement or Offer is solely Your responsibility. The terms and
conditions of the Click-through Agreement or Offer may supersede or conflict
with this Agreement and shall apply only with respect to Your relationship with
that particular Advertiser.
(d) Prohibited Uses of Links.
(i) Locations. You may not place Links to an Advertiser's
Web site or Web site content in third party newsgroups, message boards, blogs,
unsolicited email and other types of spam, link farms, counters, chatrooms, or
guestbooks. Publishers using IRC channels, instant messages or similar
Internet resources must designate their program as special requiring manual
review and acceptance by the Advertiser.
(ii) Non-Bona Fide
Transactions. You must promote Advertisers such that You do not mislead
the Visitor, and such that the Links deliver bona fide Transactions by the
Visitor to Advertiser from the Link. You shall not cause any Transactions to
be made that are not in good faith, including, but not limited to, using any
device, program, robot, Iframes, or hidden frames. You may or may not be
compensated for Transactions where You or Your agent are the Visitor. Multiple
Leads from the same individual, entity or IP address may be considered
non-bona fide Transactions. You shall not earn Payouts for non-bona fide
Transactions.
(iii) Infringement. None of Your promotional
activities may infringe an Advertiser's proprietary rights (including but not
limited to trademark rights), CJ's proprietary rights, or a third party's
proprietary rights.
(e) Updating Links. If Links to Advertiser are not
dynamically updated through the Network Service, upon notification You are
obligated to update an Advertiser's Links in order to earn Payouts.
2. Publisher Obligations to CJ.
(a) Accurate, Up-to-Date
Information. You agree to provide CJ and Advertiser with accurate
information about You and Your promotional methods, and to maintain up-to-date
“Account” information (such as contact information, Web sites used, etc.). In
Your Account, You must accurately, clearly and completely describe all
promotional methods by selecting the appropriate descriptions and providing
additional information when necessary. Some promotional methods will be
designated by the system as “special”. Special programs are linked to
promotional methods and practices considered unique and require manual approval
and acceptance by the Advertiser. CJ reserves the right to define any program as
special.
(b) Use of Links. You represent and warrant that all
promotional means used by You will not contain objectionable content (including
but not limited to content that is misleading, libelous, defamatory, obscene,
violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods,
services or activities), and that You will not mislead others. You agree to: (i)
use ethical and legal business practices, (ii) comply with the Advertisers'
Program terms and this Agreement, (iii) maintain a privacy policy on Your Web
site and for any non-Web site based promotional method made available to
Visitors, and (iv) designate Your Publisher Account as “special” if You promote
an Advertiser(s) by any means other than displaying a Link to the Advertiser on
Your Web site. CJ must approve all of Your promotional activities and may deem
Your promotional activities inappropriate and a material breach of this
Agreement in CJ's sole discretion. Our network quality department reviews
publisher conduct and any suspected fraudulent, abusive or otherwise illegal
content or activity by You through Your promotional methods, or that is
perpetrated through use of the Network Service, is grounds for immediate
termination of this Agreement or deactivation of Your Account.
(c)
Promotional Methods. You represent and warrant that You will not engage
in and/or facilitate spamming, indiscriminate advertising or unsolicited
commercial email or otherwise fail to comply with the CAN SPAM Act of 2003
(Public Law 108-187 or any successor legislation), and/or any other laws and/ or
regulations that govern email marketing and/or communications. You represent and
warrant that You will not engage in pop-up or pop-under advertising using any
means involving third party properties and/or services (software). Pop up/unders
are acceptable on a first party basis only when triggered by Your site content
/site visit or by downloadable software applications for which You are the
owner/operator. Pop up/unders delivered through downloadable software cannot
engage in means that force clicks or perform redirects, or pop over a
pay-per-click listing or natural search results. Pop up/unders must honor the CJ
Publisher Code of Conduct requirements (as such requirements may be modified
from time to time), including but not limited to: (i) installation requirements,
(ii) enduser agreement requirements, (iii) afsrc=1 requirements, (iv)
requirements prohibiting usurpation of a Transaction that might otherwise result
in a Payout to another Publisher (e.g. by purposefully detecting and forcing a
subsequent click-through on a link of the same Advertiser) and (v)
non-interference with competing advertiser/ publisher referrals.
(d)
Personally Identifiable Information of Visitors. You represent and
warrant that You will not enable the Tracking Code to collect personally
identifiable information of Visitors that would allow CJ to personally identify
Visitors.
(e) Privacy. You must conspicuously post Your privacy policy
on Your Web site and otherwise make it available to all Visitors. Your privacy
policy must comply with all laws and regulations regarding the privacy of
Visitor information, be commercially reasonable, and fully and accurately
disclose Your collection and use of Visitor information. You must fully and
accurately disclose Your use of third party technology, including CJ's tracking
technology, use of cookies and options for discontinuing use of such
cookies.
(f) Applicable Codes and Code Maintenance. In order for CJ to
record the tracking of Visitors' Transactions resulting from clicks on Links to
Advertisers promoted by You, You must include and maintain a CJ “Tracking Code”
within the Advertiser's Links. All Advertiser Links and all advertisements ("Ad
Content") must be in a Network Service compatible format.
(g) Usage and
Security of Account. You shall be responsible for all usage and activity on
Your account and for loss, theft or unauthorized disclosure of Your password
(other than through CJ's negligent or willful conduct or omission). You shall
provide CJ with prompt written notification of any known or suspected
unauthorized use of Your Account or breach of the security of Your Account.
3. CJ's Services.
(a) Tracking Transactions and Payouts. CJ
shall determine (where possible) actual Payouts that should be credited to Your
Account. CJ may, in CJ's sole discretion, apply an estimated amount of Payouts,
if: (i) You are referring Visitors to Advertiser as verified by clicks through
Links to Advertiser with CJ Tracking Code, (ii) where there is an error in
Advertiser's transmission of Tracking Code data to CJ, and (iii) where CJ is
able to utilize a historical analysis of Your promotion of Advertiser to
determine an equitable amount of estimated Payouts.
(b) Charge-backs.
An Advertiser may apply, or CJ may apply, a debit to Your Account in an amount
equal to a Payout previously credited to Your Account in circumstances of : (i)
product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide
Transactions; (iv) non-receipt of payment from, or refund of payment to, the
Visitor by the Advertiser; or (v) Publisher failure to comply with Advertiser's
Program terms or other agreement with Advertiser ("Charge-back"). Charge-backs
may be applied to Your Account at any time, including previous payment
cycles.
(c) Access to Tracking and Reporting Tools. CJ shall provide
You with access to tracking and reporting tools, and to support services. From
time to time CJ may offer optional services for a fee. Fees for such optional
services are at CJ's then-current published rates or as may be quoted by CJ, and
are payable in advance or may be off-set against Your positive Account balance
(at CJ's discretion). Tracking detail regarding Visitor Transactions is not
available on a real-time basis for all Advertisers and there may be reporting
delays regarding Transactions for some Advertisers. CJ may make available, for
fees that CJ shall publish from time-to-time, enhanced reporting capabilities
and other services that are not included in the standard Network Service.
(d)
Support. Support for your program is available on-line through the
"Contact Us" area in the CJ Account Manager, which allows You to categorize and
describe Your issue. Online help also allows You to check the status of all
issues through the "Check Question Status" feature. Phone support may also be
available during operating hours, except holidays.
(e) Facilitating
Payment of Payouts. Subject to other provisions in this Agreement, CJ shall
credit Your Account with a Payout for each qualifying Transaction in accordance
with the Advertiser's Payout rate and Program terms for the relevant
Transaction. On the 20th day of each calendar month, CJ will issue to You any
positive balance in Your Account for Transactions reported for the previous
month, provided Your Account balance exceeds the required “Minimum Account
Balance.” CJ shall have no obligation to make payment of any Payouts for which
CJ has not received payment from the relevant Advertiser of all monies due to CJ
(including for all Payouts owed by such Advertiser to all of such Advertiser's
Publishers). If CJ elects, in its own discretion, not to make payment to You for
amounts not received from an Advertiser, those amounts shall not be included in
the Minimum Balance Amount. Your recourse for any earned Payouts not paid to You
shall be to make a claim against the relevant Advertiser(s), and CJ disclaims
any and all liability for such payment. You may elect to receive payment in any
of the currencies that CJ supports (as may be amended by CJ). The conversion
rate shall be determined in accordance with CJ's operating standards using the
rates prevailing upon the date that payment is made to You, or upon the basis of
historical conversion rates if rates are unavailable. The number or amount of
Transactions, credits for Payouts, and debits for Charge-backs, as calculated by
CJ, shall be final and binding on You.
(f) Dormant Accounts. If
Publisher's Account has not been credited with a valid, compensable Transaction
that has not been Charged-back during any rolling, six consecutive calendar
month period (“Dormant Account”), a dormant account fee at CJ's then-current
rate shall be applied to Publisher's Account each calendar month that
Publisher's Account remains an open yet Dormant Account or until Your Account
balance reaches a zero balance, at which time the Account shall become
deactivated. Transactions will not be counted if the Transaction subsequently
becomes a Charge-back.
(g) Negative Accounts. You may have a negative
balance if Your Account is debited amounts equivalent to previous Payouts for
Charge-backs and You do not have an adequate Account balance to cover the
Charge-back amounts. When You have a negative balance, You must immediately
remit payment to CJ in an amount sufficient to bring Your Account to a zero
balance, or Your Account is subject to 1.5% interest per month, compounded
monthly.
4. Proprietary Rights.
(a) Linking to Advertisers. For each
Advertiser's Program that You have been accepted to, the Advertiser is granting
to You the right to display and Link to the Advertiser's Web site or Web site
content in accordance with the Advertiser's Program terms for the limited
purposes of Promoting the Advertiser's Program, subject to the terms and
conditions of this Agreement. Your use of the Link signifies Your agreement to
refrain from copying or modifying any icons, buttons, banners, graphics files or
content contained in the Link, including but not limited to refraining from
removing or altering any copyright or trademark notices. As between CJ and
Publisher, CJ owns all rights in and to all information regarding the Visitors
that You refer to Advertisers through CJ.
(b) CJ's Use of Your Marks.
You authorize CJ to utilize Your trademarks, service marks, tradenames, and/or
copyrighted material that You provide to CJ through Your Account to promote Your
participation in the Network Services.
(c) Your Use of CJ's Proprietary
Rights. You agree that Your use of any CJ Web site (such as www.cj.com) and
Your use of any CJ trademarks, service marks, tradenames, and/or URLs is subject
to the license and terms of use that are available from such Web site ("Terms of
Use"). You explicitly agree not to adopt or use in any manner any trademarks,
service marks, tradenames, and/or URLs that are the same or confusingly similar
to, or are combined with, those of CJ.
(d) Retention of Rights. All
proprietary rights of Advertisers, You, and CJ, and all goodwill arising as a
result of such rights, inure to the benefit of such owner.
(e) No
Challenge to CJ's/Advertiser's Proprietary Rights. You acknowledge that You
obtain no proprietary rights in CJ's trademarks, service marks, tradenames,
URLs, copyrighted material, patents, and patent applications, and agree not to
challenge CJ's proprietary rights. You acknowledge that You obtain no
proprietary rights in Your Advertisers' proprietary rights, and agree not to
challenge such Advertiser's proprietary rights.
5. Confidentiality.
(a) Obligations. You or CJ may provide
the other with information that is confidential and proprietary to that party or
a third party, as is designated by the disclosing party or that is reasonably
understood to be proprietary and/or confidential ("Confidential Information").
The receiving party agrees to make commercially reasonable efforts, but in no
case no less effort than it uses to protect its own Confidential Information, to
maintain the confidentiality of and to protect any proprietary interests of the
disclosing party. Confidential Information shall not include (even if designated
by a party) information: (i) that is or becomes part of the public domain
through no act or omission of the receiving party; (ii) that is lawfully
received by the receiving party from a third party without restriction on use or
disclosure and without breach of this Agreement or any other agreement without
knowledge by the receiving party of any breach of fiduciary duty, or (iii) that
the receiving party had in its possession prior to the date of this Agreement.
Upon termination of this Agreement, You must destroy or return to CJ any
Confidential Information provided by CJ to You under this Agreement.
(b)
Provision of Info to Advertisers/Third Parties. You agree that CJ may,
but is not obligated to, provide Your email address(es) and basic Publisher
Account detail (including but not limited to Your address, phone and fax number,
Web site name, the date the website or subscription email first entered into
operation, and visitor demographics) to Advertisers. CJ may provide any and all
Visitor, Transaction and/or Tracking Code data to the Advertiser to which You
referred such Visitor, and to any third party in CJ's sole discretion, including
but not limited to all regulatory, legislative and judicial bodies, and pursuant
to allegations and claims of proprietary rights infringement. CJ reserves the
right to be able to utilize Tracking Code data provided to it, which may
include: information about Your performance statistics, to analyze Network
Service trends, monitor Network Service efficiencies, maintain the integrity of
the tracking code, promote Network Service capabilities and efficiencies, and
promote You and Your Web performance to Advertisers.
6. Term, Termination, Deactivation and Notices.
(a) Term.
This Agreement shall commence upon Your indication that You have accepted this
Agreement by providing the required information and ‘clicking through' the
acceptance button on the CJ Web site and shall continue until terminated in
accordance with the terms of this Agreement. This Agreement may be terminated by
either party upon 15 days notice. This Agreement may be terminated immediately
upon notice for Your breach of this Agreement. Your Account may be deactivated
during investigation of breach of this Agreement. If this Agreement is
terminated based upon Your breach, You shall not be eligible to enter into a new
click-through Publisher Service Agreement with CJ, and any attempt to do so
shall be null and void.
(b) Termination by Advertiser. An Advertiser
may terminate You, one of Your Web sites, or Your ability to use a promotional
method, from the Advertiser's Program for any or no reason, upon 7 days written
notice with effect from the 8th day. Additionally, Advertiser may terminate You
from the Advertiser's Program for breach of a third party's proprietary rights,
and/or diluting, tarnishing or blurring an Advertiser's trademarks, tradenames,
and/or service marks, or for Your material breach of the Advertiser's Program
terms or of this Agreement.
(c) Termination or Deactivation by CJ. CJ
may terminate You, one of Your Web sites, or Your use of a promotional method,
from an Advertiser's Program, at any time in CJ's sole discretion. Breach of any
Section of this Agreement is cause for immediate termination from an
Advertiser's Program and/or termination of this Agreement, and may result in
Chargeback of one or more Payouts. CJ may temporarily deactivate or terminate
Your Account if: (i) You or Your agent are responsible for the improper
functioning of Ad Content, or if You otherwise interfere with and/or fail to
maintain the Tracking Code; (ii) Your Account has not been logged into and/or
there have been no Transactions credited to Your Account for any 30 day period;
(iii) You maintain a negative balance in Your Account; (iv) CJ determines You
are diluting, tarnishing or blurring CJ's proprietary rights; (v) You begin
proceedings to challenge CJ's proprietary rights; or (vi) a third party
(including a CJ Advertiser) disputes Your right to use any Link, domain name,
trademark, service mark, trade dress, or right to offer any service or good
offered on Your Web site, or through any of Your promotional means. Upon
termination of this Agreement, or in case of deactivation of Your Account, You
shall no longer accrue Payouts in Your Account, including but not limited to
subsequent sales and/or Leads for click-throughs that occurred prior to
termination.
(d) Termination of Programs and Offers. Programs and
Offers may be discontinued at any time.
(e) Notices. Except as
provided elsewhere herein, both parties must send all notices relating to this
Agreement to: (i) for CJ, via registered mail, return receipt requested or via
an internationally recognized express mail carrier to Commission Junction, Inc.,
Attn: Legal Dept., 530 East Montecito Street, Santa Barbara, CA 93103 USA
(effective upon actual receipt); and, (ii) for You, at the email or physical
address listed on Your Account (effective upon sending as long as CJ does not
receive an error message regarding delivery of the email) or five (5) days after
mailing).
(f) Post-termination. Upon termination of this Agreement,
any outstanding payments shall be paid by CJ to You within 90 days of the
termination date, and any outstanding debit balance shall be paid by You to CJ
within 30 days of termination of this Agreement. All payments are subject to
recovery for Charge-backs. Upon termination of this Agreement, any permissions
granted under this Agreement will terminate, and You must immediately remove all
Links to Advertiser(s). Provisions of this Agreement that by their nature and
context are intended to survive the termination of this Agreement shall survive
the termination of this Agreement to the extent that and as long as is necessary
to preserve a party's rights under this Agreement that accrued prior to
termination.
7. Representations, Warranties, Disclaimers and Limitations.
(a)
Business Operations. Each party will make reasonable commercial efforts
to keep its Web site operational during normal business hours. However, the
parties agree that it is normal to have a certain amount of system downtime and
agree not to hold each other or Your Advertisers liable for any of the
consequences of such interruptions. CJ may modify the Network Service, or
discontinue providing the Network Service, or any portion thereof, at any
time.
(b) Authority. Each party represents and warrants to the other
party as to itself that the person executing this Agreement is authorized to do
so on such party's behalf. IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT
THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS
AGREEMENT.
(c) Non-infringement Warranties. You represent and warrant
that: (i) You have all appropriate authority to operate, and to any and all
content on, Your Web site(s); (ii) You have all appropriate authority in any
promotional method you may choose to use; (iii) Your Web site(s) and Your
promotional methods do not and will not infringe a third party's, a CJ
Advertiser's, or CJ's, proprietary rights; and (iv) You shall remain solely
responsible for any and all Web sites owned and/or operated by You and all of
Your promotional methods. CJ may or may not review all content on Your Web site
or used by You in Your promotional methods.
(d) Compliance with Laws.
You are responsible for compliance with the requirements of all relevant
legislation (including subordinate legislation and the rules of statutorily
recognized regulatory authorities) in force or applicable in the United States
or in any other applicable territory, and warrant that no promotion method used
by You or the content of Your Web site(s) will render CJ liable to any
proceedings whatsoever.
(e) Limitation of Liabilities. ANY OBLIGATION
OR LIABILITY OF CJ UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR
PAYOUTS PAID TO YOU BY CJ UNDER THIS AGREEMENT DURING THE YEAR PRECEDING THE
CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE OTHER PARTY TO
THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. YOU
AGREE THAT CJ SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY (INCLUDING BUT NOT
LIMITED TO A CLAIM BY ANOTHER PUBLISHER OR AN ADVERTISER OF THE NETWORK
SERVICE), FOR ANY CONSEQUENTIAL, EXEMPLARY, 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.
(f) Disclaimer of Warranties. TO THE FULLEST
EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CJ DISCLAIMS ALL WARRANTIES
IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE
NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT CJ'S SECURITY METHODS WILL BE
SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST
INTERFERENCE WITH ENJOYMENT OF THE PUBLISHER'S INFORMATION OR WEB SITE. ALL
'INFORMATION' AND 'COMPUTER PROGRAMS' PROVIDED TO YOU IN THE COURSE OF THIS
AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY
QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. CJ IS, UNDER NO
CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY
ADVERTISER OR PUBLISHER, OR SUCH ADVERTISER OR PUBLISHER'S WEB SITE(S), AND/OR
THE CONTENT OF AN ADVERTISER'S WEB SITE OR THAT AN ADVERTISER MAKES AVAILABLE
THROUGH THE NETWORK SERVICE.
(g) Remedies. No remedy or election shall
be deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
(h) Benefit of the Bargain. THE
PROVISIONS OF THIS SECTION 7 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE
BARGAIN REFLECTED IN THIS AGREEMENT.
8. Publisher's Indemnification Obligations. Publisher shall defend,
indemnify and hold CJ and Advertisers harmless against all claims, suits,
demands, damages, liabilities, losses, penalties, interest, settlements and
judgments, costs and expenses (including attorneys' fees) incurred, claimed or
sustained by third parties, including but not limited to Advertisers, directly
or indirectly as a result of (a) Publisher's breach of or non-compliance with
this Agreement, (b) Publisher's violation of any law, or an alleged violation of
law by CJ, that is a direct or indirect result of Publisher's use of the Network
Service, (c) Publisher's use of the Network Service, (d) Publisher's
participation in any Program, (e) any content, goods or services offered, sold
or otherwise made available by Publisher to any person, (f) Publisher's acts or
omissions in using, displaying or distributing any internet links obtained from
the Network Service or elsewhere, including but not limited to Publisher's use
of internet links via email distribution, (g) any claim that CJ is obligated to
pay tax obligations in connection with payment made to Publisher pursuant to
this Agreement and/or any Advertiser's Program, and (h) any violation or alleged
violation by Publisher of any rights of another, including breach of a person's
or entity's intellectual property rights (each (a)-(h) individually is referred
to hereinafter as a "Claim"). Should any Claim give rise to a duty of
indemnification under this Section 8, CJ shall promptly notify Publisher, and CJ
shall be entitled, at its own expense, and upon reasonable notice to Publisher,
to participate in the defense of such Claim. Participation in the defense shall
not waive or reduce any of Publisher's obligations to indemnify or hold CJ
harmless. Publisher shall not settle any Claim without CJs prior written
consent. Publisher also shall indemnify for any reasonable attorneys' fees or
other costs incurred by an indemnified party in investigating or enforcing this
Section 8. In the context of this Section 8 only, the term “CJ” shall include
officers, directors, employees, corporate affiliates, subsidiaries, agents, and
subcontractors.
9. Miscellaneous.
(a) Headings and References. Headings of
Sections are for the convenience of reference only. Words indicated in quotes
and capitalized signify an abbreviation or defined term for indicated words or
terms, including those definitions contained in the opening paragraph.
(b)
Third Party Disputes. In the event of a third party claim against either:
(a) CJ's intellectual property; or (b) against CJ's right to offer any service
or good on CJ's Web site(s) or if, in CJ's opinion, such a claim is likely, CJ
shall have the right, at its sole option and in its sole discretion, to (i)
secure the right at CJ's expense to continue using the intellectual property or
good or service; or (ii) at CJ's expense replace or modify the same to make it
non-infringing or without misappropriation.
(c) Relationships of
Parties/Third Party Rights. The relationships of the parties to this
Agreement shall be solely that of independent contractors, and nothing contained
in this Agreement shall be construed otherwise. Nothing in this Agreement or in
the business or dealings between the parties shall be construed to make them
joint venturers or partners with each other. Neither party shall do anything to
suggest to third parties that the relationship between the parties is anything
other than that of independent contractor. You agree that Your consent is not
necessary to modify any Advertiser Service Agreement.
(d) Choice of
Law/Attorneys' Fees. This Agreement is governed by the laws of the State of
California (USA), except for its conflict of law provisions. The exclusive forum
for any actions related to this Agreement shall be in the state courts, and, to
the extent that federal courts have exclusive jurisdiction, in Los Angeles,
California. The parties consent to such venue and jurisdiction and waive any
right to a trial by jury. The application of the United Nations Convention on
the International Sale of Goods is expressly excluded. A party that primarily
prevails in an action brought under this Agreement is entitled to recover from
the other party its reasonable attorneys fees and costs. CJ controls and
operates its Web site from its offices in the USA and access or use where
illegal is prohibited.
(e) 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,
default due to Internet disruption (including without limitation denial of
service attacks), riots, insurrection, acts of terrorism, war (or similar),
fires, flood, earthquakes, explosions, and other acts of God.
(f)
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.
(g) Assignment and
Acknowledgement. Neither party may assign this Agreement without the prior
express written permission of the other party. Notwithstanding the foregoing,
Your consent shall not be required for assignment or transfer made by CJ (1) due
to operation of law, or (2) to an entity that acquires substantially all of CJ's
stock, assets or business, or (3) to a related entity (e.g. parent or subsidiary
of parent). Your use of the Network Service is irrefutable acknowledgement by
You that You have read, understood and agreed to each and every term and
provision of this Agreement. CJ may establish from time to time rules and
regulations regarding use of the Network Service as published on the Network
Service and incorporated herein.
(h) Marketing. Publisher agrees that
CJ may identify it as a CJ Publisher in client lists and may use Publisher's
name and/or logo solely for such purpose in its marketing materials. Any other
uses of Publisher's name and/or logo not otherwise described or contemplated
herein shall require Publisher's prior written consent.
(i) Entire
Agreement, Assignment and Amendment. This Agreement, including the
Introduction, contains the entire understanding and agreement of the parties and
there have been no promises, representations, agreements, warranties or
undertakings by either of the parties, either oral or written, except as stated
in this Agreement. 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. No interlineations to
this Agreement shall be binding unless initialed by both parties.
Notwithstanding the foregoing, CJ shall have the right to change, modify or
amend ("Change") this Agreement, in whole or in part, by posting a revised
Agreement at least 14 days prior to the effective date of such Change. Your
continued use of the Network Service after the effective date of such Change
shall be deemed Your acceptance of the revised Agreement.
IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18
YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
Contact Information for Commission Junction:
Commission Junction,
Inc.
530 East Montecito Street
Santa Barbara, CA 93103
p (805)
730-8000
f (805) 730-8001
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