Read This Affiliate Membership Agreement Before Accessing Website.
Effective Date: This Affiliate Membership Agreement was last updated on January 1st 2009.
This is the Affiliate Membership Agreement that will govern your participation on the Jabberclick program. Please read this Agreement. To print a copy of this Agreement, please use your browser's print command.
This Affiliate Membership Agreement is between Jabberclick, Inc., a Colorado, U.S.A. corporation ("Jabberclick") and You ("You" or "Your"). If You have registered for or on behalf of an entity, you are deemed to have accepted this Agreement on behalf of that entity.
This "Agreement" refers to, individually and collectively depending upon the context, this Affiliate Membership Agreement and any and all Program Policies and Guidelines as in effect.
In consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1.1 Registration. To use (or continue to use) any Jabberclick Program as a Program Affiliate, You must provide Jabberclick with truthful, accurate and complete registration information. If any such information changes, You must immediately update Your registration information.
1.2 Verification. Jabberclick has the right to confirm or otherwise verify or check, in its sole determination, the truth and accuracy of any registration information at any time.
Please be advised that if any information is determined in good faith by Jabberclick to be misleading, inaccurate or untruthful, Jabberclick may restrict, deny or terminate Your account, Your access and use of, and/or any benefits derived from Your participation on, any Jabberclick Program; Jabberclick may also withhold payment of any commissions and/or other fees that may be or become due or payable to You, and may assess charges against such amounts for Jabberclick's activities in connection with the investigation and/or verification of such information and/or otherwise in accordance with this Agreement.
1.3 Participation. To join any Jabberclick Program, You must be an individual who is at least 18 years old or an entity, and must provide at Your expense your own computer equipment and Internet access.
1.4 Use of the Program. You may use any Jabberclick Program only for business purposes and not for personal, household or family purposes.
2.1 The following terms have the meanings indicated:
"Content" means information, data, text, documents, software, music, sound, photographs, graphics and video.
A "corporate affiliate" of a person is any other person that, directly or indirectly, controls such person, is controlled by such person, or is under common control with such person, with "control" meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person.
An "end user" means an actual or potential consumer, customer or other natural person.
An "engagement" means any type of agreement or arrangement between a Program Merchant and any Program Affiliate that can be performed on or in relation to the Internet, including affiliate marketing, performance-based linking, insertion order, or any other type of agreement or arrangement.
An "entity" means a sole proprietorship, corporation, partnership, limited liability company, trust, government agency or instrumentality or other entity recognized by law as a legal person separate from its owners.
The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation."
"Intellectual Property Rights" means technology, templates, designs, Sites, methodologies, processes, names, strategies, marks, logos, Content, documentation, training manuals, and other materials, as well as any and all patent, trade secret, trademark, copyright and other intellectual property and proprietary rights therein and thereto.
A "link" means any software, software code, programming or other technology or method (or any combination of the foregoing) that (i) creates a hyperlink between two Sites, or (ii) otherwise causes a Web access device to display to its user a "banner," "button," text-mention, word, phrase, logo or other textual or graphical material that, when activated by a person, results in a Site being served to such person or such person being able to electronically access, receive or obtain Content, products, services or other offerings from the linked Site.
"Jabberclick Program" means one or more of the programs operated by Jabberclick through the Jabberclick Program.
"Jabberclick Offerings" means Jabberclick's offerings to be a Program Affiliate participating on any Jabberclick Program
"Jabberclick Related Parties" means Jabberclick's corporate affiliates and its and their contractors, licensors, licensees and suppliers.
The phrase "provided by Jabberclick" or "Jabberclick-provided" shall, when used in relation to tools, services, resources or other offerings, encompass the provision thereof by Jabberclick or Jabberclick Related Parties.
The phrase "tracked by Jabberclick" or "Jabberclick-tracked" shall, when used in relation to any engagement, encompass the tracking thereof by Jabberclick or Jabberclick Related Parties.
"Merchant" means any person that owns or operates a Site and/or other business that can acquire customers or other types of end users by way of the Internet.
"Program Affiliate" refers to a Site that participates on one or more Jabberclick Programs and, through such participation and use of the appropriate Jabberclick Offerings, desires or makes itself available to be recruited or to enter into engagements to display, distribute or place qualifying links provided by Program Merchants for compensation.
"Program Affiliate Account Area" means, for any Jabberclick Program, the Webpage(s) or other area of the Site having the URL designated from time to time by Jabberclick for use by members of that Program for the purpose of facilitating formation of qualifying links, accessing reports and otherwise participating in such Jabberclick Program.
"Program Merchant" refers to a Merchant that participates on one or more Jabberclick Programs and, through such participation and use of the appropriate Jabberclick Offerings, desires or seeks to recruit Program Affiliates to enter into engagements with such Merchant in order to display, distribute or place its qualifying links for compensation.
A "person" is to be broadly construed and includes any natural person or entity.
A "qualifying link" means any type or format of link that is provided or authorized by a Program Merchant to be displayed, distributed or placed on or by a Site pursuant to an engagement and which, through addition and/or use of any technology and/or methodology, can be tracked so that such Program Merchant can monitor the impressions, click-throughs and/or other tracked activities achieved by the display, distribution and/or placement of such link. The term "qualifying link" shall also refer to any equivalent link, mechanism or technology that, upon being activated, causes the same result as clicking on a qualifying link.
A "tracked activity" means any type of predefined activity or result that is sought by a Merchant in relation to a qualifying link. The kinds of tracked activities that a Merchant may seek to promote through such arrangements may include, by way of example, impressions, click-throughs, the sale of products or services, the downloading of software, files or other items, the completion of an application, registration or other form, the opening of an account, membership enrollment, or any other kind of action, transaction or activity that can be tracked and reported upon.
"Web" or "Internet" or "online" means the global computer program currently referred to as the Internet, including the World Wide Web, and any and all successor programs, irrespective of what wired, wireless or otherwise connected device, platform or technology is used to access it.
"Site" means, as the context requires, either (a) one or more Web pages, database, computer files, emails, scripts, software or other application, or other destination, together with supporting files and programming, that are on, provided, or accessible through the Web or works on or in relation to the Web, or (b) a person owning or operating any such Site, or (c) both. A person that owns or operates a Site may have offline businesses which would not preclude it from being a Site for the purposes of this Agreement.
3.1 Participation. Subject to the terms and conditions in this Agreement, You may use the Jabberclick Offerings to Program Affiliates via the Program Affiliate Account Area or otherwise to enter into, track and report on, and/or manage (or have managed) affiliate marketing and/or other types of Jabberclick-tracked engagements on behalf of Your business.
3.2 Voluntary Participation. Your participation in any one or more Jabberclick Programs is as an Online Affiliate. Your participation is purely voluntarily and You may terminate Your participation at any time. Neither Jabberclick nor any Program Merchant shall be construed or deemed as having solicited, requested or procured You or Your services to promote Jabberclick or any Program Merchant or its respective trade or business, or goods, products, property, or services.
3.3 Not a Supplier, etc. You are not and shall not, at any time, be deemed to be a vendor, supplier or provider of goods or services to Jabberclick, and neither Your participation on any Jabberclick Program, use of any Jabberclick Offerings or receipt of payment of any compensation under any Jabberclick-tracked engagement shall be construed or be deemed to be an inducement for, solicitation of You to provide any products or services to Jabberclick.
3.4 Prohibited Activities. In respect or in relation to any Site (or portion thereof) used by You in connection with Your participation on any Jabberclick Program, You may not engage in any activity that is or constitutes, or that involves, facilitates, advocates or promotes, one or more of the following: (a) discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability; (b) libelous, defamatory, threatening, harassing, tortious, or similarly abusive activities; (c) obscene, pornographic, sexually explicit or similar activities; (d) gambling; (e) sale, export or use of illegal substances; (f) terrorism, sedition or other illegal activities; (g) MP3, MPEG and/or other proprietary materials for download, sale or otherwise, in any case without the permission of the owner of the Intellectual Property Rights (h) a conflict or violation of any law or regulation or any Intellectual Property Rights or other rights of any person or entity; (i) harm to minors in any way; (j) impersonation of any person, including any Jabberclick representative, or misrepresentation of affiliation with any person; or (k) conducting of raffles, contests, lotteries or sweepstakes.
3.5 Regulated Business. You represent, warrant and covenant that Your businesses and activities will not cause, nor could cause, Jabberclick or any Site with which You have entered into a Jabberclick-tracked engagement to be or become subject to any law, rule or regulation adversely affecting Jabberclick or such Site, and You shall defend and indemnify Jabberclick and such Sites against any such adverse effect.
4.1 Use of Qualifying Links. Each qualifying link used by You in relation to a Jabberclick-tracked engagement must include, in unaltered form, the special "tagged" link codes and/or other transaction tracking codes in the manner and format made available or otherwise dictated by Jabberclick that, among other things, associate such qualifying link with such engagement.
4.2 Valid Referrals Only. You will place or use qualified links of a Program Merchant only with the intention of delivering valid sales, leads, applications, accounts, clicks or other specified compensable tracked activities for the benefit of such Program Merchant. You may not, nor knowingly permit any person to, activate a qualifying link or inflate the amount of any sought-after or resulting tracked activities through any method or technology that does not actually deliver an end user to the destination Site associated with such qualifying link.
4.3 Jabberclick's Determination Final and Binding. All determinations of qualifying links and the compensation due to You made by Jabberclick shall be final and binding on You. Jabberclick's services do not involve investigating or resolving any claim or dispute involving You and any Program Merchant or other third party person. If Jabberclick, in its sole discretion, elects to investigate or otherwise become involved in any such claim or dispute, it shall not thereby undertake, assume or have any duty, obligation or liability to You or any other party to the claim or dispute.
4.4 Merchants' Terms and Conditions. In addition to and without limiting Your obligations under this Agreement, the terms and conditions of the Program Merchant's engagement govern Your performance of such engagement including Your use of the associated qualifying links, the tracked activities sought, the compensation that might become payable, and any limitations or restrictions that may apply to Your promotion of such Program Merchant or its qualifying links. Jabberclick has no liability or responsibility to review, endorse, police or enforce any such engagements.
4.5 Distribution of Qualifying Links. If You currently distribute, or plan to distribute, qualifying links on, to or through Sites other than those owned or operated by You and registered with Jabberclick, You will be required to obtain Jabberclick's approval to continue to do so. Such approval may be conditioned upon Your agreement to additional terms and conditions and additional disclosures in respect of Your distribution and/or use of such qualifying links.
4.6 No Modification. etc. of Qualifying Links. You will not modify, circumvent, impair, disable or otherwise interfere with any tracking codes and/or other technology and/or methodology required or made available by Jabberclick and/or the Program Merchant to be used in connection with such qualifying link so that it may be properly tracked by Jabberclick.
4.7 Termination of Qualifying Links. Jabberclick or the relevant Program Merchant may terminate any qualifying links associated with any affiliate marketing programs of, and/or other Jabberclick-tracked engagements with which You have entered into with such Program Merchant. You must remove any qualifying links after any termination of the corresponding engagements, including due to termination or expiration of a relevant Program Merchant's participation. If qualifying links are not so removed, Jabberclick may redirect such links as it determines in its sole discretion, with or without compensation to You.
4.8 Discontinuing Use of Qualifying Links. You may at any time discontinue use of qualifying links by removing such qualifying links from Your Site, with or without notice to Jabberclick or, subject to the terms of Your engagement with the relevant Program Merchant, such Program Merchant, provided, however, that You remain subject to such engagement and this Agreement until you separately terminate such engagement or Agreement.
4.9 Jabberclick as Neutral Host. Participation in any Jabberclick Program is not an endorsement by Jabberclick of any Program Merchant or Program Affiliate. Jabberclick operates the Jabberclick Programs and/or provides the Jabberclick Offerings as a neutral host, and Jabberclick does not regularly or proactively monitor, regulate or police the usage thereof by any of its participants. Jabberclick is not responsible or liable for the acts, omissions, agreements or promises of or by any Program Merchant, Program Affiliate or other Site using Jabberclick offerings to enter into any arrangement or otherwise work with any other person or entity.
4.10 Independent Contractors. Jabberclick is the host of each Jabberclick Program. Program Merchants and Program Affiliates are independent parties and Jabberclick does not and shall not have any responsibility or liability for the acts, omissions, promotions, Content or qualifying links or other links of any Program Merchant, Program Affiliate or other third party, including breaches of engagements by Program Merchants, or for screening or policing the Sites or actions of Program Merchants or Program Affiliates.
5.1 Reports; Revisions. You acknowledge and agree that each Program Merchant whose Program You join shall receive reports from Jabberclick that identify You and may include data about You and Your qualifying links with that Program Merchant. If Jabberclick is notified by a Program Merchant that it believes that its reports about its relationship with You contain an error or omission or otherwise require adjustment, Jabberclick may elect to revise those reports as requested by the Program Merchant and make corresponding changes to Your Affiliate Reports. Since the reports Jabberclick provides You and such Program Merchant are the bases for calculating the compensation, if any, due to You from that Program Merchant, any such adjustment may affect the amount of compensation to which You are entitled.
5.2 Data Furnished by Program Merchants. In providing Jabberclick Offerings, including giving You reports on Your Program activities, Jabberclick relies on data provided by Program Merchants. Jabberclick is not obligated to confirm, and does not warrant or guarantee, the accuracy, truth or completeness of any data provided by Program Merchants.
5.3 Errors. If You believe that any of Your Affiliate Reports for any month contains errors in the data about Your engagement with any Program Merchant, You must notify that Program Merchant (with a copy to Jabberclick) within ten days after the end of that month or any shorter period in Your engagement so that, if possible, the matter may be resolved. If any Affiliate Reports for any month are corrected or adjusted after the end of the month, then the period within which You must notify the Program Merchant (with a copy to Jabberclick) of errors in the corrected or adjusted data shall be ten days after such correction or adjustment is posted or any shorter period in Your engagement. Any dispute between You and a Program Merchant about any error You report must be resolved by You and that Program Merchant. In the event Jabberclick is in receipt of funds from a Merchant for the purpose of paying commissions to You, and a dispute arises between you and the Merchant regarding the amount of the funds that are due, Jabberclick will be entitled to return such funds to the Merchant, and to decline to offer further processing services until such dispute is resolved and Jabberclick is notified, in writing, by all parties, that payments should resume. You agree that Jabberclick shall have no obligations and incur no liabilities to You in connection with any such dispute.
5.4 No Personal End User Data. In order to provide any of the Jabberclick Offerings, Jabberclick does not require to be provided, nor does it capture, any personally-identifiable information about any end user who undertakes tracked activities in relation to You or any Program Merchant. Jabberclick has no obligation or liability to You, any end user or any other person if You, any Program Merchant or other person should provide such information, for whatever reason, to Jabberclick.
5.5 Privacy Policy. You will ensure that any and all Sites employed by You in connection with Your participation in any Jabberclick Program or any Jabberclick-tracked engagement will feature an easy-to-understand privacy policy, linked, at a minimum, conspicuously from such Site's home page, with a link that contains the word "Privacy", "Legal", "Terms" or similar language. Such privacy policy shall, in addition to the disclosures about Your privacy practices, identify the collection and use of any information You provide or may provide to Jabberclick and to any Program Merchant or other Sites or persons with which You have any Jabberclick-tracked engagement or other arrangement in relation thereto. As to Your personal information, Jabberclick may use Your personal information in any manner or for any purpose that it determines to be appropriate or necessary in its sole discretion in connection with conducting any activities of or on any Jabberclick Program and in relation to Jabberclick's business.
5.6 Backing Up Data and Other Precautions. Data transfer, conversion, processing and storage are subject to the likelihood of human and machine errors, delays, interruptions and losses. Jabberclick is not liable for any such events or their consequences. You are solely responsible for adopting measures to limit the impact of such events, including backing up any reports or data provided to You. Jabberclick may, from time to time, with or without notice, change the time period covered, type and/or scope of current or historical data stored by Jabberclick and/or to which it provides You with access.
6.1 No Circumvention.
6.2 No Poaching. You may not use any Jabberclick Offerings in connection with aggregating, soliciting or recruiting Program Merchants, Program Affiliates, other Sites or other persons to form or join affiliate marketing, advertising or similar program.
6.3 No Sublicense, etc. You may not sublicense, rent, lease, sell, resell, outsource or service bureau any Jabberclick Offerings, and any attempt to do so shall be null and void.
6.4 No Reverse Engineering. You will not make unauthorized modifications, reverse engineer, disassemble, decompile or attempt to derive source code of any Jabberclick Offerings.
6.5 No Hacking, etc. You agree not to hack, abuse, adversely interfere with, infect with viruses, worms or other malicious or destructive code, or use or cause to be used in extraordinary and unreasonable or inappropriate ways or amounts, any Jabberclick Offerings, including any servers, bandwidth supply, equipment, software and other technological resources provided by Jabberclick.
6.6 No Spam. You may not use any qualifying links in any electronic message unless (a) You have received the express written authorization of the Program Merchant to use email or other electronic messages to promote it or its qualifying link and (b) any and all such electronic messages comply in all respects with this Agreement, the Program Merchant's terms and conditions, and any and all applicable laws, including the requirements of the Can Spam Act of 2003 (Public Law No. 108-187). Further, no electronic message initiated or sent by You or on Your behalf may identify Jabberclick or, except as expressly authorized by an individual Program Merchant, any Program Merchant as a sender or sponsor of such electronic message.
6.7 No Interference. You may not, through downloadable or other technology, replace, intercept, redirect, block, alter or otherwise interfere with the full functioning and intended actions of any qualifying link that has been placed or distributed by another Program Affiliate including any action that would in any way prevent the behavior or result that would occur or would have occurred had an end user activated such qualifying link without Your interference.
6.8 No Infringing Uses. You may not use any name, trademark, service mark, domain name or other Intellectual Property Rights of any third party in connection with Your use of any qualifying links, any Jabberclick Program or any other Jabberclick Offerings, in any way or for any purpose that infringes or violates any Intellectual Property Rights or other rights of such third party, whether for the purpose of increasing the levels of tracked activities attributable to Your qualifying links or for any other purpose.
6.9 Fraud, Abuse, etc. You will not, and will not knowingly permit other persons to, engage in any fraudulent, abusive or illegal activity in connection with Your participation on any Jabberclick Program or in connection with any Program Merchant's affiliate marketing program or engagement.
7.1 Your Use of Jabberclick Offerings. For each Jabberclick Program of which You are a member in good standing, Jabberclick grants You a personal, non-exclusive, non-transferable, non-sublicenseable, revocable and limited license and right, subject to the terms of this Agreement, to:
All other use of any Jabberclick Program, Program Affiliate Account Area, any reports made available to You by Jabberclick and such software code or Content, including modification, publication, transmission, transfer or sale of, reproduction, creation of derivative works, distribution, performance, display, incorporation into another Site or mirroring is prohibited.
7.2 Use of the Jabberclick Name. This Agreement does not grant to You any license or right to use Jabberclick's name or any of its logos or trade or service names or marks, except to the extent required to be used in connection with an URL. Any press release or other public announcement by You regarding this Agreement or any Jabberclick Program or that mentions Jabberclick shall require the prior written approval of Jabberclick. You agree that You shall not disparage Jabberclick or any of the Jabberclick Programs or any other participants thereof.
7.3 Duration of License Rights; Reservation. The above licenses with respect to any Jabberclick Program are valid only while You remain a member of such Jabberclick Program as a Program Affiliate in good standing and comply with this Agreement. Jabberclick may revoke any such license at any time by giving You notice by e-mail or in writing. Jabberclick reserves all rights that are not specifically granted to You by this Agreement.
8.1 Use of Your Content. Other than as provided below, in order to participate in the Jabberclick Program, You are not required to provide Jabberclick with any Content or other materials. Should You do so, by way of uploading, delivering or otherwise making available to Jabberclick any Content and/or other materials (including any Intellectual Property Rights therein and thereto), You agree to grant, and hereby grant, to Jabberclick a non-exclusive, worldwide, royalty-free, sublicenseable, perpetual license to use and store the same including in relation to conducting its business or performing any services in relation to any Jabberclick Program. This Section will survive any termination.
8.2 Use of Your Name. Jabberclick shall have the right to refer to You by Your name in connection with any Jabberclick Program and/or the performance or provision of any Jabberclick Offerings, including in communications sent to actual or prospective participants of the Jabberclick Programs in which You participate.
8.3 Disclosure of Business Relationship. Nothing in this Agreement shall prevent Jabberclick from making any public or private statements about Your business relationship with Jabberclick and/or any Program Merchant and/or Your participation in any Jabberclick Program.
8.4 Use of Your Logo. Except as expressly provided above, Jabberclick shall not use any of Your logos and/or other trademarks without Your prior written approval. Any and all uses of Your logos and/or other trademarks shall be in accordance with Your specified usage guidelines.
9.1 You represent, warrant and covenant as follows:
10.1 Confidential Information. You acknowledge that in connection with Your participation on a Jabberclick Program and/or in one or more Program Merchants' engagements, You will be provided with confidential and proprietary data and information from time to time through reports as well as other Jabberclick Offerings to You through Your Program Affiliate Account Area or otherwise. Such confidential and proprietary data and information may be owned variously by Jabberclick or Program Merchants and/or its or their suppliers or contractors. You will retain ownership of any data and information that You independently collect through Your Sites without the use of Jabberclick Offerings, provided that any data and information that may be provided by You to Jabberclick shall be deemed to be covered by the licenses granted to Jabberclick under this Agreement.
10.2 Duty of Care. You will keep all reports, data and other confidential information provided to You through the Program Affiliate Account Area or otherwise strictly confidential. Without Jabberclick's prior written consent, You will not disclose any such confidential information to any third party or use any such confidential information other than solely as and to the extent required for you to perform under this Agreement and/or Your engagements with any Program Merchants.
10.3 Need to Know Basis. You may disclose any such confidential information only to Your employees, officers and directors who need to know such information in order to perform their respective duties; provided that each such person has a legal or contractual obligation to maintain the confidentiality of such information.
10.4 Legally Required Disclosures. If You receive any document request, interrogatory, subpoena or other legal process ("Request") that would, by its terms, require the disclosure of any Confidential Information protected by this Agreement, then promptly upon receipt thereof, and prior to making any response thereto, You will notify Jabberclick in writing of Your receipt of such Request, and shall provide a copy thereof. Upon receipt of such notice, Jabberclick may seek to intervene in the matter in which the Request was issued to seek protection of the confidentiality provided for by this Section. Absent written agreement signed by Jabberclick, You may not make such disclosure absent an order or directive from the tribunal from which a Request was issued. Jabberclick will be entitled to seek and obtain injunctive relief preventing any breach of Your obligations under this Section, without the need to show irreparable harm, and without the need to post a bond or undertaking.
11.1 Program Merchant Responsible for Payment. You acknowledge that Your entitlement to any compensation reported with respect to any tracked activity (including if reported) is solely a function of the terms of Your agreement with the relevant Program Merchant and that such Program Merchant is solely responsible for its payment. Jabberclick is not liable or responsible for payment or collection. This is true even if Jabberclick performs the function of processing payments to you on behalf of Program Merchants.
11.2 Payment Terms. The fact that a compensation amount is reported for any tracked activity does not necessarily mean that a payment is due to You from the relevant Program Merchant, since payment may be subject to conditions established by that Program Merchant, including policies regarding order cancellation, returned merchandise, receipt of pending credit card authorizations and/or chargebacks and minimums for earned compensation before payment is made.
11.3 Jabberclick's Right to Assess Fees. Jabberclick may, at any time upon prior written notice to you as described below, commence charging or assessing fees in relation to any or all Jabberclick Offerings made available to You including Your participation on any Jabberclick Program(s). Except as otherwise expressly provided in this Agreement, in the event Jabberclick elects to charge or assess fees, You will be notified at least one (1) month in advance in writing by email or posting through the Program Affiliate Account Area. You may elect not to pay any such fees by discontinuing Your participation in all Jabberclick Offerings prior to the commencement of such fees. Any and all fees or other charges may be offset against or debited from any amounts that might be held in account for You by Jabberclick or Jabberclick Related Parties including any amounts that may be due, payable or paid to You by any Program Merchants or other third parties.
11.4 Tax. You agree that You are solely responsible for any and all tax obligations, if any, due to all taxing authorities arising from or in connection with Your participation in any Jabberclick Offerings, Jabberclick Program or any Program Merchant engagement.
12.1 You and Your affiliates, officers, directors, employees, consultants, agents and representatives, and the conduct of Your business, Your performance under any engagements with any Program Merchant, and Your use of any Jabberclick Program and/or Jabberclick Offerings shall comply at all times with all applicable federal, state, provincial and foreign laws, ordinances, rules, regulations, orders, judgments and decrees.
13.1 Any Program Merchant's participation in any Jabberclick Program may end or be suspended for a number of reasons, including expiration or early termination of its merchant agreement with Jabberclick, and You shall not necessarily receive any prior notice that such Program Merchant's participation is ending.
13.2 If a Program Merchant's participation in any Jabberclick Program ends or is suspended for any reason, its program conducted through such Jabberclick Program shall end or be suspended and Jabberclick may, without notice to You, terminate or suspend all qualifying links that You have with that Program Merchant immediately or, in Jabberclick's discretion, at any time thereafter. Jabberclick shall have no obligation or liability to You because of any such termination or suspension of any Program Merchant.
14.1 EACH JABBERCLICK PROGRAM AND ANY JABBERCLICK OFFERINGS ARE PROVIDED "AS IS, WHERE IS" AND "AS AVAILABLE."
14.2 EACH OF JABBERCLICK AND JABBERCLICK RELATED PARTIES HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY AS TO ACCURACY, MERCHANTABILITY, COMPLETENESS, CURRENTNESS, SECURITY, NON-INFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE OF ANY JABBERCLICK PROGRAM OR ANY JABBERCLICK OFFERINGS OR THAT YOUR USE OF THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY PROGRAM MERCHANT WILL BE AVAILABLE (INCLUDING IN THE EVENT OF BEING TERMINATED FOR WHATEVER REASON FROM ANY JABBERCLICK PROGRAM) OR CAN OR WILL BE WILLING TO ENTER INTO ANY ENGAGEMENT WITH YOU.
15.1 If You reasonably determine that any Jabberclick Offering does not materially meet Jabberclick's obligations under this Agreement, then You must notify Jabberclick in writing within ten (10) days of receiving any such allegedly nonconforming services. Your failure to so notify Jabberclick on a timely basis shall mean that You accept such services, and Jabberclick shall thereafter have no liability whatsoever with respect to such services. If upon receipt of any notice under this Section, Jabberclick may, at its sole discretion, reperform the service in question or otherwise provide You with any substitution or replacement services in lieu thereof. Any reperformance or provision of substitute or replacement services shall in no event be construed as an admission that the original service was nonconforming or otherwise improper, and Your acceptance of the same constitutes Your sole remedy and in such case constitutes Jabberclick's maximum liability for any such alleged breach of this Agreement.
15.2 IF, NOTWITHSTANDING THE ABOVE, LIABILITY IS IMPOSED ON JABBERCLICK OR JABBERCLICK RELATED PARTIES, THEN YOU AGREE THAT THE TOTAL LIABILITY OF JABBERCLICK AND JABBERCLICK RELATED PARTIES, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBCONTRACTORS AND REPRESENTATIVES, TO YOU WILL NOT EXCEED TWENTY-FIVE DOLLARS ($30.00). YOU RECOGNIZE AND ACKNOWLEDGE THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE, IN LIGHT OF THE FACT THAT JABBERCLICK IS PROVIDING THIS SERVICE TO YOU AT NO CHARGE TO YOU.
15.3 NONE OF JABBERCLICK AND JABBERCLICK RELATED PARTIES WILL BE LIABLE TO YOU (WHETHER IN CONTRACT OR BASED ON WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOSS OF REVENUE OR PROFITS, EVEN IF SUCH PERSON WAS AWARE THAT SUCH DAMAGES COULD RESULT.
15.4 Any claim or cause of action arising out of Your use of any Jabberclick Program, this Agreement or the Program Policies and Guidelines must be filed within ninety (90) days after such claim or cause of action arose or be forever barred.
15.5 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF CERTAIN LIABILITIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF THIS SECTION 15 MAY NOT APPLY TO YOU.
16.1 You agree to defend, indemnify and hold harmless Jabberclick and Jabberclick Related Parties, and its and their directors, officers, employees, agents, subcontractors and representatives for and against any and all claims, actions, demands, liabilities, losses, damages, penalties, interest, judgments, settlements, costs and expenses (including reasonable attorneys' fees) that directly or indirectly arise out of or are based on:
16.2 Jabberclick may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by You. Jabberclick may participate in the defense of all claims as to which it does not assume defense and control, and You shall not settle any such claim without Jabberclick's prior written consent.
17.1 Amendments. Upon prior written notice, Jabberclick may, at any time, add to, remove or otherwise amend any or all terms, conditions and/or other provisions of this Agreement, including any Program Policies and Guidelines.
17.2 Changes in Service. Upon prior written notice, Jabberclick may add, remove, suspend or discontinue any aspect of any Jabberclick Program or any other Jabberclick Offering.
17.3 YOUR CONTINUED USE OF ANY JABBERCLICK PROGRAM AND/OR JABBERCLICK OFFERING AFTER NOTICE IS GIVEN (AND AFTER EXPIRATION OF ANY APPLICABLE PRIOR NOTICE PERIOD) SHALL CONSTITUTE YOUR BINDING AND LEGALLY ENFORCEABLE AGREEMENT TO SUCH CHANGE. IF YOU DO NOT WISH TO ACCEPT ANY SUCH CHANGE, THEN YOU MUST TERMINATE YOUR ACCOUNT WITH SUCH JABBERCLICK PROGRAM AND/OR JABBERCLICK OFFERING AND CEASE USING SUCH JABBERCLICK PROGRAM AND ANY ASSOCIATED JABBERCLICK OFFERING.
18.1 Termination. You or Jabberclick may, at any time, with or without cause, terminate this Agreement and Your participation on any Jabberclick Program or use of any other Jabberclick Offering. You may effect such termination through Your Program Affiliate Account Area or by written notice to Jabberclick subject to actual receipt thereof.
18.2 Restricted Use. Alternatively, Jabberclick may, in its sole discretion, suspend, limit, restrict, condition or deny Your access to or use of all or any part of any Jabberclick Program or any Jabberclick Offering.
19.1 Upon any termination of this Agreement and/or Your participation on all Jabberclick Programs:
19.2 Jabberclick may withhold and offset against any and all compensation and/or other fees that are then unpaid to You. Following assessment of any fees or other charges owing to Jabberclick, and subject to Jabberclick holding any amount it determines in its sole discretion to be needed to support any of Your indemnification and/or other obligations and/or liabilities under this Agreement, Jabberclick may refund any remaining monies to any of the Program Merchants with which You had entered into a Jabberclick-tracked engagement. Such withholding of such compensation and/or other fees is in addition to any other rights and remedies that Jabberclick or any Program Merchant may have in contract, at law or in equity.
19.3 All rights or remedies arising out of a breach of any terms of this Agreement shall survive any such termination of this Agreement. of Your participation in any Jabberclick Program or Your use of other Jabberclick Offerings.
19.4 Sections 19 and 20, and any provision which by its terms are intended to survive any expiration or termination of this Agreement, will survive any expiration or termination of this Agreement. Your representations and warranties in this Agreement shall survive execution, delivery, acceptance, performance, expiration or termination of this Agreement.
20.1 Independent Contractors. The parties are independent contractors and nothing in this Agreement shall confer upon either party any authority to obligate or bind the other in any respect.
20.2 Force Majeure. Jabberclick shall not be liable to You by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, interruptions in telecommunications services or Internet facilities, or any other cause which is beyond the reasonable control of Jabberclick, whether or not similar to the foregoing.
20.3 Assignability. You shall not assign or delegate any of the rights or obligations under this Agreement, and any such attempted assignment or delegation shall be void. Subject to the preceding sentence, this Agreement is binding on and inures to the benefit of the respective successors, heirs and assigns of each party.
20.4 Severability. If any portion of this Agreement is held by a court with jurisdiction to be invalid or unenforceable, the remaining portions hereof, shall remain in full force and effect. If any provision of this Agreement shall be judicially unenforceable in any jurisdiction, such provision shall not be affected with respect to any other jurisdiction.
20.5 Governing Law; Consent to Jurisdiction; Jury Trial Waiver. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, U.S.A., without regard to its conflicts of law principles. You consent to the personal and exclusive jurisdiction of the Federal and New York State courts sitting in New York County, New York, U.S.A.. EACH PARTY WAIVES RIGHTS TO TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT. The U.N. Convention on the International Sale of Goods shall not apply to this Agreement.
20.6 Entire Agreement; Third Party Beneficiaries. This Agreement is the entire agreement between the parties pertaining to its subject matter, and supersedes all prior written or oral agreements (including prior versions of this Agreement and any conflicting confidentiality agreements), representations, warranties or covenants between the parties with respect to such subject matter. There are no third party beneficiaries of this Agreement. The headings of sections or other subdivisions of this Agreement will not affect in any way the meaning or interpretation of this Agreement.
20.7 Notices. Jabberclick may provide notices to You by posting notices or links to notices in Your Program Affiliate Account Area. Notices to You also may be made via e-mail, regular mail, overnight courier or facsimile at your contact addresses of record for any Jabberclick Program. Notices sent by email or telecopy, with or without electronic confirmation, will not be deemed to be valid unless actual receipt is confirmed in writing by an authorized personnel member of Jabberclick.
20.8 Language. The English language versions of this Agreement and Program Policies and Guidelines are the controlling versions thereof. All support and other inquiries regarding Your use of any Jabberclick Offering must be submitted to Jabberclick in English, and Jabberclick will communicate in English only.