THIS IS PART OF AN APPLICATION FOR ENROLLMENT AS A PRIACTA, INC. ("PRIACTA") MARKETING AFFILIATE WHICH, IF ACCEPTED BY PRIACTA, WILL BECOME A LEGALLY BINDING AGREEMENT THAT WILL GOVERN YOUR PARTICIPATION IN THE "PRIACTA AFFILIATE PROGRAM". BY CLICKING ON THE "SIGNUP" BUTTON AT THE END OF THE AFFILIATE ONLINE APPLICATION, THE APPLICANT IDENTIFIED AS THE "AFFILIATE" IN THE ONLINE APPLICATION AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE ACCEPTING ITS TERMS.
YOUR APPLICATION IS SUBJECT TO ACCEPTANCE BY PRIACTA. PRIACTA WILL EVALUATE YOUR APPLICATION AND NOTIFY YOU OF ACCEPTANCE OR REJECTION BY EMAIL. PRIACTA MAY REJECT YOUR APPLICATION FOR ANY REASON. IF YOUR APPLICATION IS ACCEPTED, THESE TERMS AND CONDITIONS SHALL BECOME A LEGALLY BINDING AGREEMENT. IF PRIACTA DOES NOT ACCEPT YOUR APPLICATION, NO AGREEMENT WILL BE CREATED.
WEB AFFILIATE MARKETING AGREEMENT
Effective Date: this day
See www.priacta.com/Support/affiliate/agreement_updates.php for a listing of material changes to this Agreement and their effective dates.
1. Parties. The parties to this Agreement are you, and the owner and operator of this website, Priacta, Inc. ("Priacta"). If you are not acting on behalf of yourself as an individual, then "you" means your company or organization. All references to "your site" refers to the site that will link to this site (and which you will identify in your application). All references to "we", "us", "our", "this website" or "this site" shall be construed to mean Priacta.
2. Modification of Agreement. We reserve the right to modify this Agreement at any time by posting an amended Agreement that is always accessible through the "Legal" link on this site's home page and by giving you prior notice of such amendments. We may provide prior notice by email. Your continued use of this site indicates your acceptance of the amended Agreement. You should check this Agreement through this link periodically for modifications by clicking on the link provided near the top of the Agreement for a listing of material changes and their effective dates. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED OF THIS SITE FOLLOWING OUR POSTING OF A MODIFICATION NOTICE OR NEW AGREEMENT ON THIS SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE MODIFICATION OR NEW AGREEMENT.
3. Eligibility. Eligibility requirements for participation in the Priacta Affiliate Program are determined in our sole discretion. We do not allow minors to participate in the Program. Ineligible sites include, but are not limited to, sites that promote: (i) sexuality or sexually explicit materials; (ii) violence; (iii) discrimination based on race, sex, religion, nationality, disability, or age; (iv) illegal activities or otherwise violate the intellectual property rights of others, or (v) any other site or subject matter we deem inconsistent with the market position and reputation of Priacta. In addition, ineligible sites include any of our trademarks, or variations or misspellings of any of them, in their URLs to the left of the top-level domain name (e.g., ".com", ".net", etc.). By participating in the Program, you agree that you will not engage in any of the forgoing activities.
4. Appointment of Affiliate And Restrictions. Effective as of the Effective Date and subject to the terms and conditions hereof, Priacta hereby authorizes Affiliate to participate in the Priacta Affiliate Program (also referred to as the "Program") for purposes of promoting and marketing the Priacta Services only through marketing activities expressly authorized herein. This Agreement does not establish Affiliate as Priacta's agent or representative for any other purpose other than those purposes expressly provided herein. Affiliate is not authorized to accept orders or to enter into contracts or to create any obligation in Priacta's name, or to transact any business on behalf of Priacta, unless stated in writing in a separate agreement. The relationship of Priacta and Affiliate shall be and shall at all times remain, that of independent contractors, and not that of employer and employee, franchisor and franchisee, joint ventures, or partners. No payment of any fee or equivalent charge is required of Affiliate by Priacta as a condition to enter into this Agreement. Priacta may suspend Affiliate's participation in the Priacta Affiliate Program if Priacta reasonably believes that any of the marketing practices, marketing messages, and/or other content used by Affiliate are detrimental to the reputation or quality of Priacta.
5. Tracking URLs; Referrals. We will provide or approve Tracking URLs for your use in tracking Referrals to this site. The term "Tracking URLs" means unique URL(s) provided by us or provided by you and approved by us. The term "Referrals" means users who access who access this site through or from Tracking URL(s). You agree to use the Tracking URL(s) in all authorized links to this site and in connection with all authorized marketing activities.
6. Linking License; Visitor Data. Effective upon acceptance into the Program and subject to the terms and conditions hereof, we grant you a revocable, non-exclusive, worldwide, royalty-free license for the duration of the term of this Agreement, solely for purposes of facilitating Referrals from your site to this site, to provide on your site one or more of the following types of links to this site: (i) a general link on your site to the home page of this site, and (ii) other links that are pre-approved in writing by us (such as for example, a specific product or service link, search box link, and/or a general text link), subject to any additional terms and conditions that may be required by us. You acknowledge that, by participating in the Program and placing any of the above links within your site, we may receive information from or about visitors to your site or communications between your site and those visitors. Your participation in the Program constitutes your specific and unconditional consent to and authorization for our access to, receipt, storage, use, and disclosure of any and all such information, consistent with the policies and procedures set forth in the Privacy Policy on this site. Except for the license granted above, you do not obtain any rights under this Agreement in any intellectual property, including, without limitation, any intellectual property with respect to the Tracking URL(s), links, link formats, technical specifications, guidelines, or graphical artwork that may be provided by us, or with respect to this site's domain name.
7. Monitoring of Licensee Site. You acknowledge that we may crawl or otherwise monitor your site (either directly by us or by a third-party service provider) for the purpose of ensuring the quality and reliability of links and Tracking URL(s) on your site. Accordingly, you agree that we and may take such actions and that you will not seek to block or otherwise interfere with such crawling or monitoring (and that we may use technical means to overcome any methods used on your site to block or interfere with such crawling or monitoring).
8. Emails From Us. You acknowledge that as a participant in the Program, we may from time to time send you email updates about the Program. By participating in the Program, you consent to our sending you these email updates.
9. Reservation of Rights In Our Content. You acknowledge and agree that you will: (a) not, in connection with this Agreement, display or reference on your site, any trademark or logo of any third party seller that may be posted on our site; (b) use any data, images, text, or other information obtained by you from us or this site in connection with this Agreement ("Content") only in a lawful manner and only in accordance with the terms of this Agreement; (c) not modify or alter any Content that consists of a graphic image, other than to resize it; (d) not edit any Content that consists of text, other than to shorten its length; (e) not sell, redistribute, sublicense or transfer any Content; (f) not use any Content in a manner intended to send sales to any site other than this site; and (h) promptly delete any Content that is no longer displayed on this site or that we notify you is no longer available for your use.
10. Referral Fees And Payment Terms. We will pay to you referral fees in accordance with the Program link at www.priacta.com/Support/affiliate/commissions.php as a percent of Net Sales received by us during the term hereof which are attributable to sales of Priacta Services to Referrals who are tracked by us. Referral fees shall be payable monthly on or about the fifteenth (15th) day of the month following the month of our receipt of Net Proceeds. The term "Net Sales" means gross revenues, less associated: (i) order processing fees, (ii) credit card authorization and processing fees, (iii) shipping fees, (iv) credits for returns, (v) un-reimbursed charges attributable to credit card fraud, and (vi) any charge levied on the sale or transfer of Priacta Services by any governmental authority, including without limitation, sales or use taxes, value added taxes, and duties.
11. Tracking And Reporting of Referrals. We may track Referrals by passing a token to the user's system by means of a Cookie and/or IP address. We may be unable (and will have no obligation) to track Referrals (i) who refuse the Cookie or block the IP address, (ii) whose browsers do not support Cookies, (iii) whose token or IP address is disrupted (such as if the Cookie is edited or deleted), or (iv) who obtain the Priacta Services using a browser that does not use the Cookie and related token. If we receive Referrals for the same user from multiple affiliates, the last affiliate from whom we receive a Referral will be credited with any sale attributed to such user, and the remaining affiliates shall not be credited with a sale for purposes of fees. At the time of each fee payment, we will provide a report of sales orders and certain tracked activities to you. The form and content of the reports may vary from time to time in our sole discretion. To permit accurate tracking, fee accrual, and reporting, you agree to ensure that Tracking URL(s) as specified by us are used in all authorized links and other marketing activities.
12. Resolution of Conflicts Regarding Referral Fees. In no event shall we be liable for more than a single referral fee for a single Referral. If any third party should make a claim for any referral fee or part thereof, the referral fee will be apportioned among the claimants by us in our sole discretion. We will make a reasonable effort to consult with all relevant parties regarding any apportionment. Our determination regarding the apportionment of any referral fee due will be final.
13. Policies. Referrals who purchase Priacta Services shall be deemed to be customers of Priacta, and they shall be subject to all of our policies regarding pricing, rules, and operating procedures regarding orders. We reserve the right to change such policies in its sole discretion from time to time.
14. Order Processing And Fulfillment. We will be solely responsible for all aspects of processing and fulfillment for orders for Priacta Services placed by Referrals unless agreed upon in writing in a separate agreement. We reserve the right to reject orders that do not comply with any requirements that we may establish from time to time.
15. General Email Promotions. You may transmit Tracking URLs electronically via email and engage in general email promotions; provided, however, that as a condition of your participation in our Affiliate Program, you agree to comply strictly with all applicable laws (federal, state, and otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws. The other limitations herein, including the limitations of Sections 3 and 4, also apply to email promotions.
16. Your Representations And Warranties. You agree to make no representation or warranty regarding this site or Priacta Services which is inconsistent with or in addition to information provided on this site. You agree to indemnify and hold us harmless from and against any claim, damage, or expense arising out of any representation or warranty made by you in breach of the forgoing.
17. Warranty Disclaimer. ALTHOUGH PRIACTA RESERVES THE RIGHT TO MAKE A LIMITED WARRANTY TO THE USER, PRIACTA MAKES NO WARRANTY TO AFFILIATE. PRIACTA PROVIDES THE PRIACTA SERVICES AND/OR PRODUCT(S) "AS-IS" AND WITH ALL FAULTS. NEITHER PRIACTA NOR ANY OF ITS SUPPLIERS OR RESELLERS MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED TO AFFILIATE. PRIACTA AND ITS SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. THERE IS NO WARRANTY OR GUARANTEE THAT THE OPERATION OF THE PRIACTA SERVICES AND/OR PRODUCT(S) WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, OR THAT THE PRIACTA SERVICES AND/OR PRODUCT(S) WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED. FURTHER, AFFILIATE ACKNOWLEDGES AND AGREES THAT THE INTERNET IS A NETWORK OF PRIVATE AND PUBLIC NETWORKS, THAT PRIACTA HAS NO CONTROL OVER THE INTERNET, AND THAT THIS SITE IS NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF PRIACTA'S SERVICES AND/OR PRODUCT(S). THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO MARKETING OF THE PRIACTA SERVICES OR PRODUCT(S) IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
18. Disclaimer of Incidental and Consequential Damages. EXCEPT FOR INDEMNITIES PROVIDED HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY CAUSING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
19. Liability Cap. Except for indemnities expressly provided herein, in no event shall the aggregate liability of either party, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, including without limitation any liability for direct damages, exceed the total amount of referral fees paid by Priacta for the six (6) months immediately preceding the claim.
20. Ownership. Title to the intellectual property rights embodied in the Priacta Services and this site shall remain in and be the sole and exclusive property of this site and/or its licensors.
21. No Trademark License. No license is granted herein for use of our trade name or trademarks; however, you are authorized to use any materials provided by us such as banner advertisement links, button links, and/or a text links which may incorporate our trade name or trademarks, but only in the form provided or approved by us.
22. Unilateral Disclosure of Confidential Information By Priacta. You acknowledge that we may disclose confidential information to you in the course of your participation in the Program. For purposes hereof, "Confidential Information" means our information or information of our customers (i) which relates to the purpose and subject matter of Priacta Services, including computer programs, business and technical information, and data, or (ii) which, although not related to Priacta Services, is nevertheless disclosed hereunder, and which, in any case, is disclosed by us or our customers or an affiliate to you in document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to you within fifteen (15) days of the initial disclosure. You may use Confidential Information only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. You may disclose Confidential Information received hereunder only as reasonably required to perform your obligations under this Agreement and only to your employees who have a need to know for such purposes and who are bound to protect the received Confidential Information from unauthorized use and disclosure. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in your possession or control at the time of its disclosure; (ii) is, or becomes publicly known, through no wrongful act of yours; (iii) is received by you from a third party free to disclose it without obligation to us; or (iv) is independently developed by you without reference to Confidential Information.
23. Term of Agreement. The term of this Agreement will begin upon our acceptance of your application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to this site and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you in connection with the Program. You are eligible to earn referral fees only on sales to Referrals that occur during the term, and referral fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
24. Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, in each case to the address set forth in your online Affiliate account or at such other addresses as shall be designated in writing by either party to the other in accordance with this Section. Such notice will be deemed to be given when received.
25. Arbitration. Except for actions to protect intellectual property rights and to enforce an arbitrator's decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Richmond, Virginia, USA. The arbitrator shall apply the laws of the State of Virginia to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded to the prevailing party in the arbitration.
26. Continuing Obligations. The following obligations shall survive the expiration or termination hereof and the distribution grace period provided above: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (iv) any covenant granted herein for the purpose of determining ownership of, or protecting, the Proprietary Rights, including without limitation, the confidential information of either party, or any remedy for breach thereof, and (v) the payment of taxes, duties, or any money hereunder.
BY CLICKING ON THE "SIGNUP" BUTTON AT THE END OF THE AFFILIATE ONLINE APPLICATION, YOU AFFIRM THAT YOU HAVE READ THIS ENTIRE AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, PLEASE EXIT.