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Affinity Mall Program Membership Agreement This Agreement contains the complete terms and conditions that apply to participation in The YourDigitalMall.com Shopping Network (also referred to as the "Network"). Throughout this Agreement, "YourDigitalMall.com" refers to The YourDigitalMall.com Shopping Network (also referred to as the "Network"), a service of Positive Realities Multimedia, LLC (referred to as "PR")), the "Program" refers to the YourDigitalMall.com Affinity Mall Program, "Affinity Mall" refers to a web site hosted by PR (for your use in promoting your customized Affinity Mall), "Merchant" refers to a merchant participating in YourDigitalMall.com's Affinity Mall Program who is listed on the "Affinity Merchants" section, and "Affinity Member" (referred to as "Member") refers to you. As used in this Agreement, "Site" refers to a World Wide Web site, and "Affinity Mall" refers to a site located at http://www.YourDigitalMall.com. THIS AGREEMENT ("Agreement") is made on between Member and Positive Realities Multimedia, LLC, a California Limited Liability Company. By clicking on the "I ACCEPT" button, you are stating your eligibility to participate in the Network, and that you convey your understanding and acceptance of the terms and conditions set forth in this Agreement. 1. MEMBERSHIP To be eligible for membership, you must be at least 18 years of age and legally able to enter into a contract. In addition, Sites that contain or promote some or all of the following are considered objectionable by PR and will not be permitted to join the Network:
2. DESIGN, CREATION, & ACCESS TO YOUR CUSTOMIZED AFFINITY MALL As a Member, you will receive a Site (called an "Affinity Mall") hosted by PR ( for your use in promoting your customized Affinity Mall). Based on the information you provide on your membership form, PR will create, maintain, and host your Affinity Mall. PR will provide you with an internet address (such as http://www.YourDigitalMall/go/YourMall) through which you and your customers can access your customized Affinity Mall. As a member, you may choose to register a domain name for your Affinity Mall (such as NameOfYourMall.com) which may be easier for you to promote and to be remembered by your customers. Note: Since the internet address provided by PR may change without notice, it is in your best interest to keep PR informed of how you will be promoting your Affinity Mall's location. You may contact YourDigitalMall.coms Affinity Member Services at affinityservices@YourDigitalMall.com. Since PR uses electronic "cookie" technology to track Affinity Mall ownership and shopper purchases and actions, PR can not and will not be responsible for any sales that do not get properly credited due to problems with, errors of or disablement of such "cookies."
3. COST PR has made every effort to make The YourDigitalMall.com Affinity Program one of the most economical and risk-free programs anywhere! To compensate for its expenses, PR may implement an administrative fee for setting-up and activate your Membership and for hosting and maintaining your Affinity Mall. The amount of the administrative fee is listed on the "YourDigitalMall.com Affinity Program Administrative Fee Schedule" located online. PR reserves the right to change or modify this fee at any time without notice. 4. HOW YOU GET PAID You can earn money (a "Referral Fee") as a Member any time a "Qualifying Purchase" occurs through your customized Affinity Mall. A "Qualifying Purchase" occurs when a customer clicks on a hypertext link from your customized Affinity Mall, is referred to a Merchant Site, and makes a direct purchase from that Merchant Site. PR and the Merchants have negotiated and established purchase commission fees. You will be paid the Referral Fee based on the commission fees negotiated and established between PR and the Merchant. Your Referral Fee will be determined by your Affinity Rate defined as the percentage of DigitalDentistry.com's commission fees which are shared with you, the Affinity Mall member. This affinity rate is based on the membership type of your specific Affinity Mall. A current listing of Affinity Rates may be found at the YourDigitalMall.com. PR will generate and manage reports showing how much money you, as an Affinity Member, have earned. You may access your reports through the YourDigitalMall.com's Affinity Member Center. PR, in its sole discretion, may modify the reports of Member's Qualifying Purchases. PR will pay Referral Fees to Member once every 4 months (defined as a "Trimester") based on the calendar year. Approximately sixty (60) days following the end of each calendar Trimester, we (or our designee) will send you payment for the Referral Fees earned via Qualifying Purchases that were shipped during that Trimester, less any taxes, shipping, returns and canceled orders. If, at the end of any trimester, Member does not have at least $100 U.S. dollars ($100) in accumulated Referral Fees (less an administrative costs as described above), PR will hold Member payments until Member's Referral Fees equal or exceed $100, at which point PR will tender payment to Member with PR's next trimester payment. If a Qualifying Purchase that generated a Referral Fee is returned by a customer after Member has receive payment, the corresponding Referral Fee will be deducted from the Members next Trimester payment. If there is no subsequent payment, we will send the Member an invoice for the referral fee payable within thirty (30) days of your receipt of the invoice. If you become a Member less than thirty (30) days prior to the end of a Trimester, then any and all referral fees generated during that initial period may be included in the next Trimester for purposes of payment of those fees by PR. PR reserves the right to terminate Members relationship with the Network immediately should (a) the number of shoppers delivered through Members Affinity Mall total less than 100 per month, or (b) if the number of shoppers on Members Affinity Mall consistently falls below YourDigitalMall.coms network average for a period of two months.
5. RIGHTS GRANTED TO YOU PR grants to Member a limited, revocable, non-exclusive, non- sublicensable and non-transferable license to use the Network and any content (including, but not limited to, text, graphics, materials, video and data) provided to you by PR through the YourDigitalMall.com Shopping Network ("YDM Content") solely for the purpose for promoting merchandise as licensed hereunder. YDM Content may modified from time to time by PR. Except as expressly set forth herein, no license is granted to Member for any other purpose, and any other use of YDM Content by Member shall constitute a material breach of this Agreement. Nothing in this Agreement shall affect any rights of PR or its licensors in the Network or YDM Content, any data compiled by PR, and any associated patents, trademarks, copyrights, mask work rights, trade secrets or other intellectual property rights. No license, right or interest in any trademarks of PR or any third party is granted under this Agreement. All reviews, suggestions or other comments ("Member Input") submitted by Member shall become the property of PR. PR, in its discretion, may elect to include or remove Member Input from Member's Affinity Mall. As a condition to your acceptance and participation as an Affinity Member, you shall not undertake or engage in the following practices, and any violation of this Section shall be deemed a material breach of this Agreement:
6. TERM OF AGREEMENT This Agreement begins upon your acceptance of these terms and may be terminated at any time for any reason whatsoever by either party, upon five (5) days prior written notice of such termination to the other party. In addition, PR shall be entitled to terminate this Agreement immediately if you materially breach or violate any terms or conditions of this Agreement or if PR determines, in its sole discretion, that there are technical or operational issues (e.g. interruptions caused by or shifts in online/Internet technology) that adversely affect the implementation of the Program. Termination of this Agreement shall also terminate any outstanding agreement. However, all rights to payment, causes of action and any provisions which by their terms are intended to survive termination, shall survive termination of this Agreement. Upon termination of this Agreement for any reason, you will immediately cease use of, and remove from your Site, all links to our Site, and all PR trademarks, trade dress and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program. You are only eligible to earn referral fees on Qualifying Purchases occurring during the term of this Agreement, and referral fees earned through the date of termination will remain payable only if the related purchases are not canceled or returned by a Customer. In addition, we may invoice you for referral fees that were paid to you prior to termination if those referral fees relate to a purchase that are subsequently canceled or returned by a Customer. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. As PR does not have direct control on Merchants, PR can be responsible to pay referral fees only when they are collected from the Merchants. 7. YOUR RESPONSIBILITIES As a Member, you will make effort to properly market and promote your Affinity Mall. Moreover, all material (in any media - print, electronic, or otherwise) used in the marketing and/or promotion of your Affinity Mall must clearly display a "EmPowered by YouDigitalMall.com" (which can be requested from PR) and/or a statement either stating: (a) "Affinity Mall EmPowered by YourDigitalMall.com" or (b) "Member of The YourDigitalMall.com Affinity Mall Network". You are solely responsible for the operation and maintenance of the Member Site (i.e. your own web site) and for ensuring that all materials posted on the Member Site, Affinity Mall, and other Member's promotional material do not infringe the copyrights, trademarks, patents or any other intellectual property rights of any third party. Member shall be responsible for all taxes on income received from PR or any other fees related to Member's involvement in the Network. PR disclaims all liability for these matters. Member will defend and hold harmless PR from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance and content of Member's Site and any content you have included in your Affinity Mall. 8. REPRESENTATIONS You represent and warrant that (a) you have the authority to enter into this Agreement and sufficient rights to grant any licenses expressed herein, and (b) any material which is provided to us or displayed on your Site will not (i) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v) violate any laws regarding unfair competition, anti-discrimination or false advertising; (vi) promote violence or contain hate speech; (vii) promote discrimination based on race, age, sex, religion, nationality, sexual orientation or disability; or (viii) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PR MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM OR THAT OUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE AND WE WILL NOT BE RESPONSIBLE FOR CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
9. MODIFICATION This Agreement's terms and conditions are subject to change by PR without notice. Continued usage of the Network after a change to this Agreement by PR or after a new policy is implemented constitutes acceptance of such change or policy. We encourage you to regularly check the YourDigitalMall.com Site for any changes or additions. 10. DISCLAIMER OF WARRANTY THE INFORMATION, PROGRAMS, PRODUCTS, AND MATERIALS CONTAINED IN THE YOURDIGITALMALL.COM SITE, INCLUDING, WITHOUT LIMITATION, THE YDM CONTENT, ARE PROVIDED TO MEMBER ON AN 'AS IS' BASIS AND WITHOUT WARRANTY OF ANY KIND. PR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE NETWORK, THE YOURDIGITALMALL.COM SITE, THE YDM CONTENT AND RELATED MATERIALS PROVIDED HEREUNDER INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING. 11. LIMITATION OF LIABILITY PR SHALL HAVE NO LIABILITY TO MEMBER FOR DAMAGES FROM ANY CAUSE WHATSOEVER ARISING UNDER THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT. PR SHALL NOT BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF DATA, PROFITS, USE OF TECHNOLOGY, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, THE NETWORK OR OTHERWISE RELATING TO THE SUBJECT MATTER HEREOF. PR'S CUMULATIVE LIABILITY WITH RESPECT TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO PARTICPANT HEREUNDER. 13. RELATIONSHIP OF PARTIES Both PR and Member are independent contractors, and nothing in this Agreement will create any partnership, joint venture, franchise, sales representative, or employment relationship between the parties. Member will have no authority to make or accept any offers or representations on our behalf. This Agreement constitutes the final and complete agreement and understanding between the parties with respect to its subject matter and supersedes all prior or contemporaneous communications, proposals, agreements and representations with respect to the subject matter hereof. No modification to this Agreement will be binding, unless in writing and signed by authorized representatives of each party. Neither party shall make any statement, whether on their sites or otherwise, that reasonably would contradict anything in the paragraph. 14. CONFIDENTIALITY; PROTECTION OF TRADE SECRETS During the term of this Agreement, Members will have access to and will become aquainted with, various trade secrets of PR, including but not limited to, certain financial information, customer lists, marketing data, and compilations of trade information and records (hereinafter collectively referred to as "Trade Secrets and Confidential Data"). Said trade Secrets and Confidential Data are owned by PR and regularly used in operation of PR's business. It is agreed by the parties as a material part of consideration for this Agreement that such Trade Secrets and Confidential Data constitute protectable trade secrets and confidential information with meaning of California Civil Code 3426 and other applicable provisions of California law. Member agrees not to disclose any of the aforesaid Trade Secret and Confidential Data, directly or indirectly, or use them in any way, either during the term of this Agreement or at any time thereafter for a 3 year period, except as required in the performance of Member's duties under this Agreement. PR shall be entitled to all legal and equitable remedies in the event of Member's breach of any obligation under this paragraph.
15. GENERAL This Agreement is made under and shall be governed by and construed in accordance with the laws of State of California, U.S.A., regardless of its choice of law provisions. The state and federal courts located in Los Angeles County, California, will have exclusive jurisdiction. If you need to send official correspondence, send it via registered mail to: Positive Realities Multimedia, LLC This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution may be achieved in any format convenient to the parties. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. Equitable Relief. The parties agree that any breach of either of the Parties' obligations regarding trademarks, service marks or trade names, confidentiality and/or user data may result in irreparable injury for which there may be no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a party's obligations regarding trademarks, service marks or trade names or confidentiality, the aggrieved party will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction. Obligation to Mediate in Good Faith. Except as provided in this Section, before either party initiates a lawsuit against the other relating to this Agreement, the parties agree to mediate all disputes and claims arising out of or relating to this Agreement, the parties' performance under it, or its breach. To this end, either party may request, after informal discussions have failed to resolve a dispute or claim, that each party designate an officer or other management employee with authority to bind the party to meet in good faith and attempt to resolve the dispute or claim through mediation. During their discussions, each party will honor the other's reasonable requests for information that is not privileged and relates to the dispute or claim. This Section does not apply (i) should the expiration of the statute of limitations for a cause of action be imminent, or (ii) if a party is seeking an injunction pursuant to Section entitled Equitable Relief. You acknowledge that PR's and Merchant servers, equipment, and services (e.g. tracking and reporting) may be subject to temporary modifications or shutdowns due to causes beyond PR's and Merchants' reasonable control. Such temporary service interruptions will not constitute a material breach of this Agreement. PR will use commercially reasonable efforts to provide the services contemplated under this Agreement and to remedy any temporary interruptions or other problems that adversely affect the Program.
16. MISCELLANEOUS Severability
Waiver
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