Introduction
This Affiliate Partner Agreement ("Agreement") is made by and agreed to between Yugma, Inc., a Minnesota corporation, located at Brenwood Office Park, 5700 Smetana Drive, Suite 100, Minneapolis, MN, 55343, USA ("Yugma"), and you ("You"). As an application service provider, Yugma’s providing services ("Services") via the Internet. An "Affiliate 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 Yugma) 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 ("Yugma") from an Yugma authorized promotional method used by such Publisher. The Yugma compensates the Publisher, in accordance with this Agreement and the Program Payout specifications.
1. Participation in Programs.
(a) Acceptance by Yugma. You are applying to Yugma for the opportunity to earn Payouts by promoting Yugma in accordance with the Yugma’s Program terms and complying with this Agreement. Upon approval by Yugma for acceptance into its Affiliate Program, You may display (and remove) Links to Yugma’s Web site or Web site content in accordance with the Yugma’s Program terms and this Agreement. Yugma’s acceptance of You extends only to the entity, or individual, that enters into this Agreement with Yugma.
(b) Program Terms. The details are as follows: You must be a registered user of the Yugma Service, and must accurately complete the entire Affiliate Program application in full. When You are approved for the Affiliate program, Yugma reserves the right to terminate Your member from the program if it is subsequently determined that the member if not a good fit for the Affiliate Program or Yugma’s policies. Approved program members receive an Affiliate Partner Code and associated URL, images for promoting Yugma, access to website tools, resources, and reports for the Affiliate program, monthly newsletter, and access to the Affiliate Program support team. Commissions will be paid to members only when Yugma can validate in its log files that specified users came to Yugma through the use of the Affiliate Partner Code or URL. The commission structure is as follows: Yugma will pay You the equivalent of 15% of all Yugma monthly recurring revenues associated with users You have referred to Yugma's services when You i) referred a user to Yugma through the use of Your assigned Partner's URL or Partner Code, ii) the user upgrades to Premium Service within 100 days of the initial registration to the Yugma Service, iii) Yugma has collected payment from the referred user (i.e., no collections issues, credit card declines, etc.), and iv) the accumulated commission payment is at least $35 for the last three months (i.e., one quarter). In addition, Example of commission plan: If You refer a user and the user upgrades with 100 days to Premium-10 for USD $9.95 per month, then You will earn USD $1.49 per month while the account remains at the Premium level of service. The same method of calculation applies to the other Premium services. Yugma may change any Payout rate upon no less than 7 days written notice through email or newsletter communication with effect from the 8th day (or such later date as specified by Yugma.
(c) Prohibited Uses of Links.
(i) Locations. You may not place Links to Yugma'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 Yugma.
(ii) Non-Bona Fide Transactions. You must promote Yugma such that You do not mislead the Visitor, and such that the Links deliver bona fide Transactions by the Visitor to Yugma 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 on Yugma's proprietary rights (including but not limited to trademark rights), or a third party's proprietary rights.
(d) Updating Links. If Links to Yugma are not dynamically updated through the our service, upon notification You are obligated to update an Yugma's Links in order to earn Payouts.
2. Publisher Obligations to Yugma
(a) Accurate, Up-to-Date Information. You agree to provide Yugma 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 Yugma. Yugma 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 Yugma' 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 Yugma(s) by any means other than displaying a Link to the Yugma on Your Web site. Yugma must approve all of Your promotional activities and may deem Your promotional activities inappropriate and a material breach of this Agreement in Yugma'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 comply with Code of Conduct requirements as such as 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 Yugma) and (v) non-interference with competing Yugma/ publisher referrals.
(d) Personally Identifiable Information of Visitors.You represent and warrant that You will not enable the Partner Code to collect personally identifiable information of Visitors that would allow Yugma 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 Yugma's tracking technology, use of cookies and options for discontinuing use of such cookies.
(f) Applicable Codes.In order for Yugma to record the tracking of Visitors' Transactions resulting from clicks on Links to Yugma promoted by You, You must make proper use of the “Partner Code” that Yugma assigns to you.
(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 Yugma's negligent or willful conduct or omission). You shall provide Yugma with prompt written notification of any known or suspected unauthorized use of Your Account or breach of the security of Your Account.
3. Yugma's Services.
(a) Tracking Transactions and Payouts.Yugma shall determine (where possible) actual Payouts that should be credited to Your Account. Yugma may, in Yugma's sole discretion, apply an estimated amount of Payouts, if: (i) You are referring Visitors to Yugma as verified by clicks through Links to Yugma with Yugma Partner Code, (ii) where there is an error in Yugma's transmission of Partner Code data to Yugma, and (iii) where Yugma is able to utilize a historical analysis of Your promotion of Yugma to determine an equitable amount of estimated Payouts.
(b) Charge-backs. Yugma 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 Yugma; or (v) Publisher failure to comply with Yugma's Program terms or other agreement with Yugma ("Charge-back"). Charge-backs may be applied to Your Account at any time, including previous payment cycles.
(c) Access to Reporting Tools. Yugma shall provide You with access to tracking and reporting tools, and to support services. Tracking detail regarding Visitor Transactions is not available on a real-time basis and there may be reporting delays regarding Transactions.
(d) Support. Support for your program is available on-line through the "Affiliates" area in the Yugma website. Phone support may also be available during operating hours, except holidays.
(e) Facilitating Payment of Payouts. Subject to other provisions in this Agreement, Yugma shall credit Your Account with a Payout for each qualifying Transaction in accordance with the Yugma's Payout rate and Program terms for the relevant Transaction. On approximately the same day of each calendar month, Yugma 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.” Yugma shall have no obligation to make payment of any Payouts for which Yugma has not received payment from the relevant users of all monies due to Yugma. If Yugma elects, in its own discretion, not to make payment to You for amounts not received from a user(s), 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 to Yugma, however, Yugma disclaims any and all liability for such payment. You may elect to receive payment in any of the currencies that Yugma supports (as may be amended by Yugma). The conversion rate shall be determined in accordance with Yugma'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 Yugma, shall be final and binding on You.
(f) Dormant Accounts.If an Affiliates 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 Yugma'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 Yugma 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 Yugma.For each Affiliate Program that You have been accepted to, Yugma is granting to You the right to display and Link to the Yugma's Web site or Web site content in accordance with the Yugma's Program terms for the limited purposes of Promoting the Affiliate 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. Yugma owns all rights in and to all information regarding the Visitors that You refer to Yugma through Yugma.
(b) Yugma's Use of Your Marks. You authorize Yugma to utilize Your trademarks, service marks, tradenames, and/or copyrighted material that You provide to Yugma through Your Account to promote Your participation in the Network Services.
(c) Your Use of Yugma's Proprietary Rights.You agree that Your use of any Yugma Web site (such as www.Yugma.com) and Your use of any Yugma 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 Yugma.
(d) Retention of Rights.All proprietary rights of Yugma, You, and Yugma, and all goodwill arising as a result of such rights, inure to the benefit of such owner.
(e) No Challenge to Yugma's/Yugma's Proprietary Rights. You acknowledge that You obtain no proprietary rights in Yugma's trademarks, service marks, tradenames, URLs, copyrighted material, patents, and patent applications, and agree not to challenge Yugma's proprietary rights. You acknowledge that You obtain no proprietary rights in Your Yugma' proprietary rights, and agree not to challenge such Yugma's proprietary rights.
5. Confidentiality.
(a) Obligations. You or Yugma 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 Yugma any Confidential Information provided by Yugma to You under this Agreement.
(b) Provision of Info to Yugma/Third Parties.You agree that Yugma 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 Yugma. Yugma may provide any and all Visitor, Transaction and/or Partner Code data to the Yugma to which You referred such Visitor, and to any third party in Yugma's sole discretion, including but not limited to all regulatory, legislative and judicial bodies, and pursuant to allegations and claims of proprietary rights infringement. Yugma reserves the right to be able to utilize Partner 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 Yugma.
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 Yugma 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 Yugma, and any attempt to do so shall be null and void.
(b) Termination by Yugma.An Yugma may terminate You, one of Your Web sites, or Your ability to use a promotional method, from the Yugma's Program for any or no reason, upon 7 days written notice with effect from the 8th day. Additionally, Yugma may terminate You from the Yugma's Program for breach of a third party's proprietary rights, and/or diluting, tarnishing or blurring an Yugma's trademarks, tradenames, and/or service marks, or for Your material breach of the Yugma's Program terms or of this Agreement.
(c) Termination or Deactivation by Yugma. Yugma may terminate You, one of Your Web sites, or Your use of a promotional method, from an Yugma's Program, at any time in Yugma's sole discretion. Breach of any Section of this Agreement is cause for immediate termination from an Yugma's Program and/or termination of this Agreement, and may result in Chargeback of one or more Payouts. Yugma 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 Partner 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) Yugma determines You are diluting, tarnishing or blurring Yugma's proprietary rights; (v) You begin proceedings to challenge Yugma's proprietary rights; or (vi) a third party (including a Yugma 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 Yugma, via registered mail, return receipt requested or via an internationally recognized express mail carrier to Yugma, Inc., Attn: Legal Dept., Brenwood Office Park II, 5700 Smetana Drive, Suite 100, Minneapolis, Minnesota, 55343 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 Yugma 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 Yugma to You within 90 days of the termination date, and any outstanding debit balance shall be paid by You to Yugma 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 Yugma(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 Yugma liable for any of the consequences of such interruptions. Yugma 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 Yugma Yugma's, or Yugma'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. Yugma 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 Yugma liable to any proceedings whatsoever.
(e) Limitation of Liabilities. ANY OBLIGATION OR LIABILITY OF Yugma UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR PAYOUTS PAID TO YOU BY Yugma 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 Yugma SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY ANOTHER PUBLISHER OR AN Yugma 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, Yugma 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 Yugma'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. Yugma IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY Yugma OR PUBLISHER, OR SUCH Yugma OR PUBLISHER'S WEB SITE(S), AND/OR THE CONTENT OF AN Yugma'S WEB SITE OR THAT AN Yugma 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. Your Indemnification Obligations.
You shall indemnify and hold Yugma and Yugma 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 Yugma, directly or indirectly as a result of (a) Your breach of or non-compliance with this Agreement, (b) You violation of any law, or an alleged violation of law by Yugma, that is a direct or indirect result of Publisher's use of the Service, (c) Your use of the Service, (d) Your participation in any Program, (e) any content, goods or services offered, sold or otherwise made available by You to any person, (f) Your acts or omissions in using, displaying or distributing any internet links obtained from the Network Service or elsewhere, including but not limited to Your use of internet links via email distribution, (g) any claim that Yugma is obligated to pay tax obligations in connection with payment made to You pursuant to this Agreement and/or any Yugma's Program, and (h) any violation or alleged violation by You 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, Yugma shall promptly notify You, and Yugma shall be entitled, at its own expense, and upon reasonable notice to You, to participate in the defense of such Claim. You in the defense shall not waive or reduce any of Your obligations to indemnify or hold Yugma harmless. You shall not settle any Claim without Yugma’s 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 “Yugma” 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) Yugma's intellectual property; or (b) against Yugma's right to offer any service or good on Yugma's Web site(s) or if, in Yugma's opinion, such a claim is likely, Yugma shall have the right, at its sole option and in its sole discretion, to (i) secure the right at Yugma's expense to continue using the intellectual property or good or service; or (ii) at Yugma'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 Yugma Agreement.
(d) Choice of Law/Attorneys' Fees. This Agreement is governed by the laws of the State of Minnesota (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 Minneapolis, Minnesota. 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. Yugma 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 Yugma (1) due to operation of law, or (2) to an entity that acquires substantially all of Yugma'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. Yugma 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 Yugma may identify it as a Yugma 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, Yugma 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:
affiliate@yugma.com
Yugma, Inc.
Brenwood Office Park
5700 Smetana
Suite 100
Minneapolis , MN 55343 USA
phone: +1 (952) 400-0357
V: 2007-6-7 |
