This Affiliate Partners Agreement (the “Agreement“) contains the complete terms and conditions that apply to your participation as an Affiliate Partner (“Affiliate Partner“) in the Affiliate Network of DistressedPro.com (“DistressedPro.com“).
WHEREAS, DistressedPro.com, among other things, sells and provides information regarding distressed real estate and loan data on the DistressedPro.com Site;
WHEREAS, the parties hereto desire to engage in a strategic relationship pursuant to which Links will be established between the Affiliate Partner Site and the DistressedPro.com Site and DistressedPro.com pays Affiliate Partner a referral fee for certain Linked Users, all on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
As used herein, the following capitalized terms and phrases shall have the following meaning ascribed to them in this Agreement: http://www.distressedpro.com/affiliate-network-application/
- “Affiliate Network Application” shall mean the form that the Affiliate Partner completes and submits to DistressedPro.com to participate in the Affiliate Network Program located at: .
- “Affiliate Network Program” shall mean the program managed by or on behalf of DistressedPro.com by which participating entities place Links on their web sites and e-mail communications and software applications that connect to the DistressedPro.com Site and DistressedPro.com pays each participating entity a referral fee for certain sales generated by the Linked User.
- “ DistressedPro.com Mark” shall mean any DistressedPro.com owned or licensed trademark, service mark or logo provided by DistressedPro.com to the Affiliate Partner hereunder.
- “DistressedPro.com Content” shall mean proprietary content of DistressedPro.com contained on the DistressedPro.com Site, or content contained on the DistressedPro.com Site which DistressedPro.com has the right to sublicense to the Affiliate Partner as contemplated herein. In no event shall the term ” DistressedPro.com Content” be deemed to include any copyrighted or otherwise proprietary content which DistressedPro.com neither owns nor licenses.
- “ DistressedPro.com Marks” shall mean the words “Distressed Pro” “DistressedPro,” and “DistressedPro.com” or any variation thereof.
- “ DistressedPro.com Product” shall mean any subscriptions or merchandise offered for sale by or on behalf of DistressedPro.com on the DistressedPro.com Site.
- “ DistressedPro.com Site” shall mean the world wide web site (including mirror or successor web sites) located at http://www.distressedpro.com.
- “DP Reporting Site” shall mean the Internet site located at http://www.distressedpro.com/amember/member.php maintained by or on behalf of DistressedPro.com that contains relevant forms, content and information for Affiliate Partner as described herein.
- “Link” shall mean the graphic or textual hyperlink in the form obtainable from the DP Reporting Site which when placed on the Affiliate Partner site and “selected” by a user of the Affiliate Partner site: (i) establishes a direct hyperlink connection from the Affiliate Partner Site to the DistressedPro.com Site and (ii) which contains technology provided by or on behalf of DistressedPro.com which allows DistressedPro.com to track sales generated by such Linked User on the DistressedPro.com Site. Such technology may be embedded in the URL.
- “Linked User” shall mean a user of the Affiliate Partner Site who connects directly to the DistressedPro.com Site through a Link and, prior to terminating an active browsing session with the DistressedPro.com Site or timing out of an active browsing session because of inactivity, purchases a Qualifying Good using the check out process located within the DistressedPro.com Site. As used herein an active browsing session is deemed terminated when such a user (i) completes a purchase of a Qualifying Good, (ii) leaves the DistressedPro.com Site prior to completing a purchase of a Qualifying Good, or (iii) conducts no browsing activity on the DistressedPro.com Site for a period not less than one day.
- “Net Sales Revenue” shall mean the gross revenue actually received by DistressedPro.com from a Linked User in connection with a Qualifying Purchase during the Term less (i) applicable sales taxes, duties, fees, and other similar charges, (ii) losses due to credit, charge and debit card fraud and bad debt, (iii) credits for returned goods, and (iv) the face value of any coupon or other discounts applied by such Linked User to such Qualifying Purchase.
- “Affiliate Partner Site” shall mean (i) the world wide web site, (ii) e-mail communication or (iii) software application which, in either case, is controlled by Affiliate Partner that contains a Link or DistressedPro.com Content in accordance with the terms of this Agreement.
- “Qualifying Good” means any DistressedPro.com Product purchased by a Linked User during the related browsing session (i.e., the browsing session immediately after the Linked User actually Links to the DistressedPro.com site) and for which DistressedPro.com has received full payment. Such DistressedPro.com product must (i) not have been canceled by such Linked User.
- “Qualifying Purchase Referral Fee” shall mean the fee payable by DistressedPro.com to Affiliate Partner as set forth in Section 7(a) hereof for each Qualifying Purchase during the Term.
- “Qualifying Purchase” shall mean a purchase of any Qualifying Good during the Term by a Linked User from the Affiliate Partner Site for which DistressedPro.com has received full payment.
- “Term” shall have the meaning ascribed thereto in Section 11(a) hereof.
2. LINKS AND CONTENT.
- As promptly as practicable after the date hereof, DistressedPro.com will make available to the Affiliate Partner via the DP Reporting Site Links and certain DistressedPro.com Content. Subject to the terms and conditions hereof, the Affiliate Partner shall display the Links and DistressedPro.com Content on the Affiliate Partner Site. The Affiliate Partner agrees not to remove or obscure any proprietary rights legends (such as copyright or trademark notices) contained in any Links or DistressedPro.com Content. Affiliate Partner further agrees not to decompile, reverse engineer, disassemble or otherwise reduce the Links or any DistressedPro.com Content to a human perceivable form or permit any other party to do so without the express authorization of DistressedPro.com.
- Affiliate Partner shall cooperate fully with DistressedPro.com in order to establish and maintain the Links. Affiliate Partner shall display on the Affiliate Partner Site only those DistressedPro.com-branded images or DistressedPro.com Content (indicating a Link) which are provided by DistressedPro.com, and will substitute such images with any new images provided by DistressedPro.com from time to time throughout the Term. DistressedPro.com will be responsible for providing hyperlink access to the DistressedPro.com Site for each Link.
- Affiliate Partner may display a “tool bar” or other frame or navigational mechanism (a “Tool Bar”) above the DistressedPro.com Site provided that the Tool Bar does not, without the express written consent, of DistressedPro.com: (i) promote or describe any third party or the products or services thereon; (ii) link to any third party site or application; or (iii) interfere with the technology, security or usability of the DistressedPro.com Site.
3. RESPONSIBILITIES OF DISTRESSEDPRO.COM.
DistressedPro.com will be solely responsible for processing every order placed by a Linked User for the purpose of tracking the volume and amount of DistressedPro.com Product sales generated by such Linked User and providing statistical information to the Affiliate Partner regarding DistressedPro.com Product sales to Linked Users. DistressedPro.com will be responsible for order entry, payment processing, shipping, cancellations, returns, and related customer service for such DistressedPro.com Product sales.
4. AFFILIATE NETWORK APPLICATION.
The Affiliate Partner shall submit a completed Affiliate Network Application to DistressedPro.com prior to accessing the DP Reporting Site. The purposes of the Affiliate Network Application shall be, among other things, (i) to enable the Affiliate Partner access to the DP Reporting Site to obtain Links and DistressedPro.com Content, and (ii) to establish an Affiliate Partner account and unique source identification code to enable DistressedPro.com to track purchases made by Linked Users. The Affiliate Partner shall be responsible to maintain the accuracy of the information it has provided to DistressedPro.com on the Affiliate Network Application by updating the information on the DP Reporting Site. DistressedPro.com may rely upon the information submitted by Affiliate Partner on the Affiliate Network Application as updated on the DP Reporting Site as accurate and complete. If any term or condition contained in the Affiliate Network Application conflicts with the terms of this Agreement, the terms of this Agreement shall govern.
5. SITE REQUIREMENTS.
- Each party will be solely responsible for the development, operation and maintenance of its site and for all materials that appear on its site. Such responsibilities include, but are not limited to:
- ensuring the technical operation of its site and all related equipment;
- ensuring the accuracy and appropriateness of materials posted on its site;
- ensuring that materials posted on its site do not violate any law, rule or regulation, or infringe upon the rights of any third party (including, for example, copyright, trademarks, privacy or other personal or proprietary rights); and
- ensuring that materials posted on its site are not libelous or otherwise illegal.
- Each party disclaims all liability for all such matters with respect to the other party’s site.
6. LICENSES AND RESTRICTIONS.
- Subject to the terms and conditions of this Agreement, including, but not limited to, the provisions of Section 12 hereof, DistressedPro.com hereby grants to the Affiliate Partner a non-exclusive, non-transferable, limited license to reproduce and display the DistressedPro.com Marks and DistressedPro.com Content in connection with the display of the Links and as otherwise contemplated in this Agreement; provided, however, that the Affiliate Partner shall not make any specific use of any DistressedPro.com Marks or DistressedPro.com Content without first submitting a sample of such use to DistressedPro.com and obtaining DistressedPro.com’s prior consent, which consent shall not be unreasonably withheld. Such license shall terminate upon the effective date of the expiration or termination of this Agreement, and the Affiliate Partner shall immediately cease using and remove or destroy all DistressedPro.com Marks and DistressedPro.com Content from the Affiliate Partner Site and any other Affiliate Partner’s materials.
- Any and all goodwill associated with uses of the DistressedPro.com Marks and DistressedPro.com Content shall inure solely and exclusively to the benefit of DistressedPro.com and its licensors.
- The Affiliate Partner Site shall not in any way copy or resemble the “look and feel” of the DistressedPro.com Site, nor will the Affiliate Partner create the impression that the Affiliate Partner Site is the DistressedPro.com Site or is a part of the DistressedPro.com Site. The Affiliate Partner Site shall not contain any content of the Distressed Pro Site or any materials which are proprietary to DistressedPro.com, except materials which are obtained by the Affiliate Partner via (1) the DP Reporting Site in accordance with the provisions hereof or the policies or instructions thereon, and (2) an express license from DistressedPro.com.
- Affiliate Partner shall not use the DistressedPro.com Marks or Distressed Pro Content: (1) to disparage DistressedPro.com, or its affiliates, products or services: or (2) for promotional goods or for products which, in Distressed Pro’s reasonable judgment, may diminish or otherwise damage Distressed Pro’s or its licensor’s goodwill in the DistressedPro.com Marks or the Distressed Pro Content, including but not limited to uses which could be deemed to be in poor taste or unlawful, or which purpose is to encourage unlawful activities.
- The DistressedPro.com Marks and DistressedPro.com Content must not be used in a manner that implies DistressedPro.com’s sponsorship or endorsement of the product, service, or content presented on the Affiliate Partner Site.
- The uniform resource locators (URLs), domain names or other identifiers of the Affiliate Partner Site shall not contain any DistressedPro.com Mark or any derivative thereof at their root or subdomain level without the express written consent of DistressedPro.com. Furthermore, Affiliate Partner may not purchase or otherwise contract with third parties to exploit any Distressed Pro Mark or derivative thereof for the purpose of causing the Affiliate Partner Site to appear as a search result or for any other reason.
- Affiliate Partner acknowledges that the DistressedPro.com Marks are valid service marks, trademarks, trade names and logos and the sole property of DistressedPro.com and its licensors, and Affiliate Partner shall not disparage or challenge the validity of the DistressedPro.com Marks.
- Without limiting any rights DistressedPro.com may have, if Affiliate Partner breaches any of the restrictions set forth in this Section 6(c), Distressed Pro has the right to: (1) invalidate any amounts attributable to such misuse of the DistressedPro.com Mark, DistressedPro.com Content or derivatives thereof; (2) seek reimbursement, or exercise set-off from future payments to Affiliate Partner, of any amounts paid to Affiliate Partner and attributable to such misuse of the DistressedPro.com Marks, Distressed Pro Content or derivatives thereof; and (3) seek injunctive relief or other appropriate relief in any state or federal court in the state of New York or any other court of competent jurisdiction (and Affiliate Partner hereby consents to the non-exclusive jurisdiction and venue in such courts).
- Affiliate Partner shall not use any DistressedPro.com Mark or Distressed Pro Content in a manner that would violate, or give DistressedPro.com or its licensors liability under, any applicable law including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”) and any CAN-SPAM Act regulations.
- Qualifying Purchase Referral Fee. For each Qualifying Purchase made during the Term, Affiliate Partner shall be entitled to receive from DistressedPro.com a Qualifying Purchase Referral Fee as follows:
- Subscription Membership. the Qualifying Purchase Referral Fee shall carry the following be five percent (5%) of related the Net Sales Revenue.
- One-time payment: Affiliate Partner shall receive fifty percent (50%) of the Net Sales Revenue attributed to the first month of subscription membership purchases made by Linked Users.
- Recurring payment: Affiliate Partner shall receive five percent (5%) of the Net Sales Revenue attributed to recurring monthly subscription membership purchases made by Linked Users.
- Subscription Membership. the Qualifying Purchase Referral Fee shall carry the following be five percent (5%) of related the Net Sales Revenue.
- Payment; Right of Setoff. Within approximately sixty (60) days after the end of each calendar quarter period, DistressedPro.com will forward to Affiliate Partner any unpaid Qualifying Purchase Referral Fee that exceeds one-hundred dollars ($100) (in any event, less any taxes required to be withheld under applicable law) via check along with a statement detailing the basis of such payment. Calendar quarter periods are (i) January 1 – March 31, (ii) April 1 – June 30, (iii) July 1 – September 30, (iv) October 1 – December 31. DistressedPro.com will be entitled to setoff any amounts payable hereunder against any overpayments to Affiliate Partner made under this Agreement.
8. ACCOUNTING; BOOKS & RECORDS; AUDIT RIGHTS.
- Accounting Information. DistressedPro.com will enable the Affiliate Partner to enter a password protected area on the DP Reporting Site and obtain the Affiliate Partner’s account information as of a recent date. Such information shall set forth the amount of Net Sales Revenue for related DistressedPro.com Products, the basis of the calculation thereof, the amount of Qualifying Purchase Referral Fee payable to the Affiliate Partner, if any, for such period.
- Audit Rights. Affiliate Partner’s only audit rights include the use of the DP Reporting Site.
9. POLICIES AND CUSTOMER INFORMATION.
- DistressedPro.com considers all users who visit the DistressedPro.com Site, including, without limitation, Linked Users, to be customers of DistressedPro.com. Accordingly, all DistressedPro.com rules, policies and operating procedures concerning customer orders, customer service and sales will apply to those customers. DistressedPro.com may change its policies and operating procedures at any time. DistressedPro.com shall have no obligation to share with any party any customer information collected by DistressedPro.com, including but not limited to the name, address, e-mail address, or other information collected. Furthermore, to the extent DistressedPro.com shares with Affiliate Partner any customer information that is collected by or on behalf of DistressedPro.com (e.g., information accessible at the DP Reporting Site), Affiliate Partner shall maintain such information in confidence as DistressedPro.com confidential and trade secret information in accordance with Section 12 hereof.
- DistressedPro.com will determine the prices to be charged for products and/or other merchandise sold in accordance with its own pricing policies. Prices and availability may vary from time to time. The Affiliate Partner shall not include price information in any descriptions on the Affiliate Partner Site. DistressedPro.com will use commercially reasonable efforts to present accurate information, but DistressedPro.com cannot guarantee the availability or price of any particular item.
10. REPRESENTATIONS AND WARRANTIES.
- The Affiliate Partner hereby represent and warrant to DistressedPro.com as follows:
- This Agreement has been duly and validly executed and delivered by the Affiliate Partner and constitutes the legal, valid and binding obligation of the Affiliate Partner, enforceable against the Affiliate Partner in accordance with its terms.
- The execution, delivery and performance by the Affiliate Partner of this Agreement and the consummation by the Affiliate Partner of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time or both, conflict with or violate (A) any provision of law, rule or regulation to which the Affiliate Partner is subject, (B) any order, judgment or decree applicable to the Affiliate Partner or binding upon the Affiliate Partner’s assets or properties, or (C) any agreement or other instrument applicable to the Affiliate Partner or binding upon the Affiliate Partner’s assets or properties.
- DistressedPro.com hereby represents and warrants to the Affiliate Partner as follows:
- This Agreement has been duly and validly executed and delivered by Distressed Pro and constitutes the legal, valid and binding obligation of Distressed Pro, enforceable against DistressedPro.com in accordance with its terms.
- DistressedPro.com is the owner or licensee of the DistressedPro.com Marks and/or has the right and power to license to the Affiliate Partner the Distressed Pro Marks and all right, title and interest in all materials created by employees of DistressedPro.com for or in connection with the DistressedPro.com Site, in the manner contemplated herein, and such license does not and will not breach, conflict with or constitute a default under any agreement or other instrument applicable to DistressedPro.com or binding upon its assets or properties.
- EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, NEITHER PARTY MAKES ANY REPRESENTATION THAT THE OPERATION OF ITS SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND SUCH PARTY WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
11. TERM; TERMINATION.
- The term of this Agreement will commence upon DistressedPro.com’s acceptance of the Affiliate Network Application and will end when terminated by either party in accordance with the terms hereof (the “Term”). Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination provided that DistressedPro.com may provide written notice to Affiliate Partner via e-mail or via a notice posted within the Affiliate Partner’s account within the DP Reporting Site.
- Qualifying Purchase Referral Fees accrued through the date of termination will remain payable only if the related orders are not canceled or returned. DistressedPro.com may withhold the Affiliate Partner’s final payment for a reasonable period of time, not to exceed six (6) months, to ensure that the correct amount is paid. Any amounts payable shall be made by check and forwarded to address of record in the DP Reporting Site.
- If either party terminates this Agreement for any reason, Affiliate Partner and the Affiliate Partner Site shall be prohibited from participating in the Affiliate Network Program without the express written consent of DistressedPro.com.
- Upon the effective date of termination or expiration of this Agreement, (i) each party shall return to the other party any confidential information of the other party, and shall immediately cease to use any of the other party’s trademarks and copyrighted materials, and (ii) the rights and obligations of each party hereunder shall terminate; provided, however, that all terms of this Agreement which by their nature extend beyond the termination of this Agreement, including, without limitation, the rights and obligations of the parties hereto under Sections 8, 10,11, and Sections 12 through 17 hereof, shall survive and remain in effect, and apply to respective successors and assigns. Furthermore, DistressedPro.com may message such termination to any Linked User that enters the DistressedPro.com Site after the effective time of such termination.
- Except as otherwise provided in this Agreement or with the consent of the other party hereto, the Affiliate Partner and DistressedPro.com each agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists and pricing and sales information, concerning the Affiliate Partner or DistressedPro.com, or any of their respective affiliates, provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by the party receiving such information for its own business purposes or for any other purpose, except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its affiliates. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (i) to any person pursuant to a subpoena issued by any court or administrative agency, (ii) to its accountants, attorneys or other agents on a confidential basis and (iii) otherwise as required by applicable law, rule, regulation or legal process including, without limitation, the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
- Notwithstanding anything contained herein, DistressedPro.com shall be permitted to share with third party publishers aggregate DistressedPro.com Product sales with respect to DistressedPro.com Products published by such third party publishers.
13. TRADEMARKS; PUBLICITY.
- Each party hereby covenants and agrees that the trademarks, trade names, service marks, copyrights and other proprietary rights of the other party are and shall remain the sole and exclusive property of that party and neither party shall hold itself out as having any ownership rights with respect thereto or, except as specifically granted hereunder, any other rights therein. In addition, except as expressly permitted hereunder, each party hereby covenants and agrees that it will make no use of the trademarks, trade names, service marks, copyrights and other proprietary rights of the other party.
- Affiliate Partner shall (i) permit DistressedPro.com to create written material which makes reference to the Affiliate Partner and the relationship hereto, save the consideration terms of this agreement (ii) permit DistressedPro.com to disclose to the public or any third party the relationship between Affiliate Partner and DistressedPro.com, including a press release to such effect.
- Affiliate Partner shall not (i) create, publish, distribute or permit any written material which makes reference to DistressedPro.com hereto without first submitting such material to DistressedPro.com and receiving the prior written consent of such party, which consent shall not be unreasonably withheld or delayed, nor (ii) disclose to the public or any third party the relationship between Affiliate Partner and DistressedPro.com or the transactions contemplated by this Agreement without receiving the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. THE AFFILIATE PARTNER IS PROHIBITED FROM ISSUING A PRESS RELEASE DESCRIBING THE RELATIONSHIP OR THE TERMS OF THIS AGREEMENT WITHOUT DISTRESSEDPRO.COM’S PRIOR APPROVAL.
14. INDEMNIFICATION FROM THIRD PARTY CLAIMS.
- Each party hereto (“Indemnifying Party”) shall defend, indemnify and hold harmless the other party hereto (“Indemnified Party”) from and against any suit, proceeding, assertion, damage, cost, liability, and expenses (including court costs and reasonable attorneys’ fees) incurred as a result of a claim or claims by a third party against Indemnified Party or its affiliates, licensors, suppliers, officers, directors, employees, members and agents, arising from or in connection with: (i) any representation or warranty made by the Indemnifying Party being untrue, (ii) any breach by the Indemnifying Party of any covenant or agreement made by it herein or (iii) the use by the Indemnified Party of the trademark, trade name, service mark, logo, copyright, proprietary method or technology of the Indemnifying Party in accordance with the terms hereof.
- The indemnification obligations set forth in Section 14(a) hereof are contingent upon the following conditions: (i) the Indemnified Party must promptly notify the Indemnifying Party in writing of the claim (however, failure of the Indemnified Party to so promptly notify the Indemnifying Party will not relieve the Indemnifying Party of its indemnification obligations hereunder, except to the extent it has been damaged thereby); (ii) the Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of the matter; and (iii) the Indemnifying Party will have primary control of the defense of the action and negotiations for its settlement and compromise; provided, however, that: (1) the Indemnified Party will have the right to approve any settlement or compromise that will impose any obligation upon it or which may adversely affect its rights under this Agreement or its rights to any materials subject to copyright, patent, trade secret or trademark protection; and (2) the Indemnified Party may, at its own cost, obtain separate counsel to represent its interests.
15. LIMITATION OF LIABILITY.
- IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE OR LOST PROFITS, ARISING FROM ANY PROVISION OF THIS AGREEMENT, EVEN IF SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- THE AGGREGATE LIABILITY OF DISTRESSEDPRO.COM AND ITS AFFILIATES, DIRECTORS AND OFFICERS ARISING WITH RESPECT TO THIS AGREEMENT OR THE AFFILIATE NETWORK PROGRAM SHALL NOT EXCEED THE QUALIFYING PURCHASE REFERRAL FEES PAYABLE TO AFFILIATE PARTNER UNDER THIS AGREEMENT.
16. CLAIMS LIMITATIONS; ARBITRATION.
- No action shall be commenced by Affiliate Partner against DistressedPro.com for breach of contract, nor shall any counterclaim or set off be interposed by Affiliate Partner by reason thereof, including without limitation, for monies due or to become due hereunder, or for the amount of any fees, discounts, allowances, or other deductions from remittances made on account of Qualifying Purchases hereunder unless such action is commenced or counterclaim or set off interposed within (1) year after the same accrues.
- Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered in Massachusetts by the American Arbitration Association under its Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated with any claim or controversy of any other party. The foregoing shall not preclude DistressedPro.com from seeking any injunctive relief or other appropriate relief in any state or federal court in the state of Massachusetts or any other court of competent jurisdiction (and Affiliate Partner hereby consents to the non-exclusive jurisdiction and venue in such courts) for protection of DistressedPro.com’s or DistressedPro.com licensor’s intellectual property rights.
- This Agreement shall be governed by and construed in accordance with the laws of the State of Massachusetts, without giving effect to the conflict of law principles thereof.
- Headings herein are for reference only and shall not affect the meaning of any terms.
- DistressedPro.com may change or modify any of the terms and conditions contained in this Agreement at any time in our sole discretion, and it is the sole responsibility of Affiliate Partner to remain apprised of changes. Modifications may include, but are not limited to, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Affiliate Network rules. If any modification is unacceptable to Affiliate Partner, Affiliate Partner’s only recourse is to terminate this Agreement. Affiliate Partner’s continued participation in the Affiliate Network following DistressedPro.com’s notification to Affiliate Partner or posting of a new agreement on the DistressedPro.com Site will constitute binding acceptance of the change. This Agreement was last modified on December 22, 2009.
- All notices, consents, requests, instructions, approvals, and other communications made, required or permitted hereunder (each herein, a “Notice”) shall be given in writing and delivered to the receiving party to its respective address set forth below (i) by personal delivery to the individual identified below, (ii) by certified or registered mail (return receipt requested), or (iii) by a nationally recognized courier. The effective date of such Notice shall be deemed to be the date upon which any such Notice is personally received by or on behalf of the addressee. Any party hereto may change its address set forth below by written notice to the other party hereto in accordance with the terms of this Section. If to DistressedPro.com, using the contact information noted at our contact us page. If to Affiliate Partner, to the contact information contained in its current member profile.
- This Agreement does not constitute either party an agent, legal representative, joint venturer, partner or employee of the other for any purpose whatsoever and neither party is in any way authorized to make any contract, agreement, warranty or representation or to create any obligation, express or implied, on behalf of the other party hereto.
- This Agreement and the provisions hereof shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their successors and permitted assigns; provided, however, that neither party shall have the right to assign its rights or obligations hereunder to any other person or entity except that DistressedPro.com may assign its rights and obligations hereunder to a subsidiary or affiliate of DistressedPro.com provided that DistressedPro.com remains jointly and severally liable with respect to such obligations.
- Each provision of this Agreement shall be considered severable and if, for any reason, any provision hereof is determined to be invalid and contrary to, or in conflict with, any existing or future law or regulation by any court or agency having valid jurisdiction, such provision shall be given the maximum permissible effect, and such invalidity or illegality shall not impair the operation or affect the remaining provisions of this Agreement; and the latter shall continue to be given full force and effect and bind the parties hereto and such invalid provisions shall be deemed not to be a part of this Agreement.
- Neither party shall be liable to fulfill its obligations hereunder, or for delays in performance, due to causes beyond its reasonable control, including, but not limited to, acts of God, acts or omissions of civil or military authority, fires, strikes, floods, epidemics, riots or acts of war.