|Blue Phoenix Media Inc, Terms of Agreement
|Last updated June 23, 2014|
PLEASE READ THESE ENTIRE PAGE THIS IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND US IF YOU DO NOT AGREE TO ALL OF THE TERMS, DO NOT VIEW THIS SITE YOUR VIEWING OF THIS SITE IS YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS HEREIN The Blue Phoenix Network program: Blue Phoenix Media operates one of the fastest growing affiliate networks due its aggressive search for quality advertisers with high return promotions and its selection of superior affiliates to publish those promotions. BPM posts advertiser’s promotions on this site which can be selected by affiliates to publish on their sites and earn commissions. In addition to the requirements in this contract, the promotions will contain additional specific terms. All terms of this contract and the specific terms of each promotion must be strictly followed for affiliates to earn a commission. BPM is responsible for tracking the conditions for earning a commission on each promotion, collecting payment from the advertiser, and disbursing payment to affiliates.
1. Legally Binding contract: This contract is between you individually as the viewer of this site and the business entity on whose behalf you are acting (whether as an affiliate or advertiser) and Blue Phoenix Media, Inc. a New York Corporation, and its subsidiaries including Blue Phoenix Network (collectively BPM) whose principal place of business is located at 320 West 37th St., Suite 1201, New York, NY 10018. In consideration of the mutual promises herein you represent that: (a) you are 18 years or older, (b) you are authorized by the business entity on whose behalf you are acting to bind that business entity to all of the terms and conditions in this contract, (c) you understand and accept all of the terms of this contract, and (d) you and the business entity on whose behalf you are acting agree to be bound by all of the terms herein. If you do not agree to be bound by all of the terms of this contract, you are not authorized to use or view this site.
2. Advertiser Approval: Advertisers are individuals, entities, websites, newsletters, and/or other merchants who wish to use BPM’s network and its affiliates to publish promotions. All advertisers must be approved by BPM to participate in its program. To become an authorized advertiser, you must submit the completed application on this site to BPM. Your participation in the BPM program is in BPM's sole discretion and may be withdrawn at any time with or without cause. You will be entitled to participate in the BPM program only upon receipt of an approval email from BPM. Advertisers must display all promotions for BPM’s affiliates on this site, and each promotion will be conducted and managed by BPM.
2.1. Offer Placement: An advertiser may not require where the advertisement or promotion can be placed on an affiliate’s site. If an advertiser is not satisfied with the placement, the advertiser must first notify BPM of its dissatisfaction to see if a resolution is possible. If no resolution is possible, the advertiser has the right to remove that affiliate from its promotion.
2.2. Advertiser Payment: Advertiser may specify the terms an affiliate must follow to display its promotions and earn a commission. Unless specified in an addendum to this contract, an affiliate earns the stated commission when a customer of affiliate follows the advertiser’s link on affiliate’s site completes a sale. Completed sales are those sales in which payment is received by the advertiser. A commission is not earned on a completed sale if a customer obtains a refund from advertiser through no fault of advertiser, or if the terms of this contract and any terms and conditions related to the specific promotion are not followed.
2.3 Advertiser Warranties and Indemnification. Each advertiser represents and warrants that you have the power and authority to make these representations and warranties, and that: (a) you have all necessary rights and authority to enter into this contract, (b) you own or have the right to use all materials on your websites, creatives, and promotional material, (c) your websites, creatives, and promotional material and the content contained therein will not infringe or violate the patents, copyrights, trademarks, rights of publicity, defamation, rights of privacy, moral rights, music performance or other music‐related rights, or any other right of any third party, (d) your websites, creatives, and promotional material will not contain any prohibited content as set forth in this contract, links to any such prohibited content, any illegal content, or any links to illegal content, (e) you, your websites, creatives, and promotional material will comply with all local, state and federal laws and regulations, (f) your performance of this contract will not conflict with or violate (i) any provision of law, rule or regulation to which you are subject; (ii) any applicable order, judgment or decree; (iii) any provision of your certificate of incorporation or other governing corporate documents; or (iv) any other applicable contract. If advertiser breaches any representation or warranty herein, advertiser agrees to hold harmless and indemnify BPM, its affiliates, and all persons or entities in privity with BPM, from all costs, damages, and expenses incurred by such indemnitees related to such breach including reasonable attorney fees.
3. Affiliate Use of BPM program: BPM will list on this site advertising promotions which you may select to publish. The promotion will specify the amount and terms for you to earn a commission. You must strictly follow those terms, and the terms of this contract, to earn a commission.
3.1. Affiliate Approval: Affiliates are individuals, entities, websites, newsletters, and/or other publishers of media who have the ability to display advertisements displayed on this site. You must be approved by BPM to participate in its program. To become an authorized affiliate, you must submit the completed application on this site to BPM. To maintain the high quality of affiliates which attracts the best advertisers, BPM's approval of your participation in the BPM program is in BPM's sole discretion and may be withdrawn at any time with or without cause. You will be entitled to participate in the BPM program only upon receipt of an approval email from BPM.
3.2. Affiliate License: Subject to the terms and conditions of this contract, and upon BPM's approval of your application, BPM grants you a revocable, non‐transferable, non‐exclusive limited license to use the BPM program and any data, reports, information or analyses arising out of such use solely for the purposes set forth in this contract. You may only access the BPM site via web browser, email or in a manner approved by BPM. You may not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the BPM site or any tags, source codes, links, pixels, modules or other data provided by or obtained from BPM that allows BPM to measure advertising performance and provide this service. Any alteration of integration tags may result in you not being paid for participating in any of BPM’s programs or promotions. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the BPM site, any content therein, or any portion thereof. You are not authorized to allow access to this site through your access by any person or entity that is not an approved affiliate, a subsidiary of an approved affiliate, or an officer, director, or employee of either.
3.3. BPM May Change Offer Terms: BPM shall display and administer all active promotions. BPM may change a promotion at any time in any manner in its sole discretion, including changing the creative materials or the amount of commission, or the terms for earning a commission. Any such change shall be deemed effective upon posting on the BPM site. BPM may also display the terms and conditions of particular advertiser's addendum to this contract.
3.4. Affiliate Acceptance of a promotion: You agree that you will use promotions and promotion related materials at your own risk. BPM has not verified the truth of any statement or claim made in any promotion, nor does BPM represent that any or all of the terms and conditions of any promotion comply with any or all federal or state laws or regulations. You agree to rely solely on your own due diligence, or that of the advertiser for such verification or compliance with law. You agree that upon accepting a promotion, you will comply with all of the terms and conditions in this contract, and of the promotion.
3.5. Affiliate May Not Modify Offer Terms: If you decide to publish a promotion, you agree to publish that promotion's creative strictly according to the terms of the promotion. Only creatives associated with the promotion may be published on your media, and that creative may not be modified without express prior written consent by BPM and the advertiser.
3.6. Calculation of commission: BPM shall compile and calculate data required to determine your commission. Any questions or disputes regarding your commission must be submitted in writing within ten (10) calendar days after your receipt of such commission, or the commission will be deemed accepted and undisputed. In the event of a conflict between you and BPM regarding any data or calculation regarding the commission, BPM's data and calculations shall control.
3.7. Affiliate Payment. Payment shall be made to you approximately thirty (30) days after the end of the month in which a commission was earned, less any returns and charge backs, and pursuant solely to BPM's reports. All payments to you by BPM are contingent upon BPM receiving payment from an advertiser. If BPM does not receive a payment from an advertiser for which the affiliate has earned a commission, BPM shall have no obligation to pay affiliate that commission. You accept all risks associated with non‐payment by an advertiser and agree that BPM is not a guarantor of any advertiser payment obligation. If an advertiser pays late, BPM will credit you in the month such payment is received and will pay you when BPM is next scheduled to send you a payment. If the compensation owed to you for any one month period is less than $100.00 US, BPM will hold payment until the total amount due is at least $100.00 US. International users (outside of the United States) agree to a minimum $200.00 US payment before payment will be issued.
3.8. Affiliate Tax ID. To receive any payment your account must have a unique taxpayer identification number or Social Security Number. You must give BPM a W9 form that includes your Federal Tax ID Number or your Social Security Number if your business operates in the Unites States, or a W8 form if your business operates outside of the United States. You agree to provide BPM with valid contact information, including your full name, email address and physical mailing address (PO Box in not an acceptable physical address and payments will not be sent to a PO Box).
4. Prohibited Conduct: In order to maintain the integrity of BPM’s affiliate Network, BPM may terminate your rights under this contract if you engage in conduct which BPM deems unacceptable in its sole discretion. By way of example, and not intended to be all inclusive the following are some activities which BPM deems unacceptable:
4.1. Fraudulent Activity: You will not engage in any Fraudulent Activity. This includes, but is not limited to: (a) click through rates that are higher than industry averages where clear proof justifying such click‐through rates is not evident to the satisfaction of BPM, (b) leads or clicks generated through fraudulent traffic generation, such as prepopulation of forms or other fraudulent means as determined by advertisers, (c) fake redirects, automated software, or fraud to generate commissions, or (f) the frequent or automated searching of a search term to reduce competitors’ click‐thru rates on their advertisements.
4.2. Prohibited Content. The content of your website(s), newsletters, emails or any other media used by you in connection with a promotion must : (a) not include racial, ethnic or political hate‐mongering or otherwise objectionable content, (b) not include investment, money‐making opportunities or advice not permitted under law, (c) not include violent imagery or profanity, (d) not include pornographic, obscene, sexually explicit or related content, (e) not include material that defames, abuses, is libelous, is tortuous or threatens physical harm to others, (f) not include material that impersonates any person or entity, (g) not include any indication that any statements you make are endorsed by BPM, (h) not include promotion of illegal substances or activities, (i) not include material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation, (j) not include content which is inappropriate or harmful to children, (k) not include software pirating, (l) not include hacking, spoofing, phishing or phreaking, (m) not include any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, (n) not include any software, product or service that is illegal or that violates the rights of a third party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements, services that send unsolicited advertisements, programs designed to initiate "denial of service" attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet, (o) not include any software, product or service that harvests or collects the personal information of Internet users, whether or not for commercial purposes, without the express consent of such users, (p) not include any spoofing, redirecting or trafficking from other websites in an effort to gain traffic, (q) not include any content that infringes upon the intellectual property rights of any person or entity, (r) not include any material that otherwise infringes upon the rights of others including, without limitation, false advertising, unfair competition, invasion of rights of publicity or privacy, violation of any anti‐discriminatory law or regulation, or any other right of any person or entity, (s) not include gambling, lotteries, or raffles, (t) not include any illegal activity whatsoever including any violations of applicable state or federal law or regulation, or the laws of any other jurisdiction in which you conducts business, (u) not include third party website internal communications systems, including but not limited to internal website email, bulletin boards, chat rooms, or comments, (v) be a site that is fully functional at all levels, with no "under construction" sites or sections, (w) not include a site which is only of a list of links or advertisements or solely consists of a promotion, (x) only contain English language content, (y) not include spawning process pop‐ups or cause more than one pop‐up window to appear, or (z) not offer incentives to users to click on advertisements, such as awarding customers cash, prizes, points, awards or other items of value to click on such advertisements unless you have prior written permission from BPM or the advertiser to do so.
4.3. CAN‐SPAM Act Compliance Required: BPM strictly prohibits the transmission, distribution or delivery of any unsolicited bulk email or unsolicited commercial email. You must comply with all state and federal laws and regulations relating to all commercial emails including the CAN‐SPAM Act of 2003 and all amendments thereto which can be viewed at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_public_laws&docid=f:publ187.108.pdf You must also comply with FTC rules relating to Definitions, Implementation, and Reporting Requirements Under the CAN‐SPAM Act see: http://www.ftc.gov/bcp/conline/edcams/spam/rules.htm If these links become disabled, you are nonetheless responsible for compliance with those laws and regulations. Many states have specific laws and regulations relating to commercial emails which may be different than the federal CAN‐SPAM ACT and may not be pre‐empted by the federal CAN‐SPAM ACT. It is your responsibility to comply with all such laws in every state.
4.4. BPM Discretionary Email Requirements: In addition to what may be prohibited under federal or state laws and regulations, BPM has the sole discretion to determine what is the unacceptable use of emails. By way of example only, and not intended to be all inclusive, you or your emails must: (a) Not display false or misleading header or routing information, (b) Not use subject lines that are deceptive or misleading to the recipients, (c) Include a clear and conspicuous notice and a mechanism for the email's recipient to opt‐out of future email messages, (d) Provide a functioning return address or other Internet‐based way for a recipient to opt‐out [an e-mail recipient cannot be required to pay a fee, provide information other than his or her e-mail address and opt-out preferences, or take any steps other than sending a reply e-mail message or visiting a single Internet Web page to opt out of receiving future e-mail from a sender] (e) Not send email to a recipient more than ten days after their opt‐out request, (f) Provide clear and conspicuous identification that the message is an advertisement or solicitation unless the recipient has provided prior affirmative consent through an opt‐in, (g) Have an active return email address for each commercial email sent so that the recipient of the email may reply to opt‐out for thirty days from the original transmission, (h) Be maintained in such a manner as to provide a record of each request for removal and a record of the actual removal of those email addresses from your list and you must provide those records to BPM upon request, (i) Display the sender's valid physical postal address, (j) Not use or create mailing lists through automated means of harvesting email addresses from the Internet, or automated means of creating possible email addresses, (k) Not use automated means to create multiple email accounts from which to send commercial email, (l) Not alter, change or modify pre‐approved "subject lines," (m) Not use a free email account (such as Yahoo!, Gmail, Hotmail, AOL, etc.) for the "from" address, (n) Not contain any content that infringes or violates any intellectual, proprietary or privacy rights, (o) Not contain any content that is misrepresentative or defamatory, or contains racial, ethnic, political, hate mongering or otherwise objectionable content; (p) Be sent only to recipients who have opted‐in to receive emails from you. (If you maintain bulk opt‐in email lists, obtain bulk email lists via third‐party marketing campaigns, or use or access bulk opt‐in emails lists, you must maintain records of the actual subscriptions to such lists and you must be able to provide: (i) date; (ii) time; (iii) originating IP; and (iv) the location from which the email address or other recipient information was obtained and provide that information to BPM upon their request.
4.5 Termination for Abuse: If you engage in any Fraudulent Activity, use any Prohibited Content, send commercial emails in violation of federal or state laws or regulations, or send or cause to be sent emails unacceptable as determined by BPM in its sole discretion, BPM may require you to forfeit your entire commission for all programs and may, and in addition to all other rights and remedies BPM has, terminate this contract and all of your rights hereunder.
4.6. Third party Publishers: If affiliate allows a third party publisher to access BPM’s programs and BPM decides in its sole discretion that such third party publisher is engaging, or has engaged, in any prohibited conduct, or fraudulent activity, or violated BPM’s email requirements, affiliate agrees to terminate the third party publisher's participation in the BPM program. BPM may recalculate and withhold the affiliate's commission even if affiliate did not participate in or did not know about the prohibited conduct. If affiliate fails to immediately terminate the third party publisher’s access to BPM’s programs, BPM may immediately terminate this contract and affiliate forfeits all rights hereunder.
4.7. Monitoring site(s): You agree that BPM may use any means of monitoring your activities in connection with BPM’s programs, including the use of seed email accounts, third party monitoring services, proprietary monitoring systems, and through monitoring your promotional activities. BPM may actively monitor your website, subscriber lists and emails for compliance with this contract. In the event you receive a complaint from an email recipient, or a request or inquiry for details regarding where the email recipient opted‐in to receive email communications from you, you agree to respond to such complaints or inquiries within seventy‐two (72) hours and to provide BPM with records of such complaint or request and your response thereto whenever BPM requests such records.
4.8 Notice of Investigation. If you become aware of any litigation or investigation concerning your internet practices or procedures, you will immediately notify BPM even if such litigation or investigation does not relate to your participation in any BPM program.
5. Intellectual Property: BPM or its licensors own, or have the rights to, all of the content on this site including logos, graphics, text, files, advertisements, and the arrangement and organization of the content of this site, as well as the underlying technology, software, applications, data, and methods of doing business. You agree that you do not have, nor will you ever claim any right, title or interest in the ownership or other rights of BPM or its licensors. Your sole right to use any such property is limited to the rights granted to you by this contract. You also agree that all site Data, including non‐public information, data, and reports received from BPM as part of the BPM program are proprietary to and owned by BPM. If instructed to do so by BPM, or upon termination of this contract, whichever first occurs, you will immediately destroy and discontinue the use of any such data. Unless otherwise specifically noted herein, this website and all of its contents are Copyright © 2012 by Blue Phoenix Media, Inc. with all rights reserved. No part of this website may be reproduced or used without the prior written permission of BPM, except as expressly granted in this contract.
6. Confidential Information. Confidential Information shall include all information or material that has or could have commercial value or other utility in the business in which Disclosing party is engaged which could be reasonably assumed to be confidential. Receiving party's obligations under this contract do not extend to information that is: (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Receiving party; (b) discovered or created by the Receiving party before disclosure by Disclosing party; (c) learned by the Receiving party through legitimate means other than from the Disclosing party or Disclosing party's representatives; or (d) is disclosed by Receiving party with Disclosing party's prior written approval. Receiving party shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of the Disclosing party. Receiving party shall carefully restrict access to Confidential Information to employees, contractors and third parties and will be liable for any unauthorized disclosure by such persons. Receiving party shall not, without prior written approval of Disclosing party, use for Receiving party's own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of Disclosing party, any Confidential Information. Receiving party shall return to Disclosing party any and all records, notes, and other written, printed, or tangible materials in its possession pertaining to Confidential Information immediately if Disclosing party requests it in writing. The nondisclosure provisions of this contract shall survive the termination of this contract and Receiving party's duty to hold Confidential Information in confidence shall remain in effect until the Confidential Information no longer qualifies as a trade secret or until Disclosing party sends Receiving party written notice releasing Receiving party from these restrictions regarding confidential information, whichever occurs first.
8. Offsets. If you have an outstanding balance due to BPM or any of BPM’s related business entities, you agree that BPM may offset any such amounts due to BPM or its related business entities from amounts payable to you under this contract. If you have materially breached any of the terms of this contract , BPM may, in addition to all other remedies available to BPM, revoke all payments due you.
9. Term and Termination.
9.1. Term. This contract shall begin upon BPM's sending you an email approving your application. This contract will remain in effect for an initial term of one (1) year unless terminated by either party as provided herein. Unless terminated this contract shall automatically renew for successive one (1) year terms.
9.2. Termination. In addition to any other termination rights contained herein, you or BPM may terminate this contract with seven (7) days written notice to the other without cause. This contract may also be terminated immediately, if the other party, (a) files for bankruptcy, (b) makes an assignment for the benefit of its creditors, or (c) materially breaches any term of this contract. BPM reserves the right, in its sole discretion, to terminate a promotion or your participation in a promotion at any time. BPM also reserves the right to terminate your access to the BPM site at any time with or without notice to you.
9.3 Payment on Termination: There will be no payments made to an affiliate after the date of termination, including any payments due but not paid prior to the date of termination. If you as an advertiser owe BPM any payments, all such payments become immediately due upon termination of this contract.
9.4 License Revocation on Termination. Upon termination of this contract for any reason, any and all licenses and rights granted to you in connection with this contract shall immediately cease and terminate. You agree that if instructed to do so by BPM or if this contract terminates, you will immediately (a) discontinue the use of the BPM program, (b) cease to use and remove from your websites all advertisements or related materials made available to you in connection with your participation in the BPM program, and (c) cease transmitting all emails in connection with any promotion.
10. Representations and Warranties; Indemnification; Limitation of Liability.
10.1 Your Representations and Warranties. Your failure to adhere to the following representations and warranties may result in immediate termination of this contract and a revocation of your rights hereunder, including the right to receive a commission if applicable. You represent and warrant, on behalf of yourself and all related entities, that you have the power and authority to make these representations and warranties, and that you and your websites: (a) have all necessary rights and authority to enter into this contract, (b) own or have the right to use all materials on your websites, (c) your websites and the content contained on your websites will not infringe or violate the patents, copyrights, trademarks, rights of publicity, defamation, rights of privacy, moral rights, music performance or other music‐related rights, or any other right of any third party, (d) your websites will not contain any prohibited content as set forth in this contract, links to any such prohibited content, any illegal content, or any links to illegal content, (f) will not alter the creative materials provided in any way, unless you receive prior written authorization by BPM and the advertiser, or such authorization is contained in the advertiser’s promotional terms, (g) will comply with all local, state and federal laws and regulations, (h) will not transmit any email in violation of the terms of this contract, (i) you (as an affiliate) will download and remove the email addresses containing the domains located on the FCC's wireless domain list from any list used in connection wit programs, (j) your performance of this contract will not conflict with or violate (i) any provision of law, rule or regulation to which you are subject; (ii) any applicable order, judgment or decree; (iii) any provision of your certificate of incorporation or other governing corporate documents; or (iv) any other applicable contract, (k) will not attempt to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the site tags, source codes, links, pixels, modules or other data provided by or obtained from BPM that allows BPM to measure ad performance and provide its service. (l) if instructed to do so by BPM or if this contract terminates, you will immediately remove and discontinue the use of any site Data; and (m) you will not post any specific messages identifying BPM or relating to BPM or any promotion to newsgroups, chat rooms, bulletin boards, blog comments that utilize social website internal email systems or any other places without express prior written approval is obtained from BPM.
10.2 BPM’s Disclaimer of Warranty. THE PROGRAMS, WEBSITE AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." TO THE MAXIMUM EXTENT PERMITTED BY LAW. BPM, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO ITS PROGRAMS AND THIS WEBSITE AND SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS. NEITHER BPM NOR ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE WEBSITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE WEBSITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR‐FREE. NEITHER BPM NOR ITS LICENSORS OR SUPPLIERS HAS ANY LIABILITY WHATSOEVER IN CONNECTION WITH YOUR USE OF THE WEBSITE OR SERVICES. ADDITIONALLY, BPM HAS NOT AUTHORIZED ANYONE TO MAKE ANY WARRANTY OF ANY KIND ON ITS BEHALF, AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT BY ANY THIRD PARTY.
10.3 Indemnification. You, on your own behalf, and on behalf of all related entities, will defend, indemnify, and hold harmless BPM, and its officers, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney's fees and expenses) arising from or related to: (a) any material breach of your obligations under this contract or any promotion terms and conditions, including the representations or warranties contained therein, (b) any claim that your conduct infringes upon any rights of any third party, (c) any allegation that you, your related entities, or other agents violated any foreign, federal, state or local law or regulation, (d) your improper or unauthorized use of the BPM site or any program or promotion, (e) any third party claim related to the your website, emails or marketing practices, (f) any content, goods or services promoted, sold or otherwise made available by you on or through the your website, emails or otherwise, or (g) a third party publisher's breach of any obligations or warranties set forth herein. BPM reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the affiliate hereunder and affiliate is nonetheless liable for all BPM’s costs and expenses including reasonable attorney’s fees when and as incurred by BPM.
10.4. Limitation of Liability OF BPM. UNDER NO CIRCUMSTANCES SHALL BPM BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS OR LOST DATA (EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTORY OR ANY OTHER THEORY OF LEGAL OR EQUITABLE LIABILITY ARISING FROM THIS CONTRACT OR RELATED TO THE SUBJECT OF THIS CONTRACT, THE BPM SITE, PROGRAM, SERVICE OR ANY ASPECT OF THE RELATIONSHIP PROVIDED HEREIN. NO ACTION, SUIT OR PROCEEDING SHALL BE STARTED OR BROUGHT AGAINST BPM MORE THAN ONE (1) YEAR AFTER THE DATE OF ANY CLAIMED BREACH OR OTHER BASIS OF CLAIM FOR DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY REMEDIES HEREUNDER AND APPLY REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11. Non‐Solicitation. You agree that BPM has proprietary relationships with the affiliates and advertisers that participate in the BPM program. You agree not to circumvent BPM's relationship with such parties, or otherwise solicit, induce, recruit or encourage, directly or indirectly, any such party that is known by you to participate in the BPM program or otherwise have a business relationship with BPM for purposes of obtaining advertising, marketing or promotional services similar to those promoted by BPM during the term of this contract and for six (6) months immediately following termination or expiration of this contract. However, if any such party already provided such services to you prior to the effective date of this contract, then you shall not be prohibited from continuing such relationship. If you breach this section, you must pay BPM fifty percent (50%) of the gross revenues resulting from sales conducted by such party through your advertising or marketing efforts.
12. Miscellaneous Important Terms and Conditions
12.1. Entire contract. This contract constitutes the entire contract between the parties and supersedes all prior contracts or understandings between the parties whether written or oral.
12.2. Assignment. You will not assign this contract and any rights or obligations hereunder without the express prior written consent of BPM, which shall not be unreasonably withheld.
12.3. Notices. All notices under this contract must be in writing and delivered by personal service, confirmed fax, confirmed email, express courier, or certified mail return receipt requested, to the address of the receiving party as provided herein, or at such different address as may be designated by such party by confirmed written notice to the other party from time to time. Notice will be effective on the date and time of confirmed receipt.
12.4. Governing Law and Venue: Due to the extensive experience of the State of New York with technology legal issues, the parties agree that this contract shall be construed and governed by the law of the State of New York, without regard to any conflict of law principles. The parties agree that any action or proceeding between the parties arising out of, or related to, this contract, or the subject matter of this contract, must be brought in state or federal court in New York County, New York
12.5. Arbitration: If any dispute arises under or related to this contract or the subject thereof, the parties agree to submit the dispute to binding Arbitration before a mutually agreed‐upon single neutral arbitrator in New York County, New York or such other location as the parties may agree in writing. The arbitration process shall begin by written notice by one party to the other. If the parties cannot agree upon an arbitrator within 30 days of receipt of written notice, either party may apply to the Superior Court of New York in New York County to appoint an arbitrator. The Arbitration will be decided according to the substantive law of New York and the parties and arbitrator agree to follow the procedural rules for arbitration under New York law. All formal discovery must be reasonable in view of the amount in controversy and must be approved in advance by the arbitrator. Judgment upon the award may be entered in any court having jurisdiction to do so. All reasonable costs of arbitration, including attorney fees and the fees of the arbitrator, shall be awarded the prevailing party by the arbitrator.
12.6. Waiver. No failure of either party to enforce any of its rights under this contract will act as a waiver of such rights. No waiver by either party of any breach of any provision herein shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.
12.7. Independent contractor. The parties to this contract are independent contractors. Neither party is an agent, representative, partner, employee, or joint venturer of the other party. Neither party will have any right, power, or authority to enter into any contract on behalf of, or incur any obligation or liability of, or to otherwise bind the other party.
12.8. Modification: BPM may modify this contract at any time, in its sole discretion by posting a modified contract accessible by a link on the home page of its website under the heading Terms & Conditions. The posting date of the modified contract will appear at the end of the modified contract. Such modified contract will be binding and effective within three (3) business days of your next viewing the website or using, or continuing to use, any promotion, whichever is later unless you serve written notice of your termination of this contract. The modified contract will apply to all existing promotions as well as all future promotions.
12.9. Construction: Severability. Each party agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this contract. This contract shall not be construed against either party by reason of its drafting. In the event that any provision of this contract conflicts with the law under which the contract is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the contract (a) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants, and restrictions of the contract will remain in full force and effect.
12.10. Survival: Unless specifically noted herein, all rights and duties of the parties survive termination of this contract.
12.11. Addendum to this Contract: Specific circumstances may require the parties to add an addendum to this contract specifying additional terms and conditions applying solely to those parties. Any addendum to this contract must be in writing and signed by all parties to the addendum. If any term in the addendum is inconsistent with any term in this contract, then the term in this contract will prevail, UNLESS the specific term in this contract and its paragraph number is listed in the addendum and expressly that the inconsistent term in the addendum will prevail over the specified term in this contract.
12.12. Force Majeure. Neither party shall be deemed in default of this contract to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, natural disaster, riots, acts of government, or any other cause beyond the reasonable control of such party.
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