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General Information
5. Commission Payment a. WE GRANT YOU, DURING THE TERM OF THIS AGREEMENT, A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH THE LINKS SOLELY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND (ii) SOLELY IN CONNECTION WITH SUCH LINKS, TO USE THE E-booksEmporium.com TRADEMARK AND LOGO AND SIMILAR IDENTIFYING MATERIAL RELATING TO US BUT ONLY IN THE FORMS THAT WE PROVIDE TO YOU (COLLECTIVELY, THE "LICENSED MATERIALS"), FOR THE SOLE PURPOSE OF PROMOTING E-booksEmporium.com Products and LINKING YOUR SITE TO OUR SITE, WHERE YOUR USERS CAN PURCHASE E-booksEmporium.com PRODUCTS. YOU MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN ANY WAY. WE RESERVE ALL OF OUR RIGHTS IN THE LICENSED MATERIALS. YOU ARE ONLY ENTITLED TO USE THE LICENSED MATERIALS TO THE EXTENT THAT YOU ARE A MEMBER IN GOOD STANDING OF THE AFFILIATE PROGRAM. WE RESERVE ALL OF OUR RIGHTS IN THE LICENSED MATERIALS AND ANY OTHER MATERIALS WE MAY PROVIDE TO YOU. WE MAY REVOKE YOUR LICENSE AT ANY TIME UPON WRITTEN NOTICE TO YOU. b. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light. c. You grant to us a non-exclusive license to utilize your names, titles, and logos, as the same may be amended from time to time to advertise, market, promote, and publicize in any manner our rights hereunder; provided, however, that we shall not be required to so advertise, market, promote, or publicize. This license shall terminate upon expiration or termination of this Agreement. 10. Obligations Regarding Your Site a. You agree that you are solely responsible for, and we have no liability for, the development, operation, or maintenance of your site, or for any materials contained on your site. Such responsibilities include, but are not limited to, the technical operation of your site and all related equipment; creating and posting product reviews, descriptions, and references on your site and linking those descriptions to our catalogue; the accuracy and propriety of materials posted on your site (including, but not limited to, all E-booksEmporium.com Product-related materials); ensuring that materials posted on your site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. We disclaim all liability for such matters. You further agree to defend and indemnify us, our parent and affiliate companies, and our and their officers, directors, employees and agents ("Indemnified Persons") from and against any and all claims, suits, damages, costs, liabilities, expenses (including attorneys fees and costs) arising out of or related to the development, operation or maintenance of your site, or for any content contained on or in your site. b. You agree that your site will not, in any way, copy or resemble the look and feel of our site, nor will you create the impression that your site is our site or is a part of our site, nor will you frame any page on the E-booksEmporium.com site being viewed by a user of your site who links to the E-booksEmporium.com site through a Link. c. You represent and warrant that your site does not currently contain and will not contain any content, or links to any material that is in any way unlawful, infringing, harmful, threatening, harassing, defamatory, or violent. d.You also agree that your site will not contain any content from our site or any materials that are proprietary to us or any of our affiliates except with our prior permission, or to the extent that materials are obtained by you strictly in accordance with the provisions of this agreement. You further agree that your domain name does not and will not contain the words "E-booksEmporium.com" or any variation thereof (collectively, the "E-booksEmporium.com marks") or misspelling. You agree not to purchase or otherwise contract with any third party to exploit any of the E-booksEmporium.com marks for the purpose of causing the Affiliate site to appear as a search result or for any other reason. 11. Term of Agreement and Termination The term of this Agreement will begin upon our acceptance of your Affiliate Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. You are only eligible to earn commissions on sales occurring during the term, and commissions earned through the date of termination will remain payable only if the related Qualified Purchases are not cancelled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. 12. Modification We may modify any of the terms and conditions contained in this Agreement at any time in our sole discretion. Modifications may include, but are not limited to, changes in the scope of available commissions, commission payment schedules, payment procedures, and Affiliate Program rules. If any modification is unacceptable to you, your only recourse is to terminate this agreement. Your continued participation in the Affiliate Program following our posting of a change notice or new agreement on our site will constitute binding acceptance of the change. 13. Relationship of Parties You and E-booksEmporium.com are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any representations regarding the association of Commission Junction, Inc. with E-booksEmporium.com or you. 14. Disclaimers NEITHER E-booksEmporium.com NOR ITS SUPPLIERS MAKES ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE AFFILIATE PROGRAM OR TO ANY E-booksEmporium.com Products SOLD THROUGH THE AFFILIATE PROGRAM (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, NEITHER E-booksEmporium.com NOR ITS SUPPLIERS MAKE ANY REPRESENTATION THAT THE OPERATION OF THE E-booksEmporium.com Site WILL BE UNINTERRUPTED OR ERROR FREE, AND NEITHER E-booksEmporium.com NOR ITS SUPPLIERS WILL BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. 15. Representations and Warranties You represent and warrant to us that: (i) you have the right and authority to enter into this Agreement and perform your obligations under the Agreement; (ii) you are the sole and exclusive owner of the Affiliate trademarks and have the right and power to grant to us the license to use your trademarks in the manner provided for in this Agreement; (iii) you are an adult of at least 18 years of age; and (iv) you are not an employee or immediate family member of E-booksEmporium.com or any of its affiliated companies. 16. Confidentiality You agree that all customer information related to the E-booksEmporium.com Affiliate Program belongs to us. You agree to protect as confidential all E-booksEmporium.com Affiliate Program customer information and Affiliate Program business, financial and sales information related to us, you, or our suppliers (collectively, "Information"), not to disclose Information to any third parties, and not to use Information for any purpose other than the purposes of this Agreement. You agree to protect Information using methods at least as protective as those you use to protect your own information of a confidential nature, but in no event, using less than a standard of reasonable care. Your obligations under this paragraph 17 shall not apply to any portion of Information which is already freely publicly available through sources other than you. 17. Limitation of Liability NEITHER E-booksEmporium.com NOR ITS SUPPLIERS WILL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND YOU WAIVE ALL RIGHTS TO ANY CLAIMS FOR ANY SUCH DAMAGES. FURTHER, THE AGGREGATE LIABILITY OF E-booksEmporium.com AND ITS SUPPLIERS WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT. 18. Indemnification You agree to indemnify and hold harmless E-booksEmporium.com and its affiliated companies, and suppliers, and their directors, officers, employees, and shareholders, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses, including reasonable attorneys' fees, ("Losses") insofar as such Losses, or actions in respect of Losses, arise out of or are based on (i) any claim that our use of Affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you, or (iii) any claim related to your site, including, without limitation, claims regarding content on your site. 19. Uncontrollable Circumstances E-booksEmporium.com's performance under this Agreement shall be excused to the extent that its performance is hindered, delayed or made commercially impractical by causes beyond its reasonable control. 20. Independent Investigation YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. 21. Governing Law; Jurisdiction; Venue This Agreement will be governed by the laws of the United States and the State of Delaware, without reference to rules governing choice of law. Any action relating to this Agreement must be brought and maintained exclusively in the federal or state courts located in the State of Delaware, and you irrevocably consent to the jurisdiction of such courts. Each of us hereby waives any defenses based upon the venue, the inconvenience of the forum, the lack of personal jurisdiction, the sufficiency of service of process or the like in any such action or suit brought in the State of Delaware. 22. No Assignment; Waiver You may not assign this Agreement. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement. |
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