Blue Phoenix Media Inc, Terms of Agreement |
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Last updated September 2, 2009 |
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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 265 Canal St., Suite 509, New York, NY 10013. 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 © 2008 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.
7. Privacy Policy: You agree to comply with all federal and state privacy laws and regulations. You must clearly and
conspicuously post on each website’s home page a privacy policy that: (a) discloses your privacy practices, (b)
identifies the collection and use of all personal information, and (c) provides the user with instructions as to opting
out from such collection.
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 California with technology legal issues,
the parties agree that this contract shall be construed and governed by the law of the State of California, 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
Santa Clara County, California
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 Santa Clara
County, California 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 California in Santa Clara County to appoint an
arbitrator. The Arbitration will be decided according to the substantive law of California and the parties and arbitrator
agree to follow the procedural rules for arbitration under California 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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