PLEASE READ THE ENTIRE AGREEMENT.
YOU MAY PRINT THIS PAGE FOR YOUR RECORDS.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND CHIOMA Nutrition, LLC.
BY SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
CHIOMA Nutrition Brand Ambassador Terms & Agreement
We are so pleased to have you join the CHIOMANutrition.com Brand Ambassador Program.
PLEASE READ CAREFULLY THE TERMS OF THIS BRAND AMBASSADOR AGREEMENT (“AGREEMENT”) AND ONLY CONTINUE WITH APPLICATION IF YOU AGREE TO BE BOUND BY THESE TERMS.
By completing registration, you agree to become a “Brand Ambassador” of CHIOMA Nutrition (alternatively referred to as chiomanutrition.com) and you acknowledge and confirm that (1) You have read, understand and agree to be bound by the terms of this agreement, (2) You are at least 18 years of age or older.
If you DO NOT AGREE to all terms and conditions of the agreement, of if you DO NOT MEET ALL OF these criteria, you must discontinue the process of becoming a CHIOMA Nutrition brand ambassador.
Upon completing registration, you agree to the terms of this agreement between you (“Ambassador”) and chiomanutrition.com., (“Complete Babe”).
We may modify any of the terms and conditions within this Agreement at any time and at our sole discretion. These modifications may include, but not limited to changes in the scope of available reward points, payment procedures and program rules. If any of the modifications are unacceptable to You, Your only recourse is to terminate this Agreement with a written or electronic letter of termination. If You continue participation in the program following the posting of a change Notice of new Agreement, it will be considered as Your acceptance of the change.
I understand that CHIOMA Nutrition desires to engage my services as a brand ambassador to identify and engage potential customers of CHIOMA Nutrition and sell CHIOMA Nutrition products.
Independent Contractor Status.
You (“Ambassador” alternatively known as ‘Complete Babe’) agree that neither your acceptance of this Agreement or its acceptance by CHIOMA Nutrition (“CHIOMANutrition.com”), subsidiary of CHIOMA Nutrition LLC, makes you an employee, agent, or legal representative of CHIOMA Nutrition or its parent companies. I understand that CHIOMA Nutrition is not my employer. My relationship with CHIOMA Nutrition will be that of an independent contractor and nothing in this Agreement should be construed to create and employer-employee relationship or any other relationship other than that of an independent contractor. I understand I will not be entitled to any of the benefits that CHIOMA Nutrition makes available to its employees, such as group insurance. CHIOMA Nutrition will not provide you with a place of business, and if you desire a place of business other than your own residence, you will be responsible for procuring, furnishing, and paying all expenses in connection with such place of business. With respect to services performed by you for CHIOMA Nutrition you will not be treated as an employee for federal or state tax purposes, and you will be responsible for payment of any and all taxes, levies and fees, including but not limited to, any and all self-employment and other income taxes. Depending on your yearly sales, you may receive IRS Form 1099-MISC reflecting the amount of income paid to you during the calendar year by CHIOMA Nutrition. It will be your sole responsibility to account for such income on your individual income tax returns.
I understand that CHIOMA Nutrition will not withhold or make payments for social security, unemployment insurance or disability insurance contributions on my behalf. I hereby agree to indemnify and defend CHIOMA Nutrition and its parent companies against any and all such taxes or contributions, including penalties and interest. I agree to accept exclusive liability for complying with all applicable state and federal laws, including laws governing self-employed individuals, if applicable, such as laws relate to payment of taxes, social security, disability, and other contributions based on fees paid to me under this Agreement. I will have no authority to incur any debt, obligation or liability on behalf of CHIOMA Nutrition, and I am not authorized to sign any contracts on CHIOMA Nutrition behalf. I will be responsible for all self-employment, social security, income taxes, and other reports required by my activities as an Ambassador for CHIOMA Nutrition. I agree to abide by all federal, state and local laws applicable to my activities. I will, at my own expense, file all reports and obtain any licenses that are required by law or regulation for me to perform my activities under this Agreement or the holding, selling, or advertising of CHIOMA Nutrition products.
- Reward points. CHIOMA Nutrition will pay Ambassador in Reward Points also referred to as ‘Complete Babe Reward Points’ for performing approved activities. A current list of points system and approved activities along with requirements, policies and procedures are available in the CHIOMA Nutrition Brand Ambassador Handbook. It is the Ambassador’s obligation to accurately track and submit their activities following the appropriate guidelines. Reward point payouts will be applied on a monthly basis to the Ambassadors online account on CHIOMA Nutrition according to the payout schedule. CHIOMA Nutrition reserves the right to modify or terminate points and payout schedule at any time., although points accrued shall be valid for one year from the date of posting. Should there be any tax liability for the accumulating and/or use of the credits, such taxes are the sole responsibility.
- Affiliate referral commissions. Ambassadors may also be entered into any available affiliate referral program and earn commission fees on sales referred. Ambassadors will be subject to the Affiliate Program terms and agreement and policies and procedures. For sale to generate a commission to Ambassador, the customer must successfully complete a purchase of CHIOMA Nutrition products using a unique code designated to You. It is the responsibility of the Ambassador to become familiar with the CHIOMA Nutrition website and electronically generated linking process. CHIOMA Nutrition will not be responsible for commissions not clearly attributable to the Ambassador via the tracking process deemed in the Affiliate program details.
- Reimbursement. Ambassadors will not be reimbursed for any expenses incurred in connection with the performance of services under this Agreement.
Restrictions related to statements or claims
As a Brand Ambassador, You are asked to share the many benefits of CHIOMA Nutrition products. You are strictly prohibited from making any claim not approved by CHIOMA Nutrition. You may not prescribe, recommend, communicate or advise using CHIOMA Nutrition products to treat any illness or condition. You may not make any health claim of any kind with the express written permission of CHIOMA Nutrition.
You are encouraged to highlight the many benefits of CHIOMA Nutrition including:
- CHIOMA Nutrition products MAY help to support healthy cycle
- CHIOMA Nutrition products MAY help to support clear complexion
- CHIOMA Nutrition products MAY help to support healthy energy levels.
- CHIOMA Nutrition is easy to use and can assist in reminding consumers to take their daily supplement.
- CHIOMA Nutrition products are made with natural and organic ingredients.
- CHIOMA Nutrition products contains no artificial flavoring
- CHIOMA Nutrition products denoted as such are vegan friendly
- CHIOMA Nutrition products denoted as such does not contain any manufacturing fillers or flow agents.
- CHIOMA Nutrition products denoted as such does not have chemical binding agents.
- CHIOMA Nutrition products denoted as such contains no artificial flavoring
If a potential customer wants to take a CHIOMA Nutrition product or supplements, we recommend that You advise them to consult with a qualified registered dietician, nutritionist or medical doctor in order to provide safe and effective nutritional education and recommendations. As a Brand Ambassador, You are only sharing information and any assigned unique discount code with Your network; anyone in Your community, Your clients, Your friends, Your family, any posts on Your social channels (Facebook, Instagram, Youtube, Twitter, etc.), any posts on blogs, or external websites.
If You prescribe, recommend, tell or advise using any CHIOMA Nutrition product to Your network or to any potential customer using any false claims, You or any Brand Ambassador will be held solely liable for that customer as we will not be held liable under this Agreement. We ask that You share with us any posts You have made referencing CHIOMA Nutrition and the Brand Ambassador program. CHIOMA Nutrition has the right to require You or any Ambassador to remove any posts or reference online or in public, made by You or any Ambassador at anytime.
CHIOMA Nutrition has the right to delete or hide any post made on our channels as unacceptable.
For example: It is OK to comment on any CHIOMA Nutrition page: “CHIOMA Nutrition is a great purchase, the herbal tea tastes great and gives me the results I need. I recommend it to all my family and friends. I became a CHIOMA Nutrition Brand Ambassador because I love representing the brand”
NOT OK to comment on CHIOMA Nutrition page: “CHIOMA Nutrition is great, message me, I have a Brand Ambassador discount to get You 20% off CHIOMA Nutrition products”
CHIOMA Nutrition will be solely responsible for processing every order placed by a customer through our ads, text links or buttons placed in Your website or blog, Facebook page, Twitter feed and emails. Customers who purchase products through the CHIOMA Nutrition website are deemed to be customers of CHIOMA Nutrition. Prices and availability of our products may vary from time to time. CHIOMA Nutrition policies will always determine the price paid by the customer.
We reserve the right to reject any order that does not comply with our rules, operating procedures and policies. CHIOMA Nutrition reserves the right to have content removed on the internet or not to accept any site, organization or individuals into or from the Brand Ambassador Program based on a background check of social, personal and site content that doesn’t align to CHIOMA Nutrition vision for the brand. Once requested, individuals shall remove content, no questions asked, as well as refrain from negative backlash or media posts regarding the CHIOMA Nutrition Brand.
Individuals Do Not Qualify for the Brand Ambassador Program if such sites or social sites are:
- X- rated and promote sexually explicit materials
- Promoting violence and discord
- Promoting discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
- Promoting illegal or questionable activities
- Violating intellectual property rights
- Promoting spammy content
- Unaligned to the CHIOMA Nutrition Brand Image
As a condition to Your acceptance and participation in the Program, You will comply at all times with all federal, state, provincial and foreign laws, statutes, ordinances, rules, regulations, orders, judgments and decrees applicable to You, Your Sites, Your business and Your participation in the Program.
In addition, You agree that I will not do any of the following without CHIOMA Nutrition written consent, and that it will be a material breach of this Agreement for me to:
- make any representations or warranties on behalf of CHIOMA Nutrition, other than the ones contained in the CHIOMA Nutrition marketing and promotional information;
- use the name “CHIOMA Nutrition or Complete Babe,” or any variation thereof, in any manner not expressly authorized by this Agreement;
- sell or resell CHIOMA Nutrition products at any price other than the retail prices listed by CHIOMA Nutrition or such other prices as are authorized in writing by CHIOMA Nutrition;
- fail to follow any of CHIOMA Nutrition policies and procedures that are provided or otherwise communicated to me; or
- promote CHIOMA Nutrition or CHIOMA Nutrition products through unsolicited or spam emails or otherwise violate any state or federal laws regulating electronic communications.
- engineer Your site in such a manner that pulls or diverts internet traffic away from the CHIOMA Nutrition site
- attempt to modify or alter our Site or any Site with which we are affiliated in any way;
- make any representations, either express or implied, or create an appearance, that a visitor to Your Site is visiting our Site (for example, “framing” our Site), without our express prior written approval;
- “scrape” or “spider” our Site or any other CHIOMA Nutrition Site for content (such as images, logos or text);
- forward, redistribute, or otherwise repurpose any email communications or newsletters that we send to our affiliates or customers;
- generate or send any unsolicited email (spam) under this Agreement;
Violation of this Agreement may result in, among other things, the immediate termination of this Agreement.We have the right in our sole and absolute discretion to monitor Your program at any time and from time to time to determine whether You are in compliance with the terms of this Agreement.
No Other Payment.
I understand that, other than the compensation stated explicitly in this Agreement, I am not entitled to any other payments under this Agreement, including fees, compensation, royalties, revenue or usage-based payments.
Ownership of Work Product
I hereby irrevocably assign to CHIOMA Nutrition all right, title and interest worldwide in any work product that I create, or to which I contribute, pursuant to this Agreement, including all Proprietary Rights contained therein. The term “Proprietary Rights” shall mean all trade secrets, patents, copyrights, trademarks, mask works and other intellectual property rights throughout the world.
CHIOMA Nutrition Proprietary Information and Trade Secrets.
You recognize and agree that information compiled by or maintained by CHIOMA Nutrition, including team information (i.e., information that discloses or relates to all or part of the specific arrangement of sponsorship within the CHIOMA Nutrition business including, without limitation, CHIOMA Nutrition Ambassador lists, customer order details and/or summaries, sponsorship information, and all CHIOMA Nutrition information generated therefrom, in its present or future forms), constitutes a commercially advantageous, unique, proprietary and confidential trade secret of CHIOMA Nutrition, which it keeps as proprietary and confidential and treats as a trade secret.
During the term of this agreement, CHIOMA Nutrition grants you a personal, non-exclusive, non-transferable and revocable right to use trade secret, confidential, and proprietary business information (collectively “Proprietary Information”), which includes, without limitation, trade secrets, team information, business reports, manufacturing and product developments, and CHIOMA Nutrition Ambassadors sales, earnings and other financial report.
You acknowledge the substantial value of Proprietary Information to CHIOMA Nutrition and agree to maintain all Proprietary Information in strictest confidence using reasonable measures, but in no event less than the measures that you employ to protect the confidentiality of your own similar confidential information. You further agree to not disclose any Proprietary Information to any third party, to use Proprietary Information in connection with any other businesses or to compete, directly or indirectly, with the business of CHIOMA Nutrition. Upon resignation, non-renewal, or termination from the CHIOMA Nutrition Brand Ambassador Program, you agree to promptly return any and all Proprietary Information to CHIOMA Nutrition. This covenant shall survive the expiration or termination of your agreement with CHIOMA Nutrition.
- Termination by CHIOMA Nutrition. CHIOMA Nutrition may terminate this Agreement at its convenience and without any breach by Ambassador.
- Termination by Ambassador. Ambassador may terminate this Agreement at any time with a written or electronic 30 day notice.
- Return of CHIOMA Nutrition Property. Upon termination of the Agreement or earlier as requested by CHIOMA Nutrition, Ambassador agrees to deliver any and all supplies, including but not limited to, samples, literature and coupons, provided by CHIOMA Nutrition.
a. Jurisdiction and governing law. The formation, construction, interpretation, and enforceability of your agreement with CHIOMA Nutrition as set forth in this CHIOMA Nutrition Brand Ambassador Participation Agreement and any incorporated documents shall be governed by and interpreted in all respects under the laws of the Texas without regard to conflict of laws provisions.
b. Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
c. No Assignment. This Agreement may not be assigned by Ambassador without CHIOMA Nutrition consent, and any such attempted assignment shall be void and of no effect.
d. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between CHIOMA Nutrition and Ambassador. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. The terms of this Agreement will govern all Project Assignments and services undertaken by Ambassador for CHIOMA Nutrition.
For and questions or comments, send an email to firstname.lastname@example.org.
Referral Program Terms & Condition
PLEASE READ THE ENTIRE AGREEMENT.
THIS IS A LEGAL AGREEMENT BETWEEN YOU ‘Affiliate’, ‘Referral’ AND CHIOMA Nutrition, LLC also known as ‘Merchant’ or ‘Merchant.com’
BY SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
This Agreement contains the complete terms and conditions that apply to you becoming an Referral in CHIOMANutrition.com’s Referral Program. The purpose of this Agreement is to allow HTML linking between your web site and the CHIOMANutrition.com web site. Please note that throughout this Agreement, “we,” “us,” and “our” refer to CHIOMANutrition.com, and “you,” “your,” and “yours” refer to the associate and affiliate.
2. Associate Obligations
2.1. To begin the enrollment process, you will complete and submit the online application into the CHIOMA Nutrition Referral Program on CHIOMANutrition.com. Applications are reviewed and evaluated to ensure you are a good fit for the program. We may reject your application at our sole discretion. We may cancel your application if we determine that you have affiliations and websites that are unsuitable for our Program, including if it:
2.1.1. Promotes sexually explicit materials
2.1.2. Promotes violence
2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
2.1.4. Promotes illegal activities
2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law
2.1.6. Includes “Merchant” or variations or misspellings thereof in its domain name
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion.
2.1.8. Contains software downloads that potentially enable diversions of commission from other affiliates in our program.
2.1.9. You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are Merchant.com or any other affiliated business.
2.2. As a member of CHIOMANutrition.com’s Referral Program, you will have access to Referral Account Dashboard. Here you will be able to review our Program’s details and previously-published affiliate newsletters, download HTML code (that provides for links to web pages within the CHIOMANutrition.com web site) and banner creatives, browse and get tracking codes for our coupons and deals. In order for us to accurately keep track of all guest visits from your site to ours, you must use the HTML code that we provide for each banner, text link, or other affiliate link we provide you with.
2.3. Merchant.com reserves the right, at any time, to review your placement and approve the use of Your Links and require that you change the placement or use to comply with the guidelines provided to you.
2.4. The maintenance and the updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
2.5. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person’s copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third party rights.
3. Merchant.com Rights and Obligations
3.1. We have the right to monitor your site at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made, or to make sure that your links to our web site are appropriate and to notify further you of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the Merchant.com Affiliate Program.
3.2. Merchant.com reserves the right to terminate this Agreement and your participation in the Merchant.com Affiliate Program immediately and without notice to you should you commit fraud in your use of the Merchant.com Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, Merchant.com shall not be liable to you for any commissions for such fraudulent sales.
3.3. This Agreement will begin upon our acceptance of your Affiliate application, and will continue unless terminated hereunder.
Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of mail, email or fax. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you.
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and Merchant.com’s Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in Merchant.com’s Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.
Payments are made on commissions earned from Referral Account links or coupon codes.
Payments are made monthly if your balance meets the minimum threshold of $20. Balances not meeting the minimum threshold will remain in the account until eligible to be paid out. Commissions from sales with chargebacks will be deducted from account
Referral commissions are paid by PayPal approximately 60 days after the end of the month for which they are being paid.
- Payment for January is made in late March.
- Payment for February is made in late April.
- Payment for March is made in late May.
- Payment for April is made in late June.
- Payment for May is made in late July.
- Payment for June is made in late August.
- Payment for July is made in late September.
- Payment for August is made in late October.
- Payment for September is made in late November.
- Payment for October is made in late December.
- Payment for November is made in late January of the following year (approximately 60 days after Nov. 30).
- Payment for December is made in late February of the following year (approximately 60 days after Dec. 31).
7. Access to Affiliate Account Interface
You will create a password so that you may enter CHIOMA Nutrition secure referral account interface. From the site you will be able to receive your reports that will describe our calculation of the commissions due to you.
Payments are currently scheduled through PayPal. You must have a PayPal account to be able to receive payments. CHIOMA Nutrition refers the right change payment methods as needed.
8. Promotion Restrictions
8.1. You are free to promote your own web sites, but naturally any promotion that mentions Merchant.com could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by Merchant.com. For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote Merchant.com so long as the recipient is already a customer or subscriber of your services or web site, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote Merchant.com so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your web sites as independent from Merchant.com. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the Merchant.com Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
8.2. Affiliates that among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as merchant.com, merchant, www.merchant, www.merchant.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to their own website prior to re-directing it to ours, will be considered trademark violators, and will be banned from Merchant’s Affiliate Program. We will do everything possible to contact the affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, and on the first occurrence of such PPC bidding behavior.
8.3. Affiliates are not prohibited from keying in prospect’s information into the lead form as long as the prospects’ information is real and true, and these are valid leads (i.e. sincerely interested in Merchant’s service).
8.4. Affiliate shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited Merchant’s site (i.e., no page from our site or any Merchant.com’s content or branding is visible on the end-user’s screen). As used herein a. “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of Merchant site in IFrames, hidden links and automatic pop ups that open Merchant.com’s site; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
9. Grant of Licenses
9.1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the “Licensed Materials”) that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of Merchant.com’s Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of Merchant.com and the good will associated therewith will inure to the sole benefit of Merchant.com.
9.2. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
MERCHANT.COM MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING MERCHANT.COM SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF MERCHANT.COM ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
11. Representations and Warranties
You represent and warrant that:
11.1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms;
11.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
11.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
12. Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL MERCHANT.COM’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
You hereby agree to indemnify and hold harmless Merchant.com, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the 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 herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked “Confidential,” will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
15.1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Merchant.com. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on Your Site or any other of Your Site or otherwise, that reasonably would contradict anything in this Section.
15.2. Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party.
15.3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to the conflicts of laws and principles thereof.
15.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
15.5. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
15.6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
15.7. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.