Affiliate Contract Agreement
1. Innovative CEUs, LLC (ICEU) Affiliate Program
The ICEU Affiliate program enables Affiliates to apply for and, upon approval by ICEU, have an opportunity to earn Commissions (as that term is defined below) through participation in the ICEU Affiliate Program in accordance with the Agreement. The terms and conditions of the program
shall be posted on the Site. ICEU may, at its sole discretion, refuse to register You as an Affiliate and/or terminate Your participation in the ICEU Affiliate Program at any time for any reason.
Affiliate commission rate starts at 8.0 percent of Gross Margins. Gross Margins is calculated (ICEU Course List Price on Website minus any Volume Discount and Coupon Discount). If affiliates maintain certain monthly sales volumes set by ICEU, they can get a 1.0 percent increase in Gross Margins Commission Rate up to a maximum affiliate commission rate of 15.0% of Gross Margins.
Sub Affiliate Commission is 10.0 % of the Affiliates Commission. If affiliate earns $10.00 commission then the sub affiliate earns $1.00 commission for that affiliate ICEU sale.
B. Actions As used in this document, Actions are sales.
2. The Site and Service
ICEU posts creatives (Creatives) on the Site in connection with the Program. Approved Affiliates shall be permitted to download the Creatives: (a) for publication on Affiliates website and/or any other website published with, owned, operated and/or controlled by Affiliate (Affiliate Website);
(b) for distribution in email messages sent to those e-mail addresses listed in Affiliates database and/or any other database affiliated with, owned, operated and/or controlled by Affiliate (Affiliate E-mails) and/or (c) other approved marketing channels. The ICEU affiliate program enables Affiliates to apply for and, upon approval by ICEU, have an opportunity to earn Commissions (as that term is defined below) through participation in the ICEU Affiliate program in accordance with this Agreement.
Commissions are generated from a specific transaction (Action) defined by ICEU.
ICEU is responsible for displaying and administrating the Program and tracking associated Commissions and Actions.
Program data compiled by ICEU including, but not limited to, numbers and calculations regarding Actions and associated Commissions (Program Data), will be calculated by ICEU through the use of industry standard tracking technology and shall be final and binding on You.
Any questions regarding the Program Data must be submitted in writing within fourteen (14) days of initial appearance in the tracking system; otherwise the Program Data will be deemed to be accurate and accepted by You.
Affiliate understands and agrees that on occasion the Service and/or ICEU Site may be inaccessible, unavailable or inoperable for any reason, including, but not limited to, the following:
(i) equipment malfunctions;
(ii) periodic maintenance procedures or repairs; or
(iii) causes beyond the control of ICEU or which are not reasonably foreseeable by ICEU including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures.
ICEU will attempt to provide the Service on a continuous basis. However, Affiliate acknowledges and agrees that ICEU has no control over the availability of the Service and ICEU Site on a continuous or uninterrupted basis.
Terms of the Agreement are subject to ICEU hardware, software, and bandwidth traffic limitations. ICEUs failure to deliver because of technical difficulties does not represent a failure to meet the obligations of the Agreement.
3. Links on Your Website or Websites
Once you have been notified that your website has been accepted into our ICEU Affiliate Program, you may provide on your website one or more of the following types of links to our Website below. To qualify for these special links: Videos; Page Content; Email Content; and Keyword List, you must check off all of these special links you intend to use these an ICEU Affiliate when completing the ICEU Affiliate application.
We will provide you with guidelines and graphical artwork to use for linking to our Website. To permit accurate tracking, reporting, and accrual of commission credits, we will provide you with special "tagged" link formats (Special Links). You must ensure that each link between your website and our Website is a special link. You will only earn commission credits on sales that originate through Special Links. We are not responsible for any failure by you to use Special Links.
Only Affiliate Websites, Affiliate E-mail distribution lists and other marketing channels that have been reviewed and approved by ICEU may be utilized in connection with the Site and Service.
ICEU reserves the right to withhold, refuse or withdraw approval of any websites, email distribution lists and/or marketing channels for any reason, whatsoever, in ICEUs sole discretion.
Notwithstanding the foregoing, ICEUs policies, specifications and/or recommendations with respect to any websites, email distribution lists and/or marketing channels used by You should not be construed as legal advice, or as sufficient guidelines to ensure that such websites, email distribution lists and/or marketing channels comply with applicable law.
ICEU does not represent or warrant that such policies, specifications and/or recommendations are legally compliant or appropriate.
ICEU assumes no obligation and hereby disclaims any liability for Your use of and/or reliance upon any such policies, specifications and/or recommendations. You should consult with Your legal counsel and/or other professional advisors before acting on any policies, specifications and/or recommendations as provided by ICEU.
Affiliate shall not alter, modify or otherwise change the Creatives, or any Creatives-related feature, that it obtains access to in connection with the Program in any manner whatsoever, without ICEUs prior express written consent.
Unless otherwise specified in the Program Terms or by ICEU, and subject to the restrictions herein, the positioning, placement, frequency and other editorial decisions related to Creatives shall be made by Affiliate.
Notwithstanding the foregoing, Affiliate must comply, immediately, with any and all requests by ICEU to modify, alter, remove or otherwise change the positioning, placement, frequency and other editorial decisions related to the Creatives.
Affiliate also shall not run any deactivated Creatives after ICEU has posted new Creatives to run in lieu of such deactivated Creatives for the Program.
AFFILIATE AGREES TO REVIEW THE AVAILABILITY OF CREATIVES THAT IT HAS PLACED WITHIN ITS MEDIA ON A DAILY BASIS. IT IS THE AFFILIATES SOLE RESPONSIBILITY TO CHANGE CREATIVES WITHIN ITS MEDIA WHEN A CREATIVE IS NO LONGER AVAILABLE IN THE ICEU AFFILIATE PROGRAM.
ICEU ASSUMES NO RESPONSIBILITY TO NOTIFY AFFILIATE WHEN A SPECIFIC CREATIVE IS NO LONGER AVAILABLE IN THE ICEU AFFILIATE PROGRAM.
In addition, Site integration tags and tracking pixels (Tags) included in the Creatives or otherwise incorporated may not be altered under any circumstances.
ICEU employs a testing system to ensure that You have not removed or altered the Tags. Altering, removing or disabling Tags may jeopardize Your ability to be paid for Actions and would be grounds for immediate termination of Your Affiliate account, with or without notice.
5. Commission are Paid
Commissions are paid when earnings reach a pre-set threshold. The default threshold is $50.00 US Dollars, but you may increase your threshold thru your affiliate control panel. Commissions are paid by PayPal, Check, and Wire Transfer. If Commissions are paid by a check, a $5.00 check processing fee will be deducted from your earnings.
6. Affiliate Commission Rate
Starts at 8.0 percent of Gross Margins. Gross Margins is calculated (ICEU Course List Price on Website minus any Volume Discount and Coupon Discount).
If affiliates sells 20 courses a month, then they can get a 1.0 percent increase in Gross Margins Commission Rate per month they sell 20 our more courses, up to a maximum affiliate commission rate of 15.0% of Gross Margins. Commission rate applies to both student and organization sales that click through your ICEU Affiliate links on your site.
6 A. Recurring Commissions
If an affiliate refers an Organization that registers and places an order, the affiliate will earn commissions on all of the organizations future orders as long as the affiliate is in good standing with ICEU. The recurring commission rate is between 8 and 15% of gross margins. See number 6 above to explain Affiliate Commission Rate.
7. Two-Tier Program
If a person follows one of your affiliate links and registers to become an affiliate themselves, you will earn override commissions on sales made thru their marketing efforts, as long as they remain an affiliate in good standing.
Read #8 for override commissions a.k.a Sub-Affiliate Commissions.
8. Sub Affiliate Commission Rates
Sub Affiliate Commission is 10.0 % of the Affiliates Commission. If affiliate earns $10.00 commission then the sub affiliate earns $1.00 commission for that affiliate ICEU sale.
9. E-mail Programs; Suppression Lists
Where use of e-mail marketing is authorized by ICEU, the following terms shall apply.
Any and all e-mail based Creatives transmitted, as well as any and all e-mail addresses supplied by Affiliate:
(a) shall comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003, as amended (CAN-SPAM) and any and all Federal Trade Commission implementing regulations;
(b) must not infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity;
(c) must not result in any consumer fraud, product liability or breach of contract to which Affiliate is a party or cause injury to any third party.
Affiliate shall cause a valid physical postal address for Affiliate and/or ICEU, as required by applicable law, to appear in each e-mail Creatives, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery).
ICEU reserves the right to add such address (es) should Affiliate fail to include same, but ICEU is in no way responsible for including such address (es) where Affiliate fails to do so.
In addition, ICEU may make available, at an ICEU-designated FTP site (FTP Site), a suppression list (and associated login information), updated on a regular basis, generated from e-mail Programs transmitted by and/or through the ICEU for Affiliates use.
Affiliate shall upload its own list of suppressed e-mail addresses to the FTP Site, if one is provided by ICEU.
If the FTP Site is provided by ICEU, and no such e-mail addresses are supplied by Affiliate, ICEU may conclude that no such addresses exist.
The suppression list and login provided by ICEU are deemed to be Confidential Information of ICEU, as defined herein.
Suppression lists may not be used by Affiliate for any purpose other than to comply with applicable laws regulating the e-mail transmissions. Affiliate agrees to process any unsubscribe requests within five (5) days of being posted at the FTP Site.
10. Affiliate E-mail Lists
All Affiliates E-mails sent under the Agreement shall be delivered to addresses on e-mail lists owned or managed solely by Affiliate (Affiliate E-mail Lists). Brokering third-party deals to deliver Creatives without disclosing such to ICEU is strictly prohibited and grounds for immediate termination, as well as other legal remedies. Affiliate is required and agrees to maintain at all times during the term of the Agreement, and for a period of three years thereafter, complete and accurate subscriber sign-up/registration data for every subscriber to Affiliates Email List(s). Affiliate agrees that, within twenty-four (24) hours of ICEUs request, it shall provide, at a minimum, the following subscriber sign-up/registration data for any email address that Affiliate sends an Affiliate E-mail to: (a) subscriber email address used to sign-up/register for Affiliates Email List; (b) subscribers IP address; (c) date and time of subscribers sign-up/registration for Affiliates Email List; and (d) location of subscribers sign-up/registration.
11. 180-Day Cookie
The Program uses a 180-day cookie. This means that if a visitor to your website clicks through a Special Link to our Website, you will be eligible for commission credits on Qualifying Revenues related to purchases made by such visitor within 180 days of such visitors click on the Special Link on your website.
The Program also employs a last-cookie principal. This means that we will credit a sale to a different affiliate or an ICEU.com sales channel if the visitor clicks through a Special Link from such other affiliates website or ICEU.com-sponsored advertisement after such visitor clicks through a Special Link on your website
You agree to be paid the applicable Commission rate for each Action verified by ICEU as specified by ICEU approximately forty-five (45) days after the last day of a given calendar month, for Commissions realized in that month.
All Affiliate accounts will be paid in US dollars ($US). Notwithstanding anything contained herein to the contrary, no Commission payments will be issued for any amounts otherwise due Affiliate that total less than Fifty Dollars ($50.00) (Payment Threshold).
Upon termination of the Agreement, all legitimate moneys due to Affiliate, even amounts below the Payment Threshold, will be paid during the next billing cycle.
Every Affiliate account must have a unique, valid taxpayer identification number (TIN), valid Social Security Number or other applicable unique government identification.
All payments due hereunder shall be in U.S. dollars and are exclusive of any applicable taxes. Affiliate shall be responsible for all applicable taxes.
ICEU may, on its own initiative, debit from the Commissions otherwise due and owing Affiliate an amount equal to a Commission previously credited to Affiliates account where:
(a) a return or cancellation has been made with respect to the applicable product and/or service;
(b) there is an instance of a duplicate, fraudulent or incomplete entry or other similar error with respect to a customer order;
(c) there are Actions that do not comply fully with the terms of the Agreement, including where the applicable non-complying Action is not the result of Affiliates action, omission and/or failure to comply with the terms and conditions of the Agreement;
(d) there is non-receipt of payment from, or refund of payment to, the customer that entered into the subject Action; or
(e) there is any failure on the part of Affiliate to comply with this Agreement or Terms (collectively referred to as a Chargeback).
Chargebacks may be applied up to sixty (60) days after the end of the month in which the applicable Commission was earned (Chargeback Period).
The number or amount of Actions, credits for payments and debits for Chargebacks, as calculated by ICEU, shall be final and binding on Affiliate.
13. Pending Commissions
ICEU has a few select clients that are permitted to pay with an open account off line, when a sale is made to one of these clients, though your link, the sale is posted as pending until such time as we receive payment from the customer. Once the payment is received, you will be credited for the sale and the commissions will move from pending to earned.
ICEU actively monitors traffic, Actions, Commissions and other Program-related activities for potential fraud. If ICEU determines that Your account has been used in a fraudulent manner, Your account will be deactivated effective immediately and with no notice to You pending further investigation. If You add Actions, or inflate Actions, through the use of fraudulent means of traffic generation, as determined solely by ICEU, You will forfeit all of the Commissions related to that Program, and Your Affiliate account will be terminated effective immediately. ICEU reserves sole judgment in determining fraud and You agree to be bound by any and all such determinations. ICEU will hold Your Commission-related payments in 'Pending Status' until You have satisfactorily provided evidence that demonstrates to ICEU that You have not engaged in fraud. If You are unable to provide ICEU with satisfactory evidence that You have not engaged in fraud within seven (7) days of Your Commissions being placed in Pending Status, then ICEU reserves the right to terminate Your Affiliate account and cancel payment on the applicable Commissions, at its sole discretion and without any further obligations to You.
15. Affiliate Websites
In your ICEU Affiliates account, you can add as many Websites through your "my sites" tab.
All of your affiliate websites added under the my sites tab, will require ICEU Admin Approval.
16. Affiliate Coupons
You can generate affiliate ICEU coupon codes to send to your traffic to increase the number of sales you make to individuals. You can create as many different coupons as you would like. Coupons expire at the end of the month they are created. You can set any value to a coupon code up to a max of 20% off any course. Coupon Codes ARE NOT case sensitive (ABC is the same as Abc). The maximum number of characters you can use including spaces is 15. Spaces will be removed and the ICEU Affiliate Coupon Code will be appended with your affiliate ID. Example, you enter SaveMoney and the ICEU Affiliate Coupon Code turned back to you is SaveMoney106. Your ICEU Affiliate Coupon Code SaveMoney106 must be entered for your traffic to use for you to earn an ICEU Affiliate commission with a coupon code. If the traffic you send to ICEU website uses another ICEU Affiliate Coupon Code, That ICEU affiliate will be credited with the sale.
17. Affiliate Reports
Affiliates will be able to generate the following reports: Site Visits, Leads, Sales, Returns, Earnings, and Payments based on a single Date or a Date Range.
18. Term and Termination
The Agreement shall commence upon ICEUs acceptance of Your Affiliate application and remain in effect until terminated as set forth herein. The Agreement may be terminated by either Party upon three (3) days prior written notice. In addition, ICEU reserves the right, in its sole and absolute discretion, to terminate a Program and/or remove any Creatives at any time for any reason, upon notice to You. ICEU also reserves the right to terminate Your access to the Site at any time with or without notice to You. Termination notice may be provided via e-mail and will be effective immediately. Upon termination, Affiliate agrees to immediately remove from its Affiliates Website(s) any and all Creatives, ICEU Code or other intellectual property made available to Affiliate in connection with its performance under the Agreement. The representations, warranties and obligations contained within the Agreement shall remain in full force and effect after termination of the Agreement. All payment obligations accruing prior to the date of termination shall survive until fully fulfilled.
19. Representations and Warranties
The Parties hereby acknowledge and agree that Affiliate is solely responsible for the method by which the Creatives are disseminated You represent and warrant that:
(a) Your Affiliate Website contains distinct and legitimate content, substance and material, not simply a list of links or advertisements and that Your Affiliate Website serves a purpose substantially or completely separate and distinct from merely being designed to earn money solely from ICEU;
(b) Your Affiliate Website and/or Affiliate E-mails are represented by a legitimate second-level domain name (e.g. yoursite.com is acceptable; however, a shared server, e.g., sharedsite.com/yoursite, is not acceptable);
(c) Your Affiliate Website is not offered as a part of a community-based website personal entry or personal page;
(d) Your Affiliate Website and Affiliate E-mails do not incentivize users to click on Creatives (Incentives). Incentives include, but are not limited to, awarding users cash, points, prizes, and/or contest or sweepstake entries;
(e) Your Affiliate Website is not hosted by a free service and is fully functional at all times and at all levels (no under construction Affiliate Websites or any sections thereof are permissible);
(f) You will not use spawning process pop-ups and exit pop-ups in connection with Your Affiliate Website and/or Affiliate E-mails;
(h) no images, graphics, links, co-registration paths, pop-ups, pop-unders, copy or process for generating Actions other than the Creatives will be used by You in connection with our Affiliate Program without first obtaining the prior written consent of ICEU
(i) You will place or use the Creatives only with the intention of delivering valid Actions as determined by ICEU;
(j) You will not, nor knowingly permit any person to, activate Creatives or inflate the amount of Actions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, device, program, robot, Iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing an Action;
(k) You will not use, nor knowingly permit any person or entity to use, any third-party trademarks in any way to direct traffic to any Affiliate Website or ICEU website including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name, or any derivative of any such trademark, service mark or brand name;
(l) You will not violate guidelines of any search engines being utilized;
(m) You will not allow the Creatives to be placed on any non-Affiliate Website without the prior express written consent of ICEU;
(n) You will not redirect traffic to a website other than the website specifically listed by ICEU.
You further represent and warrant that the content of Your Affiliate Website and Affiliate E-mails does not promote, advocate, facilitate or otherwise include any of the following:
(i) hate speech or material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation;
(ii) Investment, money-making opportunities or advice not permitted under law;
(iii) violence or profanity;
(iv) pornographic, obscene, sexually explicit or related content;
(v) material that defames, abuses, is libelous, is tortuous or threatens physical harm to others;
(vi) material that displays any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third person;
(vii) material that impersonates any person or entity;
(viii) any indication that any statements You make are endorsed by ICEU and/or an Advertiser, without ICEUs and/or Advertisers specific prior written consent;
(ix) promotion of illegal substances or activities (e.g., illegal narcotics, how to build a bomb, counterfeiting money, etc.);
(x); content which is inappropriate or harmful to children;
(xi) promotion of terrorism or terrorist-related activities, sedition or similar activities;
(xii) software pirating (e.g., warez, hotline);
(xiii) hacking or phreaking;
(xiv) 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;
(xv) 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 (i.e. spamware), 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;
(xvi) 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;
(xvii) any spoofing, redirecting or trafficking from other websites in an effort to gain traffic;
(xviii) any content that infringes upon the intellectual property rights of any third party or any other right including, without limitation, false advertising, unfair competition, invasion of rights of publicity or privacy;
(xix) gambling, contests, lotteries, raffles, or sweepstakes;
20. Proprietary Rights
Subject to this Agreement and any underlying Terms, ICEU grants to Affiliate a revocable, non-transferable, royalty free, international license to display on, and distribute through, the Affiliate Website, Affiliate E-mails and/or other approved marketing channels, the Creatives, and any and all associated trademarks, service marks, trade names and/or copyrighted material (Intellectual Property Content) that ICEU provides to Affiliate for the limited purposes of promoting ICEU to end users.
Affiliate may not remove or alter any copyright or trademark notices.
The Intellectual Property Content and other matters related to ICEU, Creatives and Site are protected under applicable copyright, trademark and other proprietary rights.
The use, copying, redistribution and/or publication by Affiliate of any part of ICEU, Creatives and/or Site, other than as expressly permitted hereunder, are strictly prohibited.
Affiliate does not acquire any ownership rights to ICEU, Creatives and/or Site.
The availability of ICEU, Creatives and Site does not constitute a waiver of any rights related thereto.
No part of the Site may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Site, Site content or any portion thereof.
ICEU reserves any rights not explicitly granted in the Agreement.
21. Customer Information; Non-Disclosure
Any and all information submitted by end-user customers (Customer Information) in connection with this Program shall be considered proprietary to and owned by ICEU.
Such Customer Information is Confidential Information (as that term is defined below) of ICEU and may not be utilized or otherwise disclosed by You.
In addition, You acknowledge that all non-public information, data and reports made available by ICEU hereunder or otherwise as part of the Services is proprietary to and owned by ICEU.
All proprietary and Confidential Information is protected by copyright, trademark and other intellectual property laws.
You agree not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary or Confidential Information of ICEU in any manner.
These non-disclosure obligations shall survive termination or expiration of the Agreement.
You shall indemnify, defend and hold ICEU, and each of their respective individuals, publishers, subsidiaries, officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of or related to:
(a) Your improper use of the Site and/or any Creatives;
(b) any third party claim related to Your Affiliate Website, Affiliate E-mails and/or Your marketing practices;
(c) any third party allegation or claim against ICEU relating to a violation of any and all state and federal laws or the laws of Your jurisdiction;
(d) any content, goods or services offered, sold or otherwise made available by You on or through the Affiliate Website, Affiliate E-mails, other marketing channels or otherwise;
(e) any claim that ICEU is obligated to pay any taxes in connection with payment made to You in connection with this Agreement;
(f) breach and/or violation of the Agreement and/or any representation or warranty contained herein; and/or
(g) Your use of the Site and/or any Creatives, in any manner whatsoever.
ICEU shall indemnify, defend and hold You harmless from and against any and all claims allegations, liabilities, costs and expenses (including reasonable attorneys' fees) by third parties arising out of any actual infringement of intellectual property rights resulting from Your display of the actual Creatives, in unaltered form, as provided in connection with any Program.
23. Limitation of Liability; Disclaimer of Warranty
IN NO EVENT SHALL ICEU BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH YOUR MARKETING EFFORTS) FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE SITE OR YOUR DISPLAY OF ANY CREATIVES ON OR THROUGH YOUR AFFILIATE WEBSITE AND/OR AFFILIATE E-MAILS INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF ICEU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ICEUS MAXIMUM AGGREGATE LIABILITY TO AFFILIATE AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE THREE HUNDRED DOLLARS ($300).
REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST ICEU MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE. AFFILIATE RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE.
THE SITE, CREATIVES, CONTENT AND SERVICES ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE).
THE SITE AND CREATIVES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.
ICEU HAS NO LIABILITY, WHATSOEVER, TO AFFILIATE OR ANY THIRD PARTY, FOR AFFILIATES USE OF, OR INABILITY TO USE, THE SITE, CREATIVES, OR SERVICES AND ICEU DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT AFFILIATES USE OF SITE WILL BE UNINTERRUPTED OR ERROR-FREE.
THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN ICEU AND AFFILIATE.
THE SITE, CREATIVES AND SERVICES WOULD NOT BE PROVIDED TO AFFILIATE WITHOUT SUCH LIMITATIONS.
ICEU MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE SITE OR CREATIVES.
24. Jurisdiction and Venue
The Agreement shall be construed and governed by the laws of the State of Connecticut, without giving effect to principles of conflicts of law. Any and all disputes or controversies whether of law or fact of any nature whatsoever arising from or respecting the Agreement shall be decided by arbitration by the American Arbitration Association (Arbitrator), in accordance with the rules and regulations of that Association. Arbitration shall take place in Hartford County, in CT before the American Arbitration Association (AAA). At the request of ICEU, arbitration proceedings will be conducted in secrecy. In such case all documents, testimony and records shall be received, heard and maintained by Arbitrator in secrecy under seal, available for the inspection only by ICEU or Affiliate and by their respective attorneys and their respective experts who shall have agreed, in advance and in writing, to receive all such information confidentially and to maintain such information in secrecy. Arbitrator shall be able to decree any and all relief of an equitable nature including, but not limited to, such relief as a temporary restraining order, a temporary and/or a permanent injunction, and shall also be able to award damages, with or without an accounting and costs. ICEU shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding in connection to, arising out of, or under the Agreement. Nothing contained in the Agreement shall be construed to limit any legal remedies available to ICEU. To the extent permitted by law, You agree not to bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that You may have against ICEU and its employees, officers, directors, members, representatives and assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove You as a participant in the suit. You agree to pay the attorneys' fees and court costs that ICEU incurs in seeking such relief. This provision preventing You from bringing, joining or participating in class action lawsuits does not constitute a waiver of any of Your rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided above. This provision preventing You from bringing, joining or participating in class action lawsuits is an independent agreement.
ICEU may assign the Agreement, or any portion thereof, at its sole discretion.
You may not assign, transfer or delegate any of Your rights under the Agreement without the prior written consent of ICEU, which may be withheld for any reason, and any attempts to do so shall be null and void.
Further, any such attempts may result in ICEU, at its sole discretion, immediately terminating this Agreement, without any liability to ICEU.
The Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties successors and assigns.
Confidential Information means any information disclosed to You by ICEU, either directly or indirectly, in writing, orally or by inspection of tangible objects, other than information that You can establish:
(a) was publicly known and made generally available in the public domain prior to the time of disclosure to You by ICEU;
(b) becomes publicly known and made generally available after disclosure to You by ICEU other than through Your action or inaction; and/or
(c) is in Your possession, without confidentiality restrictions, at the time of disclosure by ICEU as shown by Your files and records prior to the time of disclosure.
You shall not at any time:
(i) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information;
(ii) use any Confidential information; and/or
(iii) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to You or as required by applicable law.
You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information.
All Confidential Information shall at all times remain ICEUs personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to ICEU immediately upon ICEU's request
27. Severability; Non-Waiver
If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of the Agreement, and the Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
The Agreement represents the complete and entire expression of the agreement between the Parties, and shall supersede any and all other agreements, whether written or oral, between the Parties. Other than as set forth herein, the Agreement may be amended only by a written agreement executed by an authorized representative of each Party
Each Party is an independent contractor and not a partner, joint venturer or employee of the other. Neither Party shall have the right to bind the other or to incur any obligation on the others behalf.
30. Force Majeure
Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of such Party.
You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site.
You may not take any action that imposes an unreasonable or disproportionately large load on the ICEU infrastructure.
You agree that any unauthorized and/or unlawful use of the Site would result in irreparable injury to ICEU for which monetary damages would be inadequate.
In such event, ICEU shall have the right, in addition to other remedies available to it pursuant to the Agreement, to immediate injunctive relief against You without the need to post a bond.
All notices shall be sent to the address submitted by You when You sign up for the Service and, if to ICEU, to the address listed in the Contact section of the Site.