SWMirror.com Affiliate Service Agreement
Introduction
This Affiliate Service Agreement (hereinafter the "Agreement")
is made by and agreed to between Liquid Mirror Enterprises ("LME"), and you
("You"). As an application service provider, LME facilitates "Affiliate
Marketing Programs" through provision of services ("Network Service") via the
Internet. An "Affiliate Marketing Program" (or "Program") is where a person,
entity, affiliate or its agent operating one or more "Web site(s)" (domain or
portion of a domain within the Internet and/or subscription e-mail list(s))
("Affiliate") may earn financial compensation ("Payouts") for "Transactions"
(sales) made from such Affilliate's Web site or subscription e-mails through a
click made by a "Visitor" (generally any person or entity that is not the
Affiliate or the Affiliate’s agent) an Internet connection ("Link") to a Web
site or Web site content operated by another person or entity ("Advertiser").
The Advertiser compensates the Publisher, in accordance with this Agreement and
the Program Payout specifications.
1 Relationship. In the context of this Agreement, You are
referred to herein as an Affiliate. You agree not to:
(a) mislead others;
(b) operate or utilize a Web site or e-mail Link to Web sites
that contain or promote, any of these types of content: libelous, defamatory,
obscene, abusive, violent, bigoted, hate-oriented, illegal, cracking, hacking
or warez, or the offer any illegal good or service, or Link to a Web site(s)
that do so; and/or
(c) engage in spamming, indiscriminate advertising or
unsolicited commercial e-mail.
LME may deem inappropriate based upon the foregoing, and/or on
reasonable Internet business standards as they may evolve, any Web site or
content that You make available to Visitors through e-mail, and provide You
with notice that You are in breach of this Section 1 (with the opportunity to
cure in accordance with Section 6.2 below, except if Your Web site, e-mail
content and/or business activity is illegal). Any suspected fraudulent, abusive
or otherwise illegal content or activity by You on Your Web site or in Your
subscription e-mails, or that is perpetrated through use of the Network
Service, is grounds for immediate termination of this Agreement or deactivation
of "Your Account" (a memo account kept by LME on Your behalf), without prior
notice by LME and referral to the appropriate law enforcement agencies. LME may
not review all content on Your Web site or in Your subscription e-mails. You
shall remain solely responsible for Your Web site and subscription e-mail
content. LME is, under no circumstances, responsible for the practices of any
Publisher or such Publisher’s Web site(s) and/or the content that an Advertiser
makes available through the Network Service and/or the content of Publishers’
subscription e-mails.
2.1 Linking to the Advertiser. During the Term You have the
opportunity to earn Payouts if results are produced through running one or more
Advertiser "Campaigns" (pay-per-Transaction promotions). Upon approval by the
Advertiser for acceptance into its Program, You may post (and remove) Links
from Your Web site or subscription e-mails to Advertiser's Web site or Web site
content at Your discretion in accordance with this Agreement. If such Links are
not dynamically updated through the Network Service, You are obligated to
update Links to an Advertiser's Web site or Web site content when notified to
do so in order to earn Payouts. In the context of the LME Publisher Referral
Program, LME is acting as an Advertiser and all provisions herein that
reference "Advertiser" are deemed to refer to LME.
2.2 Use of Links to the Advertiser. You may not place Links to
Advertiser's Web site or Web site content in newsgroups, message boards,
unsolicited e-mail and other types of spam, banner networks, counters,
chatrooms, guestbooks, IRC channels or through similar Internet resources. You
must place Links to the Advertiser's Web site or Web site content such that it
is unlikely that the Links will mislead the Visitor, and such that it is
reasonably likely that the Links will deliver bona fide Transactions by the
Visitor to Advertiser from the Link.
You shall not cause any Transactions to be made that are not
in good faith, including, but not limited to, using any device, program, robot,
Iframes, hidden frames, JavaScript popup windows, redirects or clicking on
Links that You place to the Advertiser. You shall not establish or cause to be
established any promotion that provides any rewards, points or compensation for
Transactions, or that allows third parties ("Sub-Publishers") to place an
Advertiser's Links on its Web site or in its e-mails, unless You receive the
Advertiser's prior written permission, upon notification to and verification by
LME. You shall be responsible for ensuring that each Sub-Publisher meets LME's
eligibility requirements (as established from time to time), is bound by and
complies with Publisher duties (and where stated Sub-Publisher duties) as
specified in this Agreement, and for payment of Payouts due to Sub-Publisher
that shall accrue in Your Account. You shall indemnify LME for all acts of Your
Sub-Publishers without limitation.
The details of an Advertiser's Program and any Campaigns shall
be available by Linking through the Network Service to the Advertiser's
"Information Page" hosted by Advertiser. Through its Information Page, an
Advertiser may prohibit You from receiving compensation for a Payout
attributable to Transactions made directly by You or on Your behalf by Your
agent by Linking to Advertiser from Your Web site or in Your subscription
e-mail. An Advertiser may permit You to serve the Advertiser's ad content
and/or modify the Advertiser's Links (including but not limited to the images
contained therein). Nothing contained on an Advertiser's Information Page may
conflict with terms and conditions contained in this Agreement and the
Advertiser Service Agreement and any such conflicting terms and conditions
shall be void. LME shall not be obligated to enforce or honor any such
conflicting terms and conditions. Breach of this Section 2.2 is cause for
immediate termination from an Advertiser's Program or Campaign and/or
termination of this Agreement.
2.3 Termination from Advertiser's Program/Campaign. After You
have been approved by an Advertiser, the Advertiser may terminate You, one of
Your Web sites or subscription e-mail lists, and/or Sub-Publisher(s) from the
Advertiser's Program or a Campaign upon 7 days written notice with effect from
the 8th day from such notice ("Publisher Termination for Convenience"); unless
the Advertiser is terminating You/Your Sub-Publisher upon notification to You
for any of the following material breaches ("Publisher Termination for Material
Breach"):
(a) operation of an illegal business through such Web site
and/or subscription e-mail list;
(b) engaging in any illegal activity of any type, including
but not limited to displaying illegal content on its Web Site and/or in its
subscription e-mails or offering any illegal good or service through its Web
Site and/or subscription e-mails;
(c) operation of a Web site or e-mail Link to Web sites that
contain or promote, any of the following content: misleading, abusive, violent,
bigoted, hate-oriented;
(d) engaging in indiscriminate or unsolicited commercial
advertising e-mails;
(e) placing Links to a Your Web site in newsgroups, message
boards, unsolicited e-mail and other types of spam, banner networks, counters,
chatrooms, guestbooks, IRC channels or through similar Internet resources;
(f) causing or enabling any Transactions to be made that are
not in good faith, including, but not limited to, by means of any device,
program, robot, Iframes, hidden frames, JavaScript popup windows and redirects;
(g) establishing or causing to be established any promotion
that provides any rewards, points or compensation for Transactions, or that
allows third parties to place Links to the Advertiser's Web site or Web site
content, without such Advertiser's prior written permission;
(h) breach of the licensing provisions of this Agreement;
(i) breach of any other intellectual property right provision
of this Agreement or other of common law intellectual property rights of
Advertiser; and/or
(j) diluting, blurring or tarnishing the value of Advertiser's
trademarks, tradenames, and/or service marks.
LME may terminate You/Your Sub-Publisher from an Advertiser’s
Program or Campaign in LME’s sole discretion.
3.1 Applicable Codes and Code Maintenance. In order for LME to
record the tracking of Visitors' Transactions resulting from clicks on
Advertiser Links on Your Web sites and/or subscription e-mailings, code
("Transaction Tracking Code") must be included in and maintained within the
Advertiser's Links, and all Advertiser Links and all advertisements ("Ad
Content") must be in a Network Service compatible format. You, the Advertiser
or the Advertiser's agent may serve standard Ad Content. If the Advertiser has
any non-standard Ad Content or Link format, these must be served by the
Advertiser, You or a LME authorized provider (please contact LME support for
verification and authority).
LME shall determine (where possible) actual Payouts that
should be credited to Your Account, and alternatively apply an estimated amount
of Payouts, if the Advertiser or its agent serves Advertiser's Ad Content and
such Links are not functioning properly, or if Links to an Advertiser's Web
site through the Network Service are not functioning properly due to
Advertiser's negligent or intentional act or omission. LME may temporarily
deactivate Your Account or terminate You if You or Your agent is responsible
for the improper functioning of Ad Content that You serve, or if You otherwise
interfere with and/or fail to maintain the Transaction Tracking Code.
3.2 Network Service. Subject to Section 3.1, LME shall provide
You with access to tracking, reporting and support services. Critical
information shall be tracked through the Tracking Code regarding Transactions
that result directly from Links placed by You through the Network Service to
Your Web site or subscription e-mail. You shall be able to produce
informational reports and analyses through the Network Service. Tracking
details regarding Visitor Transactions for all Advertisers is not available on
a real-time basis and there may be reporting delays regarding Transactions for
some Advertisers. LME may make available, at fees that LME shall publish from
time-to-time, enhanced reporting capabilities and other services that are not
included in the standard Network Service.
On-line support service is available via LME support at
info@swmirror.com.
3.3 Advertiser's Payout Rate. The Advertiser shall establish
through the Network Service a Payout rate for a qualifying Transaction for each
of the Advertiser's Campaigns. Your Account will be credited with each Payout
in accordance with the Advertiser's Campaign Payout rate for the relevant
Campaign for each such Visitor action resulting directly from Links from each
of Your or Your Sub-Publisher's Web sites or subscription e-mail to each
Advertiser's Web site or Web site content.
Advertisers may discontinue Campaigns or Programs, or decrease
any Payout rate upon 7 days written notice with effect from the 8th day from
such notice. LME will send You a notice through the Network Service messaging
system regarding each change in Payout rate(s) or Campaign or Program
discontinuation. If You have a custom Payout rate or other arrangements it is
the Advertiser's responsibility for notifying You through the Network Service
messaging system of a change in Payout rate or discontinuation of a Campaign or
Program.
3.4 Payment. If on the last day of the month Your Account
exceeds LME's "Minimum Balance Amount", as set by LME from time to time
(currently US$25 if paid out through PayPal and US$100 if paid out by check),
for Transactions reported for the previous month, LME will issue to You any
positive balance in Your Account. LME shall have no obligation to make payment
of any Payouts for which LME has not received payment from the customer. If LME
elects, in its own discretion, not to make payment to You for amounts not
received from an customer, those amounts shall not be included in the Minimum
Balance Amount. Your recourse for any earned Payouts not received by LME and
not paid to You shall be to make a claim against the relevant customers and LME
disclaims any and all liability for such payment. The number or amount of
Transactions and clicks, credits for Payouts, and debits for Chargebacks, as
calculated by LME shall be final and binding on You.
You may have a negative balance if Your Account is debited
amounts equivalent to previous Payouts for Chargebacks and You do not have an
adequate Account balance to cover the Chargeback amounts. Whenever You have a
negative balance, You must immediately remit a payment to LME in an amount
sufficient to bring Your Account to a zero balance. You may make payments
hereunder via check, wire transfer, or certain credit cards over the Web or by
phone. When payment is made by check, Your Account will not reflect payment
until the check has cleared and cash has been transferred to Commission
Junction's bank account. Your Account will not accrue interest. If You have a
negative balance for any period of 45 days or more, Your Account is subject to
1.5% interest per month, compounded monthly. Your Account may be deactivated
for non-payment. Check Your Account page for payment instructions and foreign
currency options.
Your Account balance shall appear in US Dollars. Payment in
Your local currency may be available. The conversion rate shall be determined
in accordance with LME's and LME's vendor's operating standards using the rates
prevailing upon the date that payment is made to You, or upon the basis of
historical conversion rates if rates are unavailable at such time.
Any questions (including disputes) regarding Payouts and/or
payment should be directed in the first instance to: info@swmirror.com. LME
shall work with internal resources, such as finance, legal, and senior
management, as necessary to answer Your questions.
3.5 Chargebacks. An customer may request that LME, or LME may
on its own initiative, debit Your Account with an amount equal to a Payout
previously credited to Your Account in circumstances of a: product return;
duplicate entry or other clear error; non-bona fide Transaction where there is
no Publisher failure to comply with the Publisher Service Agreement or this
Agreement; or, with respect to a sale, non-receipt of payment from, or refund
of payment to, the Visitor by the Advertiser ("Chargeback"). Chargebacks
requested by the Advertiser in accordance with the preceding sentence may be
applied up to and including the 60th day after the end of the month in which
the Payout was earned ("Chargeback Period"). LME may apply at any time
Chargebacks for non-bona fide Transactions in circumstances of Publisher or
Sub-Publisher failure to comply with this Agreement or the Advertiser Service
Agreement.
4.1 Proprietary Rights and Licenses. LME grants to You a
revocable, non-transferable, royalty free, international sublicense to display
and Link to the Advertiser's Web site or Web site content, and all trademarks,
service marks, tradenames, and/or copyrighted material ("Content"), from each
of Your Web Sites and/or subscription e-mail for the limited purposes of
Promoting the Advertiser's Program and subject to the terms and conditions of
this Agreement. The foregoing rights are sub-licensable by You to Your
Sub-Publishers only if authorized by Advertiser on its Information page or by
written permission. Your/Your Sub-Publisher's sub-license is conditioned upon
You/Your Sub-Publishers'(as the case may be): (a) not otherwise copying nor
modifying, in any way, any icons, buttons, banners, graphics files or Content
that is made available to You through the Network Service pursuant to the such
sublicense; and (b) not removing or altering any copyright or trademark
notices.
You agree that Your use of any SWMirror.com Web site and Your
use of any SWMirror.com Content or Links is subject to the license and terms of
use that are available from such Web site ("Terms of Use"). Each party may make
statements that it is doing business with the other and use the other's logo
with such statements.
4.2 No Challenge to Intellectual Property. LME acknowledges
that it obtains no proprietary rights in Your Content, and agrees not to
challenge Your proprietary rights to the Content unless and until this
Agreement is terminated. You acknowledge that You obtain no proprietary rights
in LME's Content, patents, and patent applications, and agree not to challenge
LME's proprietary rights in LME's patents and patent applications, and, with
respect to the Content until this Agreement is terminated.
You acknowledge that You obtain no proprietary rights to the
Advertisers' Content, and agree not to challenge the Advertiser's proprietary
rights to the Content until the Advertiser has terminated You from its Program
or You have withdrawn from the Advertiser's Program by removing all Links
provided to You through the Network Service.
The licensees/sub-licensees agree that all goodwill arising as
a result of the licensor's Intellectual Property shall inure to the benefit of
the licensor, and that all non-licensed/or sublicense proprietary rights in the
Intellectual Property remain with the licensor. Licensees/sub-licensees shall
not adopt any names, trademarks, service marks or domain names that are
confusingly similar to, or in combination with any of licensor's tradenames,
trademarks, service marks and/or domain names.
4.3 Terminating Licenses. The Advertiser may terminate any
sublicense granted to You and/or a Sub-Publisher under this Agreement
immediately upon written notice to You if the Advertiser has reasonable
concerns that You and/or the Sub-Publisher is diluting, tarnishing or blurring
the value of the Advertiser's trademarks, service marks, and/or tradenames,
and/or breach of the Advertisers other intellectual property rights. LME may
terminate this Agreement immediately upon written notice if LME has reasonable
concerns that You/or Your Sub-Publisher may be diluting, tarnishing or blurring
the value of LME's trademarks, service marks, and/or tradenames, and/or breach
of LME's other intellectual property rights.
5.1 Privacy and Confidentiality. You or LME may provide the
other with information that is confidential and proprietary to that party or a
third party, as is designated by the disclosing party ("Confidential
Information"). The receiving party agrees to make commercially reasonable
efforts, but in no case no less effort than it uses to protect its own
Confidential Information, to maintain the confidentiality in order to protect
any proprietary interests of the disclosing party. "Confidential Information"
shall not include (even if designated by a party) information that is or
becomes part of the public domain through no act or omission of the receiving
party, or is lawfully received by the receiving party from a third party
without restriction on use or disclosure and without breach of this Agreement
or any other agreement without knowledge by the receiving party of any breach
of fiduciary duty, or that the receiving party had in its possession prior to
the date of this Agreement.
The information that You supply to establish and maintain Your
Account shall be Your Confidential Information, and You agree that LME may
provide Your e-mail address(es) and basic Publisher Account detail (including
but not limited to Web site name (if applicable), date Web site or subscription
e-mail first entered into operation, and visitor demographics) to other
Advertisers. You shall be responsible for all usage and activity on Your
account and for loss, theft or unauthorized disclosure of Your password (other
than through LME's grossly negligent or willful conduct or omission). You shall
provide LME with prompt written notification to info@swmirror.com of any known
or suspected unauthorized use of Your Account or breach of the security of Your
Account.
LME’s Privacy Policy that is accessible from the home page of
www.swmirror.com and may be amended from time to time by way of republication,
is incorporated into this Agreement.
5.2 Collection and Use of Transaction Data. LME does not
collect information about a Visitor's Transactions, other than what it receives
through the installed tracking code. LME reserves the right to be able to
utilize this data, which may include information about Your performance
statistics, to analyze Network Service trends, monitor Network Service
efficiencies, maintain the integrity of the tracking code, promote Network
Service capabilities and efficiencies, and promote You and Your Web site or
subscription e-mail performance to Advertisers. LME may also disclose data
regarding a Visitor's Transactions to You, if You referred the Visitor to the
Advertiser, for the performance of this Agreement and to the Advertiser for the
performance of the Advertiser's Advertiser Service Agreement, and for Your use
for rewards programs that the Visitor is a member of (on the condition that the
Visitor has authorized release of such information to You).
5.3 Collection and Confidentiality of Visitors' Personal Data.
LME promises not to disclose publicly, other than under compulsion of law,
including subpoena, any personal or business information that can be linked
specifically to any Visitors to Your Web site that result directly from Links
on Your Web sites and/or subscription e-mail mailings without the Visitor's
express permission (which may be through the Visitor's membership to Your
subscription e-mail or Web site program), to the extent LME collects any such
information, including, but not limited to, the Visitor's name, e-mail address,
phone number, or any other personal information.
6.1 Term and Notices. This Agreement shall commence upon Your
indication that You have accepted this Agreement by ‘clicking through’ the
acceptance button on the LME Web site, and, subject to Section 6.2, shall last
until terminated in accordance with the terms of this Agreement. Except as
provided elsewhere herein, both parties must send all notices relating to this
Agreement via e- mail with the subject line of "IMPORTANT LEGAL NOTICE", to:
(a) for LME, "info@swmirror.com", and, (b) for You, at the e-mail address
listed on Your Account. E-mailed notices shall be effective upon the logging by
sender’s server of delivery confirmation. Your Account may be closed and LME
may terminate this Agreement if Your Account has not been logged into and/or
there have been no Transactions credited to Your Account for any 90 day period.
6.2 Temporary Deactivation and Termination. This Agreement may
be terminated by Publisher upon 30 days notice, or by a non-breaching party if
a breaching party fails to remedy a breach of this Agreement within 30 days'
written notice, except in where no opportunity to cure is required to be
extended (as specified herein). Your Account may be deactivated in accordance
with Sections 1, 2.2, 2.3, 3.5, 4 or other material breach of this Agreement
pending termination or cure of Your breach. If this Agreement is terminated for
Your breach, You shall not be eligible to enter into a new click-on Publisher
Marketing agreement with LME, and any attempt to do so shall be null and void.
Upon termination of this Agreement, an outstanding credit
balance shall be paid by LME to You within 90 days of the termination date, and
an outstanding debit balance shall be paid by You to LME within 30 days of
termination of this Agreement, subject to amounts equivalent to pending for
Chargebacks (that shall be paid promptly if and when LME has been able to
verify that no Chargeback is applicable). Upon termination of this Agreement,
any license or sublicense granted under this Agreement will terminate, and the
licensee/sub-licensee must immediately destroy or delete all physical and
electronic copies of the Intellectual Property and the Confidential
Information, and cause all Links to Advertisers (or applicable Advertiser) to
be removed, and, in the case of termination, Links to LME to be removed. Upon
termination of this Agreement, or in case of deactivation of Your Account
pursuant to the terms of this Agreement, You shall no longer accrue Payouts in
Your Account for Visitors' click-throughs to Advertiser's Web site or Web site
content (including but not limited to subsequent sales and/or Leads).
6.3 Survival. The provisions of this Section and Sections 1,
3.4, 3.5, 5, 6, 8.1(a), 9, 10, 11.3, 11.5, and 11.6 shall survive the
termination of this Agreement.
7 Changes to the Network Service. This Agreement, including
the Introduction, contains the entire understanding and agreement of the
parties and there have been no promises, representations, agreements,
warranties or undertakings by either of the parties, either oral or written,
except as stated in this Agreement. This Agreement may only be altered, amended
or modified by an instrument that is assented to by each party to this
Agreement by verifiable means, including without limitation by written
instrument signed by the parties or through a "click through" acknowledgement
of assent. Notwithstanding the foregoing, LME shall have the right to change,
modify or amend ("Change") this Agreement, in whole or in part, by notifying
You of such Change, by e-mail, at least 14 days prior to the effective date of
such Change; provided however that either party shall have the right to
terminate this Agreement pursuant to Section 6.2 in event that You do not agree
to such Change.
8.1 Remedies.
(a.) Cumulative. No remedy or election shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies
at law or in equity.
(b.) Your Remedies. If You believe in good faith that LME is
harming Your reputation or in breach of any of the following Sections of this
Agreement: 4.2, 5.1, 5.2, 7, 10 and/or 11.2, You must notify LME in accordance
with Section 6.1 and provide LME with the opportunity to cure such breach. You
may terminate this Agreement immediately upon notice to LME if LME is in breach
of Section 5.3 of this Agreement.
(c) Advertisers/LME Remedies. An Advertiser may terminate Your
or Your Sub-Publisher's sublicense/participation in the Advertiser's Program
under this Agreement immediately upon notice to LME if the Advertiser believes
in good faith that You or Your Sub-Publisher is harming the Advertiser's
reputation, or in breach of the following Sections of this Agreement: 1 (except
as noted therein), 2.2, 2.3, 4 and/or 8.2. If LME believes in good faith that
You are harming LME's reputation or in breach of any of the following Sections
of this Agreement: 1 (except as noted therein), 3.1 (except for gross
negligence or intentional act or omission), 3.4, 4.2, 5.1, 10, and/or 11.2, LME
must notify You in accordance with Section 6.1 and provide You with the
opportunity to cure such breach. LME may terminate this Agreement, deactivate
You or remove or disable any Links from Your Web site or subscription e-mails
through the Network Service without prior notice if You are in breach of any of
the following Sections of this Agreement: 1 (except as noted therein), 3.1 (for
gross negligence or intentional act or omission), 2.2, and/or 8.2.
8.2 Third Party Disputes. Should any third party dispute a
party's right to use any Link, domain name, trademark, service mark, trade
dress, or right to offer any service or good offered on a party's Web site or
through its subscription e-mail, a party may, without prior notice, terminate
this Agreement, or, in LME's case, deactivate Your Account. A party's
representations regarding the preceding may or may not be relied upon in the
other party's decision whether to terminate this Agreement, or, in LME's case,
deactivate Your Account.
9.1 Business Operations. Each party will make reasonable
commercial efforts to keep its Web site operational during normal business
hours. However, the parties agree that it is normal to have a certain amount of
system downtime and agree not to hold each other or the Advertiser liable for
any of the consequences of such interruptions.
9.2 Authority and Compliance with Laws. Each party represents
and warrants to the other party as to itself that the person executing this
Agreement is authorized to do so on such party's behalf. Each party is
responsible for compliance with the applicable local laws in the jurisdiction
from which it operates and represents and warrants such compliance. Each party
represents and warrants that the party shall have all appropriate authority and
rights to grant the licenses hereunder, and that to the party's knowledge the
licenses, and in the case of LME, the technology that LME utilizes for the
Network Service, do(es) not infringe a third party's (or the other party's)
intellectual property rights.
9.3 Limitation of Liabilities. WITH THE EXCEPTION OF A PARTY'S
INDEMNIFICATION OBLIGATIONS, ANY LIABILITY OF A PARTY UNDER THIS AGREEMENT
SHALL BE LIMITED TO THE TOTAL OF YOUR PAYOUTS PAID AND PAYABLE TO YOU BY LME
AND INTEREST PAID AND PAYABLE BY YOU TO LME DURING THE TERM OF THIS AGREEMENT.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, OR ANY THIRD PARTY (INCLUDING
BUT NOT LIMITED TO A CLAIM BY ANOTHER PUBLISHER OR AN ADVERTISER OF THE NETWORK
SERVICE), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE
DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS,
BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES OR CLAIM.
9.4 Disclaimer of Warranties. TO THE FULLEST EXTENT
PERMISSIBLE PURSUANT TO APPLICABLE LAW, BOTH PARTIES DISCLAIM ALL WARRANTIES
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, (B) THAT THERE ARE NO VIRUSES OR OTHER
HARMFUL COMPONENTS, (C) THAT A PARTY'S SECURITY METHODS EMPLOYED WILL BE
SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST
INTERFERENCE WITH ENJOYMENT OF A PARTY'S "INFORMATION" (WEB SITE). ALL
'INFORMATION' AND 'COMPUTER PROGRAMS' PROVIDED IN THE COURSE OF THIS AGREEMENT
ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY,
PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER.
9.5 Benefit of the Bargain. THE PROVISIONS OF THIS SECTION 9
ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS
AGREEMENT.
10 Indemnification. Each party ("indemnitor") shall defend,
indemnify and hold the other party ("indemnitee") harmless against all claims,
suits, costs, damages and judgments incurred, claimed or sustained by third
parties for the indemnitor's breach of this Agreement and for claims of product
liability and/or malpractice or misfeasance in the performance of services
("Claims"). Should any Claim give rise to a duty of indemnification under the
provisions of this Agreement, then the indemnitee shall promptly notify the
indemnitor, and the indemnitee shall be entitled, at its own expense, and upon
reasonable notice to the indemnitor, to participate in, control the defense,
compromise and to defend such Claim. The indemnitor may not settle any claim
without the consent of the indemnitee, except upon terms and conditions offered
or consented to by the indemnitee, which consent shall not be unreasonably
withheld. Neither participation nor control in the defense shall waive or
reduce any obligations to indemnify or hold harmless.
11.1 Headings and References. Headings of Sections are for the
convenience of reference only. Words indicated in quotes and capitalized
signify an abbreviation or defined term for indicated words or terms, including
those definitions contained in the opening paragraph. The content in other Web
sites specifically referenced in this Agreement, such as URLs, is incorporated
by this reference as though fully stated in this Agreement.
11.2 Relationships of Parties/Third Party Rights. The
relationships of the parties to this Agreement shall be solely that of
independent contractors, and nothing contained in this Agreement shall be
construed otherwise. Nothing in this Agreement or in the business or dealings
between the parties shall be construed to make them joint venturers or partners
with each other. Neither party shall do anything to suggest to third parties
that the relationship between the parties is anything other than that of
independent contractor.
11.3 Choice of Law/Attorneys Fees. This Agreement is governed
by the laws of the State of California (USA), except for its conflict of law
provisions. The exclusive forum for any actions related to this Agreement shall
be in the state courts in Orange County, California, and, to the extent that
federal courts have exclusive jurisdiction, in Los Angeles, California. You
consent to such venue and jurisdiction. The application of the United Nations
Convention on the International Sale of Goods is expressly excluded. A party
that primarily prevails in an action brought under this Agreement is entitled
to recover from the other party its reasonable attorneys fees and costs. LME
controls and operates its Web site from its offices in the U.S.A. and access or
use where illegal is prohibited.
11.4 Force Majeure. Neither party shall be liable by reason of
any failure or delay in the performance of its obligations hereunder for any
cause beyond the reasonable control of such party, including but not limited to
electrical outages, failure of Internet service providers, riots, insurrection,
war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
11.5 Severability/Waiver. If any provision of this Agreement
is held by any court of competent jurisdiction to be illegal, null or void or
against public policy, the remaining provisions of this Agreement shall remain
in full force and effect. The parties shall in good faith attempt to modify any
invalidated provision to carry out the stated intentions in this Agreement. The
waiver of any breach of any provision under this Agreement by any party shall
not be deemed to be a waiver of any preceding or subsequent breach, nor shall
any waiver constitute a continuing waiver.
11.6 Assignment and Acknowledgement. Neither party may assign
this Agreement without the prior express written permission of the other party.
Your use of the Network Service is irrefutable acknowledgement by You that You
have read, understood and agreed to each and every term and provision of this
Agreement. LME may establish from time to time rules and regulations regarding
use of the Network Service as published on the Network Service and are
incorporated herein.
Forward-Looking Statements:
The Site may now, or hereafter from time to time, contain
certain statements or information with respect to (i) the projection of
revenues, income, earnings per share, capital expenditures, dividends, capital
structure, or other financial items relating to us; (ii) our plans, objectives
and/or projections for future operations, including those relating to our
products or services; (iii) our future economic performance; and (iv) other
projections, estimates or forward-looking statements relating to us. All such
statements and information are forward-looking statements within the meanings
of Section 27A of the Securities Act of 1933, as amended, and Section 21E of
the Securities Exchange Act of 1934, as amended. Such forward-looking
statements are based upon, or will be based upon, our judgment with respect to
future events and are subject to a number of uncertainties and risks that could
cause actual results or circumstances to differ materially from those expressed
in the forward-looking statements. For further detail and information
concerning such risks and uncertainties, please consult our reports and other
documents and information now and hereafter on file with the Securities and
Exchange Commission.
IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU
WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
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