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WHENU.COM AFFILIATE AGREEMENT
This Affiliate Agreement ("Agreement") contains the complete terms and conditions that apply to you when you become a WhenU.com affiliate ("Affiliate") in the WhenU.com Affiliate Program ("Affiliate Program") and a member of WhenU.com's Affiliate Network ("Affiliate Network").
1. Enrollment
The potential Affiliate shall review this Agreement, accept this Agreement by clicking on the 'I Agree' link below, and submit a completed application ("Application") in the form that will be presented immediately following acceptance of this Agreement. WhenU.com will evaluate the Application and, upon completion of WhenU.com's evaluation of the Application, WhenU.com will notify potential Affiliate of acceptance or rejection. WhenU.com may reject the Application for no reason, or for any reason at all. Some reasons why WhenU.com may reject the Application include that, in WhenU.com's sole opinion, WhenU.com believes the Affiliate Site includes content that is unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable. If WhenU.com rejects the Application, Affiliate may reapply to become a WhenU.com Affiliate at any time. WhenU.com may revoke WhenU.com's acceptance of Application at any time, for any reason, or for no reason at all.
2. Utilization of WhenU.com links
If WhenU.com accepts the Application, WhenU.com will make available to Affiliate through the WhenU.com Site a variety of graphic and text links (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which, subject to the terms and conditions hereof, Affiliate may display as often and in as many areas on the Affiliate Site ("Affiliate Site") as Affiliate desires. The Links will serve to identify the Affiliate Site as a member of WhenU.com's Affiliate Network and will establish a link from the Affiliate Site to the WhenU.com Site. The Links shall connect only to the WhenU.com Site. WhenU.com may revoke WhenU.com's acceptance of Affiliate or Affiliate Site at any time, for any reason, or for no reason at all. WhenU.com may, from time to time, alter the appearance of the images and other creative content associated with the said Links.
In utilizing the Links, Affiliate agrees that it will cooperate fully with WhenU.com in order to establish and maintain such Links. Affiliate also agrees that it will display on the Affiliate Site only those Links that are provided by WhenU.com, and Affiliate will substitute all Links with any new Links made available by WhenU.com to Affiliate through the WhenU.com Site from time to time throughout the term of this Agreement. Affiliate shall display all Links prominently in relevant sections of the Affiliate Site. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties. Each Link connecting Affiliate's users to the pertinent area of the WhenU.com Site will in no way alter the look, feel, or functionality of the WhenU.com Site. Affiliate's right to use Links hereunder may be revoked by WhenU.com at any time for any reason or no reason at all.
WhenU.com will be responsible for providing all information necessary to allow Affiliate to make appropriate Links from the Affiliate Site to the WhenU.com Site. WhenU.com, or WhenU.com designated service providers, will be solely responsible for tracking the unique downloads (utilizing WhenU.com's one-click download technology) and first use of WhenU.com software by people following a Link from the Affiliate Site to the WhenU.com Site, and for providing information to Affiliate Sites regarding the number of unique new WhenU.com software downloads resulting from activation of a Link on the Affiliate Site.
3. Commission
WhenU.com shall pay Affiliate a commission for each qualifying download of WhenU.com's software that originates from a link at the Affiliate Site. A download of WhenU.com software shall be designated as a Qualifying Download ("Qualifying Download") when (1) an end-user from the Affiliate Site follows a link from the Affiliate Site to the WhenU.com Site and successfully downloads the WhenU.com software onto a client computer on which the WhenU.com software had never previously been installed ("Unique New Download") utilizing WhenU.com's one-click download method; (2) the end-user is from the US or Canada; and (iii) the end-user uses the WhenU.com software at least once.
Affiliate agrees not to use any automated systems to download, install or use WhenU.com software for the purposes of artificially inflating commissions or to manually, or in any other way, cause downloads to occur other than by individual Affiliate end users who link from the Affiliate Site to the WhenU.com Site for purposes of downloading, installing, and using WhenU.com software for personal use. WhenU.com retains the right to question unusual download patterns and withhold commissions if WhenU.com determines, at WhenU.com's sole discretion, that the download pattern is of questionable origin.
3(i) Commission Rates WhenU.com will pay Affiliate $0.50 for each Qualifying Download recorded by WhenU.com's server. Additionally, WhenU.com may extend special download incentive offers to select Affiliates who exhibit exceptional performance ("Performance Incentives"). These Performance Incentives will be made available by private e-mail to Affiliates chosen at WhenU.com's sole discretion. WhenU.com may change the commission rate at any time. Affiliates shall be provided at least two weeks notice of any change. Notice shall be delivered to Affiliates by email.
3(ii) Commission Payment When the total commissions due to Affiliate exceed one-hundred dollars ($100.00) WhenU.com will send to Affiliate a statement of activity and a commission check for the applicable commission (less any taxes required to be withheld under applicable law). Such statements of activity and commission checks will be sent approximately ninety (90) days after the end of each month.
3(iii) Reports of Qualifying Downloads Affiliate will be given a password to access a web page from which Affiliate can view the Affiliate Qualifying Download statistics. This information will be updated daily by WhenU.com.
4. Licenses and Use of the WhenU.com Logos and Trademarks
WHENU.COM GRANTS AFFILIATE A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS THE WHENU.COM SITE THROUGH THE LINKS SOLELY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND (ii) SOLELY IN CONNECTION WITH SUCH LINKS, TO USE THE WHENU.COM SERVICEMARK AND LOGO AND SIMILAR IDENTIFYING MATERIAL RELATING TO WHENU.COM (BUT ONLY IN THE FORM(S) THAT THEY APPEAR ON THE PASSWORD PROTECTED PAGES FOR AFFILIATES AT THE WHENU.COM SITE (COLLECTIVELY, THE "LICENSED MATERIALS"), FOR THE SOLE PURPOSE OF LINKING THE AFFILIATE SITE TO THE WHENU.COM SITE, WHERE AFFILIATE USER CAN DOWNLOAD WHENU.COM PRODUCTS. AFFILIATE MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN ANY WAY. AFFILIATE IS ONLY ENTITLED TO USE THE LICENSED MATERIALS TO THE EXTENT THAT AFFILIATE IS A MEMBER IN GOOD STANDING OF WHENU.COM'S AFFILIATE NETWORK.
Affiliate grants to WhenU.com a non-exclusive worldwide license to utilize the Affiliate names, titles, trademarks, service marks and logos as ordinarily displayed on the Affiliate Site, as the same may be amended from time to time (the "Affiliate Trademarks"), to advertise, market, promote, and publicize in any manner WhenU.com's rights hereunder, and to sublicense such rights; provided, however, that WhenU.com shall not be required to so advertise, market, promote, or publicize.
All licenses granted pursuant to this Section shall terminate upon this Agreement's expiration or termination.
5. Other General Policies
Affiliate users who receive a Qualifying Download are customers of WhenU.com, and not customers of Affiliate. Accordingly, all of WhenU.com's policies will apply to such end Users. Please carefully review WhenU.com's privacy policy located at www.whenu.com. Affiliate shall not create, publish, distribute, or permit any written material that makes reference to WhenU.com or WhenU.com software without first submitting such material to WhenU.com and receiving WhenU.com's written consent.
Affiliate will be solely responsible for the development, operation, and maintenance of the Affiliate Site and for all materials that appear on the Affiliate Site. Such responsibilities include, but are not limited to, the technical operation of the Affiliate Site and all related equipment; creating and posting product reviews, descriptions, and references on the Affiliate Site and linking those descriptions to the WhenU.com Site; the accuracy and propriety of materials posted on the Affiliate Site (including, but not limited to, all WhenU.com Product-related materials); ensuring that materials posted on the Affiliate Site do not violate or infringe upon the rights of any third party and are not libelous to WhenU.com or otherwise illegal.
Affiliate hereby agrees that the Affiliate Site will not, in any way, copy or resemble the look and feel of the Whenu.com Site nor will Affiliate create the impression that the Affiliate Site is the WhenU.com Site, is a part of the WhenU.com Site, or is sponsored by the WhenU.com Site. Affiliate also agrees that the Affiliate Site will not contain any content of the WhenU.com Site or any materials which are proprietary to WhenU.com, except (i) with WhenU.com's prior written permission, or (ii) materials which are obtained by Affiliate via the password protected WhenU.com Affiliate Pages on its website in accordance with the provisions hereof or the policies or instructions thereon.
6. Termination
Either party may terminate this Agreement at any time by notifying the other party in writing at least two weeks prior to termination; provided, however, that WhenU.com may immediately terminate this Agreement if WhenU.com believes Affiliate has breached this Agreement. Upon termination, all Links will immediately be removed from the Affiliate Site.
7. Disclaimer of Warranty
THE WHENU.COM SOFTWARE AND WHENU.COM SITE ARE PROVIDED 'AS IS' AND 'AS AVAILABLE' WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. PROVISION OF THE WHENU.COM SOFTWARE AND WHENU.COM SITE ARE AT AFFILIATE'S SOLE RISK. WHENU.COM DOES NOT WARRANT THAT THE WHENU.COM SOFTWARE OR WHENU.COM SITE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES WHENU.COM MAKE ANY WARRANTY AS TO THE PERFORMANCE OR ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE WHENU.COM SOFTWARE OR WHENU.COM SITE. WHENU.COM MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT. Because some states and jurisdictions do not allow limitations on implied warranties, the above limitation may not apply to Affiliate. In that event, such warranties are limited to the minimum warranty period allowed by the applicable law.
8. Limitation of Liability
IN NO EVENT SHALL WHENU.COM BE LIABLE TO AFFILIATE OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF AGREEMENT, TORT OR OTHERWISE EVEN IF WHENU.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, WHENU.COM SHALL HAVE NO LIABILITY FOR ANY FAILURE, DELAY OR DAMAGE RESULTING FROM ANY CAUSES OR CONDITIONS THAT ARE BEYOND WHENU.COM'S CONTROL, INCLUDING BUT NOT LIMITED TO GOVERNMENTAL ACTION, FIRE, FLOOD, INSURRECTION, EARTHQUAKE, POWER FAILURE, RIOT, EXPLOSION, EMBARGO, STRIKES WHETHER LEGAL OR ILLEGAL, LABOR OR MATERIAL SHORTAGE, TRANSPORTATION INTERRUPTION OF ANY KIND, OR WORK SLOWDOWN. WHENU.COM SHALL HAVE NO LIABILITY FOR ERRORS IN PRODUCT LISTINGS. IN THE EVENT OF ANY WHENU.COM FAILURE, TECHNICAL OR OTHERWISE, OF THE WHENU.COM SOFWARE OR WHENU.COM SITE AS PROVIDED, THE SOLE OBLIGATION OF WHENU.COM TO AFFILIATE SHALL BE LIMITED TO THE AVAILABILITY OF THE WHENU.COM SITE AT A LATER TIME. IN ANY CASE, WHENU.COM'S MAXIMUM CUMULATIVE LIABILITY AND AFFILIATE'S OR ANY THIRD PARTY'S EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY WHENU.COM TO AFFILIATE HEREUNDER. Because some states and jurisdictions do not allow limitations on implied warranties, the above limitation may not apply to Affiliate. In that event, such warranties are limited to the minimum warranty period allowed by the applicable law.
9. Miscellaneous
No conditions other than those set forth in this Agreement shall be binding on WhenU.com unless expressly agreed to in writing by WhenU.com. This Agreement (i) shall be governed by and construed in accordance with the laws of the state of New York, without giving effect to principles of conflicts of law; (ii) may be amended only by a written agreement executed by an authorized representative of each party; and (iii) constitutes 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. Both parties consent to the jurisdiction of, and waive any venue objections against, the state and federal courts in New York, New York.
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