THIS IS A LEGAL AGREEMENT BETWEEN YOU AND PERFORMIX LLC (DBA PERFROMIXDRIVEN.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 affiliate in PerformixDriven.com's Team Performix Affiliate Program. The purpose of this Agreement is to allow HTML linking between your web site and the PerformixDriven.com web site. Please note that throughout this Agreement, "we," "us," and "our" refer to PerformixDriven.com, and "you," "your," and "yours" refer to the affiliate.
- Affiliate Program Requirements
2.1 You must be a PerformixDriven.com customer in order to participate and must complete and submit the online application at PerformixDriven.com.
2.2 The fact that approve applications does not imply that we may not re-evaluate your application at a later time. We may reject your application at our sole discretion and may cancel your application if we determine that your site is unsuitable for our program, including if it:
2.2.1 Promotes sexually explicit materials;
2.2.2 Promotes violence;
2.2.3 Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
2.2.4 Promotes illegal activities;
2.2.5 Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law;
2.2.6 Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion;
2.2.7 Contains software downloads that potentially enable diversions of commission from other affiliates in our program;
2.2.8 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 PerformixDriven.com or any other affiliated business.
2.3 Gaming the system will lead to exclusion from the program and any rewards earned will be revoked. This pertains to, but not exclusively, mass distribution of the referral link and/or code in any form as well as referring yourself.
2.4 You are not permitted, under any circumstances, to represent that you are acting on behalf of PerformixDriven.com or that you have the authority to enter in any agreement on behalf of PerformixDriven.com.
2.5 The purchase must either be made through your unique referral link or involve your unique referral discount code in order for you to be credited. You will not earn your reward if the referred customer fails to do so and PerformixDriven.com is under no obligation to pay you a reward in such case.
2.6 You acknowledge and agree that PerformixDriven.com’s determination will be final and binding with respect to the referring party's eligibility for any affiliate program reward.
3.1 Merchant.com reserves the right to terminate this Agreement and your participation in the PerformixDriven.com Affiliate Program immediately and without notice to you should you commit fraud in your use of the PerformixDriven.com Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, PerformixDriven.com shall not be liable to you for any commissions for such fraudulent.
3.2 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.
- Intellectual Property
4.1 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 PerformixDriven.com's Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of PerformixDriven.com and the good will associated therewith will inure to the sole benefit of PerformixDriven.com.
4.2 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.
All affiliates must comply with all federal, state and local regulations within your jurisdiction. This includes applicable governing marketing emails (ie CAN-SPAM Act), and all other anti-spam laws. PerformixDriven.com reserves the right to suspend or remove affiliates from our affiliate program at any time, without warning. Upon termination, you agree to discontinue use of all links, logos, banners and promotional materials provided to you by PerformixDriven.com.
PERFORMIXDRIVEN.COM MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING PERFORMIXDRIVEN.COM SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF PERFORMIXDRIVEN.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.
- 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 PerformixDriven.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.
10.1. 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.
10.2. 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.
10.3. 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.
9.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
10.5. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
10.6. 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.
10.7. 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.