- THIS AGREEMENT between the subscriber (hereinafter “you” or “subscriber”) and Partner Maker LLC (hereinafter “PARTNER MAKER”) grants you the right, by having a current, paid PARTNER MAKER account, to digitally access and make use of the PARTNER MAKER contact management, Private Directory Affiliate Publisher Database and e-mail solution.Any PARTNER MAKER subscriber who, by having paid the appropriate additional fee, receives access to PARTNER MAKER’s system on an annual basis is granted the right to access a list of top-performing, Internet based affiliates (the “Private Directory Affiliate Publisher Database”) and all associated affiliate publisher profile data from PARTNER MAKER for a period of 12 months from the time the subscription is activated, subject to the terms and conditions set forth in this Agreement. A Private Directory Affiliate Publisher Database subscription is defined as access to a bi-annually (twice yearly) updated listing of affiliate publisher business partners accessible through Subscriber’s PARTNER MAKER account.
PARTNER MAKER reserves the right, at its discretion, to change, modify, or remove any of the terms of this Agreement at any time. Notice of such changes may be distributed via e-mail, direct mail or other communication.
- Copyright; Prohibitions on Certain UsesYou agree to use your PARTNER MAKER subscription in a way that conforms with all applicable laws and regulations, and you specifically agree not to make any attempt to gain unauthorized access to this or any other system or network accessed with your subscription. You agree to not upload or transmit any information contained within the Private Directory Affiliate Publisher Database, or within your PARTNER MAKER account that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party.
Each of the affiliate publisher profiles contained within the Private Directory Affiliate Publisher Database are copyrighted by PARTNER MAKER and among other parties and, therefore, are subject to all applicable copyright, database protection and other rights of the copyright owner and publisher under the laws of the United States and other countries. Copyright notices within the PARTNER MAKER solution may not be removed, obscured or modified in any way. Altering, recompiling, copying, reselling, redistributing, publishing or republishing of any text, output, search results, code, or other information from any PARTNER MAKER account or any portion thereof, including without limitation, copyright, trade secret, proprietary and/or other legal notices contained therein, in any form or medium is prohibited. Systematic or programmatic downloading service bureau redistribution services and/or the making of print or electronic copies for transmission of any information contained within PARTNER MAKER systems to any third party are prohibited. All rights not expressly granted are reserved to the owners thereof.
PARTNER MAKER shall not be required to distribute, and you shall not redistribute, any information contained in the Private Directory Affiliate Publisher Database, or your PARTNER MAKER account, to a country where the export thereof is prohibited by U.S. law, order or regulation. You represent that you are from a “permitted country” and that this does not violate U.S. law.
Subscriber assumes sole responsibility for all use of all affiliate publisher profile information, and associated information, contained within the Private Directory Affiliate Publisher Database as well as its own PARTNER MAKER Subscriber account database. Subscriber agrees to indemnify and hold PARTNER MAKER, its partners, officers, directors, employees, agents, licensors, suppliers and any third party information providers harmless from and against any and all claims, liabilities, damages, expenses (including attorneys’ fees and experts’ costs, penalties and fees, if any, for the enforcement of this Agreement and otherwise for PARTNER MAKER’s defense of indemnified claims), losses and threatened losses arising from or in connection with any breach of this Agreement, including without limitation, claims of unauthorized use and unauthorized distribution. Subscriber agrees to indemnify, defend and hold harmless PARTNER MAKER, and its business partners, from and against all losses, expenses, damages and costs, including attorneys’ fees, resulting from any violation of this Agreement (including negligent or wrongful conduct) by you or your use and/or access to the Private Directory Affiliate Publisher Database or any part of the PARTNER MAKER’s system provided to you through your PARTNER MAKER subscription.
PARTNER MAKER reserves the right to release current or past Subscriber or Web site user information if PARTNER MAKER believes that a subscriber is using PARTNER MAKER’s systems and/or the Private Directory Affiliate Publisher Database to commit unlawful acts, if the information is subpoenaed and/or if PARTNER MAKER deems it necessary and/or appropriate. PARTNER MAKER reserves the right to refuse future access to Private Directory Affiliate Publisher Database and/or access to PARTNER MAKER’s systems to any Subscriber who misuses the Private Directory Affiliate Publisher Database and/or PARTNER MAKER’s systems in a manner that violates the CAN-SPAM Act of 2003 (Public Law 108-187) or uses Private Directory Affiliate Publisher Database and/or PARTNER MAKER’s systems as a means to generate e-mail addresses to be mass mailed. Use of the PARTNER MAKER system and/or the Private Directory Affiliate Publisher Database in an unlawful manner is prohibited and PARTNER MAKER reserves the right to refuse future distribution or grant access to PARTNER MAKER’s systems to any Subscribers found by PARTNER MAKER to be in violation of this Agreement or any applicable law.
- Duration of AgreementThis Agreement will become effective upon payment to PARTNER MAKER, by the subscriber, and initial access to your PARTNER MAKER account as recorded by PARTNER MAKER’s Web servers. Subject to the terms and conditions of this Agreement, this Agreement will remain in effect while you maintain a current paid subscription to the PARTNER MAKER and/or its Private Directory Affiliate Publisher Database. This Agreement will terminate:
- Subject to (b) and (c) below, if Subscriber’s paid subscription lapses (i.e. your 12 month or pro-rated subscription term expires) or if PARTNER MAKER elects to discontinue its product, termination is effective at the end of the period during which a subscription is maintained.
- Immediately, if any term or condition of this Agreement is violated by subscriber for any reason, knowingly or unknowingly.
- Following thirty (30) days prior written or e-mail notice by PARTNER MAKER of any change in the terms of the Agreement, receipt by PARTNER MAKER of notice from you in writing, or by e-mail or by fax that you do not accept such change or changes. (In the absence of any such objection by Subscriber, PARTNER MAKER’s new terms shall apply.
- Effort to Perform & Failure of PerformanceAlthough PARTNER MAKER is taking, and agrees to continue taking, commercially reasonable efforts to insure un-interrupted access to its systems PARTNER MAKER will not be liable for any delay, downtime, transmission error, software or equipment incompatibilities, force majeure or other failure of performance. PARTNER MAKER will use commercially reasonable efforts to correct any material performance problem brought to its attention and may suspend performance pending such correction. In the event of any failure to deliver a product ordered, PARTNER MAKER’s sole liability shall be to deliver such product at another time. PARTNER MAKER is taking, and agrees to continue taking, commercially reasonable efforts to provide a safe, secure exact duplicate copy of information placed by subscriber into PARTNER MAKER’s system (providing a “backup”).
- Accuracy of StatementsPARTNER MAKER will use its commercially reasonable efforts to ensure that affiliate publisher information (in the Private Directory Affiliate Publisher Database) includes the most up-to-date, accurate information available to PARTNER MAKER at the time of publishing, but PARTNER MAKER cannot and, therefore, does not make guarantees as to the accuracy of any such information contained in the Private Directory Affiliate Publisher Database.
- Disclaimer of Warranties; Limitation of Liability; IndemnificationPARTNER MAKER warrants that it is entitled to grant the licenses granted in this Agreement. EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, PARTNER MAKER MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO INFORMATION CONTAINED WITHIN THE AFFILIATE LIST OR ITS SYSTEM INCLUDING AFFILIATE PARTNER AND/OR DATA QUALITY, SUITABILITY, SEARCHABILITY, OPERATION, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
PARTNER MAKER SHALL NOT BE LIABLE FOR EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE), ARISING OUT OF OR IN CONNECTION WITH THE LICENSES GRANTED HEREUNDER, THE USE OR INABILITY TO USE PARTNER MAKER’S SYSTEM, PARTNER MAKER’S PERFORMANCE UNDER THIS AGREEMENT, TERMINATION OF THIS AGREEMENT BY PARTNER MAKER OR THE LOSS OF DATA, BUSINESS OR GOODWILL, EVEN IF PARTNER MAKER IS ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF PARTNER MAKER FOR ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF ANY EVENT, INCLUDING BUT NOT LIMITED TO, ANY BREACH OR TERMINATION OF THIS AGREEMENT, EXCEED THE TOTAL AMOUNT PAID BY YOU TO PARTNER MAKER FOR THE SUBSCRIPTION FOR THE CURRENT YEAR OR MONTH (WHICHEVER APPLICABLE) IN WHICH SUCH CLAIM, LOSS OR DAMAGE OCCURRED, WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING WITHOUT LIMITATION DUE TO NEGLIGENCE. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies. No claim may be made against PARTNER MAKER unless suit is filed thereon within one (1) year after the event giving rise to the claim.
- GeneralThis Agreement constitutes the entire agreement between the parties and supersedes any prior communication or agreement between the parties with respect to the subject matter hereof. Should any of the covenants, terms, conditions or provisions of this Agreement be held invalid for any reason, such invalidity shall not affect the other provisions of this Agreement which can be given effect without the invalid provision, as the provisions of this Agreement are intended to be and shall be deemed severable. In the event of any such invalidity, the parties (or, if in dispute, the court) shall apply valid provisions as nearly similar to such invalid provisions as shall be valid and enforceable. Subject to PARTNER MAKER’s right to amend this Agreement as set forth in Sections 1 and 7 hereof, this Agreement may only be amended by a written instrument signed by both parties. The headings used in this Agreement are for convenience only and are not to be considered in construing the terms of this Agreement.
The Subscriber may not assign or transfer its rights under this Agreement. The provisions of Sections 3, 4, 6, 7, and 8 hereof shall survive any expiration or termination of this Agreement. This Agreement will be governed by, and construed in accordance with, the laws of the State of Washington, applicable to contracts entered into and fully performed in the State of Washington. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Any action arising out of or relating to this Agreement or any Articles or Journals shall be brought in courts situated in Snohomish, Washington and the parties consent to the jurisdiction of such courts. Purchase of PARTNER MAKER’S product(s) constitutes Subscribers agreeing to Terms & Conditions described in this Agreement.