This Master Agreement ("Agreement") is made between AskPCExperts L.L.C.,("Merchant") and [insert name of Partner] ("Partner").
Partner and Merchant are each enrolled in the Avangate Affiliate Network(tm). Partner and Merchant each desire to establish the general terms and conditions which shall govern advertising and commission arrangements between Partner and Merchant which result from their participation in Avangate Network(tm).
In consideration of the promises set forth below, we agree as follows:
1.1. From time to time, Merchant may post on Avangate Network(tm) offers to pay to other participants a specified commission in return for certain advertising services leading to a Qualifying Link (defined below). If such offers receive an identification number from The Avangate Network(tm) they shall be deemed to be an "Offer" for purposes of this Agreement. The term "Offer" shall also include any counter-offers resulting from an Offer.
1.2. If an Offer made by one party is accepted by the other party in accordance with the Offer's terms via The Avangate Network(tm), an "Engagement" will have been formed. Each Engagement shall have the same identification number as the original Offer that lead to the Engagement and shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the specific Engagement and the terms of this Agreement, the terms of the Engagement shall govern.
1.3. At any time prior to Partner providing a Qualifying Link, Merchant may with or without notice (a) change, suspend or discontinue any aspect of an Offer or an Engagement or (b) remove, alter, or modify any graphic or banner ad submitted by Merchant for an Offer or an Engagement. Partner agrees to promptly implement any request from Merchant to remove, alter or modify any graphic or banner ad submitted by Merchant that is being used by Partner as part of an Engagement.
2.1. Partner will link its site to areas within Merchant's site using special URLs specified in the Engagement (the "Required URLs"). Partner may post as many links to the Required URLs and the rest of Merchant's site as it likes on Partner's site. The position, prominence and nature of links on the Partner's site shall comply with any requirements specified in the Engagement, but otherwise will be in the discretion of Partner.
2.2. Partner agrees not to make any representations, warranties or other statements concerning Merchant, Merchant's site, any of Merchant's products or services, or Merchant's site policies, except as expressly authorized by the Engagement.
2.3. Partner is responsible for notifying Merchant and The Avangate Network(tm) of any malfunctioning of the Required URLs or other problems with Partner's participation in the Engagement. Merchant will respond promptly to all concerns upon notification by Partner.
2.4. Partner agrees not to bid on any keyword or key phrase that include " AskPCExperts " name, including misspellings and other Merchant trademarks in pay-per-click search engines or any other form of keyword-based advertising. The keywords include but not limited to:
Not complying with our keyword policies may result in termination of your affiliation with AskPCExperts.com and forfeiture of your unpaid commissions. You can bid on any other keywords and phrases that are related to our website and products.
3.1. Merchant agrees to pay Partner the commission specified in the Engagement if Merchant sells to a visitor to Merchant's site (a "Customer") a product or service that is the subject of the Engagement and if that Customer has accessed Merchant's site and purchased the product or service via a Qualifying Link.
3.2. A "Qualifying Link" is a link from Partner's site to Merchant's using one of the Required URLs or any other URL provided by Merchant for use in The Avangate Network(tm) if it is the last link to the Merchant's site that the Customer uses during a Session where a sale of a product or a service to Customer occurs. A "Session" is the period of time beginning from a Customer's initial contact with Merchant's site via a link from the Partner's site and terminating when the Customer either returns to the Merchant's site via a link from a site other than Partner's site or the Engagement expiresor is terminated.
3.3. Merchant shall have the sole right and responsibility for processing all orders made by Customers. Partner acknowledges that all agreements relating to sales to Customers shall be between Merchant and the Customer.
3.4. All determinations of Qualifying Links and whether a commission is payable will be made by The Avangate Network(tm) and will be final and binding on both Merchant and Partner. Prices for the products will be set solely by Merchant in its discretion.
4.1. Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future.
4.2. Merchant grants Partner a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology, as designated in the Engagement or during the registration process in The Avangate Network(tm), on Partner's site solely for the purpose of creating links from Partner's site to Merchant's site during Engagements. Except as expressly set forth in this Agreement or permitted by applicable law, Partner may not copy, distribute, modify, reverse engineer, or create derivative works from the same. Partner may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void.
4.3. Partner grants Merchant a non-exclusive, worldwide, royalty-free license to use, reproduce and tramsit any graphic or banner ad submitted by Partner solely for co-branding purposes or as a return link from Merchant's site to Partner's site. Merchant will remove such graphic or banner ad upon Partner's request.
5.1. Either party may terminate any Engagement at any time by deleting their acceptance of the Engagement through The Avangate Network(tm). Termination of an Engagement shall not terminate this Agreement or any other Engagement.
5.2. Either party may terminate this Agreement at any time, for any reason, provided that they provide at least five day's prior written notice of such termination to the other party and The Avangate Network(tm). Termination of this Agreement shall also terminate any outstanding Engagements. However, all rights to payment, causes of action and any provisions which by their terms are intended to survive termination, shall survive termination of this Agreement.
Except for the above representations neither party makes any representations or warranties to the other party, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose.
7.1. Each party hereby agrees to indemnify, defend and hold harmless the other party and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.
8.1. Merchant and Partner jointly and severally hereby agree to indemnify, defend, and hold harmless The Avangate Network(tm) and Avangate Corporation and its affliates, officers, directors, employees and agents (collectively, "Avangate") from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) directly or indirectly arising from or relating to any Offer, Engagement, any other matter related to this Agreement or the subject matter hereof any dispute relating thereto.
8.2. The parties agree that Avangate may rely on any data, notice, instruction or request furnished to Avangate by either party which is reasonably believed by Avangate to be genuine and to have been sent or presented by a person reasonably believed by Avangate to be authorized to act on behalf of one of the parties. In the event of any dispute between the parties, the parties agree that to the extent the parties contact and involve Avangate, Avangate may consult with and use counsel of its own choice in connection with such dispute and the reasonable fees and disbursements of Avangate's counsel shall be within the costs and disbursements covered by the indemnity specified in Section 8.1 above.
8.3. The parties acknowledge and agree that this Agreement and the Engagements are only made possible due to Avangate and that the parties shall not, for the duration of this Agreement and for twenty-four (24) months thereafter, enter into any advertising, collaborations or other commercial arrangements with each other in connection with their sites on the World Wide Web except via The Avangate Network(tm).
8.4. Merchant and Partner acknowledge and agree that the nature of the Product is such that in its normal operation it may access and download elements of software data from resources which are external to the computer or device running the Product, such as Product enabled servers. Merchant and Partner acknowledge that Avangate has not undertaken to provide such external resources or servers and specifically disclaims any representation or warranty as the availability, quality or performance of such resources or whether they may contain any defects which may affect the performance of the Product or Merchant or Partner's computer. Avangate shall not be responsible for provision of any communications facilities or the costs associated with such communications.
8.5. Merchant and Partner agree that Avangate is an intended third party beneficiary."
9.1. In no event shall either party be liable to the other party for any direct, indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages.
9.2. The parties agree that The Avangate Network(tm) and Avangate Corporation and its affiliates, officers, directors, employees and agents shall not be liable to either party for any direct, indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages.
10.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.
10.2. The parties agree that The Avangate Network(tm) and Avangate Corporation are intended third party beneficiaries under this Agreement.
10.3. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the state of Merchant's headquarters. Any action to enforce this Agreement shall be brought in the federal or state courts located in that state. If you need to send official correspondence, send it via registered mail to Merchant's headquarters to the attention of Merchant's legal department.
10.4. This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution may be achieved in any format convenient to the parties.
10.5. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
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