Fight Like A Girl (Against Breast Cancer)

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Terms and Conditions
	To be an authorized affiliate of Fight Like A Girl, LLC, you agree to abide by the terms and conditions contained in this agreement. Please read this agreement carefully before registering and using the Fight Like A Girl, LLC service as an affiliate. By signing up for the Fight Like A Girl, LLC affiliate program, you indicate your acceptance of this agreement and its terms and conditions. This Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Fight Like A Girl, LLC Affiliate Program (the "Affiliate Program"). As used in this Agreement, "we", "us", or "our" means Fight Like A Girl, LLC, and "you" means the applicant. “FLAG Site” means the FightLikeAGirlOnline.com web site, which has its primary home page identified by the URL www.fightlikeagirlonline.com. "Your site" means any site that you will link to the FLAG Site (and which you will identify in your Affiliate Program application). THIS IS A LEGALLY BINDING AGREEMENT. BY JOINING THIS AFFILIATE PROGRAM AND RECEIVING AND USING LINKS TO OUR WEBSITE, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS SET FORTH HEREIN, DO NOT JOIN THIS AFFILIATE PROGRAM. 1. Enrollment in the Affiliate Program To begin the enrollment process, you will submit a complete Affiliate Program application via the FLAG Site. We will not evaluate your application until it is completed. We will not advise you if your application is incomplete, so you should carefully check your application before submitting it. We will evaluate your application in good faith and will notify you of its acceptance or rejection. We may reject your application if, for example, we determine (in our sole discretion) that your site is unsuitable for the Affiliate Program. Unsuitable sites include, but are not limited to, those that: • promote sexually explicit materials • promote violence • promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age • promote illegal activities • include "fight like a girl", or any other trademark of Fight Like A Girl, LLC, or variations or misspellings of any of them, in their URLs to the left of the top-level domain name (e.g., ".com", ".org", ".net", ".ca", etc.) -- for example, a URL such as "fightlikeagirl.mydomain.com" or "fitelikagurl.com" would be unsuitable • contain threatening, harassing, or defamatory materials • contain viruses, Trojan horses, worms, time bombs, cancelbots, or other computer routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information • contain material that is materially false, inaccurate, fraudulent or misleading or that promotes pyramid or similar schemes • contain software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate commissions from another website • otherwise violate intellectual property rights. By participating in the Affiliate Program you agree that you will not engage in any of the foregoing activities, and will fully comply with the terms and conditions of this Agreement, including without limitation, the Merchant Content Usage Restrictions set forth herein. If we reject your application, you are welcome to reapply to the Affiliate Program at any time. You should also note that if we accept your application and your site is thereafter determined (in our sole discretion) to be unsuitable for the Affiliate Program, we may terminate this Agreement. Participation in the Affiliate Program is limited to parties that lawfully can enter into and form contracts under applicable law. For example, minors are not allowed to participate in the Affiliate Program. 2. Links on Your Site (a) Once you have been notified that your site has been accepted into the Affiliate Program, and subject to the terms and conditions of this Agreement, we hereby grant to you, during the term of this Agreement, a limited, non-exclusive, non-transferable, revocable, non-sublicenseable, non-assignable, worldwide, royalty-free license to (i) access the FLAG Site through one or more Qualifying Links (defined below) provided by us from time to time, and (ii) use and display the Merchant Content (as defined below) that we may make available to you from time to time solely as provided to you through our Affiliate network and solely for the purpose of generating the sale of our products from your site that we have approved and solely in connection with your participation in this Affiliate Program. Any attempt to sublicense, assign or transfer this right is void. We may terminate your rights to use the Merchant Content for any reason at any time in our sole and absolute discretion. You may not use Merchant Content in an offline promotion or other offline manner (e.g., in any printed material, mailing or other document). You agree to follow our Trademark Guidelines (found at http://www.fightlikeagirl.com/terms.htm ), as those guidelines may change from time to time. We may revoke your license at any time by giving you written notice, including by email. Such notice will be effective when sent to the last address (including email address) provided by you to us using the procedures specified on our affiliate page. (b) We will provide you with guidelines and graphical artwork to use in linking to the FLAG Site home page. To permit accurate tracking, reporting, and referral fee accrual, we will provide you with special "tagged" link formats to be used in all links between your site and the FLAG Site. A "Qualifying Link" means this special link from your website to our website using one of the URLs or graphic links provided by us for use in the Affiliate Program that allows us to track the use of such links by your visitors. You must ensure that each of the links between your site and the FLAG Site properly utilizes such special link formats. For the purpose of this Agreement a “link” means any software, software code, programming or other technology or method (or any combination of the foregoing) that (i) creates a hyperlink between two websites, or (ii) otherwise causes an internet access device to display to its user a "banner," "button," text-mention, word, phrase, logo or other textual or graphical material that, when activated by a person, results in a website being served to such person or such person being able to electronically access, receive or obtain content, products, services or other offerings from the linked website. (c) All Qualifying Links that you will use in the Affiliate Program will be provided to you by means selected by us, and only valid Qualifying Links generated by us or our agents will be tracked for purposes of determining Revenue Share that you may be eligible to receive on sales of products generated through your site. You will earn Revenue Share fees only with respect to activity on the FLAG Site occurring directly through Qualifying Links; we will not be liable to you with respect to any failure by you to use Qualifying Links, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this Agreement. (d) Except for the license to use the Merchant Content granted under this Section 2, we are not granting you any rights in, and you represent, warrant, covenant and agree that you will not use, in any manner, any intellectual property, including, without limitation, any intellectual property with respect to Qualifying Links, link formats, technical specifications, guidelines, graphical artwork, trademarks, service marks, trade names, logos, banners, buttons, digital images, text, or other content or materials owned or controlled by us, or with respect to the FightLikeAGirlOnline.com domain name. (e) Upon termination of this Agreement, for any reason, you shall immediately cease using, displaying or otherwise maintaining any interest in the Merchant Content. For purposes of this Agreement "Merchant Content" means any and all trademarks, service marks, trade names, logos, banners, buttons, digital images, graphics, newsletters, data, software, music, sound, video, photographs, text and other content and material which we may, in our sole discretion, make available to you in connection with this Affiliate Program from time to time. (f) You acknowledge that, by participating in the Affiliate Program and placing any Qualifying Links within your site, we may receive information from or about visitors to your site or communications between your site and those visitors. Your participation in the Affiliate Program constitutes your specific and unconditional consent to and authorization for our access to, receipt, storage, use, and disclosure of any and all such information, consistent with the policies and procedures set forth in the Privacy Notice on the FLAG Site. (g) You also acknowledge that we have the right in our sole and absolute discretion to monitor your websites at any time and from time to time to determine if you are in compliance with the terms of this Agreement, and you agree to provide us with unrestricted access to your websites for such purpose. We (and our agents) may, without further notice to or consent from you, crawl or otherwise monitor your site for the purpose of ensuring the quality and reliability of Qualifying Links on your site (for example, without limitation, to detect links that are broken or non-functional, links to products that are out of stock or otherwise unavailable, etc.). Therefore, you agree that we (and our agents) may take such actions and that you will not seek to block or otherwise interfere with such crawling or monitoring (and that we and our agents may use technical means to overcome any methods used on your site to block or interfere with such crawling or monitoring). (h) You also acknowledge that as a participant in the Affiliate Program, we may from time to time send you email updates about the Affiliate Program. By participating in the Affiliate Program, you consent to our sending you these email updates. (i) Further, you acknowledge and agree that you will: (i) not, in connection with this Agreement, display or reference on your site, any trademark or logo of any third party seller on the FLAG Site; (ii) ensure that any “Privacy Information” link or FLAG trademark (either in logo or text form) that we include in a Qualifying Link is not obscured or altered in any way or made invisible, illegible or indecipherable to visitors of your site; (iii) use any Merchant Content only in a lawful manner and only in accordance with the terms of this Agreement; (iv) not use a context based triggering mechanism to display an advertisement that partially or wholly covers or obscures paid advertising or other content on an Internet website in a way that interferes with a user's ability to view the Internet website, or use browser-embedded contextual targeting applications or other applications which serve advertisements (pop-up ads and pop-unders, in-browser ads and highlighting of website content and redirecting to websites with similar content, regardless of whether any such advertisements are served directly by you or is provided or purchased from a third-party) on our or our competitors’ websites or on any other website other than your websites; (v) not modify or alter any Merchant Content that consists of a graphic image, other than to resize it; (vi) not edit any Merchant Content that consists of text, other than to shorten its length; (vii) not sell, redistribute, sublicense or transfer any Merchant Content; (viii) promptly delete any Merchant Content that is no longer displayed on the FLAG Site or that we notify you is no longer available for your use and (ix) not use any Merchant Content, including any name or likeness embodied therein, in a manner (e.g., a closely proximate placement to unrelated third party materials) that implies a person's or company's endorsement or sponsorship of, or commercial tie-in or other association with, any product, service, party or cause. (j) You may not (i) engineer you websites in a manner designed to direct or pull Internet traffic away from the FLAG Site, (ii) attempt to modify or alter the FLAG Site in any way; (iii) make any representations, either express or implied, or create an appearance that a visitor to your website is visiting our website, e.g., "framing" the FLAG Site, without our prior written approval; or (iv) "scrape" or "spider" the FLAG Site or any other website for Merchant Content. (k) You may not purchase products during sessions initiated through Qualified Links on your sites for your own use, for resale or commercial use of any kind. This includes orders for customers or on behalf of customers or orders for products to be used by you or your friends, relatives, or associates in any manner. Such purchases may result, in our sole discretion, in the withholding of the Revenue Share or the termination of this Agreement. 3. Merchant Content Usage Restrictions IF YOU FAIL TO COMPLY WITH ANY OF THE RESTRICTIONS IN THIS SECTION 3, AT OUR SOLE DISCRETION YOU FORFEIT ANY COMMISSIONS OR OTHER PAYMENTS OTHERWISE EARNED BY YOU DURING SUCH TIME THAT YOU ARE NOT IN COMPLIANCE. (a) Obtaining and Using Merchant Content. You agree that you will not, except as specifically provided for in this Agreement (i) copy or obtain any images or other content relating to FightLikeAGirlOnline.com from the FLAG Site or elsewhere, (ii) copy or display any Merchant Content, (iii) modify, adapt, translate or create derivative works based on the Merchant Content, (iv) remove, erase, or tamper with any copyright or other proprietary notices in any copy of any of the Merchant Content, (v) sell, market, license, sublicense, distribute, disclose or otherwise grant to any person or entity any right or interest in the Merchant Content, (vi) take any action which may cause deception, confusion or otherwise dilutes the quality of the Merchant Content or the goodwill associated therewith, or (vii) use the Merchant Content in any manner which disparages or portrays us in a false, competitively adverse or poor light. (b) No Keyword Purchasing. You agree that you will not purchase or bid for the placement of our name or trademarks or any variation or misspelling thereof within any third party search engine or portal, including, but not limited to, AOL.com, Yahoo.com, MSN.com, and Google.com. (c) Search Engine and Advertising Restrictions. You also agree to the following additional search engine advertising rules: (i) all advertisements by you must be directed to your site or a page within your site, (ii) none of your advertisements may link directly to the FLAG Site or any page within the FLAG Site, (iii) you will not show the FLAG Site URL as the URL in your ads, (iv) you will not use the words "official site" or words to similar effect in connection with any use of our trademarks, or otherwise suggest or imply that your site is an official FLAG Site or partner, and (v) you will stop bidding on any keyword term at our request. (d) Trademark and Look and Feel Restrictions. Additionally, you agree that (i) you will not include any name, trademark, trade name, service name, logo or similar business identifier, or any variation or misspelling thereof, which is owned or controlled by us in any domain name, URL, or similar identifier used by you, (ii) you will not alter or attempt to alter the look, feel, content, features or functionality of the FLAG Site, (iii) you will immediately substitute or remove any Merchant Content from your websites at our request, (iv) your websites will not in any way copy or resemble the look, feel or content of the FLAG Site or create any impression that your websites are part of the FLAG Site, (v) you will not purchase or contract with any other person or entity to exploit any name, trademark, trade name, service name, logo or similar business identifier, or any variation or misspelling thereof, which is owned or controlled by us for any purpose, (vi) you will not use any Merchant Content in a manner which links or otherwise directs potential customers to any website other than the FLAG Site, and (vii) you will not attempt to intercept or redirect potential customers from or on the FLAG Site or any other website participating in this Affiliate Program, and (viii) you will not in any manner misrepresent or embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that we support, sponsor, endorse, or contribute money to any charity or other cause). (e) Promotion Codes & Coupons. You may not, without our prior written consent, utilize any promotion, promotion code, coupon, or other promotional opportunity that is not specifically authorized for our Affiliate Program and explicitly authorized for your use. (f) Communications with Consumers. You may not, without our prior written consent, (i) generate or send any email messages or other electronic messages (e.g., instant messages (IMs)) using or containing our name or logo, or any variation thereof, or any of our trademarks or products, Merchant Content, or any of the Qualifying Links or URLs provided to you as part of the Affiliate Program, with the exception of banners specifically provided by us for your use in emails, and email templates specifically provided by us for your use, (ii) send any email or other electronic messages that in any way suggests or implies or misleads or is likely to mislead (including without limitation, via the return address, subject heading, header information or message contents) a recipient into believing that we or any related entity was the sender or sponsor of such email or procured or induced you to send such email, (iii) forward, redistribute, or otherwise repurpose any email communications or newsletters or other electronic messages that we send our customers, and (iv) generate or send any unsolicited email (spam), including without limitation, using supplied banners or templates, under this Agreement or any email in violation of the CAN-SPAM Act of 2003 or any other applicable laws or regulations. 4. Order Processing We will process Product orders placed by customers who follow Qualifying Links from your site to the FLAG Site. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments, cancellations, and returns, and handle customer service. We will track sales made to customers who purchase Products by using Qualifying Links from your site to the FLAG Site and will make available to you reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time in our discretion. You hereby agree not to disclose the information contained in such reports regarding us to any third party without our prior written consent and your further hereby agree that such information is our property and our Confidential Information. To permit accurate tracking, reporting and fee accrual, you must ensure that the links between your website and our website are properly formatted. We are not responsible for improperly formatted links regardless of whether you have made amendments to the code or not. In addition, we are unable to track or provide you credit for sales from customers that are referred to us with browsers that do not have their cookies setting enabled. You represent, warrant, covenant, and agree that you will not bypass, modify, circumvent, impair, disable or otherwise interfere with any links, web beacons, cookies or other technology provided by us. For the purposes of this Agreement, “Confidential Information” means all non-public information provided or obtained by you about us, including, without limitation, all customer information, and all business and sales information related to transactions through this Affiliate Program. 5. Revenue Share Payments (a) During the term of this Agreement, we agree to pay you a revenue share (the "Revenue Share") equal to the applicable percentage of Sales Revenue determined pursuant to the Affiliate Program Revenue Schedule, as amended from time to time (the “Schedule”) which is set forth on our Site’s Affiliate page, or as otherwise provided by us. We reserve the right, at our sole discretion, to change, modify, add or remove portions of this Revenue Share Schedule at any time without notice. For purposes of this Agreement, "Sales Revenue" means all cash consideration (not including any portion of payment made through the redemption of coupons or credits) derived by us from merchandise sold to a customer in a transaction during sessions initiated through and resulting directly from a Qualifying Link tracked us from your website to the FLAG Site in accordance with this Agreement, excluding rebates, returns, chargebacks, and bad debt. You acknowledge and agree that we will not be obligated to pay any Revenue Share unless we actually ship the applicable order and receive full payment for such order. Additionally, unless we otherwise expressly agree in writing specifically with you, we will not be obligated to pay any Revenue Share on any purchase from a customer linking to the FLAG Site from your sites, unless such purchase is made during the same on-line session or within one-hundred twenty (120) days after the customer has initially entered our website ("Revenue Share Time") and the customer reenters our Site directly using the same computer as was used on the initial visit (and not through another affiliate link). After the Revenue Share Time, we will not pay a Revenue Share on any products that are added to a customer's shopping cart after the customer has re-entered our website (other than through a Qualifying Link from your website), even if the customer previously followed a link from your website to our website. All determinations of Qualifying Links and whether a Revenue Share is payable will by made by us and will be final and binding on you. 6. Revenue Share Accounting Subject to the terms and conditions of this Agreement, and our acceptance of you as an Affiliate, we will pay you the above-described Revenue Share on a monthly basis for orders shipped in the applicable month. Approximately 30 days following the end of each calendar month, we will send, or cause to be sent, the Revenue Share you earned directly to your PayPal account, less any taxes or other amounts that we may be required by law to withhold. No interest will be paid on any such amount held by us. If a Revenue Share payment is made hereunder and relates to merchandise that is later returned by the customer, the applicable Revenue Share will be deducted from the next applicable payment hereunder. If any portion of such Revenue Share cannot be recovered through a deduction, we will invoice you for such amount and you agree to pay this amount within 30 days after receipt of such invoice. Upon termination of this Agreement, we will send, or cause to be sent, to your PayPal account, payment in the total amount of Revenue Share then owed to you as of the termination date. The final Revenue Share payment may be withheld by us for a reasonable period of time to ensure that the correct amount is to be paid after making any adjustments that may be required, including, but not limited to, adjustments for returns. If you have not earned any Revenue Share in the six months prior to any given calendar month, then we reserve the right to charge you on the first day of such calendar month an account maintenance fee in an amount up to $5 per month for so long as your account remains open yet dormant, or until your account balance reaches a zero balance, at which time the account shall become deactivated. The account maintenance fee charged will be deducted from your unpaid accrued Revenue Share, and will be equal to the lesser of $5 or the amount of unpaid accrued Revenue Share in your account. We are obligated by U.S. federal law to obtain tax information from Affiliate Program participants who are U.S. citizens, U.S. residents or U.S. corporations and from Affiliate Program participants who are not U.S. citizens or residents but whose businesses are taxable in the U.S. You are required as a part of the Affiliate application process to provide the necessary tax information, and your failure to do so may result in rejection of your application. If we believe you are a Affiliate Program participant from whom we are obligated to obtain tax information and you do not provide this information to us after we have requested it, we may withhold your Revenue Share payments until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information, and we may further, in our sole discretion, terminate your account. 7. Policies and Pricing (a) You acknowledge and agree that we will accept or reject, in our sole and absolute discretion, all orders by customers for merchandise placed on or through the FLAG Site. You further acknowledge and agree that (i) you do not have any authority to make or accept any offer or commitment on behalf of us, (ii) we cannot, and do not, guarantee the availability of any merchandise or other services offered for sale on the FLAG Site, and (iii) we are solely responsible for all pricing, merchandising, order processing, order fulfillment, shipping, returns and all other aspects of the FLAG Site and the sale of merchandise thereunder. Customers who access the FLAG Site will be deemed our customers. Accordingly, all of our then applicable rules, policies and procedures concerning orders, returns, refunds, customer service, privacy and other terms of use and sale will apply to such customers. As between the parties, all information obtained through the use of the FLAG Site shall be our exclusive property. (b) We may change our policies and operating procedures at any time in our sole discretion. For example, we will determine the prices to be charged for products sold under the Affiliate Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product or the error-free or uninterrupted operation of our website. 8. Responsibility for Your Site You will be solely responsible for the development, operation, and maintenance of your site and for all content, technology, and other materials that appear on your site. For example, you agree that you will be solely responsible for: • the technical operation of your site and all related equipment • ensuring the display of Qualifying Links on your site does not violate any agreement between you and any third party (including without limitation any restrictions or requirements placed on you by a third party that hosts your site) • creating and posting Product descriptions on your site and linking those descriptions to the FLAG Site catalog • the accuracy and appropriateness of materials posted on your site (including, among other things, all Product-related materials and any information you include within or associate with Qualifying Links) • ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights) • ensuring that materials posted on your site are not libelous or otherwise illegal • ensuring that your site accurately and adequately discloses, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors' browsers. WE DISCLAIM ALL LIABILITY FOR THESE MATTERS. FURTHER, YOU WILL INDEMNIFY AND HOLD US HARMLESS FROM ALL CLAIMS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) RELATING TO THE DEVELOPMENT, OPERATION, MAINTENANCE, AND CONTENTS OF YOUR SITE. 9. Compliance with Laws As a condition to your participation in the Affiliate Program, you agree that while you are an Affiliate Program participant you will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority (“Applicable Laws”) that has jurisdiction over you, whether such Applicable Laws are now in effect or later come into effect during the time you are a Affiliate Program participant. Without limiting the foregoing obligation, you agree that as a condition of your participation in the Affiliate Program you will comply with all applicable laws (federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws. 10. Term of the Agreement The term of this Agreement will begin upon our acceptance of your Affiliate Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written (including via e-mail) notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to the FLAG Site, and all of our trademarks, trade dress, and logos, and all other Merchant Content provided by or on behalf of us to you pursuant hereto or in connection with the Affiliate Program. You are eligible to earn a Revenue Share only on sales of our products that occur during the term, and any Revenue Share earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. In addition, we may invoice you for Revenue Share that was paid to you prior to termination if those fees relate to products that are subsequently canceled or returned. In the event an overpayment is made by us, you agree to promptly remit such overpayment to us upon written notification (including via e-mail) by us. 11. Modification We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the FLAG Site. Modifications may include, for example, changes in the scope of available Revenue Share, Schedule, payment procedures, and Affiliate Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE AFFILIATE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE FLAG SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE. 12. Relationship of Parties You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. 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 otherwise, that reasonably would contradict anything in this Section. 13. Limitation of Liability WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF REVENUE, DATA OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE AFFILIATE PROGRAM WILL IN NO EVENT EXCEED THE TOTAL REVENUE SHARE PAID OR PAYABLE BY US TO YOU UNDER THIS AGREEMENT DURING THE PRECEDING TWELVE (12) MONTH PERIOD PRIOR TO THE DATE SUCH LIABILITY AROSE. ALL CLAIMS MADE HEREUNDER BY YOU AGAINST US SHALL BE MADE WITHIN 360 DAYS OF THE ACT OR OMISSION THAT FORMS THE BASIS OF SUCH CLAIMS. 14. Disclaimers WE MAKE NO WARRANTIES, REPRESENTATIONS, OR GUARANTEES, WITH RESPECT TO THE AFFILIATE PROGRAM OR ANY PRODUCTS OR SERVICES SOLD THROUGH THE FLAG SITE, OR THE OPERATION AND MAINTENANCE OF THE FLAG SITE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, OR ANY IMPLIED WARRANTY ARISING OUT OF A COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO REPRESENTATION THAT THE OPERATION OF THE FLAG SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. 15. Independent Investigation YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. 16. Arbitration Any transaction undertaken pursuant to this Agreement is hereby deemed by you and us to involve interstate commerce. Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or your relationship with us shall be submitted to confidential arbitration in Charleston, South Carolina, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the state of South Carolina, USA (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. 17. Governing Law This Agreement will be governed by and construed in accordance with the substantive laws of the United States and the State of South Carolina, without reference to its conflicts of laws principles. Any lawsuit relating to or arising in connection with this Agreement must be brought in the federal or state courts located in Charleston County, South Carolina. 18. Miscellaneous You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. This Agreement and the Schedule represent the complete agreement and understanding between us and you and supersedes any other oral or written communications or understandings between us and you regarding the subject matter hereof. No amendment or modification to this Agreement will be binding upon us unless agreed to by an authorized representative of us. -- END OF AGREEMENT –-
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