EMERGE MEDIA POLICIES
Effective May 8, 2018
To provide a platform for developing artists & students that enables them to work and collaborate with educators and working professionals whose mission is to serve through expanding access and opportunities worldwide; to explore and acquire the knowledge, techniques and skills required to cultivate and refine their discipline.
A platform that also serves visionaries and enables them to reach their full potential and mastery by manifesting their ideas, expertise and creative solutions through our collective expertise & transformative technology, accessible worldwide.
There are many ways one can use our Services – to allow Customers to connect to experts via live video and chat for the purpose of learning, rehearsing and honing their craft. As you use our Services, we want you to be clear how we’re using information and the ways in which you can protect your privacy.
Our Mission is to instill trust and confidence in addition to providing the best training that we can to our students/ viewers.
TERMS & CONDITIONS
The content of Emerge Media (EMERGE) is for general information purposes only and does not constitute advice. EMERGE tries to provide content that is true and accurate as of the date of writing; however, we give no assurance or warranty regarding the accuracy, timeliness, or applicability of any of the contents. Visitors to EMERGE should not act upon its content or information without first seeking appropriate professional advice.
EMERGE is not intended to be a source for advice without consultation. Visitors to EMERGE should always seek the advice of an appropriately qualified professional through EMERGE. EMERGE assumes no responsibility for information contained on this website and disclaims all liability in respect of such information. In addition, none of EMERGE content will form any part of any contract between us or constitute any type of offer by EMERGE. Specific disclaimers may apply in addition to certain content or parts of the site.
EMERGE accepts no responsibility for and excludes all liability in connection with browsing this website, use of information or downloading any materials from it, including but not limited to any liability for errors, inaccuracies, omissions, or misleading or defamatory statements. The information at this website might include opinions or views which, unless expressly stated otherwise, are not necessarily those of EMERGE or any associated company or any person in relation to whom they would have any liability or responsibility.
All content and information at EMERGE might be changed or updated without notice. EMERGE might also make changes or improvements at any time without notice.
This website is provided “as is” and EMERGE expressly disclaims any and all warranties, express or implied, to the extent permitted by law, including but not limited to warranties of satisfactory quality, merchantability, or fitness for a particular purpose, with respect to the service or any materials.
EMERGE hereby excludes liability for any claims, losses, demands, or damages of any kind whatsoever with regard to any information, content, or services provided at our website, including but not limited to direct, indirect, incidental, or consequential loss or damages, compensatory damages, loss of profits, or data, or otherwise.
Limitations of Liability
EMERGE will not be liable to you (whether under the law of contact, the law of torts or otherwise) in relation to the contents of, or use of, or otherwise in connection with, this website:
to the extent that the website is provided free-of-charge, for any direct loss;
for any indirect, special or consequential loss; or
for any business losses, loss of revenue, income, profits or anticipated savings, loss of contracts or business relationships, loss of reputation or goodwill, or loss or corruption of information or data.
These limitations of liability apply even if EMERGE has been expressly advised of the potential loss.
Nothing in this website disclaimer will exclude or limit any warranty implied by law that it would be unlawful to exclude or limit.
By using this website, you agree that the exclusions and limitations of liability set out in this website disclaimer are reasonable. If you do not think they are reasonable, you must not use this website.
You accept that EMERGE is an entity that has an interest in limiting the personal liability of its officers and employees. You agree that you will not bring any claim personally against EMERGE shareholders, officers or employees in respect of any losses you suffer in connection with the website.
Without prejudice to the foregoing paragraph, you agree that the limitations of warranties and liability set out in this website disclaimer will protect EMERGE shareholders, officers, employees, agents, subsidiaries, successors, assigns and sub-contractors, including Jeremiah O’Brian.
If any provision of this website disclaimer is, or is found to be, unenforceable under applicable law, that will not affect the enforceability of the other provisions of this website disclaimer.
Disclaimer of Endorsement
Reference within this site to any specific commercial or non-commercial product, process, or service by trade name, trademark, manufacturer or otherwise does not constitute or imply an endorsement, recommendation, or favoring by EMERGE.
References to books, software, websites, or products as “Recommended by EMERGE” are specific suggestions only and do not necessarily constitute or imply an endorsement.
Disclaimer for Links to External, Third Party Websites
Links to external, or third-party websites, are provided solely for visitors’ convenience. Links taken to other sites are done so at your own risk and EMERGE accepts no liability for any linked sites or their content. When you access an external website, keep in mind that EMERGE has no control over its content.
Any link from EMERGE to an external website does not imply or mean that EMERGE endorses or accepts any responsibility for the content or the use of such website. EMERGE does not give any representation regarding the quality, safety, suitability, or reliability of any external websites or any of the content or materials contained in them. It is important for users to take necessary precautions, especially to ensure appropriate safety from viruses, worms, Trojan horses and other potentially destructive items.
Content and Links Disclaimer
EMERGE seeks to ensure that all content and information published at this Web site is current and accurate. The information at EMERGE does not in any way constitute legal or professional advice and EMERGE cannot be held liable for actions arising from its use. In addition, EMERGE cannot be held responsible for the contents of any externally linked pages.
Applicable Law and Jurisdiction
Each party agrees that any suit, action or proceeding brought by such party against the other in connection with or arising from the Terms of Service (“Judicial Action”) shall be governed by the law of the state of California as such laws are applied to agreements between California residents entered into and performed entirely within the California. You knowingly consent to the jurisdiction of federal and state courts within California. You consent to the venue in Los Angeles County for any action brought in connection with these Terms of Service. You consent to electronic service of process regarding actions under the above agreement.
Records of Visitor Use and Abuse
You consent to having your Internet Protocol address recorded. An email address may appear immediately below (the “Identifier”) if we suspect potential abuse. The Identifier may be used to uniquely match to your Internet Protocol address. Visitors agree not to use this address for any reason.
Visitors agree that harvesting, gathering, storing, transferring to a third party or sending any message(s) to the identifier constitutes an acceptance and subsequent breach of these terms of service.
This website is provided “as is” without any representations or warranties, express or implied. EMERGE makes no representations or warranties in relation to this website or the information and materials provided on this website.
Without prejudice to the generality of the foregoing paragraph, EMERGE does not warrant that:
this website will be constantly available, or available at all; or
the information on this website is complete, true, accurate or non-misleading.
Nothing on this website constitutes, or is meant to constitute, advice of any kind. [If you require advice in relation to any [legal, financial or medical] matter you should consult an appropriate professional.
EMERGE. (“us”, “we”, or “our”) operates the www.emergemedia.us, et al. website(s) (the “Service”).
This page informs you of our policies regarding the collection, use, and disclosure of personal data when you use our Service and the choices you have associated with that data.
Personal Data means data about a living individual who can be identified from those data (or from those and other information either in our possession or likely to come into our possession).
Usage Data is data collected automatically either generated by the use of the Service or from the Service infrastructure itself (for example, the duration of a page visit).
Cookies are small pieces of data stored on a User’s device.
Data Controller means a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed.
Data Processor (or Service Providers)
Data Processor (or Service Provider) means any person (other than an employee of the Data Controller) who processes the data on behalf of the Data Controller.
We may use the services of various Service Providers in order to process your data more effectively.
Data Subject is any living individual who is the subject of Personal Data.
The User is the individual using our Service. The User corresponds to the Data Subject, who is the subject of Personal Data.
Information Collection And Use
We collect several different types of information for various purposes to provide and improve our Service to you.
Types of Data Collected
While using our Service, we may ask you to provide us with certain personally identifiable information that can be used to contact or identify you (“Personal Data”). Personally, identifiable information may include, but is not limited to:
First name and last name
Address, State, Province, ZIP/Postal code, City
Cookies and Usage Data
We may use your Personal Data to contact you with newsletters, marketing or promotional materials and other information that may be of interest to you. You may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send.
We may also collect information on how the Service is accessed and used (“Usage Data”). This Usage Data may include information such as your computer’s Internet Protocol address (e.g. IP address), browser type, browser version, the pages of our Service that you visit, the time and date of your visit, the time spent on those pages, unique device identifiers and other diagnostic data.
Tracking & Cookies Data
Cookies are files with a small amount of data which may include an anonymous unique identifier. Cookies are sent to your browser from a website and stored on your device. Tracking technologies also used are beacons, tags, and scripts to collect and track information and to improve and analyze our Service.
You can instruct your browser to refuse all cookies or to indicate when a cookie is being sent. However, if you do not accept cookies, you may not be able to use some portions of our Service.
Examples of Cookies we use:
Session Cookies. We use Session Cookies to operate our Service.
Preference Cookies. We use Preference Cookies to remember your preferences
and various settings.
Security Cookies. We use Security Cookies for security purposes.
Use of Data
EMERGE uses the collected data for various purposes:
To provide and maintain our Service to notify you about changes to our Service.
To allow you to participate in interactive features of our Service when you choose to do so.
To provide customer support.
To gather analysis or valuable information so that we can improve our Service.
To monitor the usage of our Service.
To detect, prevent and address technical issues.
To provide you with news, special offers and general information about other goods, services and events which we offer that are similar to those that you have already purchased or inquired about unless you have opted not to receive such information.
Retention of Data
EMERGE will also retain Usage Data for internal analysis purposes. Usage Data is generally retained for a shorter period of time, except when this data is used to strengthen the security or to improve the functionality of our Service, or we are legally obligated to retain this data for longer time periods.
Transfer of Data
Your information, including Personal Data, may be transferred to — and maintained on — computers located outside of your state, province, country or other governmental jurisdiction where the data protection laws may differ than those from your jurisdiction.
If you are located outside the United States and choose to provide information to us, please note that we transfer the data, including Personal Data, to the United States and process it there.
Disclosure of Data
Disclosure for Law Enforcement
Under certain circumstances, EMERGE may be required to disclose your Personal Data if required to do so by law or in response to valid requests by public authorities (e.g. a court or a government agency).
EMERGE may disclose your Personal Data in the good faith belief that such action is necessary to:
To comply with a legal obligation.
To protect and defend the rights or property of EMERGE.
To prevent or investigate possible wrongdoing in connection with the Service.
To protect the personal safety of users of the Service or the public
To protect against legal liability.
Security of Data
The security of your data is important to us but remember that no method of transmission over the Internet, or method of electronic storage is 100% secure. While we strive to use commercially acceptable means to protect your Personal Data, we cannot guarantee its absolute security.
“Do Not Track” Signals
We do not support Do Not Track (“DNT”). Do Not Track is a preference you can set in your web browser to inform websites that you do not want to be tracked.
You can enable or disable Do Not Track by visiting the Preferences or Settings page of your web browser.
EMERGE aims to take reasonable steps to allow you to correct, amend, delete, or limit the use of your Personal Data.
Whenever made possible, you can update your Personal Data directly within your account settings section. If you are unable to change your Personal Data, please contact us to make the required changes.
If you wish to be informed what Personal Data we hold about you and if you want it to be removed from our systems, please contact us.
In certain circumstances, you have the right:
To access and receive a copy of the Personal Data we hold about you.
To rectify any Personal Data held about you that is inaccurate.
To request the deletion of Personal Data held about you.
You have the right to data portability for the information you provide to EMERGE You can request to obtain a copy of your Personal Data in a commonly used electronic format so that you can manage and move it.
Please note that we may ask you to verify your identity before responding to such requests.
We may employ third party companies and individuals to facilitate our Service (“Service Providers”), to provide the Service on our behalf, to perform Service-related services or to assist us in analyzing how our Service is used.
These third parties have access to your Personal Data only to perform these tasks on our behalf and are obligated not to disclose or use it for any other purpose.
We may use third-party Service Providers to monitor and analyze the use of our Service.
PayPal or Braintree
Google Analytics is a web analytics service offered by Google that tracks and reports website traffic. Google uses the data collected to track and monitor the use of our Service. This data is shared with other Google services. Google may use the collected data to contextualize and personalize the ads of its own advertising network.
For more information on the privacy practices of Google, please visit the Google Privacy & Terms web page: http://www.google.com/intl/en/policies/privacy
We may provide paid products and/or services within the Service. In that case, we use third-party services for payment processing (e.g. payment processors).
The payment processors we work with are:
Links to Other Sites
We have no control over and assume no responsibility for the content, privacy policies or practices of any third-party sites or services.
Our Service does not address anyone under the age of 18 (“Children”).
We do not knowingly collect personally identifiable information from anyone under the age of 18. If you are a parent or guardian and you are aware that your Children has provided us with Personal Data, please contact us. If we become aware that we have collected Personal Data from children without verification of parental consent, we take steps to remove that information from our servers.
Information we collect
We collect information to provide better Services to all of our Users.
We collect information in two ways:
Information you give us. When you open an account with Emerge Education, we’ll ask for personal information, like your name, email address, telephone number or credit card.
Information we get from your use of our Services. We collect information about the Services that you use and how you use them. This information includes:
Device Information. We collect device-specific information (such as your hardware model, operating system version, unique device identifiers, and mobile network information including phone number).
Log information. When you use our Services, we automatically collect and store certain information in server logs. This includes:
details of how you used our service, such as your search queries.
Internet protocol address.
device event information such as crashes, system activity, hardware settings, browser type, browser language, the date and time of your request and referral URL.
cookies that may uniquely identify your browser or your account.
Location information. When you use our Services, we may collect and process information about your actual location. We use various technologies to determine location, including IP address, GPS, and other sensors that may, for example, provide Emerge Education with information on nearby devices.
Unique application numbers. Our Services include a unique application number. This number and information about your installation (for example, the operating system type and application version number) may be sent to us when you install or uninstall that service or when that service periodically contacts our servers, such as for automatic updates.
Local storage. We may collect and store information (including personal information) locally on your device using mechanisms.
How we use information we collect
We use the information we collect from all of our Services to provide, maintain, protect and improve them. We may also use this information to offer you tailored advertising.
If you have an EMERGE Account, we may display your profile name, photo, and actions you take on Emerge Education (such as reviews you write and comments you post) in our services, including displaying in ads and other commercial contexts.
We use information collected from cookies and other technologies to improve your user experience and the overall quality of our services and for any other lawful purpose that we choose.
Information you share
Our Service lets you share information with others. Remember that when you share information publicly, it may be indexable by search engines. Our Services provide you with different options on sharing and removing your content.
Accessing and updating your personal information
Whenever you use our Services, we aim to provide you with access to your personal information. If that information is wrong, we strive to give you ways to update it quickly or to delete it – unless we must keep that information for legitimate business or legal purposes. When updating your personal information, we may ask you to verify your identity before we can act on your request.
We may reject requests that are unreasonably repetitive, require disproportionate technical effort (for example, developing a new system or fundamentally changing an existing practice), risk the privacy of others, or would be extremely impractical (for instance, requests concerning information residing on backup systems).
Where we can provide information access and correction, we will do so for free, except where it would require a disproportionate effort. We aim to maintain our services in a manner that protects information from accidental or malicious destruction. Because of this, after you delete information from our services, we may not immediately delete residual copies from our active servers and may not remove information from our backup systems.
Information we share
We may share your information with our partners and clients with your consent.
We may share aggregated, non-personally identifiable information publicly and with our partners – like publishers, advertisers or connected sites. For example, we may share information publicly to show trends about the general use of our Services.
We will share personal information with companies, organizations or individuals outside of EMERGE if we have a good-faith belief that access, use, preservation or disclosure of the information is reasonably necessary to:
meet any applicable law, regulation, legal process or enforceable governmental request.
enforce applicable Terms of Service, including investigation of potential violations.
detect, prevent, or otherwise address fraud, security or technical issues.
protect against harm to the rights, property or safety of Acting Coach, our users or the public as required or permitted by law.
Compliance and cooperation with regulatory authorities
By email: email@example.com
EMERGE SECURITY & SAFETY POLICIES
Emerge Media (EMERGE) reserves the right to dismiss, sanction and/ or deduct money from livestreaming “broadcasters” (Instructors, presenters, performers, students, etc.) for breach of contract or for breaking the security rules. The following rules must be followed by all livestreaming “broadcasters” – teachers, presenters, performers, etc. in all livestream and/ or chat areas of the EMERGE platform:
Nudity - even partial - and sexually explicit content are completely prohibited.
Broadcasters are prohibited to refrain from any kind of sexually explicit activity or the imitation of with the intent to solicit sex of any kind.
A person appearing in front of the camera must be registered under the given account. If the account is being used by an unregistered person, all the accounts belonging to the given ID are going to be automatically suspended.
Broadcasters are prohibited from leaving the camera area while being online and are expected to be visible in all chat areas, unless during a given break and/ or legitimate emergency.
Broadcasters are prohibited to be asleep while online during a course, class, workshop, etc.
Broadcasters must perform the type of content relevant to their selected course, class, workshop, etc.
Broadcasters are prohibited to be online without a live camera feed on any part of the website.
Broadcasters may not broadcast a pre-recorded video instead of a live camera feed. You always need to have a live camera feed to be online, unless prior arrangements have been made with EMERGE and that specific class meeting. Those who violate this rule will have their accounts suspended pending review. Please also note that in this case all earnings will be deducted from the violators since students/ viewers are expecting a live instructor, presenter.
Broadcasters are prohibited from giving out, accepting, or encouraging anyone to exchange personal details (real name, address, etc.) or contact information (phone number, email address etc.), apart from public social media profiles that they use for promotional purposes. Those who violate this rule with the intent to solicit information from students beyond the purposes of class instruction, will have their accounts suspended pending review.
Broadcasters are strictly prohibited from recording, taking pictures, blogging, vlogging, group chatting, and/ or posting to any other websites/ social media platforms from any content of the courses, classes, workshops on the EMERGE platform, which includes the likeness of the Instructor and/ or any other Broadcaster, without the expressed written consent of the Instructor and EMERGE. This is for the protection of the Broadcaster and students (Participant, Auditor and Observer).
Promoting other websites and services, for the purpose of spam and/ or competing with EMERGE is prohibited. Please keep in mind that we are strictly against any kind of spamming (unwanted promotion of other sites and services). Those who violate this rule will have their accounts suspended pending review.
Broadcasters are required to communicate with the administrators of the platform and page whenever contacted by the administrators. Those who ignore these requests may have their accounts suspended until they return to finish the conversation.
Proper background conditions and an adequate camera feed are essential to do a livestream. Setting up your background and adjusting the focus of your web camera might be difficult. In case you have any problems, please reach out to our Online Support chat.
Inappropriate broadcaster behavior and attire hate speech of any kind or such activities is strictly forbidden. Those who violate this rule will have their accounts suspended and possible cancellation pending review.
Asking for money or gifts in exchange for extra services is strictly forbidden on any part of the website.
It is the responsibility of the Broadcaster to stay current on the updates to the Safety and Security terms and conditions, as they are subject to change and update at any time.
Upon violation of any of the aforementioned rules, EMERGE reserves the right to suspend, dismiss and/ or ban the performers from the service and/or apply a money deduction. Further sanctions for serious violations of the rules may include suspension from EMERGE.
EMERGE reserves the right to withhold entire payments in the following cases:
Unauthorized use of a Broadcaster account (used by another person than its registered owner, especially if the unauthorized user is unverified or has been previously banned).
If the Broadcaster is proven to have registered with a counterfeit/ digitally altered I.D. on our site.
Unauthorized use of a Member account, for example if the account holder did not give permission for the use of his/ her account to another individual. Sanctions may be utilized (such as withholding of funds, deduction and closing the account) against any and all persons who profit from this sort of activity.
If the Broadcaster is proven to have provided a prerecorded medium in place of a live performance and attempted to deceive the paying visitors with this practice. For such acts, the payout for the given period and any pending payment are withheld.
CANCELLATIONS & REFUNDS
We stand behind our services and our commitment to help our clients/ students. Ultimately, however, it is your own performance that counts and so we cannot provide a refund if you are unsuccessful in a class/ session.
We must pay our own costs up front when we commit to provide a workshop or private support for you. In both cases, provided you cancel on not less than 72 hours’ notice before the due date, then we will return the fee paid by you for that workshop or private support, less any costs incurred in arranging your workshop or private support. Otherwise, please contact our support department to determine if your instance warrants refund.
Finally, following attendance at a workshop or private support, if you feel you have under-performed in any way, we invite you contact us if you want a refresher or other help. Depending on your situation and the amount of time that has expired since we first helped you, we may be able to find a solution to help you.
WEBSITE AFFILIATE AGREEMENT
PURPOSE. The Company hereby engages the Affiliate, and the Affiliate hereby accepts such engagement, to perform the services described in this Agreement and in Exhibit A attached hereto and made a part hereof, in connection with posting the Link on the Affiliate Website (the “Services”).
COMPENSATION. In exchange for the Services, the Company shall pay the Affiliate a referral fee as set forth in Exhibit A hereto (the “Referral Fee”). Payments of the Referral Fee, if any, shall be made according to the payment schedule set forth in Exhibit A hereto.
TERM. This Agreement is effective as of the Effective Date and shall continue in force, unless otherwise terminated in accordance with the provisions of Section 4 of this Agreement, for a period of 12 month[s] (the “Term”).
Of the Affiliate.The Affiliate agrees to do each of the following:
Post the Link on the Affiliate Website as detailed in this Agreement and Exhibit A to this Agreement.
Perform the Services in a workmanlike manner and with professional diligence and skill, using fully-trained, skilled, competent, and experienced personnel.
Display the Link in a manner on the Affiliate Website that does not reflect adversely on the Company or mislead visitors.
Of the Company. The Company agrees to do each of the following:
Provide all assistance and cooperation to the Affiliate in order to enable the Affiliate to post the Link on the Affiliate Website.
Ensure the Link is of acceptable quality, content, and format, as further detailed in Section 9 to this Agreement and in Exhibit B attached hereto and made a part hereof.
Maintain accurate records of the data used to determine the Referral Fee.
Make a good faith effort to provide customers with any products and/or services promoted by the Link.
Use commercially reasonable efforts to maintain the Company Website and minimize any downtime or errors that affect the operability of the Link.
CONFIDENTIAL INFORMATION. The Affiliate agrees, during the Term and [for a period of (__1__) year] thereafter, to hold in strictest confidence and not to use, except for the benefit of the Company or as required by law, or to disclose to any person, firm, or corporation without the prior written authorization of the Company, any Confidential Information of the Company. Confidential Information” means any of the Company’s proprietary information, technical data, trade secrets, or know-how, including, but not limited to, research, product plans, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to the Affiliate by the Company either directly or indirectly. The Affiliate may use the Confidential Information to the extent necessary for negotiations, discussions, and consultations with the Company’s personnel or authorized representatives or for any other purpose the Company may hereafter authorize in writing. At the request of the Company, the Affiliate must promptly return all copies of Confidential Information received from the Company, and must promptly destroy all other Confidential Information prepared by the Affiliate, including, without limitation, any notes, reports, or other documents.
PARTIES’ REPRESENTATIONS AND WARRANTIES.
The Parties each represent and warrant as follows:
Each Party has full power, authority, and right to perform its obligations under the Agreement.
This Agreement is a legal, valid, and binding obligation of each Party, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors’ rights generally and equitable remedies).
Entering into this Agreement will not violate the charter or bylaws of either Party or any material contract to which that Party is also a party.
The Affiliate hereby represents and warrants as follows:
The Services shall be performed in accordance with and shall not violate any applicable laws, rules, or regulations, and the Affiliate shall obtain all permits or permissions required to comply with such laws, rules, or regulations.
The Services required by this Agreement shall be performed by the Affiliate or the Affiliate’s staff, and the Company shall not be required to hire, supervise, or pay any assistants to help the Affiliate perform such Services.
The Affiliate is responsible for paying all ordinary and necessary expenses of its staff.
The content comprising the Affiliate Website is not defamatory, discriminatory, violent, or obscene, does not constitute false advertising, solicit unlawful behavior, and violate any applicable laws, rules, or regulations.
The Company hereby represents and warrants as follows:
The Company will make timely payments of any Referral Fees earned by the Affiliate.
The content comprising the Company Website is not defamatory, discriminatory, violent, or obscene, does not constitute false advertising, solicit unlawful behavior, and violate any applicable laws, rules, or regulations.
The Company has the right to sell the products or services promoted by the Link.
The Company shall provide such other assistance to the Affiliate as it deems reasonable and appropriate.
. The Company represents to the Affiliate and unconditionally guarantees that all text, graphics, photos, designs, trademarks, or other content comprising any (i) Link and (ii) the Company Website are owned by the Company, or that the Company has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend the Affiliate and its subcontractors from any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Company. The Company further represents to the Affiliate that the Link does not infringe, dilute, or otherwise violate third-party rights or trademarks.
. The Affiliate represents to the Company and unconditionally guarantees that all text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Affiliate Website are owned by the Affiliate, or that the Affiliate has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend the Company and its subcontractors from any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Affiliate. The Affiliate further represents to the Company that the Affiliate Website’s domain name or URL listing does not infringe, dilute, or otherwise violate third-party rights or trademarks.
. All text, graphics, photos, designs, trademarks, service marks, tradenames, or other content comprising the Link provided, leased, or licensed to the Affiliate with respect to the Affiliate’s performance of the Services are the sole property of the Company, and the Affiliate has no ownership or other intellectual property rights in or to such items. Without the prior written consent of the Company, the Affiliate will not use or mention the Company’s name, or publish or distribute any materials provided, leased, or licensed to the Affiliate, for any purpose not specified in this Agreement.
. All text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Affiliate Website are the property of the Affiliate and the Company has no ownership rights or other intellectual property rights to such items.
. The Company grants the Affiliate a non-exclusive, limited license to use its trademarks, service marks, and trade names only in connection with placing the Link on the Affiliate Website during the Term.
. The Company has the right, but not the duty, to monitor the Affiliate Website. The Company shall notify the Affiliate of any modification that the Company reasonably requests be made to the Affiliate Website in connection with posting the Link. If the Affiliate fails to make such modification, the Company reserves the right to terminate the Agreement immediately on written notice.
. The Company may, in its discretion, modify, update, or replace the Link with another Link no more than ____1____ time(s) per week. [Except as provided in Section 10 below, ][T]he Affiliate will remove the then-current Link from the Affiliate Website and replace such Link with the modified, updated, or replacement Link.
. The Company may, in its discretion, direct the Affiliate to remove, and the Affiliate agrees to remove at the Company’s direction, the Link from the Affiliate Website at any time and for any reason.
. The Company may, in its discretion, direct the Affiliate to post the disclaimer set forth in Exhibit A hereto on the Affiliate Website.]
. The Affiliate has the right, but not the duty, to review the Link, and does not accept responsibility or liability for any errors or inaccuracies.
[Except as permitted on Exhibit B hereto, ][T]he Affiliate may not, without first obtaining the written consent of the Company, alter the Link in any manner, including, but not limited to, modification of the design, color, format, specification, or content of the Link.
. The Affiliate may remove the Link from the Affiliate Website as set forth in Exhibit A hereto.
. The materials comprising the Link must be delivered to the Affiliate as set forth in Exhibit B hereto.
. The Link shall be in the format set forth in Exhibit B hereto.
. The Link shall be posted on the Affiliate Website as set forth in Exhibit A hereto.
Of Company by Affiliate. The Affiliate shall indemnify and hold harmless the Company and its officers, members, managers, employees, agents, contractors, sublicensees, affiliates, subsidiaries, successors and assigns from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorneys’ fees and disbursements (collectively, the “Claims”) that any of them may suffer from or incur and that arise or result primarily from (i) any gross negligence or willful misconduct of the Affiliate arising from or connected with the Affiliate’s carrying out of its duties under this Agreement, or (ii) the Affiliate’s breach of any of its obligations, agreements, or duties under this Agreement.
Of Affiliate by Company. The Company shall indemnify and hold harmless the Affiliate from and against all Claims that it may suffer from or incur and that arise or result primarily from (i) its posting of the Link on the Affiliate Website in connection with the carrying out of its duties under this Agreement or (ii) the Company’s breach of any of its obligations, agreements, or duties under this Agreement; provided, however, none of the foregoing result from or arise out of the actions or inactions of the Affiliate.
LAWS AFFECTING ELECTRONIC COMMERCE.
LIMITATION OF LIABILITY.
NATURE OF RELATIONSHIP.
SUCCESSORS AND ASSIGNS.
notify the other Party of the Force Majeure Event and its impact on performance under this Agreement; and
use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder.
NO IMPLIED WAIVER.
The Company hereby engages the Affiliate, and the Affiliate hereby accepts such engagement, to perform the services described in this Agreement and in Exhibit A attached hereto and made a part hereof, in connection with posting the Link on the Affiliate Website (the “Services”).
In exchange for the Services, the Company shall pay the Affiliate a referral fee as set forth in Exhibit A hereto (the “Referral Fee”). Payments of the Referral Fee, if any, shall be made according to the payment schedule set forth in Exhibit A hereto.
This Agreement is effective as of the Effective Date and shall continue in force, unless otherwise terminated in accordance with the provisions of Section 4 of this Agreement, for a period of 12 month[s] (the “Term”).
The Affiliate agrees, during the Term and [for a period of (__1__) year] thereafter, to hold in strictest confidence and not to use, except for the benefit of the Company or as required by law, or to disclose to any person, firm, or corporation without the prior written authorization of the Company, any Confidential Information of the Company. “Confidential Information” means any of the Company’s proprietary information, technical data, trade secrets, or know-how, including, but not limited to, research, product plans, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to the Affiliate by the Company either directly or indirectly. The Affiliate may use the Confidential Information to the extent necessary for negotiations, discussions, and consultations with the Company’s personnel or authorized representatives or for any other purpose the Company may hereafter authorize in writing. At the request of the Company, the Affiliate must promptly return all copies of Confidential Information received from the Company, and must promptly destroy all other Confidential Information prepared by the Affiliate, including, without limitation, any notes, reports, or other documents.
During the Term, the Affiliate agrees it will not post any hyperlink on the Affiliate Website belonging to any of the Company’s competitors listed on Exhibit C to this Agreement. Additional competitors may be added to Exhibit C with the prior written consent of the Affiliate or removed with the prior written consent of the Company.]
From time to time, governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Each Party agrees that it is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend the other Party and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the other Party’s exercise of Internet electronic commerce.
THE COMPANY WILL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND IN CONNECTION WITH THE AGREEMENT. [THE COMPANY’S LIABILITY SHALL NOT EXCEED THE TOTAL REFERRAL FEES PAID OR PAYABLE UNDER THE AGEEEMENT
The Company makes no express or implied warranties or representations with respect to any of the Company’s products or services sold through the Link, including, but not limited to, warranties of merchantability or fitness.] [The Company makes no representations that the operation of the Company Website will be uninterrupted or error-free during the Term.]]
The Parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other. The Affiliate is and will remain an independent contractor in its relationship to the Company. The Company shall not be responsible for withholding taxes with respect to the Affiliate’s compensation hereunder. The Affiliate shall have no claim against the Company hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. Nothing in this Agreement shall create any obligation between either Party and a third party.
No amendment, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties.
Neither Party may, without the prior written consent of the other Party, assign, subcontract, or delegate its obligations under this Agreement, except that the Affiliate may transfer the right to receive any amounts that may be payable to it for its Services under this Agreement, which transfer will be effective only after receipt by the Company of written notice of such assignment or transfer.
All references in this Agreement to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the Parties.
A Party shall be not be considered in breach of or in default under this Agreement on account of, and shall not be liable to the other Party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that Party’s reasonable control (each a “Force Majeure Event”); provided, however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable:
The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party's right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.
Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing and shall be given in person, by overnight courier, or by mail (registered or certified mail, postage prepaid, return-receipt requested) to the respective Parties as follows:
This Agreement shall be governed by the laws of the state of California. In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature.
Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.
This Agreement, together with the Exhibits hereto, constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
Posting of Link.
In a position to be determined by the Affiliate in its discretion; provided, however, that the Link may not be placed on the Affiliate Website in any position that would be misleading or cause confusion.
Post the Link on the Affiliate Website for such period(s) of time as may be determined by the Affiliate in its discretion.
Use reasonable efforts to ensure the Link works on the Affiliate Website, and that any visitor who clicks on the Link will be connected to the Company Website.
Removal of Link. Remove the Link from the Affiliate Website as may be determined by the Affiliate in its discretion; provided, however, that the Affiliate shall remove the Link from the Affiliate Website immediately if directed to do so by the Company.
Customer Referral. Refer new, unique and legitimate customers (i.e., customers not previously existing to the Company) to the Company Website via the Link.
In exchange for the Referral Fee, the Affiliate will provide the following services:
INTELLECTUAL PROPERTY ASSIGNMENT
ASSIGNMENT OF INTELLECTUAL PROPERTY.
Effective as of the Effective Date, the Assignor sells, transfers, conveys, assigns, and delivers to the Assignee, and the Assignee accepts and assumes all right, title, and interest of the Assignor in and to the following:
ASSIGNOR’S REPRESENTATIONS AND WARRANTIES.
ASSIGNEE’S REPRESENTATIONS AND WARRANTIES.
has full power and authority to enter into this Assignment; and
has sufficient resources to complete the transaction contemplated by this Assignment and the authority to commit such resources for the purposes of such transaction.
execute and deliver, or cause to be executed and delivered, to the Assignee any additional papers, including any separate assignments of the Intellectual Property, reasonably necessary to record the assignment in the United States [and throughout the world];
generally do all other lawful acts reasonable and necessary to record the Assignment in the United States [and throughout the world]; and
execute all lawful papers reasonable and necessary for Assignee to obtain a patent, copyright, or trademark on any of the Intellectual Property and on any continuing, divisional, or reissue applications thereof.
SUCCESSORS AND ASSIGNS.
NO IMPLIED WAIVER.
The Assignor hereby represents and warrants to the Assignee that it:
The Assignor agrees to immediately notify the Assignee in writing if any facts or circumstances arise that would make any of the representations in this Assignment inaccurate.
The Assignee hereby represents and warrants to the Assignor that it:
The Assignee agrees to immediately notify the Assignor in writing if any facts or circumstances arise that would make any of the representations in this Assignment inaccurate.
The Assignor will, as soon as is reasonably possible following a request from the Assignee, provide the Assignor with a complete copy of all documentation (in any format) relating to the Intellectual Property for the Assignee’s own use, to meet record-keeping requirements of the Assignee, or to allow the Assignee to assert its rights granted pursuant to this Assignment. The Assignor will also, on request:
In the event that any of the Intellectual Property infringes on any United States patent, copyright, trademark, or trade secret of a third party not affiliated with the Assignee, the Assignor shall indemnify the Assignee against such claim; provided that all of the following are true:
the Assignee promptly gives notice of any such claim to the Assignor;
the Assignor controls the defense and settlement of such claim;
the Assignee fully cooperates with the Assignor in connection with its defense and settlement of such claim;
the Assignee stops all sales, distribution, and public use of the infringing Intellectual Property, if requested by the Assignor.
If the Assignee is enjoined from further sale or distribution of any infringing Intellectual Property or if the Assignee stops selling or distributing any of the Intellectual Property pursuant to the Assignor’s request (as described in (d) above), the Assignor shall, at its own expense and option:
obtain the right for the Assignee to continue to sell the infringing Intellectual Property;
modify the infringing Intellectual Property to eliminate such infringement (if practicable);
provide substitute non-infringing Intellectual Property to the Assignee pursuant to this Assignment (if practicable); or
refund the amount paid under this Assignment for the infringing Intellectual Property to the Assignee, on such terms and conditions as the Parties may thereafter agree.
The Assignor shall have no other obligations or liability if infringement occurs and shall have no other obligation of indemnification or to defend or hold harmless relating to infringement. The Assignor shall not be liable for any costs or expenses incurred without its prior written authorization and shall have no obligation of indemnification or any liability whatsoever if the infringement is based on (i) any altered, changed, or modified form of the Intellectual Property not made by the Assignor or (ii) the laws of any country other than the United States of America or its states.
All references in this Assignment to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Assignment shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties.
The failure of either Party to insist on strict performance of any covenant or obligation under this Assignment, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Assignment shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.
Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing and shall be given in person, by overnight courier, or by mail (registered or certified mail, postage prepaid, return receipt requested) to the respective.
This Assignment shall be governed by the laws of the state of_ California_.In the event that litigation results from or arises out of this Assignment or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled.
This Assignment may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Assignment, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature.
Whenever possible, each provision of this Assignment, will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Assignment is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Assignment will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.
This Assignment constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.
Headings used in this Assignment are provided for convenience only and shall not be used to construe meaning or intent.