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Publisher Terms and Conditions
These Publisher Terms and Conditions ("Agreement") is made, as
of the date of your acceptance or participation in any Offer (defined
below), between Sanchez, Inc., a New York State corporation located at 42
Beacon Hill Drive – Suite 7A2, Dobbs Ferry, NY 10522
("Merchant") and you ("Publisher"). BY CLICKING YOUR
ACCEPTANCE OF THIS AGREEMENT, OR BY PARTICIPATING IN ANY OFFER, YOU
ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT,
UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND
BY THEM. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS IN THIS
AGREEMENT, YOU MAY NOT PARTICIPATE IN ANY OFFER.
BACKGROUND
Publisher desires participation in Merchant’s Affiliate Marketing
Program ("Program"). Publisher and Merchant each desire to
establish the terms and conditions that shall govern advertising and
commission arrangements between Publisher and Merchant which result from
their participation in the Program (each an "Offer").
TERMS AND CONDITIONS
In consideration of the promises set forth below, Merchant and Publisher
agree as follows:
1. Offers.
1.1. From time to time, Merchant and Publisher may engage in Offers in
the Program where Merchant agrees to pay to Publisher a specified
commission in return for certain advertising services leading to a
Qualifying Link (as defined below).
1.2. At any time prior to Publisher providing a Qualifying Link, Merchant
may with or without notice (a) change, suspend or discontinue any aspect
of an Offer or (b) remove, alter, or modify any graphic or banner ad
submitted by Merchant for an Offer. Publisher agrees to promptly (within
seven days) implement any request from Merchant to remove, alter or
modify any graphic or banner ad submitted by Merchant that is being used
by Publisher as part of an Offer.
1.3 Each Qualifying Link shall direct Customers to a page of Merchant's
site as may be designated by Merchant from time to promote the sale or
license of an eligible product or service of Merchant.
2. Publisher's Responsibilities.
2.1. Publisher will link its site to areas within Merchant's site using
special URLs specified by the Merchant to identify Customers linked to
the Merchant's site by Publisher (the "Required URLs"). Subject
to the terms and conditions of this Agreement, Publisher may post as many
links to the Required URLs and the rest of Merchant's site as it likes on
Publisher's site. The position, prominence and nature of links on the
Publisher's site shall comply with any requirements specified by
Merchant, but otherwise will be in the discretion of Publisher.
2.2. Publisher agrees not to make any representations, warranties or
other statements concerning Merchant, Merchant's site, any of Merchant's
products or services, or Merchant's site policies, except as expressly
authorized by Merchant.
2.3. Publisher is responsible for notifying Merchant of any
malfunctioning of the Required URLs or other problems with Publisher's
participation in the Offer. Merchant will use reasonable efforts to
correct any malfunctioning Required URL's after notification by
Publisher.
3. Commissions.
3.1. Merchant agrees to pay Publisher the commission specified in the
Offer if Merchant sells to a visitor to Merchant's site from the
Publisher site using a Qualifying Link (a "Customer") a product
or service that is the subject of the Offer and if that Customer has
accessed Merchant's site and purchased the product or service via a
Qualifying Link.
3.2. A "Qualifying Link" is a link from Publisher's site to
Merchant's site using one of the Required URLs if it is the last link to
the Merchant's site that the Customer uses during a Session where a sale
of a product or a service to Customer occurs. A "Session" is
the period of time beginning from a Customer's initial contact with
Merchant's site via a Qualifying Link and terminating when the Customer either returns to the Merchant's site from a source other
than Publisher's site or the Offer expires or is terminated. For
clarification, a Session shall end (and no compensation shall be owed to
Publisher) if a Customer visits the Merchant's site via a Qualifying Link
and does not purchase anything or create an account during that visit,
and later returns to the Merchant's site directly or through an
independent link (and not through a Qualifying Link).
3.3. Merchant shall have the sole right and responsibility for processing
all orders made by Customers. Publisher acknowledges that all agreements
relating to sales to Customers shall be between Merchant and the
Customer. Once a transaction takes place between Merchant and Customer,
Publisher acknowledges that the Merchant owns all rights with respect to
the ongoing contracts or relationships with that Customer.
3.4. All determinations of Qualifying Links and whether a commission is
payable will be made by Merchant and will be final and
binding on Publisher. Prices for any products or services offered by
Merchant will be set solely by Merchant in
Merchant's sole discretion and may be changed without notice. Publisher acknowledges that if a Customer disables
"cookies," alters a URL containing a referral ID or if a
transaction does not satisfy the requirements of a Session, then
Publisher may not receive any credit for that Customer if it cannot be
tracked by Merchant
3.5 Publishers will be paid commissions earned under this Agreement in
accordance with the payment terms in Merchant’s Publisher Service
Agreement. If any product or service sold by Merchant that
generated a commission pursuant to this Agreement is
returned or canceled, Merchant will deduct payment and may send
Publisher a bill for the canceled commission to reimburse Merchant or
offset such amount from any future payment due to Publisher.
4. Ownership and Licenses.
4.1. Each party owns and shall retain all right, title and interest in
its names, logos, trademarks, service marks, trade dress, copyrights and
proprietary technology, including, without limitation, those names,
logos, trademarks, service marks, trade dress, copyrights and proprietary
technology currently used or which may be developed and/or used by it in
the future. Title and ownership to the tax software and
all associated copyrights and other intellectual property rights are retained
by Merchant and its licensors. Publisher's use of the software or
promotion of Offers shall not entitle it to any interest in the software,
advertising materials or any components thereof. No right, title or
interest in or to any name, logo, trademark, service mark, trade dress or
trade name of Merchant is granted to Publisher
under this Agreement. Merchant reserves all rights related to ownership
of its software and advertising materials, including the right to
duplicate and sell such materials in Merchant's sole discretion.
4.2. Subject to the terms of this Agreement, Merchant
grants Publisher a revocable, non-exclusive, worldwide license to use,
reproduce and transmit the name, logos, trademarks, service marks, trade
dress and proprietary technology, as designated in the Offer or during
the registration process in the Program, on Publisher's site solely for
the purpose of creating links from Publisher's site to Merchant's site
during Offers; provided, however that such license shall be limited to usage
in the form of Approved Promotions (as defined in Section 5.4 of this
Agreement) and Publisher shall have no other license rights except with
respect to Approved Promotions. Except as expressly set forth in
this Agreement or permitted by applicable law, Publisher may not copy,
distribute, modify, reverse engineer, or create derivative works from the
same. Publisher may not sublicense, assign or transfer any such licenses
for the use of the same, and any attempt at such sublicense, assignment
or transfer is void. Except as permitted under this Agreement, Publisher
shall not use any names, logos, trademarks, service marks or trade dress
of Merchant. Publisher will also refrain from using any names, logos,
trademarks, service marks and trade dress that are variations,
misspellings, combination marks or are otherwise confusingly similar to
Merchant's name, logos, trademarks, service marks or trade dress.
4.3. Publisher grants Merchant a non-exclusive, worldwide, royalty-free
license to use, display, reproduce and transmit (i)
Publisher's trademarks and logos; and (ii) any graphic or banner ad
submitted by Publisher, solely for the purpose of co-branding the
promotion of the eligible products or as a return link from Merchant's
site to Publisher's site. Merchant has no obligation to co-brand the
promotion of the eligible products or to provide return links to the
Publisher site. If any such trademarks, logos or
graphics are used by Merchant, Merchant will remove such
trademark, logo, or graphic upon Publisher's request.
5. License Restrictions.
5.1 Except as expressly permitted in writing by Merchant, Publisher may
not "co-brand" or "frame" the Merchant site or
otherwise have any portion of Publisher's site visible on the screen once
a user has clicked through to the Merchant site.
5.2 Except as expressly permitted in writing by Merchant, Publisher may
not register any Internet domain name or use any Internet domain name
containing the Merchant's trademarks, trade names, or any confusingly
similar marks or names (including misspellings) in connection with any
Offer.
5.3 Except as expressly permitted in writing by Merchant, Publisher may
not acquire, use or register any word or phrase containing Merchant's
trademarks, trade names, or any confusingly similar marks or names
(including misspellings) as a search term on Google, Overture, MSN and
Yahoo. Merchant shall have the right to modify these search engine
restrictions at any time, in Merchant's sole discretion. By way of
clarification, use of Merchant's trademarks or trade names or any
confusingly similar terms or misspelled terms in this Section 5.3
includes the use of such terms as "IncomeTaxCorner.com," "1040.com,"
"incometaxcorner online," or "TaxCorner.com."
5.4 For purposes of this Agreement, "Approved Promotions" means
a promotion or advertisement in electronic format (which may contain text
and graphics, including Merchant's names, logos, trademarks, service
marks, trade dress, trade names or Merchant's copyrighted material) in form
supplied by Merchant and available for download through the Program,
which promotion or advertisement may not be modified by Publisher in any
way. All Approved Promotions must be used in
exactly the form supplied by Merchant and downloaded from the Program.
Publisher may not modify any graphic, content, tool, text, trademark, or
any of Merchant's images on or in the Approved Promotions in any way. In
addition, Publisher may not separate or remove any text or graphic
(including any logos or trademarks) from the Approved Promotions without
the prior written approval of Merchant.
5.5 Other than use of the Approved Promotions, Publisher shall not make
any public statement about Merchant's products or services, or
Publisher's participation in the Offer (including, but not limited to,
press releases) without Merchant's prior written consent.
5.6 Publisher may not use or carry out any email campaign to promote an
Offer except as expressly authorized in writing by Merchant. Without
limiting the foregoing, every email distributed or sent by Publisher in
connection with an Offer shall contain a valid reply address and shall
comply with all applicable local, state and federal laws pertaining to
commercial e-mail. The header (including from line and subject line) of
any email may not contain any reference to Merchant. The body of the
email may contain only content and graphics expressly approved in writing
by Merchant or in the Offer. In addition, each email shall
prominently and conspicuously contain the following statement:
"This email is being sent to you by [Publisher name]", or a
similar statement that clearly indicates the source of the email.
Publisher agrees that it will not send unsolicited messages that
reference IncomeTaxCorner.com to any email address, and bears all
responsibility for fines or other enforcement action that may result from
violations of this provision.
5.7 Any Web site owned, operated or used by Publisher
to display the Approved Promotions and any location where Publisher
displays the Approved Promotions shall not (including through direct
hyperlinks): (i) contain or reference any
defamatory or libelous statements; (ii) contain or reference any nudity,
pornographic content, obscenity or lewdness; (iii) violate any laws
regarding unfair competition, anti-discrimination or false advertising;
(iv) promote violence or contain hate speech; (v) contain viruses, Trojan
horses, worms, time bombs, cancelbots or other
similar harmful or deleterious programming routines; (vi) disparage
Merchant or Merchant's products or services; or (vii) contain any product
or service competitive to those offered by Merchant or Merchant's
affiliates unless it is clear and conspicuous that the competitive
products or services are not affiliated with, or offered by, Merchant.
6. Termination.
Either party may terminate this Agreement at any time, for any reason, provided that they provide at least seven day's prior
written notice of such termination to the other party and the Program.
Termination of this Agreement shall also terminate any outstanding
Offers. All rights to payments accrued (meaning a product or service of
Merchant has been purchased during a Session before the effective date of
termination) prior to termination shall survive termination of this
Agreement, except for termination due to a material breach of Section 5
of this Agreement. Termination of this Agreement shall immediately
terminate any of the licenses granted to Publisher under this Agreement
and Publisher agrees it will immediately cease any activities that imply
any on-going relationship between Merchant and Publisher.
7. Representations and Warranties.
7.1. Each party represents and warrants to the other
that (a) it has the authority to enter into this Agreement and sufficient
rights to grant any licenses granted hereby, and (b) any material which
is provided to the other party and displayed on the other party's site
will not (i) infringe on any third party's
copyright, patent, trademark, trade secret or other proprietary rights or
right of publicity or privacy; or (ii) violate any applicable law,
statute, ordinance or regulation. If Publisher is an entity, you
represent and warrant that you are acting on behalf of such entity in
your official capacity and that you have full power and authority to enter
into this Agreement on behalf of such entity.
7.2. OTHER THAN THOSE EXPRESS WARRANTIES SET FORTH IN
THIS AGREEMENT, THERE ARE NO EXPRESS, IMPLIED OR STATUTORY WARRANTIES OF
ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION ANY IMPLIED OR OTHER WARRANTEES (I) OF MERCHANTABILITY, OF
FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, QUALITY, ACCURACY,
TIMELINESS, COMPLETENESS, TITLE, QUIET ENJOYMENT, NON ENCUMBRANCES; (II)
THAT THE SOFTWARE OR ANY PART THEREOF CONFORM TO ANY DEMONSTRATION OR
PROMISE; (III) ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE
OR USAGE OF TRADE; OR (IV) THAT ACCESS TO OR USE OF THE SOFTWARE OR ANY
PART THEREOF WILL BE UNINTERRUPTED, ERROR OR DEFECT FREE OR COMPLETELY
SECURE, OR THAT PROBLEMS WILL BE CORRECTED. EXCEPT
AS PROVIDED ABOVE, THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF
THIS AGREEMENT. WITHOUT LIMITATION, MERCHANT DOES NOT WARRANT OR
REPRESENT THAT PUBLISHER WILL BE SUCCESSFUL OR PROFITABLE IN CONNECTION
WITH ANY OFFER.
8. Indemnification.
8.1. Each party hereby agrees to indemnify, defend and
hold harmless the other party and its affiliates, directors, officers,
employees and agents, from and against any and all liability, claims,
losses, damages, injuries or expenses (including reasonable attorneys'
fees) due to claims brought by a third party against the other party,
arising out of a breach, or alleged breach, of any of its representations
or obligations herein.
8.2 Publisher hereby agrees to indemnify and hold harmless Merchant and
its affiliates, directors, officers, employees and agents from any
against any and all damage, cost, and expense (including reasonable
attorneys' fees) arising out of or relating to any breach by Publisher of
Section 2.2 or Section 5 of this Agreement.
9. Limitation of Liability.
Except for any claim under Section 8 or for a party's
grossly negligent, willful or fraudulent acts or omissions, in no event
shall either party be liable to the other party for any direct, indirect,
special, exemplary, punitive or consequential damages, including but not
limited to lost profits or loss of business, arising out of or relating
to this Agreement, even if informed of the possibility of such damages.
Further, except for commission payments due under this Agreement,
Merchant shall not be liable to Publisher for any direct damages.
10. Modifications.
Merchant may modify any of the terms and conditions contained in this
Agreement, at any time and in Merchant's own discretion, by posting a change
notice or a new agreement on Merchant's site or the Program site. If
Publisher accepts a new Offer or makes any changes to an Offer following
(i) Merchant's posting of a change notice or
new agreement on Merchant's site and/or (ii) Merchant's
sending to Publisher a change notice, Publisher will be deemed to have
accepted the amendment or modification. If any modification is
unacceptable to Publisher, Publisher's only recourse is to terminate this
Agreement.
11. General.
11.1. Each party shall act as an independent contractor and shall have no
authority to obligate or bind the other in any respect.
11.2. This Agreement constitutes the complete, final and exclusive
understanding an agreement between Merchant and Publisher with respect to
the transactions contemplated herein, and supersedes any and all prior or
contemporaneous oral or written representation, understanding, agreement,
correspondence or communication between Merchant and Publisher concerning
the subject matter hereof. Neither party is relying upon any warranties,
representation, assurance or inducements not expressly set forth herein.
11.3 Neither party may modify or amend this Agreement without the prior
written consent of the other; provided that the parties may modify or
amend this Agreement as described in Section 11 hereof. It is expressly
understood and agreed that no usage of trade or other regular practice or
method of dealing between the parties hereto shall be used to modify,
interpret, supplement or alter in any manner the express terms of this
Agreement or any part hereof.
11.4. This Agreement will be governed by the
laws of the United States and the State of New York, without regard to
any conflicts of laws principles. THE PARTIES HEREBY AGREE TO WAIVE THEIR
RIGHT TO A TRIAL BY JURY IN ANY COURT ACTION ARISING AMONG THE PARTIES
UNDER THIS AGREEMENT OR OTHERWISE RELATED TO THIS AGREEMENT, WHETHER MADE
BY CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR OTHERWISE.
11.5. Publisher may not assign this Agreement, by operation of law or
otherwise, without Merchant's prior written consent. Subject to that
restriction, this Agreement will be binding on, inure to the benefit of,
and enforceable against the parties and their respective successors and
assigns. Merchants' failure or agreement not to enforce Publisher's
strict performance of any provision of this Agreement in a given instance
will not constitute a waiver of Merchant's right to
subsequently enforce such provision or any other provision of this
Agreement.
11.6. The provisions of this Agreement are independent of and separable
from each other, and no provision shall be affected or rendered invalid
or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part. The
headings used in this Agreement are for the convenience of the parties
only and shall not be used to interpret any term or provision of this
Agreement.
11.7 Notice to Merchant shall be by U.S. mail at the address set forth
above (Attention: IncomeTaxCorner.com Marketing Program) and notice to
Publisher shall be made either at the email addresses or physical
addresses provided by Publisher upon registration in the Program, unless
Publisher provides an alternate email address and physical address to
Merchant in writing.
11.8 Any provision which by its terms is
intended to survive termination of this Agreement, including, but not
limited to, the provisions of Sections 4, 5, 7, 8, 9, and 11 shall
survive termination or expiration of this Agreement.
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