These Affiliate Terms and Conditions (the "Agreement") govern the services provided to affiliates by AdBend, LLC, an Arizona limited liability company. This Agreement replaces and supersedes any prior terms and conditions for AdBend's services for affiliates. By using the services and becoming a marketing affiliate to AdBend, you ("Affiliate") agree to be bound by this Agreement.
This Agreement may be amended from time to time in AdBend's discretion and pursuant to applicable law. Amended versions of this Agreement will be effective upon posting at www.adbend.com.
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings set out below or as defined elsewhere in this Agreement:
Advertiser: means an entity that submits Offers and Creatives for placement in AdBend's network for the purpose of marketing, advertising and lead generation.
Agent: means any sub-affiliate, sub-publisher, distribution partner or any other similar third-party with a business relationship with Affiliate.
Lead(s): means any lead or activity specified by AdBend and its Advertisers and taken by a Consumer, for which Advertiser compensates AdBend and AdBend in turn compensates Affiliate. The particular lead or activity for each Offer will be set forth with the Offer or in a separate insertion order signed by AdBend and Affiliate.
Consumer: An individual to whom an Offer is directed or who responds to an Offer and who effects a Lead.
Creative: Means a graphic file(s) or creative work made available to Affiliate for use in an Offer.
Invalid Leads: shall mean fraudulent, incomplete or duplicate Leads as further defined herein. Fraudulent Leads shall include Leads that result from Affiliate or its sub-publishers engaging in the entry of Consumer information without the consent of the actual Consumer, such as by adding leads or clicks or inflating leads or clicks by fraudulent traffic generation such as pre-population of forms without the advance written consent of AdBend or other mechanisms not approved by AdBend. Incomplete Leads include Leads in which the information sent to AdBend does not contain the data or information required by AdBend or its Advertisers. Duplicate Leads includes Leads that Affiliate sends to AdBend that contains identical information Affiliate has previously sent to AdBend.
Offer: An advertisement that contains a promotion or opportunity directed to Consumers that may be made available from time to time by AdBend for publishing by Affiliate.
2. APPROVAL. Affiliate may only use AdBend's services after first being reviewed and approved as an Affiliate by AdBend. AdBend reserves the right to withhold or refuse approval of any company or individual applying to become an affiliate of AdBend.
3. WORKING WITH THIRD PARTIES.
Approval for use of Agents: Affiliate shall not enter into a relationship with an Agent or any other similar third-party relationship with respect to the use of AdBend’s Offers without notifying AdBend, in writing, and obtaining AdBend’s express, advance, written approval, of its intent to enter into such a relationship and providing AdBend with the identifying information of the Agent, which shall include:
(A) in the case of a natural person, the Agent’s first and last name, physical address, country, telephone number, and email address; and
(B) in the case of corporations, partnerships, proprietorships, limited liability companies, organizations, associations, cooperatives, agencies, or other legal entities, the name and jurisdiction of organization for such entity and the first and last name, physical address, country, telephone number, and email address for the natural person or persons who own, manage, or control the Agent.
Affiliate’s Relationship with Agents. Affiliate will not make any commitments or representations on behalf of AdBend with regard to any relationship it enters into with approved Agents in connection with its promotion of any AdBend Offers or otherwise. Affiliate will provide all Agents with a copy of this Agreement and, upon request by AdBend, provide AdBend with a signed acknowledgement by the Agent of its agreement to this Agreement. Affiliate shall ensure and contractually require that all Agents comply with all of the terms and conditions in this Agreement (and Affiliate shall be fully responsible for any breach of such terms and conditions by its Agents). Affiliate is limited to a single tier of Agent relationships. Affiliate will include in its terms and conditions with its Agents a clause prohibiting them from entering into any additional tier of agent relationship with respect to AdBend’s services.
Reporting and Complaint Mechanism. Affiliate will establish and maintain a functioning email address or other Internet-based mechanism for consumers to report complaints regarding the practices of any Agent and make best efforts to associate each complaint with the Agent that is the subject of the complaint. Affiliate will promptly report all such complaints to AdBend and shall investigate any complaint received through this mechanism and immediately terminate any Agent that it reasonably determines has engaged, or is engaging, in violations of applicable law or this Agreement. AdBend reserves the right to require that Affiliate terminate any agreement with any Agent, and any such determination shall be made in AdBend’s sole discretion.
4. TERM AND TERMINATION. Either party may terminate this Agreement without cause or reason on three business days' advance notice to the other party. If Affiliate violates applicable law or any term of this Agreement, Affiliate will be subject to immediate termination, including the forfeiture of any fees earned but not yet paid, as well as possible legal action, including, but not limited to reporting to the proper authorities.
5. PAYMENT. AdBend will pay Affiliate any commissions earned during a calendar month within 15 days after the end of the month (provided, however, that payments related to any incentivized sites will be paid within 30 days after the end of the month and any account with a total balance less than $50 will be carried over and paid only when the balance exceeds $50). AdBend does not guarantee payment to the Affiliate if the Advertiser does not pay AdBend. Delinquent Advertiser payments received by AdBend will be credited to the Affiliate in the month that they are received. All commissions are based upon the number of Leads reported by AdBend and as recorded in AdBend's systems. Affiliate shall not earn commissions on Invalid Leads, as determined by AdBend in its sole discretion. AdBend may also withhold payment to Affiliate in the event that AdBend determines in its sole discretion that Affiliate has engaged in unauthorized activity, including the generation of Invalid Leads, or breached its obligations under this Agreement. In addition, if an Advertiser withholds payment to AdBend because of actions of Affiliate, AdBend may also withhold payment to Affiliate. If Affiliate’s account is inactive for a period of sixty consecutive days (meaning Affiliate has not generated any Leads during such period), Affiliate shall lose its right to continue to receive commissions from its referrals, if applicable, of other affiliates to AdBend. If Affiliate’s account is inactive for a period of six consecutive months, Affiliate’s account shall be closed and Affiliate shall forfeit any remaining balance in its account to compensate AdBend for the administrative costs of maintaining and closing an inactive account.
6. LIMITED LICENSE TO USE OFFERS. AdBend hereby grants to Affiliate a nonexclusive, revocable license to display Offers in accordance with the terms of this Agreement and any additional terms posted in connection with each Offer. To the extent, if any, that an Offer contains an Advertiser’s trademarks, service marks or trade names, Affiliate shall not use such marks in a manner that might be deemed to create a unitary composite mark. Affiliate agrees not to use an Offer in a manner that is disparaging of AdBend or any Advertiser. The Advertisers reserve all proprietary rights in and to the Offer not expressly granted herein. Affiliate acknowledges that all use of the Offer by it inures solely to the benefit of the Advertiser. Affiliate will cease using any Offer immediately upon the request of AdBend. Upon termination of this Agreement or written notice from AdBend, Affiliate will immediately cease using all Offers, and the license granted herein shall terminate.
7. GENERAL AFFILIATE OBLIGATIONS. Affiliate represents and warrants that all information submitted by it in its application is complete and accurate.
Affiliate agrees that it is responsible for providing complete and accurate registration information to AdBend and maintaining current registration information with AdBend including, but not limited to, its contact information.
Affiliate understands and agrees that it is solely responsible for all of its marketing activities, and it is individually liable for any damages or losses incurred by its violation of any applicable laws or regulations or this Agreement.
Solely Affiliate is responsible for, and AdBend hereby disclaims all liability for, the development, operation and maintenance of, and all costs associated with, Affiliate’s website(s) and any content thereon. Affiliate agrees that its website(s) shall not, in any way, copy or resemble the look and feel of, or create the impression that it is part of AdBend’s or its Advertisers’ websites.
Affiliate shall not modify or alter any Offer or Creative in any manner. Affiliate will only run approved banners and text in its advertising of Offers and will not create its own banners or advertising text based on the Creative or Offer, unless expressly approved in writing from AdBend. Any other use of Offers or Creative will result in immediate termination of this Agreement and the loss of payment of Leads.
Affiliate warrants that Affiliate is not currently under order or investigation by any federal, state, local, or international regulatory or law enforcement organization. Affiliate will notify AdBend immediately in writing of any investigation, litigation, arbitrated matter or other dispute relating to Affiliate’s advertising, marketing or information security or privacy practices, even if any such investigation is nonpublic in nature.
Affiliate represents and warrants that it will at all times comply with all applicable laws, rules and regulations, and, without limiting the foregoing, the following requirements, in promoting, disseminating or otherwise distributing an Offer. Without limiting the foregoing:
(A) Affiliate shall not place an Offer on a website or in any other context with inappropriate content, which includes, but is not limited to, content that (i) contains or promotes the use of alcohol, tobacco or illegal substances, nudity, sex, pornography, adult-oriented content, such as phone sex or escort services, expletives or other inappropriate language; (ii) promotes gratuitous violence, abuses or threatens physical harm; (iii) promotes illegal or unethical activity, racism, hate, "spam," mail fraud, gambling, sweepstakes, pyramid schemes, investment and money-making opportunities or illegal advice; (iv) promotes the use of illegal activities, such as how to build a bomb, counterfeiting money and software pirating (e.g., Warez, Hotline); (v) is libelous, defamatory, infringing, false, misleading or contrary to public policy; (vi) is otherwise prohibited by federal or state law; (vii) may bring AdBend and/or its associated Advertisers negative publicity; (viii) introduces viruses, worms, harmful code and/or Trojan horses on the Internet; or (ix) is otherwise objectionable to AdBend, in its sole discretion.
(B) Any spoofing, redirecting or trafficking from adult-related websites in an effort to gain traffic is prohibited.
(C) Any trafficking from websites that are point, lottery or rewards based and encourage users to click on Offers or use Offers to generate revenue for users to win points, get rewards, or other incentives are prohibited, unless expressly approved in writing from AdBend or as part of the terms of the particular Offer.
(D) Affiliate shall not disseminate, promote or otherwise distribute any Offer through the use of contextual media, adware, pop-up/pop-under technologies, plug-ins, or similar technologies (provided, however, that certain pop-up or pop-under technology may be permitted with the prior written consent of AdBend).
(E) Affiliate shall not violate any third-party terms and conditions, including, without limitation, applicable website terms and conditions, including those that prohibit: (i) unauthorized use of a third party web site for commercial gain; or (ii) posting bulletins to non-owned accounts.
(F) Affiliate shall not use deceptive or misleading practices, such as the use of spyware, adware, devices, programs, robots, hidden pictures, redirects, spiders, computer scripts or other automated, artificial or fraudulent methods designed to appear as if a Consumer is generating a Lead (provided, however, that certain adware technology may be permitted with the prior written consent of AdBend).
(G) Affiliate shall not engage in any deceptive or misleading form of advertising or marketing, which includes, but is not limited to, phishing (the practice of sending an email to an individual, falsely claiming to be an established legitimate enterprise in an attempt to scam or defraud the user into surrendering private and personal information that can be used for identity theft, or for any other purpose).
(H) Affiliate shall not send or display any messages or ads on online social networking sites such as MySpace.com or Facebook.com, or through applications whether they appear on such social networking sites or otherwise, or online classified ads or bulletin boards such as craigslist.com unless (i) Affiliate indicated the specific social networking, applications or other sites that it uses in its application to join AdBend’s network or (ii) Affiliate obtains AdBend’s express, advance, written approval. This restriction includes, without limitation, bulletins, comments, mail, profiles or any other features of such sites.
(I) Affiliate shall operate in compliance with all applicable laws, regulations decisions and industry best practices, including but not limited to: (i) Section 5 of the Federal Trade Commission Act and any current or future interpretation by the Federal Trade Commission (“FTC”) of Section 5, including as it relates to affiliate programs, incentive programs, or advertising, privacy and information security generally, and (ii) the Direct Marketing Association’s Best Practices for Online Advertising and Affiliate Marketing.
(J) If Affiliate engages in any keyword search marketing hereunder, Affiliate shall (1) comply with all rules, requirements and terms of the particular search engine being used, (2) not infringe upon any trademark or other intellectual property rights of any third parties, and (3) comply with all terms and requirements of the Advertisers with respect to search marketing.
(K) If Affiliate is distributing an Offer outside the United States, Affiliate represents and warrants that (1) it is familiar with the particular laws, regulations and industry customs in those countries in which is distributing the Offer, (2) it has previous experience distributing offers in such countries, and (3) it will comply with all such laws, regulations and industry customs.
8. AFFILIATE OBLIGATIONS FOR EMAIL MARKETING. Affiliate represents and warrants that, with respect to email campaigns transmitted by Affiliate for AdBend in connection with any Offer, Affiliate shall at all times maintain strict compliance with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN-SPAM Act”), all rules and official guidance promulgated by the FTC pursuant to the CAN-SPAM Act, the Federal Communications Commission’s (“FCC”) rules and orders regulating the transmission of commercial email to wireless devices, and all other applicable federal, state, local and international laws and regulations. In addition, without limiting the foregoing, Affiliate agrees that it will comply with the following requirements. If Affiliate uses a third party to transmit email on its behalf, then that third party and Affiliate will be treated as one and the same for purposes of this Agreement.
(A) Address List.
(i) Affiliate shall ensure that the addresses on its email address list (the “List”) are entirely “opt-in.” This means that the email recipient has consented to receiving advertisements of the type sent by Affiliate via a clear and conspicuous affirmative “opt-in” process (and has not subsequently revoked such consent), subject to a posted, clear, conspicuous and accurate privacy policy. If Affiliate uses the list of a third party to distribute such emails, such third parties, or “List Owners,” will be considered one and the same as Affiliate for purposes of this Agreement.
(ii) Affiliate shall not promote an Offer in emails sent to persons whose email addresses were gathered in any automated process, harvesting or screen scraping, or as the result of randomly generated combinations of characters.
(iii) Affiliate agrees that, prior to transmitting any email to the List, it will scrub the List against its own do-not-email list and, if required by the terms of the Offers, the do-not-mail list of the Advertisers for such Offers (collectively, the “Suppression List”). Affiliate will conduct such purges at the last possible, commercially reasonable moment, but not more than twenty-four (24) hours before the List is sent an email promoting an Offer. Affiliate will not transmit any email promoting an Offer to any address or domains on the Suppression List. Affiliate also agrees that it will download and remove the domains located on the FCC's wireless domain names list http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from all current data used in all mailings. Affiliate further warrants that any new data that it acquires, regardless of its source, will be run against the FCC's wireless domain names list and that domain names contained therein will be removed before sending any mailings.
(iv) Affiliate will not (and will not allow others to) sell, remarket, disclose or use the Suppression List or the email address of any person who has opted out of receiving email promoting an Offer for any reason other than to comply with this Agreement and the law.
(v) For each List (including, without limitation, lists provided by a List Owner), Affiliate will promptly provide AdBend, upon AdBend’s request, a written explanation of: (a) the source of the email addresses and the method by which the email recipients opted into receiving email such as messages promoting an Offer; and (b) the opt-in and/or opt-out process such recipients had and have, and the attendant privacy policy, as well as what made such process and policy clear and conspicuous to the consumer.
(B) Transmission.
(i) Affiliate shall not promote an Offer in emails sent through open proxies, from email or Internet Protocol (“IP”) addresses registered through fraud or false pretenses, or through any means in violation of an Internet Service Provider’s (“ISP”) policies.
(ii) Upon AdBend’s request, Affiliate shall promptly provide a full list of domain names, routing information and IP addresses that will be, are being or were used to send emails promoting an Offer. In addition, upon AdBend’s request, Affiliate shall promptly provide an explanation of the transparency of the return domain names, the List Owners’ contact information and all other information that permits email recipients to identify email senders. If at any time any of Affiliate’s and/or List Owners’ IP addresses or domain names are mass-blocked or blacklisted, Affiliate will inform AdBend immediately.
(C) Content.
Affiliate shall be the “sender” of the email containing Offers as defined by the CAN-SPAM Act, its rules and official guidance, and shall comply with all requirements of a “sender” under the CAN-SPAM Act, its rules and official guidance, including but not limited to 16 CFR 316.2(m). Any email from Affiliate (and any party delivering emails on its behalf) shall: (i) Have valid and traceable email header information identifying the Affiliate as the sending party; (ii) Within the body of the email, include a valid physical street address of Affiliate; (iii) Include a clear and conspicuous identification that such email message is an advertisement or solicitation when the email is sent to an address in which there is no prior business relationship; (iv) Within the body of the email, include the following language in a separate, stand-alone, paragraph, apart from the footer or any opt-out language, in the same color, size and font as the text used by other advertisers in the Offer: “This offer has been brought to you by [insert Affiliate Name], a marketing company that promotes products, goods, or services to consumers by email or via the internet. For more information on our company, and how we can provide marketing services for you, please send an email to us at [insert Affiliate’s email address].”; (v) Include a "subject line" which accurately reflects the contents of the message and that is not misleading with respect to the contents or subject matter of the message; (vi) Include a "from line" which accurately identifies only the Affiliate as the sending party; (vii) Use only email addresses containing the name of the Affiliate as the sending party, and not use the non-sending party's name in any mail-from or reply-to email addresses (e.g. "from" lines need to accurately identify Affiliate as the sender of the email); (viii) use reply-to address that are functioning email addresses where Affiliate can be contacted; and (ix) not contain false or misleading header or transmission information,
Affiliate warrants and represents that any message content not supplied by AdBend will not infringe upon or violate any copyrights, trademarks or any rights of privacy or publicity or other proprietary rights of, and will not violate applicable laws or regulations or cause injury to, any third party.
(D) Opt-Out Mechanism and Compliance. Affiliate must include in each email message a clear and conspicuous explanation of how the recipient may opt-out of receiving future commercial emails from it, including a valid email address monitored by Affiliate or a hyperlink that the recipient may use to do so. If Affiliate uses a hyperlink, it must allow recipients to opt-out by clicking to a single web page and providing only the recipient’s email address. Affiliate shall in no circumstances require any personally-identifiable information other than a recipient’s email address to effectuate the recipient’s request to opt-out. The email address or hyperlink must remain capable of receiving opt-out requests for at least thirty (30) days after the email is sent. Affiliate must process opt-out requests within ten (10) business days of receipt (or any other timeframe established in the future by the FTC); notwithstanding Section 8(A)(3), Affiliate shall not send any commercial electronic email, including one promoting an Offer, to any recipient who has opted out 10 days or more before transmission of an email.
(E) The email addresses to be used in connection with any AdBend email campaign shall be: (i) Collected and maintained in compliance with all federal and state laws, regulations and rules and applicable international laws and regulations; (ii) Collected from websites and other online venues in compliance with the applicable websites' and or other online venues' privacy policies, and such privacy policies specifically allow for Affiliate to use such email addresses as contemplated hereunder; and (iii) Obtained and collected without employing email address harvesting, dictionary attacks and/or any other deceptive or illegal act and/or practice.
9. Compliance and Monitoring. Affiliate agrees that AdBend and our service providers may monitor or audit Affiliate’s sites and activities under this Agreement, as well as those of Affiliate’s Agents. Affiliate will not block or otherwise interfere with such monitoring, and we may use technical means to overcome any methods that Affiliate may use to block or interfere with such monitoring. Audits may include requests for documents and information and visits to Affiliate’s facilities and those of its Agents. Affiliate’s failure to promptly and reasonably comply with AdBend’s efforts to audit its or its Agent’s compliance with this Agreement shall constitute a material breach of this Agreement.
10. MUTUAL REPRESENTATIONS AND WARRANTIES. Each party represents and warrants to the other party that (i) such party has the full corporate or organizational right, power, and authority to enter into the Agreement and to perform the acts required of it, (ii) the execution of the Agreement by such party, and the performance by such party of its obligations and duties, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound, or any applicable federal, state or municipal law or regulation to which it is subject, (iii) each party shall render all services to the other party in a professional and commercially reasonable manner, in accordance with generally accepted industry standards; and (iv) each party owns or has the authority and valid license to use all intellectual property and content on its website(s).
Each party also represents and warrants that it is fully compliant with applicable privacy and information security laws. Each party shall provide clear and conspicuous notice for, and fully disclose, its respective privacy policy and practices to visitors to its website(s).
11. LIMITATION OF LIABILITY; NO ADDITIONAL WARRANTIES; INDEMNIFICATION. THE AdBend WEBSITES (INCLUDING ANY REPORTING SITE) AND THE OFFERS ARE PROVIDED "AS IS" AND "AS AVAILABLE." EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL AdBend BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS OR REVENUES, OR HARM TO BUSINESS) EVEN IF IT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL AdBend'S LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY, BE GREATER THAN THE TOTAL AMOUNT PAID WITHIN THE PRIOR SIX MONTHS BY AdBend TO AFFILIATE HEREUNDER.
Indemnification. Each party agrees to indemnify, defend and hold harmless the other, its vendors and suppliers, and each of their respective subsidiaries, affiliates, agents, partners, officers, directors and employees from and against any third party loss, cost, claim, injury or damage (including reasonable attorneys' fees) resulting from claims or actions arising out of or in connection with a breach of such party's representations or warranties made in this Agreement or a breach of the terms and conditions of this Agreement.
Indemnification Procedures. Upon the assertion of any claim or the commencement of any suit or proceeding against an indemnitee by any third party that may give rise to liability of an indemnitor hereunder, the indemnitee shall promptly notify the indemnitor of the existence of such claim and the indemnitor shall defend and/or settle the claim at its own expense and with counsel of its own selection. Indemnitee shall at all times have the right to fully participate in the defense of any claim and in any settlement which it reasonably believes would have an adverse effect on its business. The indemnitee shall make available to the indemnitor all books and records relating to the claim, and the parties to this Agreement agree to render to each other such assistance as may reasonably be requested in order to ensure a proper and adequate defense. An indemnitee shall not make any settlement of any claims which might give rise to liability of an indemnitor hereunder without the prior written consent of the indemnitor. An indemnitor shall not make any settlement of any claims which give rise to or impose any liability or obligations on the indemnitee without the prior written consent of the indemnitee, such consent not to be unreasonably withheld. Nothing in this Agreement shall be construed to prevent indemnitee from retaining counsel of its choice, at the expense of the indemnitee, to represent indemnitee’s interests and participate in the defense of any such claims covered under this section.
12. CONFIDENTIAL INFORMATION. Each party agrees to use the other party's Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party's Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the prior written consent of the disclosing party. For the purposes of this Agreement "Confidential Information" includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, Advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services. Notwithstanding the foregoing, Affiliate agrees that AdBend may divulge its personal and/or otherwise Confidential Information to an Advertiser upon request or to an enforcement agency, legal or regulatory authority, person or entity relating to investigations, claims or actions that Affiliate has violated this Agreement or pursuant to any applicable law or regulation.
13. GENERAL.
Governing Law. The rights and obligations of the parties under or arising out of this Agreement shall be governed by and construed under the laws of the State of Arizona without reference to its conflict of laws principles.
Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any Internet outage, act of God, fire, natural disaster, accident, terrorism, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.
Relationship. The relationship of Affiliate and AdBend established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other.
Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile or electronic transmission; (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective party as indicated herein; or (iv) in the event of material changes to this Agreement, notice shall be deemed effective upon posting at www.adbend.com. Notices to AdBend shall be sent to AdBend at support@adbend.com. Notices to Affiliate shall be sent to Affiliate at its most recent email address set forth in its account information on www.adbend.com. Affiliate agrees to receive electronic communications from AdBend, at the email address provided by Affiliate. Affiliate further agrees that any notice or other communication that AdBend sends it electronically will satisfy any legal communication requirements, including that such communications be in writing.
Successors and Assigns. Affiliate may not assign this Agreement without the prior written consent of AdBend. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.
Waiver. The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect.
Amendment. Changes, amendments or modifications of any provision of this Agreement shall be valid upon posting at www.adbend.com.
Entire Agreement; Severability. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms.
Dispute Resolution. In the event of disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, the parties shall first attempt to resolve the dispute(s) through good faith negotiation. In the event of a dispute resulting in litigation, each party consents to the exclusive jurisdiction of the federal and state courts in Phoenix, Arizona, USA and any such litigation will be brought within such courts. The prevailing party in any action shall be entitled to recover its reasonable attorneys' fees and costs incurred.
Survival. Any obligation of the parties relating to limitations on liability, confidentiality and indemnification shall survive termination or expiration of this Agreement.
Interpretation. Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either party by reason of its drafting.
Last Updated: December 2008.