Terms of Service
These Terms of Service (this 'Agreement'), constitute a legal agreement between VigLink, Inc. ('VigLink') and you. This Agreement governs your use of the Software and Service (as defined below). By clicking 'I Accept,' you agree to all terms and conditions of this Agreement. If you are entering into this Agreement on behalf of a company or other organization, you hereby warrant and represent that you are authorized to enter into this Agreement on behalf of such company or other organization.
Last Updated: August 13th, 2010
Definitions
For purposes of this Agreement, the following terms have the following meanings:
- 'Commissions' means monetary payments made to you in relation to sales by Customers from Merchants.
- 'Customer' means a user of the Website that is referred to a Merchant via the Service and/or interacts with Merchants by purchasing goods and/or services.
- 'Merchant' means a party that supplies goods and/or service to Customers and which has an affiliate program.
- 'Service' means the provision to you of the Software and access to Merchants.
- 'Software' means the VigLink software that facilitates the automated and online referral by you of a Customer to a Merchant and records the sales activity between such referral and Merchant.
Registration
In order to use the Software and Service, you must complete the registration process at http://www.viglink.com/sign-up. VigLink will evaluate all registration applications for suitability to receive access to the Software and Service in its sole discretion and will inform you via email if your registration application has been approved. If your registration application is approved, VigLink will provide you with a unique user ID and a piece of Javascript code that you will add to the Website in order to enable the Software on the Website. For purposes of this Agreement, the term 'Website' means the website or websites upon which you install the VigLink code. The VigLink software may only be used on websites for which you have the authority to modify. The use of VigLink in conjunction with browser toolbars, proxies or other intermediate software to modify websites or affiliate clicks you do not control is specifically prohibited. VigLink will deny or cancel service for any site at its discretion.
License
Subject to the terms and conditions of this Agreement, VigLink grants you a non-exclusive, non-transferable, non-sublicensable license to use the Software and Service on the Website during the term of this Agreement. You will not and will not permit any third party to (i) reverse engineer, decompile or otherwise attempt to discover the source code of the Software, (ii) interfere with the operation of the Software or Service; or (iii) use the Software or Service in any way other than as expressly set forth herein. VigLink retains all right, title and interest in and to the Software and Service, all improvements and derivative works thereof, together with all Intellectual Property Rights embodied therein. You will have no rights with respect to the foregoing except for the limited license expressly set forth herein.
Responsibility for the Website
You will be solely responsible for all matters related to the content, operation and maintenance of the Website, including, but not limited to: (i) creating and posting Merchant descriptions and links on the Website and linking to Merchant websites; (ii) the accuracy and appropriateness of all materials posted on the Website (including, but not limited to, all information regarding Merchants and Merchants' products and/or services); (iii) ensuring that all materials posted on the Website do not infringe or misappropriate any third party intellectual property rights; and (iv) ensuring that all materials posted on the Website are not defamatory or otherwise illegal. You represent and warrant that you shall comply with all rules, regulations and guidelines applicable to your operation of the Website and use of the Service and Software, including, without limitation, those regarding the disclosure of a material relationship inherent in the links on the Website.
Merchants
You acknowledge and agree that (i) VigLink uses its sole discretion in determining which Merchants the Website will be affiliated with, as well as the number of Merchants (if any) the Website will be affiliated with; (ii) VigLink may (through the Software and with your permission) re-write links on the Website from one Merchant to another in order to obtain the best value for you; (iii) Merchants set their Commission structures and may change their Commission structures (generally or solely with respect to you) or terminate their involvement in the Service (generally or solely with respect to you) at any time and VigLink will have no control over or liability in connection with any Merchant's decision to do so; and (iv) Merchants may at any time send VigLink notice requesting that you remove links or references to Merchants' brands, products, services or trademarks and VigLink will communicate this notice to you.
Commissions and Payment
VigLink will be the 'publisher of record' for all Commissions, and will collect and aggregate all Commissions due to you from Merchants. VigLink will pay a Commission equal to a percentage of revenues that VigLink receives from Merchants on account of referrals from the Website; such percentage will be set forth in the registration materials, which may be revised by VigLink from time to time upon notice to you. Payment will be issued to you at the end of each month for all commissions earned by you that VigLink has received up to that point. There is no minimum payment. We will collect all relevant details for tax purposes as necessary and specified by the tax code. A Merchant may determine, in its sole discretion, that any sale was not a bonafide transaction, whether goods are returned by the Customer or otherwise (a 'Chargeback'), and may make a Chargeback claim requesting certain Commissions be cancelled or reversed to reflect the fact that the Merchant's business never benefitted from the transaction. Chargebacks are communicated to VigLink as they occur. Commissions are conditional for a period of [sixty (60)] days from the applicable sale. Upon expiration of this [sixty (60)] day period, Chargebacks cannot be claimed by Merchants and Commissions are unconditional. You may, on dates and at times mutually agreed upon by you and VigLink and no more than once in any twelve (12) month period, audit and inspect relevant records of VigLink that relate to the calculation or Commissions. You will be liable for all costs and expenses associated with any such audit or inspection. If in the prior twelve (12) month period, VigLink has already performed an audit covering the relevant records, VigLink may present the result of that audit rather than conduct a new one.
Indemnity
You will indemnify, defend and hold harmless VigLink and its officers, directors, shareholders, employees and agents from and against any and all liabilities, losses, damages and expenses (including reasonable attorneys' fees and disbursements) resulting from or based upon (i) any claim that the Website infringes or misappropriates any third party intellectual property rights; (ii) your breach of any representations or warranties made by you in this Agreement or of any other obligation of yours set forth in this Agreement, or (iii) any claim by any Customer or other third party arising from our use of the Service or Software, unless due to VigLink's negligence or willful misconduct.
Privacy
VigLink will protect all information collected from your use of the Software and the Service in accordance with the VigLink Privacy Policy. You acknowledge and agree that it is your responsibility to disclose to users of the Website and Customers your privacy practices and policies with respect to information collected from such users and Customers through the Website.
Disclaimer of Warranties
THE SOFTWARE AND THE SERVICE ARE PROVIDED 'AS IS.' VIGLINK DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THE SOFTWARE, THE SERVICE, THE MERCHANTS ACCESSIBLE THROUGH THE SERVICE, THE OPERATION OF THE SOFTWARE OR THE SERVICE BEING UNINTERRUPTED OR ERROR-FREE, OR OTHERWISE WITH RESPECT TO THIS AGREEMENT. VIGLINK EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED AND STATUTORY REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT THAT VIGLINK MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY SUCH WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED BY APPLICABLE LAW.
Limitation of Liability
IN NO EVENT WILL VIGLINK BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, ANY CUSTOMER) FOR ANY LOST PROFITS OR LOST REVENUE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE SERVICE OR OTHERWISE WITH RESPECT TO THIS AGREEMENT. IN NO EVENT WILL VIGLINK'S LIABILITY FOR DAMAGES OR ALLEGED DAMAGES UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EXCEED [THE COMMISSIONS PAID TO YOU BY VIGLINK UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM, OR FIVE HUNDRED DOLLARS ($500.00), WHICHEVER IS LESS].
Term and Termination
This Agreement will commence upon its execution and will continue until terminated by either you or VigLink upon at least [five (5) business days] prior written notice to the other party. In the event of termination of this Agreement for any reason other than your breach of this Agreement, VigLink will pay outstanding Commissions due to you in accordance with the terms of this Agreement. Upon termination of this Agreement for any reason, you will immediately cease use of, and promptly remove from the Website, all instances of the Software and the Service and promptly return to VigLink, or at VigLink's request destroy, any and all copies of the Software, Service or other information relating to the intellectual property of VigLink in your possession. Sections 1, 4, 7, 8, 9, 10, 11 and 12 will survive termination of this Agreement for any reason.
Miscellaneous
In the event that any portion of this Agreement is held to be invalid or unenforceable, then such portion will be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of this Agreement will remain in full force and effect. The paragraph headings herein are provided only for reference and will have no effect on the construction or interpretation of this Agreement. No waiver will be effective unless in writing. This Agreement will be governed by and construed in accordance with the laws of the State of California. Except for proceedings commenced by us to protect our intellectual property or confidential information which may be brought in any court of competent jurisdiction, the parties mutually agree that any and all disputes arising hereunder will be resolved exclusively by state or federal courts located in San Francisco, California. VigLink reserves the right to update or modify this Agreement at any time and from time to time. When VigLink makes changes to this Agreement, the 'last updated' date at the top of this Agreement will be revised. If there are material changes to this Agreement, we will notify you of any such modifications by posting a message on the VigLink website. You should periodically review this Agreement. Your continued use of the Software and Service after any changes or revisions to this Agreement will indicate your agreement with the terms of this Agreement. You may not assign this Agreement without the prior written consent of VigLink. This Agreement contains the entire agreement of the parties concerning the subject matter hereof and supersedes all existing agreements and all other oral, written or other communication between the parties concerning its subject matter.