The below Publisher Service Agreement and related materials ("eFind Materials") may be translated into different languages. In the event of any conflict or inconsistency between any term in eFind Materials in the English language and any translation thereof in any other language, the English version shall prevail.
PUBLISHER SERVICE AGREEMENT
This Publisher Service Agreement ("Agreement") is made by and agreed to between eFind, LLC located 2451 West Grapevine Mills Circle, Suite 234, Grapevine, TX 76051 USA ("eFind"), and you ("You"). For purposes of this Agreement, any references to "eFind Companies" shall refer to eFind, its parent and any divisions, subsidiaries and affiliates of eFind. eFind has created, developed and installed a system by which it has developed a suite of services which enables Advertisers to launch and manage Affiliate Marketing Programs or Campaigns on the internet via the eFind Platform ("Network Service"). A "Performance Marketing Program" ("Program") is where a person, entity, affiliate or its agent, operating "Website(s)" (internet domain, or a portion of a domain) and/ or other promotional methods to drive traffic to another's Website or Website content ("Publisher") may earn financial compensation ("Payouts") for "Transactions" (actions by Visitors as defined by the Advertiser) referred by such Publisher via an action made by a "Visitor" (any person or entity that is not the Publisher or the Publisher's agent) through an Internet connection ("Link") to a Website or Website content operated by another person or entity ("Advertiser") from an Advertiser authorized promotional method used by such Publisher. The Advertiser compensates the Publisher, in accordance with this Agreement and the Program Payout specifications.
1. Participation in Programs.
- Acceptance by Advertiser. During this Agreement You may apply to Advertiser Programs for the opportunity to earn Payouts by promoting Advertisers in accordance with the Advertiser's Program terms and complying with this Agreement. Upon approval by the Advertiser for acceptance into its Program, You may display (and remove) Links to Advertiser's Website or Website content in accordance with the Advertiser's Program terms and this Agreement. An Advertiser's acceptance of You extends only to the entity, or individual, that enters into this Agreement with eFind.
- Program Terms. The details of an Advertiser's Program shall be available through the Network Service. Transactions qualifying for a Payout are defined by the Advertiser. Advertisers may change Program Terms, including Payout rates, at any time upon written notice through the Network Service.
- Additional Terms. Publishers and Advertisers may enter into direct contractual relationships through a click-through agreement hosted by eFind and/or other agreement(s) ("Clickthrough Agreement"). It is Your obligation to review and to either accept or decline such Click-through Agreement when one is presented to You. If accepted by You, compliance with the Click-through Agreement, as applicable, is solely Your responsibility. The terms and conditions of the Click-through Agreement, as applicable, shall apply only with respect to Your relationship with that particular Advertiser. Nothing contained in a Click-through Agreement, as applicable, may conflict with the terms and conditions contained in this Agreement. In the case of such conflict, this Agreement shall control.
- Prohibited Uses of Links.
- Locations. You may not place Links to an Advertiser's Website or Website content in third party newsgroups, message boards, blogs, unsolicited email and other types of spam, link farms, counters, chatrooms, or guestbooks. Publishers using IRC channels, instant messages or similar Internet resources must designate their program as special requiring manual review and acceptance by the Advertiser.
- Non-Bona Fide Transactions. You must promote Advertisers such that You do not mislead the Visitor, and such that the Links deliver bona fide Transactions by the Visitor to Advertiser from the Link. You shall not cause any Transactions to be made that are not in good faith, including, but not limited to, using any device, program, robot, Iframes, or hidden frames. Unless otherwise agreed in writing with the Advertiser, You will not be compensated for Transactions where You or Your agent are the Visitor. Multiple Leads from the same individual, entity or IP address may be considered non-bona fide Transactions. You shall not earn Payouts for non-bona fide Transactions.
- Infringement. None of Your promotional activities may infringe an Advertiser's proprietary rights (including but not limited to trademark rights), eFind's proprietary rights, or a third party's proprietary rights.
- Updating Links. If Links to Advertiser are not dynamically updated through the Network Service, upon notification You are obligated to update an Advertiser's Links in order to earn Payouts.
- Emails. You hereby understand, acknowledge and accept that eFind, eFind systems, eFind partners' systems and/or third party systems may and has/have the right granted by You to send emails and other communications to You on behalf of eFind, Advertisers, and other eFind partners and affiliates, including solicitation and service solicitation emails. You may have the ability to change some of Your email settings and preferences.
2. Publisher Obligations to eFind.
- Accurate, Up-to-Date Information. You agree to provide eFind and Advertiser with accurate information about You and Your promotional methods, and to maintain up-to-date "Account" information (such as contact information, Websites used, etc.). In Your Account, You must accurately, clearly and completely describe all promotional methods by selecting the appropriate descriptions and providing additional information when necessary. Some promotional methods will be designated by the system as "special". Special programs are linked to promotional methods and practices considered unique and require manual approval and acceptance by the Advertiser. eFind reserves the right to define any program as special.
- Promotional Methods. You represent and warrant that You will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation), and/or any other laws and/ or regulat ions that govern emai l market ing and/or communications. You represent and warrant that You will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/unders are acceptable on a first party basis only when triggered by Your site content /site visit or by downloadable software applications for which You are the owner/operator. Software may not be used to force clicks, perform redirects without an affirmative click by a user, or pop over pay-perclick listings or natural search results. Software-based activity must honor the eFind Affiliate Software Publishers Policy requirements (as such requirements may be modified from time to time), including but not limited to: (i) installation requirements, (ii) enduser agreement requirements, (iii) afsrc=1 requirements, (iv) requirements prohibiting usurpation of a Transaction that might otherwise result in a Payout to another Publisher (e.g. by purposefully detecting and forcing a subsequent click-through on a link of the same Advertiser) and (v) non-interference with competing advertiser/ publisher referrals.
- Directly Identifiable Information of Visitors. You represent and warrant that You will not enable the Tracking Code to collect directly identifiable information of Visitors that would allow eFind to directly identify Visitors.
- Applicable Codes and Code Maintenance. In order for eFind to record the tracking of Visitors' Transactions resulting from clicks on Links to Advertisers promoted by You, You must include and maintain a eFind "Tracking Code" within the Advertiser's Links. All Advertiser Links and all advertisements ("Ad Content") must be in a Network Service compatible format.
- Usage and Security of Account. You shall be responsible for all usage and activity on Your account and for loss, theft or unauthorized disclosure of Your password (other than through eFind's negligent or willful conduct or omission). You shall provide eFind with prompt written notification of any known or suspected unauthorized use of Your Account or breach of the security of Your Account.
3. eFind's Services.
- Tracking Transactions and Payouts. eFind shall determine (where possible) actual Payouts that should be credited to Your Account. eFind may, in eFind's sole discretion, apply an estimated amount of Payouts, if: (i) You are referring Visitors to Advertiser as verified by clicks through Links to Advertiser with eFind Tracking Code, (ii) where there is an error in Advertiser's transmission of Tracking Code data to eFind, and (iii) where eFind is able to utilize a historical analysis of Your promotion of Advertiser to determine an equitable amount of estimated Payouts.
- Charge-backs. An Advertiser may apply, or eFind may apply, a debit to Your Account in an amount equal to a Payout previously credited to Your Account in circumstances of : (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide Transactions; (iv) non-receipt of payment from, or refund of payment to, the Visitor by the Advertiser; or (v) Publisher failure to comply with Advertiser's Program terms or other agreement with Advertiser ("Charge-back"). Chargebacks may be applied to Your Account at any time, including previous payment cycles.
- Access to Tracking and Reporting Tools. eFind shall provide You with access to tracking and reporting tools, and to support services. From time to time eFind may offer optional services for a fee. Fees for such optional services are at eFind's then-current published rates or as may be quoted by eFind, and are payable in advance or may be off-set against Your positive Account balance (at eFind's discretion). Tracking detail regarding Visitor Transactions is not available on a realtime basis for all Advertisers and there may be reporting delays regarding Transactions for some Advertisers. eFind may make available, for fees that eFind shall publish from time-to-time, enhanced reporting capabilities and other services that are not included in the standard Network Service.
- Support. Support for your program is available on-line through the "Contact Us" area in the eFind Account Manager, which allows You to categorize and describe Your issue. Phone support may also be available during operating hours, except holidays.
- Facilitating Payment of Payouts. Subject to other provisions in this Agreement, eFind shall credit Your Account with a Payout for each qualifying Transaction in accordance with the Advertiser's Payout rate and Program terms for the relevant Transaction. On or about the 20th day of each calendar month, eFind will issue to You any positive balance in Your Account for Transactions reported for the previous month, provided Your Account balance exceeds the required "Minimum Account Balance." eFind shall have no obligation to make payment of any Payouts for which eFind has not received payment from the relevant Advertiser of all monies due to eFind (including for all Payouts owed by such Advertiser to all of such Advertiser's Publishers). You agree that eFind has the right, but not the obligation, to seek on behalf of You any and all amounts due from Advertisers, including, but not limited to Payouts. If eFind elects, in its own discretion, not to make payment to You for amounts not received from an Advertiser, those amounts shall not be included in the Minimum Balance Amount. Your recourse for any earned Payouts not paid to You shall be to make a claim against the relevant Advertiser(s), and eFind disclaims any and all liability for such payment. You may elect to receive payment in any of the currencies that eFind supports (as may be amended by eFind). The conversion rate shall be determined in accordance with eFind's operating standards. eFind has the right to assess service fees in order to process or stop your payment as necessary. The number or amount of Transactions, credits for Payouts, and debits for Chargebacks, as calculated by eFind, shall be final and binding on You.
- Dormant Accounts. If Publisher's Account has not been credited with a valid, compensable Transaction that has not been Charged-back during any rolling, six consecutive calendar month period ("Dormant Account"), a dormant account fee at eFind's then-current rate shall be applied to Publisher's Account each calendar month that Publisher's Account remains an open yet Dormant Account or until Your Account balance reaches a zero balance, at which time the Account shall become deactivated. Transactions will not be counted if the Transaction subsequently becomes a Chargeback.
- Negative Accounts. You may have a negative balance if Your Account is debited amounts equivalent to previous Payouts for Charge-backs and You do not have an adequate Account balance to cover the Charge-back amounts. When You have a negative balance, You must immediately remit payment to eFind in an amount sufficient to bring Your Account to a zero balance, or Your Account is subject to 1.5% interest per month, compounded monthly.
4. Proprietary Rights.
- Linking to Advertisers. For each Advertiser's Program that You have been accepted to, the Advertiser is granting to You the right to display and Link to the Advertiser's Web site or Web site content in accordance with the Advertiser's Program terms for the limited purposes of Promoting the Advertiser's Program, subject to the terms and conditions of this Agreement. Your use of the Link signifies Your agreement to refrain from copying or modifying any icons, buttons, banners, graphics files or content contained in the Link, including but not limited to refraining from removing or altering any copyright or trademark notices. As between eFind and Publisher, eFind owns all rights in and to all information regarding the Visitors that You refer to Advertisers through eFind.
- eFind's Use of Your Marks. You authorize eFind to utilize Your trademarks, service marks, tradenames, and/or copyrighted material that You provide to eFind through Your Account to promote Your participation in the Network Services.
- Retention of Rights. All proprietary rights of Advertisers, You, and eFind, and all goodwill arising as a result of such rights, inure to the benefit of such owner.
- No Challenge to eFind's/Advertiser's Proprietary Rights. You acknowledge that You obtain no proprietary rights in eFind's trademarks, service marks, tradenames, URLs, copyrighted material, patents, and patent applications, and agree not to challenge eFind's proprietary rights. You acknowledge that You obtain no proprietary rights in Your Advertisers' proprietary rights, and agree not to challenge such Advertiser's proprietary rights.
- Data Ownership. You understand that all personally identifiable information, if any, provided by Visitors through the Tracking Code or in response to an advertisement or request for information and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by eFind from such data is the sole and exclusive property of Advertiser and eFind Companies (defined below) and is considered eFind's Confidential Information pursuant to this Agreement. eFind and any divisions, subsidiaries (the “eFind Companies”) and/or its Advertisers, in their sole discretion, shall have the right to use, market and re-market any Visitors and/or data without further obligation to You. You shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such data or Visitors, or any portion thereof, to any third-party.
- Obligations. You or eFind may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential ("Confidential Information"). The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, You must destroy or return to eFind any Confidential Information provided by eFind to You under this Agreement.
- Provision of Info to Advertisers/Third Parties. You agree that eFind may, but is not obligated to, provide Your email address(es) and basic Publisher Account detail (including but not limited to Your address, phone and fax number, Web site name, the date the website or subscription email first entered into operation, and visitor demographics) to Advertisers. eFind may provide any and all Visitor, Transaction and/or Tracking Code data to the Advertiser to which You referred such Visitor, and to any third party in eFind's sole discretion, including but not limited to all regulatory, legislative and judicial bodies, and pursuant to allegations and claims of proprietary rights infringement.
6. Data Protection.
- This section 6 applies where, and only to the extent that, You disclose or otherwise permit eFind to collect Personal Data that originates from the EEA, UK and/or that is otherwise subject to Applicable Data Protection Law in the course of providing the Services.
- In this Section 6, the following terms shall have the following meanings:
- "Controller", "Data Subject", "Personal Data", "Processing" ("Processed" and "Process"), "Processor", "Special Categories of Personal Data" and "Supervisory Authority" shall have the meanings given in Applicable Data Protection Law.
- "Applicable Data Protection Law" means (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (the "EU GDPR"); (ii) the EU GDPR as saved into United Kingdom law by virtue of section 3 of the United Kingdom's European Union (Withdrawal) Act 2018 (the "UK GDPR"); (iii) the EU e-Privacy Directive (Directive 2002/58/EC); (iv) ) the UK Privacy and Electronic Communications (EC Directive) Regulations 2003; and (v) any and all applicable national data protection laws made under, pursuant to or that apply in conjunction with any of (i), (ii), (iii) or (iv); in each case as may be amended or superseded from time to time.
- "Standard Contractual Clauses" means (i) where the EU GDPR applies, the contractual clauses annexed to the European Commission's Implementing Decision 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council ("EU SCCs"); and (ii) where the UK GDPR applies, standard data protection clauses adopted pursuant to or permitted under Article 46 of the UK GDPR ("UK SCCs").
- "Data" means: (i) browser and device information including agent string, browser type and version, cookie IDs, click, impressions, time stamp, IP address, referring site URL and current site URL; and (ii) transactional information including information about online purchases and actions made by Data Subjects, order IDs, order information and online timestamp. Data is considered Personal Data.
- "Device Tracking Technologies" means any technology, tool, or code (including cookies, pixels, SDKs, APIs, local shared objects, and scripts) embedded within an advert and/or within Your digital property(ies) or server(s) that enables access to or storage of information on a visitor's device;
- "Metrics Data" means: (i) browser and device information including agent string, browser type and version, cookie IDs, click, impressions, time stamp, IP address, referring site URL and current site URL; and (ii) transactional information including information about online purchases and actions made by Data Subjects, order IDs, order information and online timestamp. Metrics Data is considered Personal Data.
- "Restricted Transfer" means: (i) where the EU GDPR applies, a transfer of Personal Data from the European Economic Area ("EEA") to a recipient in a country outside of the EEA which is not subject to an adequacy determination by the European Commission; and (ii) where the UK GDPR applies, a transfer of Personal Data from the United Kingdom ("UK") to a recipient in a country which is not based on adequacy regulations pursuant to Section 17A of the United Kingdom Data Protection Act 2018.
- You may disclose, or otherwise permits eFind to collect certain Data about visitors to Your digital properties and/or about Your customers and prospective customers. eFind will Process the Data for the purpose of providing the services under this Agreement, including (i) to identify leads, trying to determine what devices are likely to belong to a Data Subject and trying to distinguish their device from other devices, to provide commission accurately; (ii) per formance measurement, reporting and analytics related to the services provided under this Agreement; (iii) improve existing systems and software and to develop new products; and (iv) monitor for and prevent fraudulent activity as well as ensuring systems and processes work properly and securely (the "Permitted Purposes"). You shall ensure that no Special Categories of Personal Data are disclosed or made available to eFind nor any Personal Data relating to Data Subjects under the age of 16.
- You acknowledge that You are a Controller of the Data You disclose, or You otherwise permit eFind to collect, and eFind will also Process the Data as a Controller for the Permitted Purposes. eFind may share the Data back with You for You to use solely for purposes compatible with the Permitted Purposes and always in accordance with Applicable Data Protection Law. Each Party will comply with its responsibilities as a Controller under Applicable Data Protection Law in respect of its Processing of the Data.
- Without limiting each Party's obligation to comply with the Applicable Data Protection Law to which it is subject (in accordance with Section (c) above), the Parties agree that they shall each fulfil the specific data protection compliance responsibilities described below:
- Each Party shall: (i) maintain a prominent and publicly accessible privacy notice on their respective digital properties that satisfies the transparency and other requirements of Applicable Data Protection Law; (ii) ensure such privacy notice discloses the means by which a Data Subject can contact the Party in order to exercise its data protection rights under Applicable Data Protection Law; and (iii) identify, and only Process the Data in a manner consistent with, one or more lawful bases under Applicable Data Protection Law.
- You shall implement a mechanism to obtain visitor consent on any digital properties on which You will deploy eFind Device Tracking Technologies to collect Data. Such mechanism must: (a) provide prominent notice to visitors that the digital property deploys Device Tracking Technologies operated by eFind for the Permitted Purposes; (b) provide visitors a link to eFind's privacy notice; (c) display to visitors all necessary disclosures, and obtain all necessary consents, prior to service of the Device Tracking Technologies to the visitor; and (d) offer all necessary opt-out mechanisms; in each case as is required to comply with Applicable Data Protection Law.
- You shall ensure that, in respect of any Data that You collect and provide to eFind (that is, other than Data collected by eFind using Device Tracking Technologies on Your digital properties): (a) you collect the Data fairly and lawfully and in compliance with Applicable Data Protection Law; (b) you provide prominent notice to Data Subjects, at the point of Data collection, that their Data shall be Processed by eFind for the Permitted Purposes, and such notice shall include a link to eFind's privacy notice; (c) You offer Data Subjects the ability to opt-out of such Processing by eFind; and (d) You will not disclose or make available to eFind any Data relating to Data Subjects that have opted-out of Processing for the Permitted Purposes. Upon request eFind shall provide You with such information as You may reasonably require about eFind's Processing of Data under this Agreement (including the use of Device Tracking Technologies) so that You can ensure that such information is presented to Data Subjects.
- eFind may make available to You certain Metrics Data about visitors to Advertiser digital properties using Device Tracking Technologies. You will Process the Metrics Data solely for the purpose of performance measurement and analytics related to the services provided under this Agreement.
- Each Party shall, taking into account the state of the art, the cost of implementation and the nature, scope, context and purpose of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, implement appropriate technical and organizational measures to protect the Data and Metrics Data from and against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access.
- Each Party shall be individually responsible for responding to lawful data protection requests that it receives from Data Subjects in respect of Data and/or Metrics Data that it Processes. To the extent that either Party (the "Receiving Party") receives a request relating to Processing performed by the other Party (the "Other Party"), the Other Party shall provide such information and assistance as is reasonably necessary to the Receiving Party to enable the Receiving Party to respond to such request in accordance with Applicable Data Protection Law.
- In the event that ei ther Party receives any correspondence, enquiry or complaint from a Supervisory Authority ("Correspondence") directly related to the Data and/ or Metrics Data Processed under this Agreement it shall promptly inform the other Party giving details of the same, and the Parties shall cooperate reasonably and in good faith in order to respond to the Correspondence in accordance with any requirements under Applicable Data Protection Law.
- Neither Party shall engage in a Restricted Transfer in relation to Data or Metrics Data unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. To the extent that Marketing Partner's disclosure of Data to, or permitted collection of Data by, eFind is a Restricted Transfer such Restricted Transfer shall be subject to the Data Transfer. In the event that any provision of this Agreement contradicts the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
- If eFind becomes aware that any government authority (including law enforcement) wishes to obtain access to or a copy of some or all of the Data then eFind will only make available the Data to the extent eFind is legally required to do so. In no event shall eFind disclose Data in a massive, disproportionate and indiscriminate manner that goes beyond what is necessary in a democratic society. eFind shall have in place, maintain and comply with a policy governing Personal Data requests from government authorities which at minimum prohibits: (1) massive, disproportionate or indiscriminate disclosure of Personal Data; and (2) the disclosure of Personal Data without a subpoena, warrant, writ, decree, summons or other legally binding order that compels disclosure of such.
- This Section 6 shall survive termination or expiry of the Agreement. Upon termination or expiry of the Agreement each Party may continue to Process the Data or Metrics Data under its control provided that such Processing complies with the requirements of this Section 6 and Applicable Data Protection Law.
7. Term, Termination, Deactivation and Notices.
- Term. This Agreement shall commence upon Your indication that You have accepted this Agreement by providing the required information and 'clicking through' the acceptance button on the eFind Web site and shall continue until terminated in accordance with the terms of this Agreement. This Agreement may be terminated by either party upon 15 days' notice. This Agreement may be terminated immediately upon notice for Your breach of this Agreement. Your Account may be deactivated and/or Payouts may be withheld during investigation of breach of this Agreement. If this Agreement is terminated based upon Your breach, You shall not be eligible to enter into a new click-through Publisher Service Agreement with eFind, and any attempt to do so shall be null and void.
- Termination by Advertiser. An Advertiser may terminate You from the Advertiser's Program for any or no reason upon 7 days written notice with effect from the 8th day. Additionally, Advertiser may terminate You from the Advertiser's Program for breach of a third party's proprietary rights, and/or diluting, tarnishing or blurring an Advertiser's trademarks, trade names, and/or service marks, or for Your material breach of the Advertiser's Program terms or of this Agreement.
- Termination or Deactivation by eFind. eFind may terminate You, one of Your Web sites, or Your use of a promotional method, from an Advertiser's Program, at any time in eFind's sole discretion. Breach of any Section of this Agreement is cause for immediate termination from an Advertiser's Program and/or termination of this Agreement, and may result in Charge-back of one or more Payouts. eFind may temporarily deactivate or terminate Your Account if: (i) You or Your agent are responsible for the improper functioning of Ad Content, or if You otherwise interfere with and/or fail to maintain the Tracking Code; (ii) Your Account has not been logged into and/or there have been no Transactions credited to Your Account for any 30 day period; (iii) You maintain a negative balance in Your Account; (iv) eFind determines You are diluting, tarnishing or blurring eFind's proprietary rights; (v) You begin proceedings to challenge eFind's proprietary rights; or (vi) a third party (including a eFind Advertiser) disputes Your right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or good offered on Your Web site, or through any of Your promotional means. Upon termination of this Agreement, or in case of deactivation of Your Account, You shall no longer accrue Payouts in Your Account, including but not limited to subsequent sales and/or Leads for click-throughs that occurred prior to termination.
- Termination of Programs and Offers. Programs and Offers may be discontinued at any time.
- Notices. Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (i) for eFind, via registered mail, return receipt requested or via an internationally recognized express mail carrier to: eFind, LLC Attn: Legal, 2451 West Grapevine Mills Circle, Suite 324, Grapevine, TX 76051 USA (214) 444-8126 and, (ii) for You, at the email or physical address listed on Your Account (effective upon sending as long as eFind does not receive an error message regarding delivery of the email) or five (5) business days after mailing).
(f) Post-termination. Upon termination of this Agreement, any outstanding payments shall be paid by eFind to You within 90 days of the termination date, and any outstanding debit balance shall be paid by You to eFind within 30 days of termination of this Agreement. All payments are subject to recovery for Charge-backs. Upon termination of this Agreement, any permissions granted under this Agreement will terminate, and You must immediately remove all Links to Advertiser(s). Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement shall survive the termination of this Agreement to the extent that and as long as is necessary to preserve a party's rights under this Agreement that accrued prior to termination.
8. Representations, Warranties, Disclaimers and Limitations.
- Business Operations. Each party will make reasonable commercial efforts to keep its Web site operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other or Your Advertisers liable for any of the consequences of such interruptions. eFind may modify the Network Service, or discontinue providing the Network Service, or any portion thereof, at any time.
- Authority. Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party's behalf. IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
- Non-infringement Warranties. You represent and warrant that: (i) You have all appropriate authority to operate, and to any and all content on, Your Web site(s); (ii) You have all appropriate authority in any promotional method you may choose to use; (iii) Your Web site(s) and Your promotional methods do not and will not infringe a third party's, a eFind Advertiser's, or eFind's, proprietary rights; and (iv) You shall remain solely responsible for any and all Web sites owned and/or operated by You and all of Your promotional methods. eFind may or may not review all content on Your Web site or used by You in Your promotional methods.
- Compliance with Laws. You are responsible for compliance with the requirements of all relevant legislation (including subordinate legislation and the rules of statutorily recognized regulatory authorities) in force or applicable in the United States or in any other applicable territory, and warrant that no promotion method used by You or the content of Your Web site(s) will render eFind liable to any proceedings whatsoever.
- Limitation of Liabilities. ANY OBLIGATION OR LIABILITY OF eFind UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR PAYOUTS PAID TO YOU BY eFind UNDER THIS AGREEMENT DURING THE YEAR PRECEDING THE CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE OTHER PARTY TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. YOU AGREE THAT eFind SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY ANOTHER PUBLISHER OR AN ADVERTISER OF THE NETWORK SERVICE) , F O R A N Y CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
- Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, eFind DISCLAIMS ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT eFind'S SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF THE PUBLISHER'S INFORMATION OR WEB SITE. ALL 'INFORMATION' AND 'COMPUTER PROGRAMS' PROVIDED TO YOU IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. eFind IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY ADVERTISER OR PUBLISHER, OR SUCH ADVERTISER OR PUBLISHER'S WEB SITE(S), AND/OR THE CONTENT OF AN ADVERTISER'S WEB SITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH THE NETWORK SERVICE.
- Remedies. No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
- Benefit of the Bargain. THE PROVISIONS OF THIS SECTION 8 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.
9. Publisher's Indemnification Obligations.
Publisher shall defend, indemnify and hold eFind and Advertisers harmless against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys' fees) incurred, claimed or sustained by third parties, including but not limited to Advertisers, directly or indirectly as a result of (a) Publisher's breach of or non-compliance with this Agreement, (b) Publisher's violation of any law, or an alleged violation of law by eFind, that is a direct or indirect result of Publisher's use of the Network Service, (c) Publisher's use of the Network Service, (d) Publisher's participation in any Program, (e) any content, goods or services offered, sold or otherwise made available by Publisher to any person, (f) Publisher's acts or omissions in using, displaying or distributing any internet links obtained from the Network Service or elsewhere, including but not limited to Publisher's use of internet links via email distribution, (g) any claim that eFind is obligated to pay tax obligations in connection with payment made to Publisher pursuant to this Agreement and/or any Advertiser's Program, and (h) any violation or alleged violation by Publisher of any rights of another, including breach of a person's or entity's intellectual property rights (each (a)-(h) individually is referred to hereinafter as a "Claim"). Should any Claim give rise to a duty of indemnification under this Section 9, eFind shall promptly notify Publisher, and eFind shall be entitled, at its own expense, and upon reasonable notice to Publisher, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Publisher's obligations to indemnify or hold eFind harmless. Publisher shall not settle any Claim without eFinds prior written consent. Publisher also shall indemnify for any reasonable attorneys' fees or other costs incurred by an indemnified party in investigating or enforcing this Section 9. In the context of this Section 9 only, the term "eFind" shall include officers, directors, employees, corporate affiliates, subsidiaries, agents, and subcontractors.
- Headings and References. Headings of Sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms, including those definitions contained in the opening paragraph.
- Third Party Disputes. In the event of a third party claim against either: (a) eFind's intellectual property; or (b) against eFind's right to offer any service or good on eFind's Website(s) or if, in eFind's opinion, such a claim is likely, eFind shall have the right, at its sole option and in its sole discretion, to (i) secure the right at eFind's expense to continue using the intellectual property or good or service; or (ii) at eFind's expense replace or modify the same to make it non-infringing or without misappropriation.
- Relationships of Parties/Third Party Rights. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor. You agree that Your consent is not necessary to modify any Advertiser Service Agreement.
- Choice of Law/Attorneys' Fees. This Agreement is governed by the laws of the State of Texas without respect to choice of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts in Texas for such purpose. The parties consent to such venue and jurisdiction and waive any right to a trial by jury. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys' fees and costs. eFind controls and operates its Web site from its offices in the USA and access or use where illegal is prohibited.
- Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
- Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
- Assignment and Acknowledgement. Neither party may assign this Agreement without the prior express written permission of the other party. Notwithstanding the foregoing, Your consent shall not be required for assignment or transfer made by eFind (1) due to operation of law, or (2) to an entity that acquires substantially all of eFind's stock, assets or business, or (3) to a related entity (e.g. parent or subsidiary of parent). Your use of the Network Service is irrefutable acknowledgement by You that You have read, understood and agreed to each and every term and provision of this Agreement. eFind may establish from time to time rules and regulations regarding use of the Network Service as published on the Network Service and incorporated herein.
- Marketing. Publisher agrees that eFind may identify it as a eFind Publisher in client lists and may use Publisher's name and/or logo solely for such purpose in its marketing materials. Any other uses of Publisher's name and/or logo not otherwise described or contemplated herein shall require Publisher's prior written consent.
- By entering into this Agreement, You acknowledge and accept that You may receive marketing messages from eFind, including newsletters, regarding eFind services and products. You may always opt-out of receiving future commercial emails and newsletters from eFind by clicking on the "unsubscribe" link within any emails received. If you have an active account with eFind, You may also correct or update Your information and communication preferences by logging into your eFind Account Profile. Please note that Your request not to receive unsolicited commercial emails from eFind will not apply to messages that You request or that are not commercial in nature unless such request is specifically made in such email communications. For example, eFind may contact You concerning any services purchased, requested or received from eFind, even if You opt out of receiving unsolicited commercial messages.
- Tax Status and Obligations. eFind is not obligated to and shall not provide You with tax and/or legal advice. eFind undertakes no duty to investigate or research Your tax status and/or obligations, and such research and investigation is solely Your responsibility. You are obligated to independently assess and comply with all relevant tax and legal requirements, and Advertiser is responsible for its own sales tax collection and reporting obligations arising from sales made to Visitors. If eFind provides You with information regarding a particular Advertiser or Publisher, the information shall not be deemed tax or legal advice, and eFind shall not be responsible for the accuracy of such information. Any Publisher or Advertiser addresses provided to You are addresses provided by the relevant Advertiser or Publisher, and such addresses may not necessarily indicate the location or presence of the Publisher or Advertiser in such location or elsewhere.
- Entire Agreement, Assignment and Amendment. This Agreement, including the Introduction, contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a "click through" acknowledgement of assent. No interlineations to this Agreement shall be binding unless initialed by both parties. Notwithstanding the foregoing, eFind shall have the right to change, modify or amend ("Change") this Agreement, in whole or in part, by posting a revised Agreement at least 14 days prior to the effective date of such Change. Your continued use of the Network Service after the effective date of such Change shall be deemed Your acceptance of the revised Agreement.
IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
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