This is the Affiliate Membership Agreement that will govern your participation on this Ujena Swimwear Network. To print a copy of this Agreement please use your brower's print command.
This Affiliate Membership Agreement is between Ujena Swimwear, a California, U.S.A. corporation ("Ujena") and You ("You" or "Your"). If You have registered for or on behalf of an entity, you are deemed to have accepted this Agreement on behalf of that entity.
This "Agreement" refers to, individually and collectively depending upon the context, this Affiliate Membership Agreement and any and all Network Policies and Guidelines as in effect from time to time.
In consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1 Registration, etc.
1.1 Registration. To use (or continue to use) any Ujena Network as a Network Affiliate, You must provide Ujena with truthful, accurate and complete registration information. If any such information changes, You must immediately update Your registration information.
1.2 Verification. Ujena has the right to confirm or otherwise verify, in its sole determination, the truth and accuracy of any registration information at any time. Such inquiries may include a credit check of Your business including its proprietor, principal owners or officers. If requested by Ujena, You shall provide the written consent of any person for which an inquiry has been or is to be made if such person has not executed this Agreement and will provide any financial information as Ujena may consider necessary to perform initial or periodic reviews of Your financial stability and business practices. Please be advised that if any information is determined in good faith by Ujena to be misleading, inaccurate or untruthful, Ujena may restrict, deny or terminate Your account, Your access and use of, and/or any benefits derived from Your participation on, any Ujena Network; Ujena may also withhold payment of any commissions and/or other fees that may be or become due or payable to You, and may assess charges against such amounts for Ujena's activities in connection with the investigation and/or verification of such information and/or otherwise in accordance with this Agreement.
1.3 Participation. To join any Ujena Network, You must be an individual who is at least 18 years old or an entity, and must provide at Your expense your own computer equipment and Internet access.
1.4 Use of the Network. You may use any Ujena Network only for business purposes and not for personal, household or family purposes.
2 Defined Terms
2.1 The following terms have the meanings indicated:
"Content" means information, data, text, documents, software, music, sound, photographs, graphics and video.
A "corporate affiliate" of a person is any other person that, directly or indirectly, controls such person, is controlled by such person, or is under common control with such person, with "control" meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person.
An "end user" means an actual or potential consumer, customer or other natural person.
An "engagement" means any type of agreement or arrangement between a Network Merchant and any Network Affiliate that can be performed on or in relation to the Internet, including affiliate marketing, performance-based linking, insertion order, or any other type of agreement or arrangement.
An "entity" means a sole proprietorship, corporation, partnership, limited liability company, trust, government agency or instrumentality or other entity recognized by law as a legal person separate from its owners.
The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation."
"Intellectual Property Rights" means technology, templates, designs, Sites, methodologies, processes, names, strategies, marks, logos, Content, documentation, training manuals, and other materials, as well as any and all patent, trade secret, trademark, copyright and other intellectual property and proprietary rights therein and thereto.
A "link" means any software, software code, programming or other technology or method (or any combination of the foregoing) that (i) creates a hyperlink between two Sites, or (ii) otherwise causes a Web access device to display to its user a "banner," "button," text-mention, word, phrase, logo or other textual or graphical material that, when activated by a person, results in a Site being served to such person or such person being able to electronically access, receive or obtain Content, products, services or other offerings from the linked Site.
"Merchant" means any person that owns or operates a Site and/or other business that can acquire customers or other types of end users by way of the Internet.
"Network Affiliate" refers to a Site that participates on one or more Ujena Networks and, through such participation and use of the appropriate Ujena Offerings, desires or makes itself available to be recruited or to enter into engagements to display, distribute or place qualifying links provided by Ujena for compensation.
"Network Affiliate Account Area" means, for any Ujena Network, the Webpage(s) or other area of the Site having the URL designated from time to time by Ujena for use by members of that Network for the purpose of facilitating formation of qualifying links, accessing reports and otherwise participating in such Ujena Network.
"Network Merchant" refers to a Merchant that participates on one or more Ujena Networks and, through such participation and use of the appropriate Ujena Offerings, desires or seeks to recruit Network Affiliates to enter into engagements with such Merchant in order to display, distribute or place its qualifying links for compensation.
A "person" is to be broadly construed and includes any natural person or entity.
A "qualifying link" means any type or format of link that is provided or authorized by a Network Merchant to be displayed, distributed or placed on or by a Site pursuant to an engagement and which, through addition and/or use of any technology and/or methodology, can be tracked so that such Network Merchant can monitor the impressions, click-throughs and/or other tracked activities achieved by the display, distribution and/or placement of such link.? The term .qualifying link. shall also refer to any equivalent link, mechanism or technology that, upon being activated, causes the same result as clicking on a qualifying link.
A "tracked activity" means any type of preagreed or predefined activity or result that is sought by a Merchant in relation to a qualifying link.? The kinds of tracked activities that a Merchant may seek to promote through such arrangements may include, by way of example, impressions, click-throughs, the sale of products or services, the downloading of software, files or other items, the completion of an application, registration or other form, the opening of an account, membership enrollment, or any other kind of action, transaction or activity that can be tracked and reported upon.
"Web" or "Internet" or "online" means the global computer network currently referred to as the Internet, including the World Wide Web, and any and all successor networks, irrespective of what wired, wireless or otherwise connected device, platform or technology is used to access it.
"Site" means, as the context requires, either (a) one or more Web pages, database, computer files, emails, scripts, software or other application, or other destination, together with supporting files and programming, that are on, provided, or accessible through the Web or works on or in relation to the Web, or (b) a person owning or operating any such Site, or (c) both.? A person that owns or operates a Site may have offline businesses which would not preclude it from being a Site for the purposes of this Agreement.
3 Participation; Your Business
3.1 Participation. Subject to the terms and conditions in this Agreement, You may use the Ujena Offerings to Network Affiliates via the Network Affiliate Account Area or otherwise to enter into, track and report on, and/or manage (or have managed) affiliate marketing and/or other types of Ujena-tracked engagements on behalf of Your business.
3.2 Voluntary Participation. Your participation in any one or more Ujena Networks is as an Online Affiliate. Your participation is purely voluntarily and You may terminate Your participation at any time. Neither Ujena nor any Network Merchant shall be construed or deemed as having solicited, requested or procured You or Your services to promote Ujena or any Network Merchant or its respective trade or business, or goods, products, property, or services.
3.3 Not a Supplier, etc. You are not and shall not, at any time, be deemed to be a vendor, supplier or provider of goods or services to Ujena, and neither Your participation on any Ujena Network, use of any Ujena Offerings or receipt of payment of any compensation under any Ujena-tracked engagement shall be construed or be deemed to be an inducement for, solicitation of You to provide any products or services to Ujena.
3.4 Prohibited Activities. In respect or in relation to any Site (or portion thereof) used by You in connection with Your participation on any Ujena Network, You may not engage in any activity that is or constitutes, or that involves, facilitates, advocates or promotes, one or more of the following: (a) discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability; (b) libelous, defamatory, threatening, harassing, tortious, or similarly abusive activities; (c) obscene, pornographic, sexually explicit or similar activities; (d) gambling; (e) sale, export or use of illegal substances; (f) terrorism, sedition or other illegal activities; (g) MP3, MPEG and/or other proprietary materials for download, sale or otherwise, in any case without the permission of the owner of the Intellectual Property Rights (h) a conflict or violation of any law or regulation or any Intellectual Property Rights or other rights of any person or entity; (i) harm to minors in any way; (j) impersonation of any person, including any Ujena representative, or misrepresentation of affiliation with any person; or (k) conducting of raffles, contests, lotteries or sweepstakes.
3.5 Regulated Business. You represent, warrant and covenant that Your businesses and activities will not cause, nor could cause, Ujena or any Site with which You have entered into a Ujena-tracked engagement to be or become subject to any law, rule or regulation adversely affecting Ujena or such Site, and You shall defend and indemnify Ujena and such Sites against any such adverse effect.
4 Engagements; Qualifying Links.
4.1 Use of Tagged Links. Each qualifying link used by You in relation to a Ujena-tracked engagement must include, in unaltered form, the special "tagged" link codes and/or other transaction tracking codes in the manner and format made available or otherwise dictated by Ujena that, among other things, associate such qualifying link with such engagement.
4.2 Valid Referrals Only. You will place or use qualified links of a Network Merchant only with the intention of delivering valid sales, leads, applications, accounts, clicks or other specified compensable tracked activities for the benefit of such Network Merchant. You may not, nor knowingly permit any person to, activate a qualifying link or inflate the amount of any sought-after or resulting tracked activities through any method or technology that does not actually deliver an end user to the destination Site associated with such qualifying link.
4.3 Ujena's Determination Final and Binding. All determinations of qualifying links and the compensation due to You made by Ujena shall be final and binding on You. Ujena's services do not involve investigating or resolving any claim or dispute involving You and any Network Merchant or other third party person. If Ujena, in its sole discretion, elects to investigate or otherwise become involved in any such claim or dispute, it shall not thereby undertake, assume or have any duty, obligation or liability to You or any other party to the claim or dispute.
4.4 Merchants. Terms and Conditions. In addition to and without limiting Your obligations under this Agreement, the terms and conditions of the Network Merchant.s engagement govern Your performance of such engagement including Your use of the associated qualifying links, the tracked activities sought, the compensation that might become payable, and any limitations or restrictions that may apply to Your promotion of such Network Merchant or its qualifying links. Ujena has no liability or responsibility to review, endorse, police or enforce any such engagements.
4.5 Distribution of Qualifying Links. If You currently distribute, or plan to distribute, qualifying links on, to or through Sites other than those owned or operated by You and registered with Ujena, You may do so (or continue to do so) until September 30, 2005 (or such later date as Ujena may designate). After such date, You will be required to obtain Ujena's approval to continue to do so. Such approval may be conditioned upon Your agreement to additional terms and conditions and additional disclosures in respect of Your distribution and/or use of such qualifying links.
4.6 No Modification. etc. of Qualifying Links. You will not modify, circumvent, impair, disable or otherwise interfere with any tracking codes and/or other technology and/or methodology required or made available by Ujena and/or the Network Merchant to be used in connection with such qualifying link so that it may be properly tracked by Ujena.
4.7 Termination of qualifying links. Ujena or the relevant Network Merchant may terminate any qualifying links associated with any affiliate marketing programs of, and/or other Ujena-tracked engagements with which You have entered into with such Network Merchant. You must remove any qualifying links after any termination of the corresponding engagements, including due to termination or expiration of a relevant Network Merchant.s participation. If qualifying links are not so removed, Ujena may redirect such links as it determines in its sole discretion, with or without compensation to You.
4.8 Discontinuing Use of Qualifying Links. You may at any time discontinue use of qualifying links by removing such qualifying links from Your Site, with or without notice to Ujena or, subject to the terms of Your engagement with the relevant Network Merchant, such Network Merchant, provided, however, that You remain subject to such engagement and this Agreement until you separately terminate such engagement or Agreement.
4.9 Ujena as Neutral Host. Participation in any Ujena Network is not an endorsement by Ujena of any Network Merchant or Network Affiliate. Ujena operates the Ujena Networks and/or provides the Ujena Offerings as a neutral host, and Ujena does not regularly or proactively monitor, regulate or police the usage thereof by any of its participants. Ujena is not responsible or liable for the acts, omissions, agreements or promises of or by any Network Merchant, Network Affiliate or other Site using Ujena offerings to enter into any arrangement or otherwise work with any other person or entity.
5 Provision of Information
5.1 Reports; Revisions. You acknowledge and agree that Ujena if believes that its reports about its relationship with You contains an error or omission or otherwise require adjustment, Ujena may elect to revise those reports and make corresponding changes to Your Affiliate Reports. Since the reports Ujena provides You are the bases for calculating the compensation, if any, due to You, any such adjustment may affect the amount of compensation to which You are entitled.
5.2 Errors. If You believe that any of Your Affiliate Reports for any month contains errors in the data about Your engagement with Ujena, You must notify Ujena within ten days after the end of that month or any shorter period in Your engagement so that, if possible, the matter may be resolved. If any Affiliate Reports for any month are corrected or adjusted after the end of the month, then the period within which You must notify Ujena of errors in the corrected or adjusted data shall be ten days after such correction or adjustment is posted or any shorter period in Your engagement. You agree that Ujena shall have no obligations and incur no liabilities to You in connection with any such dispute.
5.3 No Personal End User Data. In order to provide any of the Ujena Offerings, Ujena does not require to be provided, nor does it capture, any personally-identifiable information about any end user who undertakes tracked activities in relation to You. Ujena has no obligation or liability to You, any end user or any other person if You, or other person should provide such information, for whatever reason, to Ujena.
5.4 Privacy Policy. You will ensure that any and all Sites employed by You in connection with Your participation in any Ujena Network or any Ujena-tracked engagement will feature an easy-to-understand privacy policy, linked, at a minimum, conspicuously from such Site's home page, with a link that contains the word "Privacy", "Legal", "Terms" or similar language. Such privacy policy shall, in addition to the disclosures about Your privacy practices, identify the collection and use of any information You provide or may provide to Ujena or other Sites or persons with which You have any Ujena-tracked engagement or other arrangement in relation thereto. As to Your personal information, Ujena may use Your personal information in any manner or for any purpose that it determines to be appropriate or necessary in its sole discretion in connection with conducting any activities of or on any Ujena Network and in relation to Ujena's business.
5.5 Backing Up Data and Other Precautions. Data transfer, conversion, processing and storage is subject to the likelihood of human and machine errors, delays, interruptions and losses. Ujena is not liable for any such events or their consequences. You are solely responsible for adopting measures to limit the impact of such events, including backing up any reports or data provided to You. Ujena may, from time to time, with or without notice, change the time period covered, type and/or scope of current or historical data stored by Ujena and/or to which it provides You with access.
6 Your Obligations
6.1 Obligations. Your obligations under this Section will survive any termination by You or Ujena of Your participation in any Ujena Networks for a period of one (1) year after such termination.
6.2 No Poaching. You may not use any Ujena Offerings in connection with aggregating, soliciting or recruiting other Sites or other persons to form or join an affiliate marketing, advertising or similar network.
6.3 No Sublicense, etc. You may not sublicense, rent, lease, sell, resell, outsource or service bureau any Ujena Offerings, and any attempt to do so shall be null and void.
6.4 No Reverse Engineering. You will not make unauthorized modifications, reverse engineer, disassemble, decompile, attempt to derive source code of any Ujena Offerings.
6.5 No Hacking, etc. You agree not to hack, abuse, adversely interfere with, infect with viruses, worms or other malicious or destructive code, or use or cause to be used in extraordinary and unreasonable or inappropriate ways or amounts, any Ujena Offerings, including any servers, bandwidth supply, equipment, software and other technological resources provided by Ujena.
6.6 No Spam. You may not use any qualifying links in any electronic message unless (a) You have received the express written authorization of Ujena to use email or other electronic messages to promote it or its qualifying link and (b) any and all such electronic messages comply in all respects with this Agreement, Ujena's terms and conditions, and any and all applicable laws, including the requirements of the Can Spam Act of 2003 (Public Law No. 108-187). Further, no electronic message initiated or sent by You or on Your behalf may identify Ujena, except as expressly authorized by Ujena, as a sender or sponsor of such electronic message.
6.7 No Interference. You may not, through downloadable or other technology, replace, intercept, redirect, block, alter or otherwise interfere with the full functioning and intended actions of any qualifying link that has been placed or distributed by another Network Affiliate including any action that would in any way prevent the behavior or result that would occur or would have occurred had an end user activated such qualifying link without Your interference.
6.8 No Infringing Uses. You may not use any name, trademark, service mark, domain name or other Intellectual Property Rights of any third party in connection with Your use of any qualifying links, any Ujena Network or any other Ujena Offerings, in any way or for any purpose that infringes or violates any Intellectual Property Rights or other rights of such third party, whether for the purpose of increasing the levels of tracked activities attributable to Your qualifying links or for any other purpose.
6.9 Fraud, Abuse, etc. You will not, and will not knowingly permit other persons to, engage in any fraudulent, abusive or illegal activity in connection with Your participation on any Ujena Network or in connection with any Network Merchant's affiliate marketing program or engagement.
7 Grant of License to You
7.1 Your Use of Ujena Offerings. For each Ujena Network of which You are a member in good standing, Ujena grants You a personal, non-exclusive, non-transferable, non-sublicenseable, revocable and limited license and right, subject to the terms of this Agreement, to:
(a) Participate in any Ujena Network for which You have registered as a Network Affiliate.
(b) Access the areas of the relevant Network Affiliate Account Area necessary for Your participation in such Ujena Network as a Network Affiliate.
(c) Solely for Your use in connection with Your participation in such Ujena Network, download any reports made available to You by Ujena.
(d) Use any software code or other Content that is provided by Ujena Solely for the purpose of creating and maintaining qualifying links in accordance with this Agreement and Your engagements, for such purpose, and no other purpose, but only in the form so provided. All other use of any Ujena Network, Network Affiliate Account Area, any reports made available to You by Ujena and such software code or Content, including modification, publication, transmission, transfer or sale of, reproduction, creation of derivative works, distribution, performance, display, incorporation into another Site or mirroring is prohibited.
7.2 Use of the Ujena Name. This Agreement does not grant to You any license or right to use Ujena's name or any of its logos or trade or service names or marks, except to the extent required to be used in connection with an URL. Any press release or other public announcement by You regarding this Agreement or any Ujena Network or that mentions Ujena shall require the prior written approval of Ujena. You agree that You shall not disparage Ujena or any of the Ujena Networks or any other participants thereof.
7.3 Duration of License Rights; Reservation. The above licenses with respect to any Ujena Network are valid only while You remain a member of such Ujena Network as a Network Affiliate in good standing and comply with this Agreement. Ujena may revoke any such license at any time by giving You notice by e-mail or in writing. Ujena reserves all rights that are not specifically granted to You by this Agreement.
8 Grant of Licenses to Ujena
8.1 Use of Your Content. Other than as provided below, in order to participate in the Ujena Network, You are not required to provide Ujena with any Content or other materials. Should You do so, by way of uploading, delivering or otherwise making available to Ujena any Content and/or other materials (including any Intellectual Property Rights therein and thereto), You agree to grant, and hereby grant, to Ujena a non-exclusive, worldwide, royalty-free, sublicenseable, perpetual license to use and store the same including in relation to conducting its business or performing any services in relation to any Ujena Network. This Section will survive any termination.
8.2 Use of Your Name. Ujena shall have the right to refer to You by Your name in connection with any Ujena Network and/or the performance or provision of any Ujena Offerings, including in communications sent to actual or prospective participants of the Ujena Networks in which You participate.
8.3 Disclosure of Business Relationship. Nothing in this Agreement shall prevent Ujena from making any public or private statements about Your business relationship with Ujena and/or any Network Merchant and/or Your participation in any Ujena Network.
8.4 Use of Your Logo. Except as expressly provided above, Ujena shall not use any of Your logos and/or other trademarks without Your prior written approval. Any and all uses of Your logos and/or other trademarks shall be in accordance with Your specified usage guidelines.
9 Representations and Warranties
9.1 You represent, warrant and covenant as follows:
(a) You have the legal right to conduct any business conducted by You including in respect of any Site(s) participating in any Ujena Network; and
(b) Any and all information You provided as part of the registration process or otherwise shall be truthful, accurate and complete, irrespective of any independent verification or other determination made by Ujena; and
(c) This Agreement has been duly and validly authorized, accepted, executed and delivered by You (or Your authorized representative) and constitutes Your legal, valid, and binding obligation, enforceable against You in accordance with its terms; and
(d) The performance by You of this Agreement and the participation by You in any Ujena Network and any relevant Network Merchant.s engagement does not and shall not conflict with or violate (i) any law, rule, regulation, order, judgment, decree, agreement or instrument applicable to You or (ii) if You are an entity, any provision of Your certificate of incorporation or other organizational documents.
10 Non-Disclosure
10.1 Confidential Information. You acknowledge that in connection with Your participation on a Ujena Network and/or in one or more Network Merchants. engagements, You will be provided with confidential and proprietary data and information from time to time through reports as well as other Ujena Offerings to You through Your Network Affiliate Account Area or otherwise. Such confidential and proprietary data and information may be owned variously by Ujena and/or its or their suppliers or contractors. You will retain ownership of any data and information that You independently collect through Your Sites without the use of Ujena Offerings, provided that any data and information that may be provided by You to Ujena shall be deemed to be covered by the licenses granted to Ujena under this Agreement.
10.2 Duty of Care. You will keep all reports, data and other confidential information provided to You through the Network Affiliate Account Area or otherwise strictly confidential. Without Ujena's prior written consent, You will not disclose any such confidential information to any third party or use any such confidential information other than solely as and to the extent required for you to perform under this Agreement and/or Your engagements with any Network Merchants.
10.3 Need to Know Basis. You may disclose any such confidential information only to Your employees, officers and directors who need to know such information in order to perform their respective duties; provided that each such person has a legal or contractual obligation to maintain the confidentiality of such information.
10.4 Legally Required Disclosures. If You receive any document request, interrogatory, subpoena or other legal process (.Request.) that would, by its terms, require the disclosure of any Confidential Information protected by this Agreement, then promptly upon receipt thereof, and prior to making any response thereto, You will notify Ujena in writing of Your receipt of such Request, and shall provide a copy thereof. Upon receipt of such notice, Ujena may seek to intervene in the matter in which the Request was issued to seek protection of the confidentiality provided for by this Section. Absent written agreement signed by Ujena, You may not make such disclosure absent an order or directive from the tribunal from which a Request was issued. Ujena will be entitled to seek and obtain injunctive relief preventing any breach of Your obligations under this Section, without the need to show irreparable harm, and without the need to post a bond or undertaking.
11 Payment; Fees
11.1 Payment. Payment will be made on the 15th of each calendar month for earned compensation on completed sales the previous month, if the amount of earned compensation is equal to or greater than $25.00.
11.2 Payment Terms. The fact that a compensation amount is reported for any tracked activity does not necessarily mean that a payment is due to You, since payment is subject to order cancellation, returned merchandise, receipt of pending credit card authorizations and/or chargebacks and minimums for earned compensation before payment is made.
11.3 Tax. You agree that You are solely responsible for any and all tax obligations, if any, due to all taxing authorities arising from or in connection with Your participation in any Ujena Offerings, Ujena Network or any Network Merchant engagement.
12 Compliance with Laws
12.1 You and Your affiliates, officers, directors, employees, consultants, agents and representatives, and the conduct of Your business, Your performance under any engagements with any Network Merchant, and Your use of any Ujena Network and/or Ujena Offerings shall comply at all times with all applicable federal, state, provincial and foreign laws, ordinances, rules, regulations, orders, judgments and decrees.
13 DISCLAIMER OF WARRANTIES
13.1 EACH Ujena NETWORK AND ANY Ujena OFFERINGS ARE PROVIDED "AS IS, WHERE IS" AND "AS AVAILABLE."
13.2 EACH OF Ujena AND Ujena RELATED PARTIES hereby disclaims any and all warranties, express or implied, including any warranty as to accuracy, merchantability, completeness, currentness, SECURITY, non-infringement, title, or fitness for a particular purpose of ANY Ujena Network or any Ujena OFFERINGS or that YOUR use of the same will be uninterrupted or error-free, or can or will be willing to enter into any engagement with YOU.
14 LIMITATION ON LIABILITY
14.1 If You reasonably determine that any Ujena Offering does not materially meet Ujena's obligations under this Agreement, then You must notify Ujena in writing within ten (10) days of receiving any such allegedly nonconforming services. Your failure to so notify Ujena on a timely basis shall mean that You accept such services, and Ujena shall thereafter have no liability whatsoever with respect to such services. If upon receipt of any notice under this Section, Ujena may, at its sole discretion, reperform the service in question or otherwise provide You with any substitution or replacement services in lieu thereof. Any reperformance or provision of substitute or replacement services shall in no event be construed as an admission that the original service was nonconforming or otherwise improper, and Your acceptance of the same constitutes Your sole remedy and in such case constitutes Ujena's maximum liability for any such alleged breach of this Agreement.
14.2 If, notwithstanding the above, liability is imposed on Ujena or Ujena related parties, then YOU agree that the total liability of Ujena and Ujena RELATED PARTIES, and its and their officers, directors, employees, agents, subcontractors and representatives, to YOU will not exceed twenty-five dollars ($25.00). You recognize and acknowledge that this limitation of damages is fair and reasonable, in light of the fact that Ujena is providing this service to you at no charge to you.
14.3 None of Ujena and Ujena RELATED PARTIES will be liable to You (whether in contract or based on warranty, negligence, tort, strict liability or otherwise) for any indirect, incidental, consequential, reliance, punitive or special damages, INCLUDING LOSS OF REVENUE OR PROFITS, even if such person was aware that such damages could result.
14.4 Any claim or cause of action arising out of Your use of any Ujena Network, this Agreement or the Network Policies and Guidelines must be filed within ninety (90) days after such claim or cause of action arose or be forever barred.
14.5 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF CERTAIN LIABILITIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF THIS SECTION 15 MAY NOT APPLY TO YOU.
15 Indemnification
15.1 You agree to defend, indemnify and hold harmless Ujena and Ujena Related Parties, and its and their directors, officers, employees, agents, subcontractors and representatives for and against any and all claims, actions, demands, liabilities, losses, damages, penalties, interest, judgments, settlements, costs and expenses (including reasonable attorneys' fees) that directly or indirectly arise out of or are based on:
(a) any misrepresentation or breach of any representation, warranty, or covenant made by You in this Agreement,
(b) any conduct, or activity, error or omission by You, including in relation to Your participation on any Ujena Network, performance of any Ujena-tracked engagement, or otherwise,
(c) any violation by You of any law, regulation or rule,
(d) Your use of any other Ujena Offerings, and/or
(e) any actual or alleged infringement by You of any Intellectual Property Rights or other rights of any person.
15.2 Ujena may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by You. Ujena may participate in the defense of all claims as to which it does not assume defense and control, and You shall not settle any such claim without Ujena's prior written consent.
16 Amendments
16.1 Amendments. Upon prior written notice, Ujena may, at any time, add to, remove or otherwise amend any or all terms, conditions and/or other provisions of this Agreement, including any Network Policies and Guidelines.
16.2 Changes in Service. Upon prior written notice, Ujena may add, remove, suspend or discontinue any aspect of any Ujena Network or any other Ujena Offering.
16.3 YOUR CONTINUED USE OF ANY Ujena NETWORK AND/OR Ujena OFFERING AFTER NOTICE IS GIVEN (AND AFTER EXPIRATION OF ANY APPLICABLE PRIOR NOTICE PERIOD) SHALL CONSTITUTE YOUR BINDING AND LEGALLY ENFORCEABLE AGREEMENT TO SUCH CHANGE. IF YOU DO NOT WISH TO ACCEPT ANY SUCH CHANGE, THEN YOU MUST TERMINATE YOUR ACCOUNT WITH SUCH Ujena NETWORK AND/OR Ujena OFFERING AND CEASE USING SUCH Ujena NETWORK AND ANY ASSOCIATED Ujena OFFERING.
17 Termination, etc.
17.1 Termination. You or Ujena may, at any time, with or without cause, terminate this Agreement and Your participation on any Ujena Network or use of any other Ujena Offering. You may effect such termination through Your Network Affiliate Account Area or by written notice to Ujena subject to actual receipt thereof.
17.2 Restricted Use. Alternatively, Ujena may, in its sole discretion, suspend, limit, restrict, condition or deny Your access to or use of all or any part of any Ujena Network or any Ujena Offering.
18 Effects of Termination
18.1 Upon any termination of this Agreement and/or Your participation on all Ujena Networks:
(a) You shall immediately cease to use and remove from any and all Site(s), whether or not owned or operated by You, any and all qualifying links and all other Content or materials provided to You in connection with Your participation on such Ujena Network or Your use of any other Ujena Offerings.
(b) Any and all licenses and rights granted to You under this Agreement shall immediately cease and terminate.
(c) Ujena may terminate or, in its sole discretion, direct or redirect to any destination Site any and all qualifying links continued to be used by You without Ujena incurring any further liability or obligation to You.
(d) Any and all confidential or proprietary information of Ujena that is in Your possession or control must be immediately returned or destroyed. If requested, You will certify in a writing signed by You or an authorized officer as to the return or destruction of all such confidential or proprietary information.
18.2 Ujena may withhold and offset against any and all compensation and/or other fees that are then unpaid to You. Following assessment of any fees or other charges owing to Ujena, and subject to Ujena holding any amount it determines in its sole discretion to be needed to support any of Your indemnification and/or other obligations and/or liabilities under this Agreement, Ujena may withhold any remaining monies. Such withholding of such compensation and/or other fees is in addition to any other rights and remedies that Ujena may have in contract, at law or in equity.
18.3 All rights or remedies arising out of a breach of any terms of this Agreement shall survive any such termination of this Agreement. of Your participation in any Ujena Network or Your use of other Ujena Offerings.
18.4 Sections 18 and 19, and any provision which by its terms are intended to survive any expiration or termination of this Agreement, will survive any expiration or termination of this Agreement. Your representations and warranties in this Agreement shall survive execution, delivery, acceptance, performance, expiration or termination of this Agreement.
19 Miscellaneous
19.1 Independent Contractors. The parties are independent contractors and nothing in this Agreement shall confer upon either party any authority to obligate or bind the other in any respect.
19.2 Force Majeure. Ujena shall not be liable to You by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, interruptions in telecommunications services or Internet facilities, or any other cause which is beyond the reasonable control of Ujena, whether or not similar to the foregoing.
19.3 Assignability. You shall not assign or delegate any of the rights or obligations under this Agreement, and any such attempted assignment or delegation shall be void. Subject to the preceding sentence, this Agreement is binding on and inures to the benefit of the respective successors, heirs and assigns of each party.
19.4 Severability. If any portion of this Agreement is held by a court with jurisdiction to be invalid or unenforceable, the remaining portions hereof, shall remain in full force and effect. If any provision of this Agreement shall be judicially unenforceable in any jurisdiction, such provision shall not be affected with respect to any other jurisdiction.
19.5 Governing Law; Consent to Jurisdiction; Jury Trial Waiver. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, U.S.A., without regard to its conflicts of law principles. You consent to the personal and exclusive jurisdiction of the Federal and New York State courts sitting in New York County, New York, U.S.A.. Each party waives rightS to trial by jury in respect of any action, suit or proceeding arising out of this Agreement. The U.N. Convention on the International Sale of Goods shall not apply to this Agreement.
19.6 Entire Agreement; Third Party Beneficiaries. This Agreement is the entire agreement between the parties pertaining to its subject matter, and supersedes all prior written or oral agreements (including prior versions of this Agreement and any conflicting confidentiality agreements), representations, warranties or covenants between the parties with respect to such subject matter. There are no third party beneficiaries of this Agreement. The headings of sections or other subdivisions of this Agreement will not affect in any way the meaning or interpretation of this Agreement.
19.7 Notices. Ujena may provide notices to You by posting notices or links to notices in Your Network Affiliate Account Area. Notices to You also may be made via e-mail, regular mail, overnight courier or facsimile at your contact addresses of record for any Ujena Network. If you provide notice to Ujena, such notice shall be sent, postage prepaid by U.S. registered or certified mail or by international or domestic overnight courier, to: Ujena Swimwear and Fashions, 1931A Old Middlefield Way, Mountain View, California 94043 USA. Notices sent by email or telecopy, with or without electronic confirmation, will not be deemed to be valid unless actual receipt is confirmed in writing by an authorized personnel of Ujena.
19.8 Language. The English language versions of this Agreement and Network Policies and Guidelines are the controlling versions thereof. All support and other inquiries regarding Your use of any Ujena Offering must be submitted to Ujena in English, and Ujena will communicate in English only.