e-Research-Global.com Inc. Agreement - Terms and Conditions
|Last Updated: December 18, 2009|
e-Research-Global.com Inc. monitors traffic for Scams and Fraud. If we detect a Scam or Fraud, your affiliate account will be made inactive pending further investigation.
These terms and conditions ("Agreement") shall constitute the entire agreement between e-Research-Global.com Inc. ("we" or "us") and you governing your use of the www.e-research-global.com web site (the Program Web site) and/or participation as a publisher ("Publisher") in the e-Research-Global.com Inc. publisher program (the "Program"). If you are a corporation, limited liability company/corporation or any other type of business entity, the term "you" shall include any officer, executive, publisher, employee, consultant and/or agent of your business entity.
By submitting your online application to become a Publisher (the "Application"), you are confirming that you: a) have fully read this Agreement; b) understand all of the terms of the Agreement; c) are 18 years of age or above; d) own and operate an Internet web site where you can place advertisements and generate traffic; and e) agree to be fully bound by the Agreement. In addition, by visiting and/or accessing the Program Website, you fully agree to this Agreement.
This Agreement is subject to change at any time, in our sole discretion, and such changes are effective upon their posting at the Program Web site. Changes may include, without limitation, changes in the Commission structures, payment procedures and other Program-related policies. Bookmark this page and check it frequently as it is up to you to refer to this page for any amendments and/or changes to this Agreement. By your continued participation in the Program, you are fully subject to the Agreement in effect at the time.
1. Enrollment in the Program
1.1 To begin the enrollment process, you must submit a complete and accurate Application. We will evaluate your Application and will promptly notify you of your Application acceptance or rejection via the e-mail address that you supply as a part of your Application. To qualify as a Publisher, you must own and operate an Internet web site where Marketing Pieces, as defined in Section 6, may be posted.
1.2 You understand and agree that we may reject your Application and/or terminate your participation in the Program at anytime and for any reason, in our sole discretion. Such reasons may include, without limitation:
A. We believe that you are in any way in breach of this Agreement; B. We believe that your Publisher web site ("Publisher Web site") is unsuitable for the Program for any reason including, without limitation, that the Publisher Web site contains material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable; C. We believe that you are not, in any manner whatsoever, conducting Internet marketing that fully complies with all applicable laws, rules and regulations; and/or D. Use of any names, trademarks, trade names, drawings, logos and symbols associated with a e-Research-Global.com customer ("Customer"), or variations and/or misspellings of any of them, in URLs to the left of the top level domain name (e.g., ".com," ".net," ".uk," etc.).
1.3 In order to be eligible to become a Publisher, all web sites, affiliated websites and e-mail distribution lists (collectively the "Media") must meet the following criteria, at a minimum:
A. All Publishers that wish to send advertisements via email must have the consent of the consumer to send such email and each Publisher shall maintain records evidencing such consent including, without limitation, applicable IP addresses and time/date stamps (the "IP Information") and will supply such records to e-Research-Global.com within one business days of request;
B. Unless otherwise approved in writing by e-Research-Global.com may not offer incentives to users as means to enhance the performance of any Program (as defined below); incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.;
C. Publisher web sites must be fully functional at all levels; no "under construction" sites or sections;
D. Spawning process pop-ups are prohibited; and
E. Such other criteria as e-Research-Global.com may from time to time determine, in its sole discretion.
1.4 As part of the Application process, you will be asked to select a username and password. You may use your username and password to access your online Affiliate Publisher Account page ("Affiliate Account"). We may refuse to grant to you any username, in our sole discretion. You are solely responsible for the confidentiality and use of your username and password. You agree not to transfer or resell your username and/or password, or otherwise provide access to your Affiliate Publisher Account and/or Program to any third party. If you have reason to believe that your Affiliate Publisher Account is no longer secure, you must promptly change your password by updating your account information and immediately notify e-Research-Global.com of same by e-mailing us at firstname.lastname@example.org . YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD AND FOR ANY AND ALL ACTIVITIES THAT ARE CONDUCTED THROUGH YOUR AFFILIATE PUBLISHER ACCOUNT.
2. Affiliate Publishers
2.1 We grant to Publishers a non-exclusive, non-transferable, limited license to promote and market e-Research-Global.com on the Internet in accordance with this Agreement. There is no tiered Publisher status under the Program and, accordingly, a Publisher may not have sub-affiliates under this Agreement. The term "Customer" shall mean the applicable client of e-Research-Global.com.
2.3 Consumers generated through your marketing efforts hereunder, and their associated information and/or data, are deemed to be the sole property of e-Research-Global.com and our respective Customers. You do not receive any rights to such information and may not use such information for your own benefit other than as set forth in this Agreement.
2.4 Affiliate Publishers may not engage in any non-Internet based form of marketing or any marketing where the encoded Publisher-specific hyperlinks cannot be tracked by e-Research-Global.com.
3. Customer Campaigns
3.1 As an Affiliate Publisher, you will have the opportunity to select the particular campaign(s) that you desire to market and promote. However, e-Research-Global.com must supply its approval for your participation in a campaign, which may be withheld in our sole discretion.
3.2 Each campaign will have additional terms, conditions, restrictions and/or qualifications (the "Campaign Terms") associated with it, including Commission schedules. Campaign Terms may be reviewed through your Affiliate Publisher Account. To the extent that there is a conflict between this Agreement and any Campaign Terms, the respective Campaign Terms shall govern. Campaign Terms are subject to change at any time, in our sole discretion, and such changes are effective upon their posting at the Affiliate Program Web site. By your continued participation in the Program, you are fully subject to the Campaign Terms in effect at the time.
3.3 Any and all applicable Campaign Terms are hereby made a part of this Agreement.
4. Term and Termination
4.1 The term of this Agreement will begin upon our written acceptance of your Application and will end when terminated by either party. You may terminate this Agreement at any time, with or without cause, by giving e-Research-Global.com written notice of termination via e-mail. e-Research-Global.com may terminate this Agreement and your license hereunder without notice at any time. Affiliate Publishers are only eligible to earn Commissions on billings generated during the term of this Agreement. Upon any termination of this Agreement, any and all licenses granted hereunder shall immediately expire.
4.2 Notwithstanding anything contained herein to the contrary, upon any termination of this Agreement, we will pay any Commissions otherwise due to an Affiliate Publisher during the next billing cycle.
4.3 Upon termination, Affiliate Publisher must immediately cease all advertising activities. In addition, Publishers agree to immediately destroy any and all e-Research-Global.com related records, materials, copies, notes, suppression lists (if used herein) and documentation in their possession and to certify to e-Research-Global.com that such destruction has occurred.
4.4 Obligations that, by their nature, would survive any termination of this Agreement including, without limitation, Sections 4, 8, 10, 11, 12, 13 and 15, shall survive any termination of this Agreement.
5.1 e-Research-Global.com shall pay commissions according to the payment terms of the applicable Campaign. The most recent Campaign, Commissions and/or other payment terms will be published at the Affiliate Program Website. Unless otherwise indicated in Campaign Terms, Commissions shall be paid using PayPal.com and the PayPal email address you supplied as a part of your Application.
5.2 Commissions shall be paid to the respective Publisher approximately thirty (30) days after the last day of a given calendar month, for qualifying Commissions generated in that calendar month.
5.3 Commissions are based solely upon that statistics that e-Research-Global.com compiles on a regular basis, which are verified and checked against our month end reports (the "Data"). Affiliate Publisher understands and agrees that the Data is dispositive and fully binding upon Affiliate Publisher in determining payable Commissions. e-Research-Global.com may require a Publisher to provide a W-9, or similar information, as a condition to receiving any Commission payments.
5.4 Notwithstanding anything contained herein to the contrary, no Commission payments will be issued to an Affiliate Publisher for any amount less than $50 US Dollars (the "Payment Threshold"). All such amounts below the Payment Threshold shall be held, aggregated and paid to a Publisher only when the Payment Threshold has been reached. e-Research-Global.com will not pay Commissions on any billings that occur before the Publisher is accepted into the Program or after termination of this Agreement.
5.5 e-Research-Global.com reserves the right to withhold and/or cancel Commission payments due and owing to an Affiliate Publisher at any time, in our sole discretion, when we believe that the Affiliate Publisher is in breach of this Agreement.
5.6 All Commission payments due to an Affiliate Publisher will be paid using PayPal.com, unless otherwise set forth in connection with a Campaign.
5.7 e-Research-Global.com reserves the right, without limitation, to deduct an amount equal to any chargebacks, refunds, deductions and/or any other type of adjustments, plus any and all associated fees and charges (collectively, "Adjustments"), incurred by e-Research-Global.com in connection with panel member registrations and survey participation generated by a Publisher hereunder. If e-Research-Global.com incurs any Adjustments, the respective Affiliate Publisher connected to such Adjustment agrees that e-Research-Global.com may deduct such amounts from any future Commissions earned by such Affiliate Publisher.
5.8 e-Research-Global.com reserves the right to deduct any test leads from a Publisher's account or flag as non-payment.
6. Marketing Pieces
6.1 We will make available to our Affiliate Publishers marketing pieces created for use with the Affiliate Program. In particular, we will supply e-Research-Global.com creatives ("Creatives") and/or e-Research-Global.com banner advertisements ("Banner Ads") (collectively, the "Marketing Pieces"). Each Marketing Piece contains a validation tracking mechanism permitting e-Research-Global.com to identify the respective Affiliate Publisher using such Marketing Piece. In addition, each Marketing Piece contains a hyperlink that will direct individuals e-Research-Global.com.
6.2 Publishers may use Creatives and Banner Ads in Internet marketing, including at a Publisher's web site. The Marketing pieces may contain logos, copy, graphics and/or animation. e-Research-Global.com may change or revise the content of the Marketing Pieces at any time, in our sole discretion, and Affiliate Publishers agree to use only the most recent version of any Marketing Piece.
6.3 We grant to each Affiliate Publisher a non-exclusive, non-transferable, revocable and limited license to:
A. use the Marketing Pieces including our logos, trade names, product names, trademarks and similar identifying material relating to e-Research-Global.com for the sole purpose of performing Affiliate Publisher's rights and duties hereunder; and B. direct individuals to e-Research-Global.com through such Marketing Pieces.
6.4 Affiliate Publishers may not alter, modify and/or otherwise change the Marketing Pieces in any manner, whatsoever. Affiliate Publishers may only use Marketing Pieces supplied by e-Research-Global.com. Use, or the attempted use, of any other marketing materials in connection with the Affiliate Program will result in the immediate termination of the Affiliate Publisher's status, without notice.
6.5 Affiliate Publishers agree not to use the Marketing Pieces in any manner that is disparaging or that otherwise portrays e-Research-Global.com in a negative light.
6.6 e-Research-Global.com retains the right to approve and direct any and all uses of Marketing Pieces at all times. Each Affiliate Publisher agrees that e-Research-Global.com may, in its sole discretion, direct the placement of Banner Ads and Creatives on the Affiliate Publisher Web site. Each Affiliate Publisher further agrees that he or she will fully comply with our directions regarding same. Affiliate Publishers may not engage in any marketing practices that may be viewed as deceptive and/or misleading. No scams or fraudulent practices will be tolerated.
7. E-mail Marketing Policy/CAN-SPAM Compliance
7.1 Unless otherwise indicated in Campaign Terms, Affiliate Publishers MAY NOT USE E-MAIL MARKETING IN A CAMPAIGN. If e-mail marketing is permitted, such permission will be set forth in the applicable Campaign Terms and Affiliate Publisher must comply with all provisions of this Agreement concerning e-mail transmissions.
7.2 Affiliate Publisher represents and warrants that, to the extent email marketing is permitted in a Campaign, it will comply with all applicable state and federal laws, rules and regulations (including the Can-Spam Act of 2003, as amended from time to time) with respect to email marketing. Publisher acknowledges that any failure to comply with this Email Marketing Policy may, in our sole discretion, result in the immediate termination of its Affiliate Publisher status and the forfeiture of any and all rights to any Commissions owed to the Affiliate Publisher by e-Research-Global.com.
7.3 Without limiting the generality of the foregoing, when performing email marketing of any kind and on behalf of e-Research-Global.com, Affiliate Publisher represents and warrants that Affiliate Publisher shall:
A. Deliver commercial email only to those recipients: i) who have given Affiliate Publisher direct and/or explicit consent to receive email advertising from Affiliate Publisher, as defined under applicable law, and have not revoked such consent as of the date that the commercial e-mail was transmitted to such recipient; or (ii) with whom Affiliate Publisher has a preexisting business relationship, as defined under applicable law, and have not unsubscribed to receive email advertising as of the date that the commercial email was transmitted to such recipient;
B. Refrain from falsifying email header and transmission information (including, without limitation, source, destination and routing information);
C. Not use any subject or from line that is materially false or misleading;
D. Refrain from seeking or obtaining unauthorized access to computers for the purpose of sending any and all commercial email;
E. Refrain from using any third-party trademarks and/or brands;
F. Include within all commercial email sent: a valid street address for both Affiliate Publisher and e-Research-Global.com; a clear and conspicuous identification that the email message is an advertisement or solicitation; a clear and conspicuous opt-out notice and functional opt-out mechanism; and process unsubscribe requests within 5 days;
G. Comply with all legal obligations with respect to unsubscribing consumers from Affiliate Publisher's email mailing lists;
H. At least once a week, scrub the Affiliate Publisher database of email recipients against the e-Research-Global.com suppression list, subject to the provisions contained in Section 8.10, and supply to e-Research-Global.com an updated Affiliate Publisher suppression list on a weekly basis; and
I. Immediately notify e-Research-Global.com in the event that any complaint, investigation and/or litigation ensues concerning Affiliate Publisher's email practices (whether or not such complaint, investigation and/or litigation relates to Affiliate Publisher's relationship with e-Research-Global.com).
7.4 Suppression Lists: With respect to any suppression list generated through the Affiliate Program, Affiliate Publisher agrees to:
A. Use such suppression list, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of this Agreement;
B. Regularly use such suppression list to remove any and all e-mail addresses contained therein from the receipt of future commercial email messages;
C. Not use the suppression list for purposes of email marketing (or provide the suppression list to any third party for said purposes) and not send, or cause to be sent, any commercial email messages to an email address appearing on any suppression list;
D. Not use any suppression list for purposes of email appending in any manner whatsoever;
E. Hold any suppression list in trust and confidence and use same solely for the suppression purposes set forth herein;
F. Not retain a copy of any suppression list; and
G. Not disclose any suppression list to any employee, consultant, subcontractor, or third party individual, corporation or entity without first ensuring said party's written agreement to be bound by the terms of this Agreement. Such agreement shall be immediately forwarded to e-Research-Global.com, upon request. e-Research-Global.com reserves the right to withhold its consent to such disclosure and may, within its discretion, accordingly bar the disclosure of any and all suppression lists.
8.1 e-Research-Global.com actively monitors traffic for fraud. If fraud is detected, Affiliate Publisher's account will be made inactive pending further investigation. Affiliate Publisher accounts are flagged that, among other things
A. Have click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of e-Research-Global.com;
B. Have ONLY click or lead generation programs generating clicks or leads with no indication by site traffic that it can sustain the clicks or leads reported;
C. Have shown fraudulent leads as determined by e-Research-Global.com;
D. Have used any incentives to procure clicks or leads
E. Have provided leads obtained other than through intended consumer action. For instance, use of phone books, or similar such compilations of personal data, to complete lead generation forms shall be considered fraudulent behavior.
F. Use fake redirects, automated software, and/or other fraudulent mechanisms to generate Events from the Programs.
8.2 If Affiliate Publisher fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre- population of forms or mechanisms not approved by e-Research-Global.com or use of sites in co-registration campaigns that have not been approved by e-Research-Global.com), as determined solely by e-Research-Global.com, Affiliate Publisher will forfeit its entire commission for all programs and its account will be terminated. If Affiliate Publisher is notified that fraudulent activities may be occurring on its Media, and Affiliate Publisher fails to take prompt action to stop the fraudulent activities, then, in addition to any other remedies available to e-Research-Global.com, Affiliate Publisher shall be responsible for all costs and legal fees arising from these fraudulent activities. In addition, in the event that Affiliate Publisher has already received payment for fraudulent activities, e-Research-Global.com reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Affiliate Publisher.
9. Representations and Warranties: Affiliate Publisher hereby represents and warrants to us as follows:
9.1 This Agreement has been duly and validly executed and delivered by Affiliate Publisher and constitutes Affiliate Publisher's legal, valid and binding obligation which is fully enforceable against you in accordance with its terms.
9.2 Affiliate Publisher is duly licensed, authorized and certified by all applicable governmental and regulatory authorities to perform Affiliate Publisher's rights and duties pursuant to this Agreement.
9.3 Affiliate Publisher will comply with all applicable state and federal laws, rules and regulations (including the Can-Spam Act of 2003, as amended from time to time, if applicable), with respect to the Affiliate Referral Program.
9.4 Affiliate Publisher understands and agrees that e-Research-Global.com will enter into similar agreements with other e-Research-Global.com Affiliate Publishers in direct competition with Affiliate Publisher.
9.5 Affiliate Publisher understands and agrees that Affiliate Publisher has independently evaluated the desirability of participating in the Program and that Affiliate Publisher has not relied on any representation and/or warranty other than those set forth in this Agreement.
9.6 The execution, delivery and performance by Affiliate Publisher of this Agreement will not conflict with or violate: (i) any provision of law, rule or regulation to which Affiliate Publisher is subject; (ii) any order, judgment or decree applicable to Affiliate Publisher; (iii) any provision of Affiliate Publisher's corporate by-laws or certificate of incorporation; or (iv) any agreement or other instrument applicable to Affiliate Publisher.
9.7 Affiliate Publisher's performance under this Agreement will not: (i) be fraudulent, deceptive and/or misleading; (ii) invade the right of privacy or publicity of any third person; (iii) involve any libelous, obscene, indecent or otherwise unlawful material; and (iv) otherwise infringe upon the rights of any third parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity.
9.8 There is no pending or, to the best of Affiliate Publisher's knowledge, threatened claim, action or proceeding against Affiliate Publisher.
9.9 Affiliate Publisher will be solely responsible for the development, operation and maintenance of the Affiliate Publisher Web site and for any and all materials that appear on the Affiliate Publisher Web site. Such responsibilities include, without limitation: i) the technical operation of the Affiliate Publisher Web site and all related equipment; ii) creating and posting content, descriptions and references on the Affiliate Publisher Web site; iii) the accuracy and propriety of materials posted on the Affiliate Publisher Web site; iv) ensuring that materials posted on the Affiliate Publisher Web site do not violate or infringe upon the rights of any third party and are not defamatory, obscene, libelous, harmful, illegal or otherwise offensive; and v) ensuring that the Affiliate Publisher Web site complies with all applicable laws.
10.1 Affiliate Publisher agrees that e-Research-Global.com may use Affiliate Publisher's name (if Affiliate Publisher is an individual), Affiliate Publisher's company name (if Affiliate Publisher is a corporation or the like), Affiliate Publisher's likeness and/or logo, the Affiliate Publisher Web site address and any associated information in our marketing materials and press releases, without compensation to Affiliate Publisher.
10.2 Affiliate Publisher shall not create, publish, distribute or permit any written material that makes reference to e-Research-Global.com without first submitting such material to us and receiving our prior written consent, which we may withhold in our sole discretion.
11. Proprietary Rights
11.1 The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software and other matters related to the Program, Marketing Pieces, Affiliate Program Web site are protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights. The use, copying, redistribution and/or publication by you of any part of the Affiliate Program, Marketing Pieces or Program Web site, other than as contemplated hereunder, is strictly prohibited. e-Research-Global.com retains any rights not granted herein.
11.2 Affiliate Publisher does not acquire any ownership rights to the Affiliate Program, Marketing Pieces or Program Web site. The availability of the Affiliate Program, Marketing Pieces and Program Web site does not constitute a waiver of any rights related thereto.
11.3 e-Research-Global.com shall be deemed the sole owner of any and all consumer information obtained through your participation in the Affiliate Program. Affiliate Publisher has no rights in or to such consumer information.
12.1 Affiliate Publisher agrees to indemnify, defend and hold e-Research-Global.com, our Customers and each of their respective officers, partners, publishers, managers, employees, agents and attorneys (collectively, the "Covered Parties"), harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys' fees, court costs and/or settlement costs) arising from:
A. Affiliate Publisher's breach of this Agreement and/or any representation or warranty contained herein;
B. Affiliate Publisher's participation in the Program, in any manner whatsoever;
C. any allegation that Affiliate Publisher has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; and
D. any third party claim related to the Affiliate Publisher Web site and/or Affiliate Publisher's marketing and/or e-mail marketing practices.
13. Disclaimers/Limitation of Liability
13.1 THE PROGRAM, PROGRAM WEB SITE AND MARKETING PIECES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE PROGRAM, PROGRAM WEBSITE AND MARKETING PIECES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. e-Research-Global.com AND THE COVERED PARTIES HAVE NO LIABILITY, WHATSOEVER, TO AFFILIATE PUBLISHER OR ANY THIRD PARTY, FOR AFFILIATE PUBLISHER'S USE OF, OR INABILITY TO USE, THE PROGRAM, PROGRAM WEB SITE AND MARKETING PIECES. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, e-Research-Global.com AND THE COVERED PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED IN BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN e-Research-Global.com AND AFFILIATE PUBLISHER. THE AFFILIATE PROGRAM, PROGRAM WEB SITE AND MARKETING PIECES WOULD NOT BE PROVIDED TO AFFILIATE PUBLISHER WITHOUT SUCH LIMITATIONS. e-Research-Global.com MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE AFFILIATE PROGRAM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY AFFILIATE PUBLISHER FROM US THROUGH THE AFFILIATE PROGRAM, PROGRAM WEB SITE OR MARKETING PIECES SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
13.2 ALL RESPONSIBILITY AND/OR LIABILITY FOR ANY AND ALL DAMAGES CAUSED BY, AND/OR THROUGH, THE AFFILIATE PROGRAM, AFFILIATE PROGRAM WEB SITE AND MARKETING PIECES IS EXPRESSLY DISCLAIMED. AFFILIATE PUBLISHER UNDERSTANDS AND AGREES THAT PARTICIPATION IN THE PROGRAM AND ACCESS AND/OR USE OF THE PROGRAM WEB SITE AND MARKETING PIECES IS DONE SOLELY AT AFFILIATE PUBLISHER'S OWN DISCRETION AND AT AFFILIATE PUBLISHER'S OWN RISK. AFFILIATE PUBLISHER IS ALSO SOLELY RESPONSIBLE FOR ANY USE, OR ALLEGED USE, OF THE PROGRAM, AFFILIATE PROGRAM WEB SITE AND MARKETING PIECES THAT MAY INFRINGE UPON A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
13.3 UNDER NO CIRCUMSTANCES SHALL e-Research-Global.com AND THE COVERED PARTIES BE LIABLE TO AFFILIATE PUBLISHER OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CONSUMERS OBTAINING SERVICES THROUGH PUBLISHER'S MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM AFFILIATE PUBLISHER'S PARTICIPATION IN THE PROGRAM. THE MAXIMUM AGGREGATE LIABILITY OF e-Research-Global.com AND THE COVERED PARTIES TO PUBLISHER AND/OR ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE EQUAL TO THE AMOUNTS AFFILIATE PUBLISHER HAS RECEIVED THROUGH THE PROGRAM.
14.1 For purposes of this Agreement, the term "Confidential Information" shall mean any non-public information of e-Research-Global.com that e-Research-Global.com designates as being confidential or which, under the circumstances surrounding disclosure, reasonably ought to be treated as confidential. Affiliate Publisher shall maintain the confidentiality of Confidential Information and refrain from disclosing any Confidential Information to any other party at anytime, even after termination of this Agreement. Affiliate Publisher will not use any Confidential Information except as expressly permitted by, or as required to achieve the purposes of, this Agreement. Affiliate Publisher agrees to use its best efforts to protect Confidential Information.
15. Force Majeure
15.1 Affiliate Publisher agrees that e-Research-Global.com will not be liable, or be considered to be in breach of this Agreement, on account of our delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond our reasonable control and that we are unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event").
16.1 This Agreement shall be treated as though it were executed and performed in Honolulu, Hawaii and shall be governed by and construed in accordance with the laws of the State of Hawaii (without regard to conflict of law principles). Should a dispute arise concerning the terms and conditions of this Agreement, a Campaign or the breach of same by either party hereto, the parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association in Honolulu, Hawaii, in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by a single arbitrator that shall be chosen from a panel of arbitrators knowledgeable in the relevant law. The decision and award of the arbitrator shall be final and binding, and the award so rendered may be entered in any court having jurisdiction thereof.
16.2 During the term of this Agreement and for a period of one (1) year thereafter, Affiliate Publisher may not supply marketing and/or promotional services to any Customer directly or through another affiliate program.
16.3 Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect.
16.4 Affiliate Publisher agrees that any unauthorized and/or unlawful use of the Affiliate Program would result in irreparable injury to e-Research-Global.com for which money damages would be inadequate. In such event, e-Research-Global.com shall have the right, in addition to other remedies available to it pursuant to this Agreement, to immediate injunctive relief against Affiliate Publisher without the need to post a bond. Nothing contained in this Agreement shall be construed to limit any legal remedies available to e-Research-Global.com.
16.5 e-Research-Global.com and Affiliate Publisher are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. Affiliate Publisher has no authority to make or accept any offers or representations on behalf of e-Research-Global.com. Affiliate Publisher is prohibited from making any statement, whether on the Affiliate Publisher Web site or otherwise, that could possibly contradict anything in this Section 14.4.
16.6 To the extent that anything in or associated with the Affiliate Program Web site is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Notwithstanding the foregoing, any Campaign Terms shall be binding if they conflict with the Affiliate Program Website and/or this Agreement.
16.7 Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.
16.8 Any attempt by any individual, whether or not an Affiliate Publisher, to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Affiliate Program, is a violation of both criminal and civil law and e-Research-Global.com will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity.
16.9 This Agreement will be binding on, inure to the benefit of and be enforceable against the parties and the successors and assigns of e-Research-Global.com. Affiliate Publisher is not permitted to transfer any rights and obligations pursuant to this Agreement. Any attempt to do so will result in the immediate termination of this Agreement.
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