1. Overview and Important Definitions
B. AffiliNet offers businesses and individuals access to resources for digital content discovery, online marketing, and affiliate marketing, including, without limitation, linking tools, downloadable browser extensions, other software, membership services available on a subscription basis (e.g., “AffiliNet Silver”, “AffiliNet Gold” and “AffiliNet Platinum”), membership services available on a limited or free basis (“AffiliNet Beta”) website profile services, search analytics, blogs, user-generated/personalized content tools, industry surveys, and opinion polls (any or all are “Services”).
C. AffiliNet Services are available from AffiliNet web domains, including, without limitation, AffiliNet.us (“Sites”).
D. TOU Acceptance and Agreement; Users and Subscribers.
(1.) By accessing or using any Sites or Services, or by clicking or checking a box indicating “I agree,” “I accept,” or any similar expression of agreement while purchasing or obtaining access to any portion of any Sites or Services, you agree to be legally bound by this TOU. (Please print a copy of this TOU for your records.) If you do not agree to the TOU, you are not authorized to use and you must cease using any Sites or Services.
(2.) You may access portions of any Sites or Services with a free account as a user (“User”). While access to certain other portions of the Sites and selected features of the Services is free, AffiliNet may charge fees for features and benefits associated with any Sites or Services at any time. Any User who pays to access or use parts of the Sites or Services our participates in our beta program is a “Subscriber” in this TOU. References to the terms “you” or “your” in the TOU refer to Users or Subscribers, as applicable.
(3.) If you accept this TOU on behalf of any other person(s) or organization(s), then you represent to AffiliNet that you are legally authorized to do so, and “you” or “your” therefore also includes those other person(s) or organization(s).
E. AffiliNet may revise and update this TOU at any time for any reason in its sole and absolute discretion, effective immediately on posting the same to the Sites. The TOU will indicate at the beginning (top of the page) the date on which the current TOU was last revised and effective. It is your responsibility to check the then-current TOU for any changes. YOU AGREE THAT THE MOST RECENT VERSION OF THIS TOU LEGALLY BINDS YOU FOR ANY OF YOUR ACCESS OR USE OF THE SITES AND ANY SERVICES, AND YOU FURTHER AGREE THAT THE MOST RECENT TOU VERSION SUPERSEDES AND REPLACES THE PRIOR VERSION AND BINDS YOU FOR THE ENTIRETY OF ANY UNEXPIRED AND ACTIVE TERMS OF YOUR SUBSCRIPTIONS TO ANY SERVICES.
F. If you enter into a separate written agreement with AffiliNet, executed physically or digitally by both you and AffiliNet, for you to access or use any Sites or Services (“Other AffiliNet Agreement”), to the extent that the terms of any Other AffiliNet Agreement conflict with the terms of this TOU, the conflicting terms of such Other AffiliNet Agreement will override the conflicting terms of this TOU unless the Other AffiliNet Agreement states the contrary.
2. Terms and Conditions Governing Software as a Service Use and Subscriptions
Certain Services include AffiliNet proprietary software as a membership service accessed and used from the Sites, including AffiliNet Silver, AffiliNet Gold, AffiliNet Platinum, and AffiliNet Beta; if you are a User of or Subscriber to any such Services, then you are also subject to the following specific terms and conditions.
A. Terms and Conditions Governing AffiliNet Silver, AffiliNet Gold, AffiliNet Platinum, AffiliNet Beta Services
If you purchase from any of the Sites subscriptions (AffiliNet Silver, AffiliNet Gold or AffiliNet Platinum) or participate in AffiliNet Beta to provide discovery, online marketing, or affiliate marketing Services using AffiliNet Silver, AffiliNet Gold, AffiliNet Platinum or AffiliNet Beta, you are subject to the TOU and particularly the following related to your AffiliNet Silver, AffiliNet Gold, AffiliNet Platinum, or AffiliNet Beta subscription(s).
(1.) Subscription Payment. Subscribers must agree to the payment terms presented at the time you sign up for any Services. You agree to immediately pay AffiliNet for access to certain features (“Paid Features”) for recurring 30 day terms (“Term”) beginning on the date of each payment (all payments are “AffiliNet Service Fees”). You agree that ALL PAYMENTS ARE FINAL. You are responsible for acting prior to renewal if you do not want to renew automatically. You may not receive notice of your renewal after subscribing, and you must visit your My Account page to find out when your subscription renews. Subscriptions recur every 30 days. You must ensure that the credit card information used for your account or subscription is current and accurate, and that you are authorized to use that credit card or payment method. AffiliNet may implement fraud-protection measures anytime including, without limitation, temporarily charging small amounts to validate your credit card and authorization.
(2.) Scope of Services. Subject to this TOU (including payment), AffiliNet will distribute subscriber provided data to certain websites through the use of proprietary software. You are responsible for verifying the accuracy, integrity, appropriateness, quality, or validity of any subscriber provided data. AffiliNet does not guarantee the accuracy, integrity, appropriateness, quality, or validity of any subscriber provided data. These services are described in greater detail on the Sites.
(3.) Renewal. AffiliNet Paid Features renew every 30 days of account inception for AffiliNet Silver, AffiliNet Gold, and AffiliNet Platinum. Renewal for AffiliNet Beta occurs by logging into your My Account page on the Sites. If your renewal payment fails, or you fail to login at least once every six (6) months, you will no longer have any rights under this TOU related to your previously purchased AffiliNet Silver, AffiliNet Gold or AffiliNet Platinum Services, or limited free AffiliNet Beta Services including the right to manage your links, profile, data analytics, and other related Paid Features until your payments are current. Failure to renew your Paid Features within 30 days will result in loss of any special or custom pricing terms or priority ranking within AffiliNet’s Sites and Services including access to AffiliNet’s free limited beta program, AffiliNet Beta.
(4.) Pricing Changes. AffiliNet may change its AffiliNet Silver, AffiliNet Gold, and AffiliNet Platinum Service Fees from time to time; with respect to new pricing for renewals, AffiliNet will provide at least thirty (30) days’ notice by email and/or posting any new fee schedule on the Site for AffiliNet Silver, AffiliNet Gold, and AffiliNet Platinum.
(5.) Changes and Updates. You may make unlimited changes and updates to your My Account page. However, since AffiliNet currently displays your Subscriber Data to Users using a seniority structure based on the date originally received your subscriber provided data, changes may effect your display rank within AffiliNet Sites and Services. Once your display rank is lost, it cannot be regained.
(a.) AffiliNet reserves complete right and discretion to change the ranking or order that AffiliNet Subscribers are listed on its Sites and Services.
(6.) Upgrades and Downgrades. Subscribers may upgrade and downgrade your Services at anytime through the My Account page. All upgrades and downgrades will be effective immediately. This includes access or restriction from certain Paid Features associated with AffiliNet Silver, AffiliNet Gold and AffiliNet Platinum Services. The price differential is calculated for the Term on a pro rata basis. In the event of an upgrade, pro rata payment to AffiliNet will be deducted immediately from the originally provided payment method. In the event of a downgrade, AffiliNet will credit the originally provided payment method no later than 30 days from the time of downgrade.
(7.) Subscription Cancellation. For security, an email or phone call to AffiliNet is not sufficient to cancel your Paid Features Services subscription. You may cancel at any time by selecting End Membership on your My Account page. You will continue to have access to the Sites and Services you have paid for until the end of your subscription term, but will lose access if the subscription is not in good standing.
(8.) Refunds. AffiliNet will provide a refund equal to one 30-day subscription term; not to exceed $100 for AffiliNet Platinum Subscribers, not to exceed $50 for AffiliNet Gold Subscribers, and not to exceed $25 for AffiliNet Silver Subscribers. Refunds requested within the first 30-day term of an upgrade will be pro rated based, and not to exceed the original Subscription Fee plus the pro rata upgrade fee. If you cancel your subscription, and wish to receive your refund equal to one 30-day subscription term, you are obligated to provide your request in writing to firstname.lastname@example.org. Refunds will be issued via the payment method originally provided no later than 30 days from the date of request.
3. Terms and Conditions Governing All Users of and Subscribers to Sites or Services
A. The Services are available only to Users and Subscribers who:
1. Are human (not bots) and with minimum ages of 13 years old for Users and 18 years old for Subscribers;
2. Submit and then maintain truthful and accurate account information;
3. Do not impersonate any other person or entity or otherwise misrepresent their identity in a profile or elsewhere on the Sites;
4. Have a valid email address;
5. Not be based in Cuba, Iran, North Korea, Syria, or any other country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist-supporting” country; and
6. Do not to authorize third parties unaffiliated through an employer-employee or entity ownership relationship to use their account, profile, or messages or otherwise resell the Services to multiple unaffiliated persons or parties (e.g. “group buys” or “buyers’ clubs”).
B. You agree that you have or will enter into agreements with your individual users who access any Sites or Services on your behalf that protect AffiliNet, and any AffiliNet Content, Sites, or Services as much as this TOU.
C. If AffiliNet, through any Sites, Services, or otherwise, provides you user authentication and access tools (i.e., user name, password, access keys, etc.) for secure access to any Site or Services, you agree to keep that account access information protected, secure, and confidential, and not share it with others in any way that breaches this TOU. You agree that AffiliNet in its sole and absolute discretion may block you from any secure and restricted parts of any Sites or Services. You also agree to notify AffiliNet immediately of any unauthorized access to or use of secure and restricted parts of any Sites or Services that you (including but not limited to any of your users) know or should reasonably know about.
D. You agree that your rights in a subscription or use of any paid Services (including, for example, the ability to change a password associated with an AffiliNet Silver, AffiliNet Gold, AffiliNet Platinum, or AffiliNet Beta account) may depend on demonstrating that you have paid for the subscription to any applicable Services or Sites.
E. You acknowledge that if you sign up for any Services and pay via credit card or an online payment processor, and AffiliNet cannot charge your account at renewal, AffiliNet may cancel your subscription and you may lose access to the Services and any data associated with your subscription.
F. While some Services may be paid for via invoice pursuant to an Other AffiliNet Agreement, AffiliNet may quote additional fees for invoiced accounts. If AffiliNet has entered into an invoicing relationship with you, the following terms apply unless superseded by an Other AffiliNet Agreement: You agree to pay all undisputed invoices within 30 days. You agree that AffiliNet may charge interest of 1.5% per month for past due invoices, or the highest rate permitted by law, and you are liable for reasonable attorney fees and collection costs arising from AffiliNet’s efforts to collect on past due amounts. If you fail to pay an invoice, AffiliNet reserves the right to cancel your subscription and access to any Sites or Services, and any data associated with your subscription or the Services.
G. Taxes. The price, fees, and other amounts payable to AffiliNet under this TOU do not include any sales, use, or other similar taxes assessed or imposed by any governmental authority. With regard to such amounts, you will pay or reimburse AffiliNet for all such charges as invoiced or provide certificates or other evidence of exemption.
H. You acknowledge that portions of the Sites and Services are publicly available or available to other Users and may be accessible by syndication programs (including data feed tools), search engines, metasearch tools, crawlers, metacrawlers, and other similar programs.
4. Subscriber Obligations Regarding Subscriber-Generated Content
You assume the following obligations with respect to any information, profiles, data, text, links, articles, software, photographs, graphics, video, music, sound, messages, or other materials that a you upload, publish, or display on or through any Sites or Services, whether publicly posted or privately transmitted (“Subscriber-Generated Content”):
• You assume legal responsibility for all your Subscriber-Generated Content.
• You agree that no proprietary rights including but not limited to copyright, trademark, trade secret, publicity or privacy rights, or any other intellectual property rights are being violated by your posting, transmission or sharing of any Subscriber-Generated Content via any Sites or Services.
• You agree not to post, transmit, or share Subscriber-Generated Content on any Sites or Services that you:
o Lack authority or permission to post, transmit, or share, or
o That violates in any way the rights of other persons or solicits, encourages, or promotes illegal activities, including but not limited to activities that threaten, abuse in any way, harass, defame, libel, disparage, invade the privacy or publicity rights of other persons or that are vulgar, obscene, bigoted or hateful, profane, scandalous, obscene.
5. No AffiliNet Responsibility for Subscriber-Generated Content
AffiliNet assumes no obligations to screen and does not routinely pre-screen any Subscriber-Generated Content that you upload, publish, or display on or through any Sites or Services. AffiliNet does not guarantee the accuracy, integrity, appropriateness, quality, or validity of any Subscriber-Generated Content. Subscriber Generated Content does not necessarily represent the views or opinions of AffiliNet and under no circumstances whatsoever will AffiliNet be liable for any Subscriber-Generated Content, including without limitation liability related to any loss or damage of any kind incurred from using any Subscriber-Generated Content uploaded, published, or displayed on or through any Sites or Services. Only you are solely responsible (at your own expense) for creating backup copies and replacing any of your Subscriber-Generated Content. While you agree that AffiliNet is not obligated to, AffiliNet may remove any Subscriber-Generated Content at any time at its sole discretion, including Subscriber-Generated Content that in AffiliNet’s sole judgment violates this TOU or is offensive, illegal, or violates the rights of any person or entity, or harms or threatens the safety of any person or entity. AffiliNet assumes no obligation to maintain or store any Subscriber-Generated Content. AffiliNet may delete, modify, or restrict the display of Subscriber-Generated Content at any time for any reason, including but not limited to a change in Subscriber account level, Services cancellation, or violation of the TOU; once deleted, Subscriber-Generated Content may not be retrieved.
6. AffiliNet’s Permitted Use of Subscriber-Generated Content, Subscriber Data and User Data
A. AffiliNet does not claim ownership of Subscriber-Generated Content. Subject to the rights granted to AffiliNet in this TOU, you retain full ownership of all of Subscriber-Generated Content to the extent you would otherwise have intellectual property or other proprietary rights associated with it.
B. You authorize AffiliNet to use and copy any Subscriber-Generated Content that you upload, publish, or display on or through any Sites or Services as AffiliNet deems necessary to facilitate the posting and storage of such Subscriber-Generated Content.
C. You further authorize AffiliNet to anonymize and aggregate Subscriber-Generated Content and any other data you share with AffiliNet (“Subscriber Data”), including data associated with your Google Analytics and social media profiles, and by way of example and not limitation, to provide current or future services and for benchmarking, research and development, data products, or other marketing purposes. By uploading, publishing, or displaying Subscriber Data on or through any Sites or Services (including authorization to access any third-party account or profile), you grant AffiliNet, its affiliates, and partners an irrevocable, perpetual, worldwide, royalty-free, non-exclusive license (with the right to sublicense) to use anonymized and aggregated Subscriber-Generated Content and Subscriber Data, in all present and future media, and in any manner relating to AffiliNet’s business including to provide any Sites or Services.
D. For any Subscriber-Generated Content that you upload, publish, or display on or through any community portions of the Sites (“Interactive Content”), including without limitation your Subscriber Profile, the AffiliNet Blog, and the Q&A service, and any future AffiliNet Sites or Services that are designed to be viewed by Users, the public or other Subscribers, you grant to AffiliNet, its affiliates, and partners an irrevocable, perpetual, worldwide, royalty-free, non-exclusive, transferable license (with the right to sublicense) to use, reproduce, translate, alter, publicly perform, publicly display, modify, adapt, publish, excerpt (in whole or in part), and distribute such Interactive Content, in whole or in part, in all present and future media and in any manner relating to AffiliNet’s business (including, without limitation, on the sites of our affiliates, partners, and others with whom AffiliNet may have business relationships relating to any Sites or Services). You further agree that AffiliNet is free to use any ideas, know-how, concepts, techniques, or other materials implied by Interactive Content. You acknowledge that AffiliNet may retain archived copies of such Interactive Content. Subject to the preceding, you may remove Interactive Content from the Sites at any time.
E. Except for the rights to access and use the Services expressly granted to you by this TOU, AffiliNet retains all right, title, and interest in and to any Sites or Services, including all related intellectual property rights. Any Sites or Services are protected by applicable intellectual property laws in the US and internationally. No grant or transfer of any right, title, or interest to you shall be implied. Notwithstanding anything to the contrary, upon termination or expiration of this TOU as applicable to you, all rights and licenses granted to you under this TOU shall terminate.
7. Services Limitations; Availability
AffiliNet may limit use of any Sites or Services at its discretion, including the frequency with which you may access any Sites or Services or your ability to post Subscriber-Generated Content. AffiliNet reserves the right to modify, update, interrupt, suspend or discontinue, temporarily or permanently, all or a part of any Sites or Services without notice. You agree that AffiliNet shall not be liable to you or to any third party for any modification, suspension, or discontinuance of any Sites or Services. You are also responsible for providing all equipment you use to access any Sites or Services.
8. User Feedback and Beta Services
A. “Feedback” means any ideas, suggestions, or comments that you provide to AffiliNet related to any Sites, Services, or any other AffiliNet technologies, products, service, or business activities (in beta, pre-release, or released versions). You agree that you have no expectation of, and AffiliNet has no obligations for, confidentiality or privacy in any Feedback. You grant AffiliNet a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sub-licensable and transferable license to use, modify, reproduce, distribute, display, publish, or perform any Feedback and to make, have made, sell, offer to sell, and import any products, services, or materials existing now or in the future that include or incorporate any of your Feedback, including but not limited to any Sites or Services.
B. From time to time, AffiliNet may add new features to the Services that may be described as “beta” services or features (collectively, “Beta Features”). Beta Features will be considered part of the Sites or Services and all provisions of this TOU relating to any Sites or Services will apply to the Beta Features as well. Users acknowledge that Beta Features may be untested, non-functional, and/or partially functional features of the Sites or Services. If you use a Beta Feature, you do so at your own risk. Notwithstanding anything else in this TOU to the contrary, Beta Features are provided “AS IS” and AffiliNet disclaims any warranties associated with any Beta Feature. You assume and bear any risk that Beta Features may harm or interrupt operation of your software or hardware.
1. As part of the initial launch of AffiliNet, certain Subscribers are granted free access to certain Services (“AffiliNet
Beta”). In order to remain part of AffiliNet Beta, you agree to log into your account and visit the My Account page at least once every six (6) months. Failure to do so may result in termination of your AffiliNet Beta account. AffiliNet reserves the right to modify, update, interrupt, suspend or discontinue, temporarily or permanently, all or a part of any Sites or Services without notice.
9. Services Credits
AffiliNet occasionally and in its sole discretion may offer Subscribers opportunities to earn credits toward future Services (“Service Credits”), including, for example, Service Credits for new Subscriber referrals. Service Credits may be revoked at any time and for any reason at AffiliNet’s discretion, and are never redeemable for cash, exchanged, sold, or rolled into a separate account. Reasons why AffiliNet might exercise discretion and revoke and void Service Credits include but are not limited to a referred account that is not an actual person or company, is otherwise not in good standing, or was fraudulently obtained. AffiliNet in its sole discretion may also undertake other actions (such as terminating your subscription or banning you from any future referral program) for such behavior. Unused credits may expire at the discretion of AffiliNet.
10. Trademarks; Copyrights; Proprietary Rights; and Use Restrictions
A. As between you and AffiliNet, other than User-Generated Content, AffiliNet owns all right, title, and interest in any Sites or Services, including without limitation the visual interfaces, interactive features, graphics, design, compilation, computer code, products, software, and all other elements and components of any Sites or Services (“AffiliNet Content”).
B. AffiliNet owns the copyrights, trademarks, service marks, trade names, and other intellectual property and proprietary rights throughout the world associated with AffiliNet Content, the Sites, and the Services. Moreover, the term “AffiliNet” and anything on the Sites that identifies or distinguishes AffiliNet from any other goods and services are registered or unregistered trademarks of AffiliNet (the “AffiliNet Trademarks”). Except as otherwise permitted by law, you agree not to display or use in any manner the AffiliNet Trademarks without AffiliNet’s prior written consent.
C. Subject to any of your rights under applicable law (e.g. as a licensee of software under applicable legislation deriving from EU Directive 2009/24/EC, if applicable), you shall not, nor shall you assist anyone else to: (1.) modify, distribute, adapt, decompile, disassemble, reverse-assemble, reverse-engineer, or prepare derivative works from any computer code or any other materials relating to AffiliNet Content or other AffiliNet technology; (2.) use, evaluate, or view AffiliNet Content for the purpose of designing, modifying, or otherwise creating any software program, or any portion thereof, that performs functions similar to the functions performed by any Services, or to compete with AffiliNet; (3.) knowingly access or use AffiliNet Content in a manner that abuses or disrupts the AffiliNet networks, security systems, user accounts, or any Sites or Services or those of any third party, or attempt to gain unauthorized access to any of the above through unauthorized means; (4.) market, offer to sell, and/or resell any Services unless authorized in an Other AffiliNet Agreement or other written agreement executed on behalf of AffiliNet by its authorized representative; (5.) use AffiliNet Content in violation of this TOU or Other AffiliNet Agreement, or any AffiliNet policies, applicable laws, ordinances, or regulations; (6.) use any Sites or Services to send unsolicited or unauthorized advertising, junk mail, or spam; (7.) harvest, collect, or gather information or data regarding other AffiliNet users without their consent; (8.) transmit through or upload on any Sites or Services any material that may infringe the intellectual property or other proprietary rights of third parties, including any trademark, copyright, data privacy, or right of publicity; (9.) transmit or post on any Sites or Services any material that contains software viruses or other malicious or harmful computer code, files, or programs; (10.) remove, alter, or obscure any proprietary notices (including copyright notices) on any portion of AffiliNet Content; (11.) circumvent or disable any usage rules or other security features for or used by any Sites or Services; or (12.) disclose, reproduce, summarize, distribute, or use any Sites or Services except as necessary to exercise the rights granted to you in this TOU. AffiliNet shall have sole and exclusive discretion to determine violations of these restrictions and then may immediately suspend your account and access to any Sites or Services for violations of these restrictions.
D. Except for your rights to access and use any Sites or Services and the AffiliNet Content expressly granted by this TOU, AffiliNet retains all right, title, and interest in and to AffiliNet Content and any Sites or Services, including all related intellectual property rights. AffiliNet Content and any Sites or Services are protected by applicable intellectual property laws in the US and internationally. No grant or transfer of any right, title, or interest to you shall be implied. Notwithstanding anything to the contrary, on termination or expiration of this TOU, all rights and licenses granted to you under this TOU shall terminate.
11. Copyright Infringement
If you believe that your work has been used related to this TOU in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please notify AffiliNet at email@example.com.
You must provide all of the following in writing: identify the copyrighted work that you claim has been infringed (or if multiple copyrighted works, then a representative list of such works); identify the content on the Services that you claim is infringing with enough detail so that AffiliNet may locate it; your statement that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; your statement declaring that the notification is accurate, and, under penalty of perjury, that you are the exclusive owner of the copyright interest involved or that you are authorized to act on behalf of the exclusive owner; information reasonably sufficient to permit AffiliNet to contact you, i.e. address, telephone number, and email address; and your physical or electronic signature.
On receiving your above notice, AffiliNet will take whatever action, in its sole discretion, it deems appropriate, including removal of the disputed use from the Sites or Services or termination of the posting account.
12. User Indemnification of AffiliNet for Certain Actions
13. Warranties and Limitations
Each party warrants and represents that it shall comply with all applicable laws and regulations in performing its obligations under this TOU. EXCEPT FOR ANY EXPRESS WARRANTY IN THIS TOU, AFFILINET AND ITS THIRD-PARTY SUPPLIERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES REGARDING ANY AFFILINET CONTENT, SITES, OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND QUALITY. AFFILINET AND ITS THIRD-PARTY SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY, OR COMPLETENESS OF ANY SITES OR SERVICES OR THE RESULTS YOU MAY OBTAIN FROM THEIR USE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AFFILINET AND ITS THIRD-PARTY SUPPLIERS DO NOT REPRESENT OR WARRANT THAT (1.) THE OPERATION OR USE OF ANY SITES OR SERVICES WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR (2.) THE QUALITY OF ANY SITES OR SERVICES WILL MEET YOURS OR ANY OTHER REQUIREMENTS. YOU ACKNOWLEDGE THAT NEITHER AFFILINET NOR ITS THIRD-PARTY SUPPLIERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT ANY SITES OR SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES, AND THEREFORE NEITHER AFFILINET NOR ANY OF ITS THIRD-PARTY SUPPLIERS ARE RESPONSIBLE FOR ANY DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY AFFILINET, ANY SITES OR SERVICES ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE.” Users or Subscribers may have additional rights as a consumer under local law that this TOU cannot change.
14. THIRD-PARTY SOFTWARE; LIABILITY LIMITATION; EXCLUSIVE REMEDIES FOR USERS AND SUBSCRIBERS
A. Third-Party Software. You are solely and entirely responsible for any third-party software that you obtain and use in connection with any Sites or Services. AffiliNet exercises no control over such third-party software, and is not responsible for its performance. Your purchase or use of such software shall be governed by the terms and conditions of such third parties, and you may therefore be asked to accept terms and conditions at the time of purchase and/or access. AffiliNet is not responsible or liable, directly or indirectly, for any damage or loss caused to you by use of or reliance on any third-party software. You are responsible for all fees charged to you by third parties, or such software or other services you require related to accessing or using any Sites or Services. You are responsible for obtaining all licenses for third-party software for your use with any Sites or Services. If AffiliNet believes that you lack necessary rights to use any third-party software that you depend on or use with any Sites or Services, AffiliNet may suspend or terminate your access to such Sites or Services.
B. EXCLUSIONS OF CERTAIN DAMAGES AND LIMITATIONS OF LIABILITY. You agree that these exclusions of damages and limitations of liability are a fundamental element of the parties’ agreements in this TOU.
(1.) Under no circumstances will AffiliNet or any of its third-party suppliers or any of their respective affiliates be responsible for any loss or damage resulting from your reliance on information or other content posted on the Sites or transmitted to or by you or any other Users or Subscribers.
(2.) TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER AFFILINET NOR ANY OF ITS THIRD-PARTY SUPPLIERS SHALL BE LIABLE TO YOU OR ANYONE ELSE, INCLUDING BUT NOT LIMITED TO ANY ORGANIZATIONS, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO: DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES RESULTING FROM ANY ACCESS TO OR USE OF ANY SITES OR SERVICES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF AFFILINET OR ANY OF ITS THIRD-PARTY SUPPLIERS WERE ADVISED THAT SUCH DAMAGES WERE POSSIBLE. The disclaimer in the preceding sentence includes any damages arising from your inability to access or use any Sites or Services (including due to modification, suspension, blocking, discontinuance, cancellation, or termination of any Services or any part thereof). Without limiting the foregoing, you specifically acknowledge and agree that neither AffiliNet nor any of its third-party suppliers is liable for the defamatory, offensive, infringing, breaching, fraudulent, or illegal conduct of other users, subscribers, or third parties and that any risk from the foregoing are assumed entirely by you. These limitations apply to any matter related to any Sites, Services, or their content; third-party Internet sites, programs, or conduct; viruses or other disabling features; incompatibility between any Sites or Services and other services, software, or hardware; and any delay or failure in initiating, conducting, or completing any transmission or transaction connected with any Sites or Services in an accurate or timely manner.
(3.) Limitation of Liability. Any liability of AffiliNet or any of AffiliNet’s third-party suppliers of any kind arising out of or related to this TOU (including but not limited to warranty claims) or any of your use of the Sites or Services, regardless of the forum and whether any action or claim is based on breach of contract, breach of warranty, tort (including negligence), or any other legal theory, shall not exceed the greater of (a.) the total amount paid by you to AffiliNet to access or use any Sites or Services giving rise to such liability during the six (6) months immediately preceding the date the liability arose or (b.) twenty United States dollars (USD$25.00).
(4.) This Section 14.B. applies even if this remedy does not fully compensate you for any losses or fails its essential purpose; or even if AffiliNet or any of its third-party suppliers knew or should have known about the possibility of the losses, liability, or damages. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, or limitation of liability for certain claims or causes of action, so the above limitations or exclusions may not apply to you in these jurisdictions.
15. Special Admonitions for International Use
A. Your Internet use may be global; thus, you agree to comply with all local rules and laws regarding your access and use of any Sites or Services through the Internet, and without limitation, you will comply with all applicable laws regarding obscene and indecent content and transmitting technical data exported from the United States or the country in which you reside.
B. With respect to any personal data (as defined under the General Data Protection Regulation [GDPR] [EU] 2016/679 and any other applicable data protection legislation) (“Personal Data”) which AffiliNet processes on your behalf, AffiliNet Silver, AffiliNet Gold, AffiliNet Platinum, and AffiliNet Beta does not process any Personal Data as a part of its core function. Thus, AffiliNet is more typically the Data Controller and is not a Data Processor to Personal Data in which you are a Data Controller. However, in the unlikely event that you believe AffiliNet is a Data Processor to you as a Data Controller, please contact AffiliNet at firstname.lastname@example.org, and AffiliNet can consider if it is necessary under applicable law for you to appoint AffiliNet as a Data Processor pursuant to an appropriate Data Processor agreement/addendum.
Upon termination of Services, any payment liabilities owed to AffiliNet and accrued prior to the effective date of the termination will survive. In addition to any obligations or restrictions in the TOU that by their nature should reasonably survive termination of this TOU, the following sections shall also survive termination of this TOU: 1.A., 1.D.(1.), 1.D.(3.), 1.F., 2.A.(1.), 2.A.(8.), 3.C., 3.F., 3.G., 3.H., 4., 5., 6.C. to 6.E., 7., 8., and 10. to 17. You are solely responsible for removing your information and material from any Sites or Services prior to any termination. AffiliNet is not obligated to retain your information, material, or data following termination.
17. Miscellaneous Clauses
A. Changes to Services. AffiliNet may change any Sites or Services from time to time, with or without notice, by adding, modifying, suspending, or discontinuing features of such Sites or Services. Your access to and use of any Sites or Services depends on you complying with any applicable laws or this TOU.
B. Force Majeure. Neither you nor AffiliNet will be liable to the other for any delay or failure to perform any obligation under this TOU if the delay or failure is due to circumstances beyond such party’s reasonable control. The affected party will notify the other party of such event and resume performance as soon as reasonably practicable.
C. Notices. If AffiliNet must send you additional information regarding the TOU or any Sites or Services, you consent to receiving this information electronically. AffiliNet may provide required information to you by email at any address you registered with the Sites or Services or via posting on the Sites or Services. Notices provided to you via email are effective on the transmission date. You will provide AffiliNet any written notice under this TOU by email to email@example.com.
D. Forum and Jurisdiction. This TOU is governed by the laws of the State of Ohio, USA, without regard to its conflict of law provisions. You irrevocably consent to the exclusive jurisdiction of the state and federal courts located in Columbus, Ohio, USA to resolve any dispute, claim, or controversy that arises from this TOU.
F. Additional Rights and Obligations. This TOU shall neither obligate AffiliNet, nor provide any rights, to any third-party whatsoever as an intended third-party beneficiary under this TOU. You and AffiliNet are independent contractors without authority to bind each other or to make any representations on behalf of the other party, and you and AffiliNet shall not be held to be partners or co-venturers. If any provision of this TOU is held invalid or unenforceable, such provision shall be held superseded by a valid, enforceable provision that most closely matches the intent of the original provision; the remaining provisions will remain in full force and effect. Any party’s failure to act with respect to a breach of this TOU does not constitute a waiver or affect that party’s rights to act subsequently. You may not assign rights or delegate any duties under this TOU without prior written notice to and consent by AffiliNet. This TOU will bind any permitted successors and permitted assigns.