1. Account information and sufficient rights.
You represent that: (i) all information you provide or direct us to about your business, products, services or otherwise, including without limitation, in our registration forms or process, order forms and your Advertiser Content, is accurate, complete and current, and kept up to date throughout the term of the Agreement; (ii) you have the necessary rights and authority to enter into and perform this Agreement, will comply with your obligations and representations and warranties as outlined in Section A(4) of this Agreement, and the person submitting or completing a registration on Infigonia ‘s website on your behalf has authority to enter into this Agreement; (iii) you are the registered owner of the Website, or otherwise have sufficient rights in the Website for the purpose of performing your obligations hereunder, including its content and domain name; (iv) you are at least eighteen (18) years old.
2.
You grant to Infigonia and its affiliates (which include but are not limited to our direct and indirect subsidiaries and parent company (“Affiliates“)), the right to transmit, process and maintain the personal and business information that you provide to us via the Program, and you further agree and hereby grant Infigonia and its Affiliates the right to use such information for Infigonia ‘ and its Affiliates’ business purposes and share such information with selected third parties, including but not limited to Infigonia ‘ agents, accountants, attorneys and other representatives for Infigonia ‘ and its Affiliates’ business purposes.
3.
Advertiser shall immediately notify Infigonia if there is any change in such information or security breach of the Account. Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password, and shall remain fully and solely responsible for any and all actions taken under the Account.
4. Balances/Inactive Accounts.
You will be required to fund your Account to pay for impressions, Clicks and/or actions, and other charges associated with our Program. It is your responsibility to keep your Account active and to terminate your account in the event you no longer wish to participate in the Program. If your Account is dormant for at least six (6) consecutive months, Infigonia reserves the right to charge a monthly $25 account administrative fee (“Administrative Fee“) against the balance of your Account. A “dormant account” is defined as one that has had no activity for 6 consecutive calendar months or longer (i.e. zero Clicks, zero conversions, zero referrals, zero referral earnings, and zero payments) as marked by Infigonia ‘ systems.
5. Refunds.
If we terminate your Account, we will refund you what is left in your Account as of the effective date of the termination. If you terminate your Account, termination is effective one (1) business day after we receive such notice (consistent with the terms below) and we will refund you what is left in your Account as of that date. Save for as described above, all payments are final and non-refundable.
6. Intellectual Property Rights.
- Our Program, the Infigonia Network, and our products, services and content (and any derivative works or enhancements of the same) including, but not limited to, all text, illustrations, files, images, computer programs, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation and interactive features (collectively, “Infigonia Content“) and all intellectual property rights to the same are owned by us, our licensors, or both. Additionally, all trademarks, service marks, trade names and trade dress that may appear in connection with the Program or Infigonia Network (including the service marks “Infigonia ” “Infigonia Network”, and “Shopperhits.com”) are owned by us, our licensors, or both (“Company Marks“). You do not acquire any right, title or interest in any Infigonia Content or Company Marks and shall not use any of the same except as expressly permitted under this Agreement. We reserve any rights in and to the Infigonia Content or Company Marks not expressly granted in this Agreement.
- We acknowledge your right, title, and interest in and to your trademarks, service marks, trade names and content on your Website(s) (“Advertiser Marks“). You reserve any and all rights in and to Advertiser Marks not expressly granted in this Agreement.
- Subject to the terms and conditions herein and for the term of this Agreement: (i) you grant Infigonia a nonexclusive, nontransferable, revocable and royalty-free right and license to use the Advertiser Marks in connection with the Program, the content license in Section A(2) above, and for associated publicity and related purposes; and (ii) we grant you a nonexclusive, nontransferable, revocable and royalty-free right and license to use the Company Marks solely in connection with the Program and subject to guidelines Infigonia may offer from time-to-time. Each party acknowledges and agrees that its use of the other’s marks will not create in such party any right, title or interest in such marks and that all such use of the marks of the other party and the goodwill generated thereby will inure to the benefit of the other party.
7. Data.
- Infigonia may, in connection with the Infigonia Network and/or any Advertiser Content and/or Infigonia Content you place on your Website (e.g., medals, icons, etc.), collect certain information from you and/or users, such as IP addresses, user agent, browser data, etc. (“Analytics Data“). We may use, display, reproduce, compile, edit, sell and/or distribute Analytics Data in connection with our business. For the avoidance of doubt and notwithstanding anything in this or other agreements between the parties, Analytics Data is not considered your confidential or proprietary information.
- It is hereby clarified that between the parties, Infigonia shall retain any and all right, title or interest in any data generated in connection with the Program or any other Infigonia services, including the Analytics Data, as well as any data regarding the performance of the campaign as gathered during the display and/or promotion of the Advertiser Content (including number of impressions, interactions, and header information), any other data associated with the campaign (including the Advertiser Content’s pricing information, description, placement information, and targeting information) and any data associated with individual users gathered during the display and/or promotion of the Advertiser Content (collectively, the “Data“). You shall have access or use the Data solely to the extent necessary for the performance of your obligations under the Agreement and not for any other purpose, and solely in accordance with applicable data protection laws and with Infigonia ‘ privacy policy, and you shall delete any Data within a reasonable time upon the termination or expiration of this Agreement.
- It is hereby clarified that the Data shall not include User Volunteered Data. “User Volunteered Data” is personally identifiable information collected from individual users by the Advertiser, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of the Advertiser.
8. Indemnification.
You hereby agree to defend, indemnify and hold harmless Infigonia and its affiliates, licensees, vendors, contractors, agents, and employees (collectively, “Agents”), from any and all claims, damages, losses, suits, actions, demands, proceedings, expenses, liabilities, costs and expenses, including without limitation reasonable attorney’s fees and costs, that may arise from your participation in the Program or any other Infigonia services, your breach of the terms of this Agreement, the use of the Advertiser Marks, any Advertiser Content or other materials that you provide us, any claim related to the Advertiser Content or use of the Website(s), or purchase or attempted purchase and/or use of any of your products or services made available through the Advertiser Content.
9. Warranty Disclaimers.
Infigonia makes no guarantee regarding the performance, placement, positioning, specifications, dimensions, frequency, volume, ranking or timing of Advertiser Content delivery, Managed Service, and any editorial decisions related to the Advertiser Content and/or any third party content. Infigonia makes no representation as to the performance of any Advertiser Content and/or Managed Service and disclaims all representations, warranties and liability with respect to the success or return on investment of any Advertiser Content and/or Managed Service.. YOU EXPRESSLY AGREE THAT YOUR PARTICIPATION IN THE PROGRAM IS AT YOUR OWN RISK. THE SERVICES OFFERED IN THE PROGRAM ARE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. NEITHER Infigonia NOR ANY OF ITS AGENTS MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE PROGRAM, ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE PROGRAM OR ANY OTHER INFIGONIA PRODUCT OR SERVICE, OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF. INFIGONIA HEREBY DISCLAIMS ON BEHALF OF ITSELF AND ITS AGENTS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION: (I) ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY OR CONTENT OF THE PROGRAM, OR ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE PROGRAM, MANAGED SERVICE, OR ANY OTHER INFIGONIA SERVICE, OR AS TO THE CUSTOMERS, IMPRESSIONS, CLICKS, ACTIONS, TRAFFIC OR OTHER BENEFITS TO BE GENERATED BY THE PROGRAM, OR THAT THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE; AND (II) ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. LIABILITY LIMITATIONS
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ANY LIABILITY OF INFIGONIA OR ANY OF ITS DIRECTORS, OFFICERS, AFFILIATES AND AGENTS, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION OR DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE STRICTLY LIMITED TO AN AGGREGATE AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID TO Infigonia FOR YOUR PARTICIPATION IN THE PROGRAM IN THE PRIOR THREE (3) MONTH PERIOD. IN NO EVENT SHALL Infigonia OR ANY OF ITS AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUES, LOSS OF GOODWILL, DEFAMATION OR LOSS OR DAMAGE TO DATA THAT ARISE FROM ANY ASPECT OF YOUR PARTICIPATION IN THE PROGRAM OR ANY BREACH OR ERROR BY Infigonia , WHETHER OR NOT YOU OR ADVERTISER HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. This limitation on such damages shall apply whether or not Infigonia is able to correct any problem or error, and whether or not Infigonia has breached any warranty or obligation, or failure of the essential purpose of any other remedy, it being the intention of the parties to allocate the risk of such damages as provided herein in all circumstances, and you acknowledge that Infigonia would not have entered into this Agreement but for this limitation on such damages.
11. Termination.
This Agreement will remain in effect until terminated by either party within forty eight (48) hours prior written notice to the other party. If you are dissatisfied with the Program or with any of the terms and conditions contained herein, your sole and exclusive remedy is to terminate your participation in the Program by giving us written notice as provided below. Notwithstanding anything contained in this Agreement to the contrary, we may, in our sole discretion, suspend or terminate your account and/or discontinue your participation in the Program or any other Infigonia service or product at any time. All decisions made by us in this matter will be final and you agree that we shall have no liability to you or anyone else with respect to such decisions. No Advertiser shall have any vested right or enforceable interest to participate in the Program. Notices. We may give general notices to participating Advertisers by postings on the Business Services portion of www.Infigonia.org (using commercially reasonable efforts to notify you via email of any such postings), and you agree to be bound thereby. Notices specific to you will be sent, if possible, by electronic mail to your email address, or otherwise by U.S. mail, overnight delivery service or in person. You may give notice to us by email to support@Infigonia .org, or otherwise by U.S. mail, overnight delivery service or in person. Section A (3) (Advertising Charges and Payment) shall survive termination of this Agreement.
12. MANDATORY ARBITRATION AND DISPUTE RESOLUTION.
- Explicitly excluding any payment obligations under Section A(3) to this Agreement, in the event of any dispute between the parties arising from or in any way related to this Agreement, appropriate representatives of each party shall meet, within thirty (30) days after the written request of either party, and attempt to negotiate or mediate a mutually-agreeable resolution before either party shall commence any arbitration proceeding or other legal action (as may be permitted by this Agreement). If such negotiation or mediation does not resolve the issue to the mutual satisfaction of the parties within sixty (60) days after such written request, then all disputes arising out of, relating to or connected with this Agreement will be exclusively resolved in the State of New York in New York city. Any arbitrator’s award may be enforced by a federal or state court located in New York city, NY. No arbitration proceeding or other legal action may be commenced regarding any disputes arising out of, relating to or connected with this Agreement more than one (1) year after the date that the alleged breach or other grounds for dispute originally occurred.
- For avoidance of doubt, Section B(13)(i) and/or any arbitration rights under this Agreement shall not apply to any dispute or claim arising of related to any payment obligations incurred in connection with this Agreement, which shall be exclusively settled by the competent courts in accordance with Section B(15).
13. Amendment; Additional Terms.
- In certain instances it may be necessary to update or modify this Agreement to reflect updates to our business practices and policies, and for other reasons. We also may, in some instances, need to provide you with operating rules, guidelines, policies or additional terms that govern your participation in our Program (“Additional Terms“). You agree that we may at any time provide you with Additional Terms, or update or modify this Agreement, as appropriate or necessary. To the extent any Additional Terms conflict with this Agreement, the Additional Terms will control.
- In the event we modify this Agreement or any Additional Terms, we will send notice to you at the email address we have on file and by posting notice of such modifications in the Business Services portion of www.Infigonia.org. Unless you notify us within ten (10) days of the day we send the email notice to you or post the modifications consistent with this Agreement, whichever occurs last, you will be deemed to have accepted the new terms. Notwithstanding the foregoing, your continued participation in the Program after the posting of modifications to this Agreement and/or any Additional Terms will signify your assent to and acceptance of the new terms.
14. Choice of Law/Venue.
This Agreement shall be governed by and construed under the laws of the State of New York. The sole and exclusive jurisdiction and venue for any dispute under this Agreement shall be the appropriate state of New York. By submitting and completing your registration on Infigonia ‘s website or otherwise signifying your acceptance of this Agreement, you and your Affiliates and/or Advertiser Partners irrevocably submit to the personal jurisdiction of such courts.
15. No Trial by Jury/Class Action.
Both parties hereby irrevocably waive any right to a trial by jury or to join claims with those of others in the form of a class action or similar procedural device for any dispute arising under this Agreement, whether brought in court or arbitration. If for any reason any court or arbitrator holds that the class action restriction set forth in his Section is unconscionable or unenforceable, then the terms of Section 10 shall not apply and the classwide dispute must be brought in court.
16. Independent Contractor.
Nothing in this Agreement is intended or should be construed to create a joint venture, partnership, franchise, agency or similar legal arrangement between Infigonia and you or any other Advertiser or agency. Each of the parties are independent contractors under this Agreement.
17. Miscellaneous.
If there is any conflict between the English version of this Agreement and any translated version we may provide, the parties agree that the English version will control in all instances. No waiver by either party of any breach or default under this Agreement shall be deemed a waiver of any other breach or default. Neither the course of conduct between any member nor trade practices shall act to modify any provision of this Agreement. The section headings used in this Agreement are for convenience only and shall not be given any legal import. If any part of this Agreement is deemed invalid, unlawful or unenforceable for any reason, the parties agree that only that part of the Agreement shall be stricken and that the remaining terms in this Agreement shall remain in full force and effect and in no way shall be affected, impaired or invalidated. You may not assign this Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent. This Agreement (including any Additional Terms incorporated by reference) constitutes the entire agreement, and supersedes all previous written or oral agreements, between you and Infigonia in connection with the Program. Without limiting the foregoing, any Advertiser clickwrap or online agreement shall be ineffective to modify the terms of this Agreement, even if assented to by a representative of Infigonia after the execution of this Agreement; any such assent will be deemed a mere technical necessity to access Advertiser’s program and services governed by this Agreement and thus will have no binding effect. Advertiser hereby consents that Infigonia may assign, transfer or delegate this Agreement without notice to Advertiser. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.
18.
No amendments or modifications may be made to this Agreement without the express written consent of Infigonia.
19.
During the Term of the Agreement and for one (1) year thereafter, neither Advertiser nor any of its affiliates, directly or indirectly, either on behalf of itself or any third party, may with respect to any partner that Advertiser (or any of its affiliates) knows, reasonably should know, or subsequently learns has a relationship with Infigonia or has had a relationship with the other Infigonia during the Term: (a) take any action, or plan to take any action, with the purpose or effect of circumventing Infigonia relationship with such partner; (b) encourage any partner to reduce or terminate its relationship with Infigonia; (c) otherwise engage, or continue to engage, with such partner to provide products or services competitive with those offered by Infigonia; or (d) take any action with the purpose or effect of aiding any partner to violate any agreement it has or had with Infigonia, including without limitation any exclusivity provisions.
20.
During the term of the Agreement and for two (2) years thereafter, neither Advertiser nor any of its Affiliates, directly or indirectly, either on behalf of itself or any third party, may knowingly solicit or engage in any communication with any current employee of Infigonia or its Affiliates, or any individual who was an employee or contractor of Infigonia, with the purpose or effect of inducing such person to terminate his or her employment with Infigonia or its Affiliates or compensating or engaging such person in any way to compete with the products or services of Infigonia. In the event that any provision of this Section 20 is held to be in any respect an unreasonable or unenforceable restriction, then such provision shall not be void or voidable, but shall be deemed reformed, or shall be deemed excised from this Agreement, as the case may require, in such jurisdiction and this Agreement shall be construed and enforced to the maximum time, geographic, product or service, or other limitations permitted by applicable law as if such provision had been originally incorporated herein as so modified or restricted, or as if such provision had not been originally incorporated herein, as the case may be.
21.
The Parties agree that any breach of Advertiser’s obligations under Section 19 and/or 20 would result in irreparable injury, and that in the event of any breach or threatened breach hereof, Infigonia will be entitled to seek injunctive relief in addition to any other remedies to which Infigonia may be entitled, without the necessity of posting bond.