Affiliate Terms and Conditions
1 Relationship. In the context of this Agreement, You are referred to herein as an Affiliate. You
agree not to:
iHeartDepot.com may deem inappropriate based upon the foregoing, and/or on reasonable Internet business standards as they may evolve, any Web site or content that You make available to Visitors through e-mail, and provide You with notice that You are in breach of this Section 1 (with the opportunity to cure in accordance with Section 5.2 below, except if Your Web site, e-mail content and/or business activity is illegal). Any suspected fraudulent, abusive or otherwise illegal content or activity by You on Your Web site or in Your subscription e-mails is grounds for immediate termination of this Agreement or deactivation of "Your Account" without prior notice by iHeartDepot.com and referral to the appropriate law enforcement agencies. iHeartDepot.com may not review all content on Your Web site or in Your subscription e-mails. You shall remain solely responsible for Your Web site and subscription e-mail content. iHeartDepot.com is, under no circumstances, responsible for the practices of any Affiliate or such Affiliateâ€™s Web site(s) and/or the content that iHeartDepot.com makes available through the iHeartDepot.com.com website and/or the content of Affiliatesâ€™ subscription e-mails.
2.1 Linking to iHeartDepot.com. Upon approval by iHeartDepot.com for acceptance into its Program,
You may post Links from Your Web site or subscription e-mails to iHeartDepot.com's Web site or Web site
content at Your discretion in accordance with this Agreement. If such Links are not dynamically updated
through the iHeartDepot.com.com website, You are obligated to update Links to iHeartDepot.com's Web site
or Web site content when notified to do so in order to earn Payouts.
2.2 Termination from Advertiser's Program/Campaign. After You have been approved by
iHeartDepot.com, iHeartDepot.com may terminate You from it's Affiliate Program or a Campaign at their
(a) the use of Google AdWords or Google AdSense;
3.1 Tracking. iHeartDepot.com shall provide You with access to tracking, reporting and support services. Critical information shall be tracked through the Tracking Code regarding Transactions that result directly from Links placed by You through the iHeartDepot.com.com website to Your Web site or subscription e-mail. You shall be able to produce informational reports and analyses through the iHeartDepot.com website. Tracking details regarding Visitor Transactions for all Advertisers is available on a real-time basis. iHeartDepot.com may make available, at fees that iHeartDepot.com shall publish from time-to-time, enhanced reporting capabilities and other services that are not included in the standard service.
3.2 Payout Rate. iHeartDepot.com shall establish through the iHeartDepot.com.com website a Payout rate for a qualifying Transaction for each of iHeartDepot.com's Campaigns. Your Account will be credited with each Payout in accordance with iHeartDepot.com's Campaign Payout rate for the relevant Campaign for each such Visitor action resulting directly from Links from each of Your or Your Sub-Affiliate's Web sites or subscription e-mail to the iHeartDepot.com Web site or Web site content.
3.3 Payment. If on the last day of the month Your Account exceeds iHeartDepot.com's "Minimum Balance Amount", as set by iHeartDepot.com (currently US $50), for Transactions reported for the previous month, iHeartDepot.com will issue to You any positive balance in Your Account. If you do not meet the minimum balance necessary to receive a payment, your balance will be carried forward to the next month and so forth until you reach the minimum balance necessary.
3.4 Chargebacks. iHeartDepot.com may request, or iHeartDepot.com may on its own initiative, debit Your Account with an amount equal to a Payout previously credited to Your Account in circumstances of a: product return; duplicate entry or other clear error; non-bona fide Transaction where there is no Affiliate failure to comply with this Agreement; or, with respect to a sale, non-receipt of payment from, or refund of payment to, the Visitor by iHeartDepot.com ("Chargeback"). Chargebacks requested by iHeartDepot.com in accordance with the preceding sentence may be applied up to and including the 60th day after the end of the month in which the Payout was earned ("Chargeback Period"). iHeartDepot.com may apply at any time Chargebacks for non-bona fide Transactions in circumstances of Affiliate or Sub-Affiliate failure to comply with this Agreement or iHeartDepot.com Service Agreement.
4 No Challenge to Intellectual Property. iHeartDepot.com acknowledges that it obtains no proprietary rights in Your Content, and agrees not to challenge Your proprietary rights to the Content unless and until this Agreement is terminated. You acknowledge that You obtain no proprietary rights in iHeartDepot.com's Content, patents, and patent applications, and agree not to challenge iHeartDepot.com's proprietary rights in iHeartDepot.com's patents and patent applications, and, with respect to the Content until this Agreement is terminated.
The licensees/sub-licensees agree that all goodwill arising as a result of the licensor's Intellectual Property shall inure to the benefit of the licensor, and that all non-licensed/or sublicense proprietary rights in the Intellectual Property remain with the licensor. Licensees/sub-licensees shall not adopt any names, trademarks, service marks or domain names that are confusingly similar to, or in combination with any of licensor's tradenames, trademarks, service marks and/or domain names..
5.2 Temporary Deactivation and Termination. This Agreement may be terminated by Affiliate upon 30 days notice, or by a non-breaching party if a breaching party fails to remedy a breach of this Agreement within 30 days' written notice, except in where no opportunity to cure is required to be extended (as specified herein). Your Account may be deactivated in accordance with Sections 1, 2.2, 2.3, 3.5, 4 or other material breach of this Agreement pending termination or cure of Your breach. If this Agreement is terminated for Your breach, You shall not be eligible to enter into a new click-on Affiliate Marketing agreement with iHeartDepot.com, and any attempt to do so shall be null and void.
Upon termination of this Agreement, an outstanding credit balance shall be paid by iHeartDepot.com to You within 90 days of the termination date, and an outstanding debit balance shall be paid by You to iHeartDepot.com within 30 days of termination of this Agreement, subject to amounts equivalent to pending for Chargebacks (that shall be paid promptly if and when iHeartDepot.com has been able to verify that no Chargeback is applicable). Upon termination of this Agreement, any license or sublicense granted under this Agreement will terminate, and the licensee/sub-licensee must immediately destroy or delete all physical and electronic copies of the Intellectual Property and the Confidential Information to be removed, and, in the case of termination, Links to iHeartDepot.com to be removed. Upon termination of this Agreement, or in case of deactivation of Your Account pursuant to the terms of this Agreement, You shall no longer accrue Payouts in Your Account for subsequent sales and/or Leads.
6 Changes to the iHeartDepot.com.com website. This Agreement, including the Introduction, contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a "click through" acknowledgement of assent. Notwithstanding the foregoing, iHeartDepot.com shall have the right to change, modify or amend ("Change") this Agreement, in whole or in part, by notifying You of such Change, by e-mail, at least 7 days prior to the effective date of such Change; provided however that either party shall have the right to terminate this Agreement pursuant to Section 5.2 in event that You do not agree to such Change.
7.1 Business Operations. Each party will make reasonable commercial efforts to keep its Web site operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other or Your Advertisers liable for any of the consequences of such interruptions.
7.2 Authority and Compliance with Laws. Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party's behalf. Each party is responsible for compliance with the applicable local laws in the jurisdiction from which it operates and represents and warrants such compliance. Each party represents and warrants that the party shall have all appropriate authority and rights to grant the licenses hereunder, and that to the party's knowledge the licenses, and in the case of iHeartDepot.com, the technology that iHeartDepot.com utilizes for the iHeartDepot.com.com website, do(es) not infringe a third party's (or the other party's) intellectual property rights.
7.3 Limitation of Liabilities. WITH THE EXCEPTION OF A PARTY'S INDEMNIFICATION OBLIGATIONS, ANY LIABILITY OF A PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR PAYOUTS PAID AND PAYABLE TO YOU BY iHeartDepot.com, INC. AND INTEREST PAID AND PAYABLE BY YOU TO iHeartDepot.com, INC. DURING THE TERM OF THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
7.4 Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BOTH PARTIES DISCLAIM ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT A PARTY'S SECURITY METHODS EMPLOYED WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF A PARTY'S "INFORMATION" (WEB SITE). ALL 'INFORMATION' AND 'COMPUTER PROGRAMS' PROVIDED IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER.
7.5 Benefit of the Bargain. THE PROVISIONS OF THIS SECTION 9 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.
8 Indemnification. Each party ("indemnitor") shall defend, indemnify and hold the other party ("indemnitee") harmless against all claims, suits, costs, damages and judgments incurred, claimed or sustained by third parties, including but not limited to Advertisers, for the indemnitor's breach of this Agreement and for claims of product liability and/or malpractice or misfeasance in the performance of services ("Claims"). Should any Claim give rise to a duty of indemnification under the provisions of this Agreement, then the indemnitee shall promptly notify the indemnitor, and the indemnitee shall be entitled, at its own expense, and upon reasonable notice to the indemnitor, to participate in, control the defense, compromise and to defend such Claim. The indemnitor may not settle any claim without the consent of the indemnitee, except upon terms and conditions offered or consented to by the indemnitee, which consent shall not be unreasonably withheld. Neither participation nor control in the defense shall waive or reduce any obligations to indemnify or hold harmless.
9.1 Relationships of Parties/Third Party Rights. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor. You agree that Your rights under iHeartDepot.com's Advertiser Service Agreement do not exceed iHeartDepot.com's duties, as Your rights are limited by any defenses, claims and rights iHeartDepot.com may have.
9.2 Choice of Law/Attorneys Fees. This Agreement is governed by the laws of the State of Nevada (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts in Carson City, Nevada. You consent to such venue and jurisdiction. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys fees and costs. iHeartDepot.com controls and operates its Web site from its offices in the U.S.A. and access or use where illegal is prohibited.
9.3 Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
9.4 Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
9.5 Assignment and Acknowledgement. Neither party may assign this Agreement without the prior express written permission of the other party. Your use of the iHeartDepot.com.com website is irrefutable acknowledgement by You that You have read, understood and agreed to each and every term and provision of this Agreement. iHeartDepot.com may establish from time to time rules and regulations regarding use of the iHeartDepot.com.com website as published on the iHeartDepot.com.com website and are incorporated herein.
IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.