This Affiliate Terms and Conditions Agreement (the “Agreement”) is a legally binding agreement between you “You”) and SpeakWithDoc Inc (on behalf of itself and its affiliates) (collectively, “SpeakWithDocTM” or “We”) and is effective on the date You accept the terms and conditions of this Agreement as set forth herein (the “Effective Date”). BY CLICKING ON THE “ACCEPT” BUTTON AND/OR PARTICIPATING IN THE SPEAKWITHDOCTM AFFILIATE PROGRAM (THE “AFFILIATE PROGRAM”) YOU ACKNOWLEDGE THAT YOU HAVE READ THE TERMS OF THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS SET FORTH HEREIN, DO NOT CLICK THE “ACCEPT” BUTTON OR PARTICIPATE IN THE AFFILIATE PROGRAM.
1. Eligibility. To be eligible to be a SpeakWithDocTM affiliate (“Affiliate”), You must operate a website that has been approved by SpeakWithDocTM, and Your website must not and, during the term of this Agreement, shall not, as determined by SpeakWithDocTM in its sole discretion: (a) infringe on SpeakWithDocTM’s or any other third party’s intellectual property, publicity, or privacy rights; (b) violate any law or regulation; (c) contain any false or misleading information; (d) operate or utilize a website or e-mail link to websites that contain or promote, any of these types of content: libelous, defamatory, obscene, abusive, violent, bigoted, hate-oriented, illegal, cracking, hacking or SpeakWithDocTM, content targeted at children, or the offer of any illegal good or service, or link to a website(s) that do so; (e) promote discrimination based upon race, sex, religion, nationality, disability, sexual orientation or age; (f) engage in spamming, indiscriminate advertising or unsolicited commercial e-mail; (g) be based outside of the United States (unless You receive prior written approval from SpeakWithDocTM; and/or (h) engage in any illegal activity of any type, including but not limited to displaying illegal content on Your website or offering any illegal good or service through Your website. You remain solely responsible for all content on Your website.
2. True and Complete Information. You represent and warrant that all information that You provided in connection with becoming an affiliate of SpeakWithDocTM is true and complete. You further agree to maintain and promptly update such information to keep it accurate. If SpeakWithDocTM determines or has reason to believe that any information provided by You is not true and/or complete, You shall indemnify SpeakWithDocTM in accordance with Section 13 below and SpeakWithDocTM may immediately terminate Your participation with respect to the SpeakWithDocTM website if such breach also constitutes a breach of Section 1 above.
3. Content Usage Restrictions. You represent and warrant that You shall not, except as specifically provided for pursuant to the Affiliate Program: (i) copy or display any SpeakWithDocTM Content (as hereinafter defined); (ii) modify, adapt, translate or create derivative works based on the SpeakWithDocTM Content; (iii) remove, erase, or tamper with any copyright or other proprietary notices in any copy of any of the SpeakWithDocTM Content; (iv) sell, market, license, sublicense, distribute, disclose or otherwise grant to any person any right or interest in the SpeakWithDocTM Content; (v) buy or bid on any of the SpeakWithDoc trademarks, or variations of the trademarks, on any search engine or site; or (vi) take any action which may cause deception, confusion or otherwise blurs, tarnishes or dilutes the quality of the SpeakWithDocTM Content or the SpeakWithDoc trademarks or other intellectual property or the goodwill associated therewith, all as shall be determined by SpeakWithDocTM. For any search functionality on Your site using the SpeakWithDoc trademarks, (a) SpeakWithDoc Links must always appear at the top of the list, (b) any Link that contains SpeakWithDoc in the title must connect the user directly back to the SpeakWithDocTM website, and (c) such Link must be supplied to You by v. You agree to use the SpeakWithDocTM Content exactly in the form provided to You pursuant to the Affiliate Program. Upon termination of this Agreement, for any reason, You shall immediately cease using, displaying or otherwise maintaining any interest in the SpeakWithDocTM Content. For purposes of this Agreement “SpeakWithDocTM Content” means any and all trademarks, service marks, logos and other content which SpeakWithDocTM makes available to You in connection with the Affiliate Program, including, but not limited to, banners, buttons, or other display advertisements created and furnished by SpeakWithDocTM. Such SpeakWithDocTM Content may be owned by SpeakWithDocTM or licensed to SpeakWithDocTM by a third party. You agree that You do not and will not (i) use or in any way exploit, any information, software, photos, video, text, graphics, music, sounds, ideas, recipes, articles, content and other materials of SpeakWithDocTM, other than the SpeakWithDocTM Content, alone or in connection with any other content, including SpeakWithDocTM Content and (ii) include any trademark of SpeakWithDocTM, or a variant or misspelling of a trademark of SpeakWithDocTM, in any domain name.
5. Property Ownership Rights. You agree and acknowledge that SpeakWithDocTM retains all rights, title and interest in and to all property rights embodied in or associated with the SpeakWithDocTM Content. You represent and warrant that You will not take any action or assist any third party to take action challenging, contesting or otherwise inconsistent with SpeakWithDocTM‘s ownership of the SpeakWithDocTM Content and any goodwill and benefits accruing from the use of such SpeakWithDocTM Content will automatically vest in SpeakWithDocTM.
6. Operation and Maintenance of the SpeakWithDocTM Web Site. You acknowledge and agree that SpeakWithDocTM may accept or reject, in its sole and absolute discretion, all subscriptions from customers placed on or through the SpeakWithDocTM website. You further acknowledges and agrees that (i) it does not have any authority to make or accept any offer or commitment on behalf of SpeakWithDocTM, (ii) SpeakWithDocTM cannot, and does not, guarantee the availability and accessibility of the SpeakWithDocTM website, and (iii) SpeakWithDocTM is solely responsible for all pricing, subscription processing, online fulfillment, cancellation, refunds and all other aspects of the SpeakWithDocTM website and its products and offerings. All personal information obtained from customers on the website shall be the exclusive property of SpeakWithDocTM.
8. Public Announcement. You may not mention SpeakWithDocTM in a press release or other public statement (other than the banners, buttons, or other display advertisements created and furnished by SpeakWithDocTM) unless You have received prior written approval from SpeakWithDocTM.
9. Representations and Warranties. You hereby represent and warrant to SpeakWithDocTM that: (i) You have duly and validly executed this Agreement and it constitutes Your legal, valid, and binding obligation, enforceable against You in accordance with its terms; (ii) the execution, delivery, and performance by You of this Agreement and the consummation by You of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (a) any provision of law, rule, or regulation to which You are subject, (b) any order, judgment, or decree applicable to You or binding upon Your assets or properties, (c) any provision of Your by-laws or certificate of incorporation if applicable, or (d) any agreement or other instrument applicable to You or binding upon Your assets or properties; (iii) no consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by You in connection with the execution, delivery, and performance of this Agreement or the taking by You of any other action contemplated hereby; and (v) there is no pending or material threatened claim, action, or proceeding against You, or any subsidiary or affiliate of Yours, with respect to the execution, delivery or consummation of this Agreement, or with respect to Your trademarks, and there is no basis for any such claim, action, or proceeding.
10. Payments. SpeakWithDocTM agrees to pay to You the fee amount set forth on the Notes To Affiliate Page, which fee may be changed from time to time by SpeakWithDocTM by posting a different amount on the Notes To Affiliates Page of Your Account and, or by providing seven (7) days notice for a decrease in the fee amount. Payments will be made for those clients that have clicked on your applicable links and made a payment for membership within 14 days of such clicks. For purposes of this Agreement, “Clicks” means the occurrence of an end user clicking on a Link. SpeakWithDocTM shall not pay You for any transactions made directly by You or Your agents using Your own Links. Payments will be made on the last day of the month for the previous months earnings. No payment will be made for sums under one hundred dollars ($100.00) and such sums would be brought forward to the next payment cycle.
11. Responsibility for Affiliate URLs. You will be solely responsible for the development, operation, and maintenance of all URLs that are linked to the SpeakWithDocTM website and for all materials that appear on such URLs. You acknowledge and agree that it shall be responsible for complying with the terms hereof.
12. No Joint and Several Liability. You acknowledge and agree that neither SpeakWithDocTM, its subsidiaries, parents, other affiliates, directors, officers, employees, agents, successors or assigns (collectively, the “SpeakWithDocTM Parties”), shall be liable to any party, including You, for any claim, liability, suit, action, judgment, loss, costs, expenses or other damages related to or in connection with Your website(s) and/or any content or other information displayed or contained thereon, including but not limited to, claims of infringement. Without limiting the generality of the proceeding sentence, You acknowledge and agree that, notwithstanding any provision in any agreement including but not limited to any provision imposing joint and several liability on SpeakWithDocTM, SpeakWithDocTM shall not be liable to You or any of its subsidiaries, parents, other affiliates, directors, officers, employees, agents, successors or assigns for any claims for indemnification, contribution or otherwise.
13. Affiliate Indemnification. You, at its Your expense, shall indemnify, defend and hold harmless, SpeakWithDocTM against any claim, suit, action, judgment, liability, loss, cost, expenses and other damages, including, without limitation, reasonable attorney’s fees, based upon or in connection with (i) any breach or alleged breach of Your representations and warranties hereunder, (ii) the failure to comply with or perform any obligation or agreement of You hereunder, or (iii) the Your website(s) and/or any content or other materials displayed or contained thereon, including, but not limited to, claims of infringement.
14. Term of the Agreement. This Agreement shall begin on the Effective Date and shall terminate on the date You are no longer an Affiliate of SpeakWithDocTM pursuant to the Affiliate Program.
15. Termination. SpeakWithDocTM may terminate this Agreement at any time and for any reason upon seven (7) days written notice (e-mail or other electronic communication will suffice) to Affiliate with effect from the 8th day from such notice. SpeakWithDocTM may terminate this Agreement immediately, without notice, if SpeakWithDocTM determines, in its sole discretion, that Affiliate has breached Affiliate’s obligations pursuant to Section 1. In addition, SpeakWithDocTM may terminate this Agreement, in its sole discretion, immediately upon written notice (e-mail or other electronic communication will suffice) if: (a) Affiliate has failed to comply with or has breached Section 3 or 4, ; (b) SpeakWithDocTM believes in good faith that You or Your Sub-Affiliate is harming, blurring or tarnishing the SpeakWithDoc brand, any other trademark, service mark or trade name owned or licensed by SpeakWithDocTM or SpeakWithDocTM’s reputation; (c) SpeakWithDocTM believes in good faith that Your or Your Sub-Affiliate’s actions or one or more of Your or Your Sub-Affiliate’s websites is causing or would cause SpeakWithDocTM to be in breach of its contractual obligations with third parties.
16. Modification of Agreement. SpeakWithDocTM reserves the right to modify this Agreement upon no less than two (2) days notice to Affiliate. SpeakWithDocTM may modify this Agreement by notifying Affiliate, and such notification may be completed electronically. IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, AFFILIATE’S SOLE RECOURSE IS TO TERMINATE THIS AGREEMENT. AFFILIATE’S CONTINUED PARTICIPATION AS AN AFFILIATE FOLLOWING THE MODIFICATION OF THIS AGREEMENT SHALL CONSTITUTE ACCEPTANCE OF SUCH MODIFICATION BY AFFILIATE.
17. LIMITATION OF DAMAGES. SPEAKWITHDOCTM WILL HAVE NO LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF REVENUE OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF SpeakWithDocTM WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, SPEAKWITHDOCTM’S AGGREGATE LIABILITY ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE AFFILIATE PROGRAM WILL IN NO EVENT EXCEED THE TOTAL REVENUE SHARE PAID OR PAYABLE BY SPEAKWITHDOCTM TO AFFILIATE UNDER THE AFFILIATE PROGRAM DURING THE IMMEDIATELY PRECEDING 12 MONTH PERIOD PRIOR TO THE DATE SUCH LIABILITY AROSE.
18. WARRANTY DISCLAIMER. SPEAKWITHDOCTM MAKES NO WARRANTIES, REPRESENTATIONS, GUARANTEES, OR CONDITIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. IN PARTICULAR, SPEAKWITHDOCTM MAKES NO REPRESENTATION THAT THE OPERATION OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE.
19. Independent Contractors. SpeakWithDocTM and Affiliate are independent contractors and nothing in this Agreement or the Affiliate Program is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative, or employment relationship.
20. Governing Law. This Agreement is governed by and in accordance with the substantive laws of the State of New York, excluding its conflict of laws principles. Any lawsuit relating to this Agreement must be brought in the federal or state courts located in New York, New York.
21. Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify, or place any construction upon or on any of the provisions of this Agreement.
22. Assignment. The Affiliate may not assign any of its rights or delegate any of its obligations under this Agreement, by operation of law or otherwise, without SpeakWithDocTM‘s prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.
23. Waiver. SpeakWithDocTM‘s failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
24. Entire Agreement. This Agreement represents the complete agreement and understanding between the parties, and supersedes any other oral or written communications or understandings between the parties regarding the subject matter hereof. No amendment or modification to this Agreement will be binding upon SpeakWithDocTM unless agreed to by an authorized representative of SpeakWithDocTM.