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Netpartner Limited (“Netpartner”) operates an online affiliate network (“Netpartner Affiliate Network”) that is accessible to participants (“Network Participants”) through Netpartner’s web site located at www.netpartner.com (“Netpartner Website”). Certain Network Participants, referred to as “Advertisers,” are online merchants of goods and services that may offer opportunities for other Network Participants to earn compensation in exchange for promoting such merchants online (“Affiliate Opportunities”). Other Network Participants, referred to as “Publishers,” control space on web pages, email messages, software applications and other items and may take advantage of Affiliate Opportunities by displaying advertising materials provided by Advertisers (“Advertiser Materials”) on such space.
The terms and conditions set forth below (these “Publisher Terms”) apply to each Publisher. By using or accessing the Netpartner Affiliate Network, each Publisher agrees to be bound by these Publisher Terms. Netpartner reserves the right to revise these Publisher Terms at any time, and any such revisions will be effective seven (7) days after Netpartner notifies Publisher of such revisions in an email message send to the administrative email address entered into by Publisher in its user profile on the Netpartner Website. If Publisher does not agree to any such revisions, Publisher must terminate its account on the Netpartner Website and all of its activities in connection with the Netpartner Affiliate Network prior to the end of such seven (7) day period. Failure to do so will constitute Publisher’s binding and legally enforceable acceptance of such revisions.
Publisher acknowledges and agrees that, in connection with Publisher’s participation in the Netpartner Affiliate Network or Publisher’s use of the Netpartner Website, Publisher may be provided with certain confidential and proprietary data and information from time to time (“Confidential Information”). Without limiting the generality of the foregoing, the amount of Advertiser Payments that are paid and payable to Advertiser, and the rates and other information used to calculation such Advertiser Payments, will be deemed to be Confidential Information. Publisher will not, and will have no right to, disclose any Confidential Information to any third parties, or use any Confidential Information except in connection with the exercise of its rights or performance of its obligations under these Publisher Terms.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NETPARTNER AND ITS AFFILIATES, AND ITS AND THEIR LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE NETPARTNER NETWORK, NETPARTNER WEBSITE, ALL AFFILIATE OPPORTUNITIES AND ALL OTHER ASPECTS OF THESE PUBLISHER TERMS, INCLUDING IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Without limiting the generality of the foregoing, none of Netpartner and its affiliates, and its and their licensors, suppliers, advertisers, sponsors and agents, makes any representations or warranties that Publisher’s use of the Netpartner Network or the Netpartner Website, or Publisher’s participation in any Affiliate Opportunities, will be uninterrupted, error-free or secure, or that defects will be corrected. Publisher assumes all responsibility and risk for Publisher’s use of the Netpartner Network and Netpartner Website and Publisher’s participation in Affiliate Opportunities. No opinion, advice or statement of Netpartner or its affiliates will create any warranty.
Publisher will indemnify, defend and hold Netpartner and its affiliates, and its and their licensors, suppliers, advertisers, sponsors and agents, harmless from and against any and all claims, suits, proceedings, demands and actions, and all losses, liabilities, costs and expenses of any nature (including reasonable attorneys’ fees), arising out of or relating to (a) any breach by Publisher of any provision of these Publisher Terms or any Affiliate Agreement, (b) any Publisher Property, or (c) any other acts or omissions of Publisher in connection with Publisher’s use of the Netpartner Affiliate Network or Netpartner Site or Publisher’s participation in any Affiliate Opportunity.
NONE OF NETPARTNER AND ITS AFFILIATES, AND ITS AND THEIR LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS AND AGENTS, WILL BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, OR ANY DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL, LOST PROFITS OR BUSINESS INTERRUPTION, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING IN ANY WAY TO THE NETPARTNER NETWORK, THE NETPARTNER WEBSITE, ANY AFFILIATE OPPORTUNITIES OR ANY OTHER ASPECT OF THESE PUBLISHER TERMS, EVEN IF EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF NETPARTNER AND ITS AFFILIATES TO PUBLISHER IN CONNECTION WITH THE NETPARTNER NETWORK, THE NETPARTNER WEBSITE, ALL AFFILIATE OPPORTUNITIES AND ALL OTHER ASPECTS OF THESE PUBLISHER TERMS WILL NOT EXCEED THE GREATER OF (A) the sum of all Commissions collected by Netpartner (if any) for AFFILIATE OPPORTUNITIES IN WHICH PUBLISHER PARTICIPATED during the twelve-month period immediately preceding the first event giving rise to such liability AND (B) ONE THOUSAND U.S. DOLLARS (US$1,000).
Publisher acknowledges that Netpartner has permitted Publisher to participate in the Netpartner Affiliate Network and to use the Netpartner Website in reliance on the limitations of liability, disclaimers of warranties, exclusion of damages and exclusive remedies contained in these Publisher Terms, and that each of the foregoing provisions forms an essential and fundamental part of the basis of the bargain between the parties, without which Netpartner would not have granted such permission. Each party agrees that such provisions will survive and apply notwithstanding any failure of essential purpose of any limited remedy or limitation of liability.
These Publisher Terms, and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to these Publisher Terms, will be governed by and construed in accordance with the laws of Hong Kong Special Administrative Region of the People’s Republic of China. These Publisher Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. The parties irrevocably agree to the non-exclusive jurisdiction of the courts of Hong Kong for the purpose of hearing and determining any suit, action or proceeding, or settling any dispute, arising out of or in connection with these Publisher Terms.
THIS AFFILIATE AGREEMENT (“AGREEMENT”) APPLIES TO EACH AFFILIATE MARKETING OPPORTUNITY (“AFFILIATE OPPORTUNITY”) THAT IS OFFERED ON THE WEBSITE (“NETPARTNER WEBSITE”) OPERATED BY NETPARTNER LIMITED (“NETPARTNER”).
WITH RESPECT TO EACH AFFILIATE OPPORTUNITY, THE PARTIES TO THIS AGREEMENT ARE THE NETPARTNER AFFLIATE NETWORK MEMBER OFFERING SUCH AFFILIATE OPPORTUNITY (“ADVERTISER”) AND THE NETWORK AFFILIATE NETWORK MEMBER REQUESTING TO PARTICIPATE IN SUCH AFFILIATE OPPORTUNITY (“PUBLISHER”). ADVERTISER AND PUBLISHER HEREBY AGREE AS FOLLOWS:
All Advertiser Payments will be calculated based upon tracking and reporting provided by Netpartner.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, EACH PARTY AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AFFILIATE OPPORTUNITY AND ALL OTHER ASPECTS OF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
NEITHER PARTY, ITS AFFILIATES, OR ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS OR AGENTS, WILL BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, OR ANY DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL, LOST PROFITS OR BUSINESS INTERRUPTION, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING IN ANY WAY TO THE AFFILIATE OPPORTUNITY OR ANY OTHER ASPECT OF THIS AGREEMENT, EVEN IF EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF EACH PARTY AND ITS AFFILIATES TO PUBLISHER IN CONNECTION WITH THE AFFILIATE OPPORTUNITY AND ALL OTHER ASPECTS OF THIS AGREEMENT (EXCLUDING SUCH PARTY’S PAYMENT OBLIGATIONS HEREUNDER) WILL NOT EXCEED THE GREATER OF (A) the sum of all ADVERTISER PAYMENTS (if any) ACTUALLY RECEIVED BY ADVERTISER UNDER THIS AGREEMENT during the twelve-month period immediately preceding the first event giving rise to such liability AND (B) ONE THOUSAND U.S. DOLLARS (US$1,000).
Each Party acknowledges that the other Party has agreed to Publisher’s participation in the Affiliate Opportunity in reliance on the limitations of liability, disclaimers of warranties, exclusion of damages and exclusive remedies contained in this Agreement, and that each of the foregoing provisions forms an essential and fundamental part of the basis of the bargain between the Parties, without which the other Party would not have agreed to such participation. Each Party agrees that such provisions will survive and apply notwithstanding any failure of essential purpose of any limited remedy or limitation of liability.
This Agreement, and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement, will be governed by and construed in accordance with the laws of Hong Kong Special Administrative Region of the People’s Republic of China. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.