The Ultimate Digital Platform
Digital Product NetWork
Digital Product NetWork
This PayGenie Vendor Agreement (this "Agreement") is made by and between PayGenie, a Florida corporation, d/b/a PayGenie or PayGenie.com ("PayGenie" or "Us" or "We"), and you, as a vendor participating in the PayGenie network and associated services ("Vendor" or "You").
You must agree to abide by the terms and conditions contained in this Agreement in order to participate in the network and services provided by PayGenie. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE REGISTERING FOR THE PayGenie NETWORK AND SERVICES. By signing up for the PayGenie network and services, You indicate Your acceptance of the terms and conditions set forth in this Agreement. If You do not accept this Agreement, do not register for or continue use of the PayGenie network or services.
1. Definitions . The following is a list of defined terms used throughout this Agreement.
a. Affiliate . An "Affiliate" is an individual or entity that registers with PayGenie and agrees to display Links (hereinafter defined) and otherwise market products or services for Vendors (hereinafter defined) in order to generate approved sales by such Vendors, in exchange for commissions.
b. Insertion Order . An "Insertion Order" is the form describing the particular specifications by which a Vendor is willing to allow an Affiliate to market its products or services. Insertion Orders may specify types of media used (e.g., Links or banner ads), details of approved sales, and commissions available for such approved sales. Insertion Orders may appear under a Vendor's page in the Product Library or may be supplied separately to an Affiliate.
c. Link . A "Link" is a hyperlink placed by an Affiliate that, when clicked on, serves the Vendor's website to the internet user's browser. The Link may be in the form of text, a product image, a button, a banner, or any other format acceptable to the Vendor and defined in an applicable Insertion Order.
d. Product Library . The "Product Library" is the section of the PayGenie.com website where Vendors list the products or services for which they are willing to enter into an arrangement with an Affiliate for purposes of allowing that Affiliate to post Links and otherwise market the Vendor's products or services.
e. Vendor . A "Vendor" is an individual or entity that registers with PayGenie and agrees to pay a commission for approved sales to a customer or user generated by an Affiliate registered with PayGenie.
2. The Service . PayGenie operates a program (the "Affiliate Program") whereby You can sign up with PayGenie in order to arrange to have Affiliates post Links and otherwise market Your products or services, pursuant to the individual terms You propose. All relationships and interactions between You and any Affiliates will be managed by and conducted through the Affiliate Program and will be subject to the terms and conditions of this Agreement, the PayGenie Affiliate Agreement, the PayGenie Privacy Policy and any other applicable policies or agreements listed on the PayGenie.com website (the "Site"). Each arrangement with each Affiliate will additionally be subject to the terms posted by You in the PayGenie Product Library or specified in the applicable Insertion Order.
As part of the Affiliate Program and the service offered on the Site, PayGenie may publish ratings for the Affiliates and/or the Vendors participating in the Affiliate Program, based on information supplied by the Affiliate or the Vendor during the registration process and on information relating to sales performance for such Affiliate or Vendor. Such ratings are based on criteria chosen by PayGenie, in its sole discretion. You acknowledge and agree that PayGenie has the right to evaluate information relating to You and to publish on the Site the ratings for You, based on the criteria, information, and methods PayGenie chooses, in its sole discretion. In no event does PayGenie warrant or guarantee correctness, comprehensiveness, completeness, accuracy, timeliness, or fitness for a particular use or purpose of any ratings on the Site, nor does PayGenie warrant or guarantee any results or performance based on any particular ratings. Such ratings are provided solely as a tool to aid Affiliates and Vendors in their decision about who they would like to work. You are solely responsible for investigating and determining the Affiliates with which You choose to work and for the consequences of such determination. In no way shall any rating be deemed an endorsement by PayGenie of any particular Affiliate.
3. Registration . In order to register as a Vendor with PayGenie and to participate in the Affiliate Program, You must be at least 18 (eighteen) years of age and must complete the required application form found on the Site, which requires supplying a name, supplying a valid e-mail address and creating an acceptable password. Additionally, You must comply with all the requirements for creating a valid Payment Processing Account (hereinafter defined) and linking that account with the PayGenie payment system, as detailed in the following section. PayGenie reserves the right, in its sole and absolute discretion, to (i) deny any person or entity the right to register with PayGenie or participate in the Affiliate Program and/or (ii) terminate any person or entity's participation in the Affiliate Program at any time.
The following types of websites are NOT ALLOWED TO PARTICIPATE in the PayGenie Affiliate Program:
As part of the registration process, You will select a username and password combination that You use to access Your account within the Affiliate Program (Your "PayGenie Account"). You shall provide PayGenie with accurate, complete and updated registration information. You may not select the name of another person or entity with the intent of impersonating that person or entity or deceiving Affiliates, other Vendors or other users as to Your true identity. You agree that PayGenie may rely on any data, information, notice or request furnished to PayGenie by You that is reasonably believed by PayGenie to be genuine and to have been sent or presented by a person reasonably believed by PayGenie to be authorized to act on Your behalf. You shall notify PayGenie by e-mail sent to the following address of any known or suspected unauthorized uses of Your PayGenie Account, or any known or suspected breach of security, including loss, theft or unauthorized disclosure of Your username or password: [email protected]. You are solely responsible for maintaining the confidentiality of Your username and password and are solely responsible for all usage and activity on or through Your PayGenie Account, including use of Your PayGenie Account by a third party authorized by You. Any fraudulent, abusive or otherwise illegal activity may be grounds for termination of Your PayGenie Account by PayGenie, in its sole and absolute discretion, and referral to the appropriate law enforcement agencies.
PayGenie reserves the right to send e-mails to You at the e-mail address You provide and to otherwise communicate with You for purposes related to the Affiliate Program, including, but not limited to, informing You of applicable changes or additions to the Affiliate Program, the Site or this Agreement.
4. Payment Processing Account . In order to be eligible to participate in the Affiliate Program, You must register and create an account with a PayGenie supported payment processor (Your "Payment Processing Account"), which includes supplying all information required by such supported payment processor. You are responsible for complying with all requirements for registration with such supported payment processor and for otherwise complying with all applicable terms and conditions located on the supported payment processor's website. In addition, You must complete the necessary processes in order to properly link Your Payment Processing Account to the PayGenie payment system. Failure to properly link Your Payment Processing Account to the PayGenie payment system may be grounds for termination of Your PayGenie Account and Your participation in the Affiliate Program, as PayGenie determines in its sole and absolute discretion.
In no event shall PayGenie be responsible for ensuring proper registration with Your payment processor, proper linking to the PayGenie payment system, or proper payment of any sums under this Agreement. All payments through the Affiliate Program are required to be processed through a PayGenie supported payment processor, using Your Payment Processing Account, and are subject to all terms and conditions provided on the supported payment processor's website. You are solely responsible for ensuring proper receipt of payments. In no event does PayGenie make any representations or warranties of any kind relating to the supported payment processor's website, Your Payment Processing Account, or any payments through such account; nor is PayGenie liable in any way for any error or omission on the part of any PayGenie supported payment processor.
5. Licenses and Intellectual Property . You hereby grant to Us a worldwide, nonexclusive, limited, revocable right to use and display on the Site and make available to Our Affiliates for use and display the Links, advertisements and trademarks that You choose to display with PayGenie.
We grant You a nonexclusive, non-transferable, revocable, limited license to access and make use of the Site, software and material provided thereon in order to post Your Links, advertisements and related materials; provided, that, You fully comply with this Agreement.
In addition, the registered and unregistered trademarks, service marks, tradenames, graphics, logos, page headers, button icons, scripts, trade dress, or other indicia of trade origin (collectively, "Trademarks") of PayGenie may not be used in connection with any business, product, or service whose source is not PayGenie, in any manner that is likely to cause confusion among customers, the trade, or the public, or in any manner that disparages or discredits PayGenie or any of its Affiliates. All other Trademarks not owned by PayGenie that appear on the Site are the property of their respective owners, who may or may not be affiliates with, connected to, or sponsored by PayGenie. Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademarks of PayGenie or its Affiliates displayed or contained in the Site without the express, written consent of PayGenie or its Affiliates.
All content on the Site, including, but not limited to, text, design, graphics, logos, button icons, images, audio clips, digital downloads, interfaces, data compilations, software, and code, and the compilation of all content on the Site, as well as all software used on the Site, is the property of PayGenie, its Affiliates, or its Vendors, and is protected by United States and international copyright laws. Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the copyrighted works displayed or contained in the Site without the express, written consent of PayGenie.
a. Trademark Use. Notwithstanding the foregoing, You shall ensure proper use of the PayGenie Trademarks. You shall properly identify any PayGenie Trademarks, including by using the registered symbol, ®, where appropriate, and You shall not change or distort the color, sizing, or other design features of any PayGenie Trademarks, only using the PayGenie Trademarks as provided by PayGenie. The list of acceptable PayGenie Trademarks, along with applicable specifications, can be found here: http://www.PayGenie.com/logos. You shall not combine the PayGenie Trademarks with any other logos, words, graphics, symbols, or other Trademarks. Further, You shall not use the PayGenie Trademarks in any way that falsely implies any sponsorship, affiliation, or endorsement of You by PayGenie. Whenever You use the PayGenie Trademarks, You shall also display in the primary and more prominent position Your own logo, company name, and related Trademarks. PayGenie reserves the right, in its sole discretion, to modify or terminate Your use of the PayGenie Trademarks at any time and for any reason, including for failure to comply with these Trademark use requirements.
6. PayGenie Commission Fee . PayGenie will charge a commission fee of 5% of the gross selling price on each product or service sold by a Vendor through the Affiliate Network. Mindless Donkey Inc.; PayGenie.; and PayGenie.com are all entities affiliated with Us, and payment of the commission fee to PayGenie may be reflected on Your account information as a payment to any of the foregoing entities.
7. Product Library and Insertion Orders . Once You have registered for the Affiliate Program, You are free to list as many of Your products or services in the Product Library for which You would like to have Affiliates post Links and otherwise advertise. For each listing, You are free to determine the types of advertisements You would like Affiliates to use (including Links, banner ads, and other advertising materials), the kinds of media in which Your approved advertisements can appear, and how much of a commission fee per completed sale will be paid to an Affiliate for advertising such product or service. You must provide this information through an Insertion Order, which You and the Affiliate or Affiliates of Your choosing must sign.
8. Affiliate Commission Fee . An Affiliate with whom You have approved to sell your products or services through your program will be entitled to receive its agreed upon commission fee for each completed sale that it sends to You through the Links or materials it posts in the approved media. In order to receive such fee for a completed sale, a customer or user must complete an order form on the Vendor's checkout page for the relevant product or service, must complete the relevant form on Your selected PayGenie supported payment processor's website, and must remit full payment for the product or service ordered from You. For each order that completes the preceding process, Affiliate will receive the agreed upon fee, and You agree to allow Your selected PayGenie supported payment processor to provide such commission fee for each such completed sale.
9. Delayed Affiliate Fee. As a Vendor, You may have the option through Your PayGenie Account to elect a delayed payment plan for any commission fees to an Affiliate. Before You can elect to use a delayed payment plan, You must first provide PayGenie with Your valid credit card information. If You are an existing Vendor electing to use a delayed payment plan for the first time, You will be required to provide Your valid credit card information before you can re-access Your PayGenie Account. By electing such a delayed payment plan and providing Your credit card information to PayGenie, You represent and warrant that the information You provide is valid, accurate, and complete, and You specifically authorize PayGenie to use such credit card information to secure payment for any commission fees or other amounts owed by You to PayGenie. You shall notify PayGenie immediately of any changes to the credit card information You supply. Failure to provide valid, accurate, and complete credit card information or to notify PayGenie of any changes to that information will cause You to lose eligibility for any delayed payment plan, in addition to any other remedies available to PayGenie.
10. Taxes and Related Charges . You are solely responsible for ensuring that taxes and all related applicable charges are paid by and received from any customer purchasing one of Your products or services. You agree to indemnify Us from any liability connected with the same.
11. SPAM . SPAM, OR UNSOLICITED COMMERCIAL E-MAIL, IS ABSOLUTELY PROHIBITED. We will terminate Your Account and immediately dismiss you from the Affiliate Program if We determine that You have sent SPAM or Unsolicited Commercial E-mail, whether in connection with the Affiliate Program or otherwise, and You will not be entitled to any payment or reimbursement for funds remaining in Your Payment Processing Account. Further, You agree to comply with all U.S. state and federal SPAM laws, including, but not limited to, the Federal CAN-SPAM Act of 2003. You also agree to indemnify Us from any liability connected with SPAM or unsolicited e-mail transmissions by You or connected to You.
12. Inactive Accounts . PayGenie reserves the right, in its sole and absolute discretion, to terminate Your PayGenie Account if it is left inactive for more than six (6) months and to remove the same from the Site. An "inactive" account is one for which both of the following are true: (i) no one has logged into the account, and (ii) no one has used the account for any transactions with Affiliates.
13. Vendor Content . You represent that all content, data, or information You provide to PayGenie or post on the Site is solely owned by You or provided by You with the express authority of the person or entity You represent; does not infringe upon any other individual's or entity's rights (including, without limitation, intellectual property rights); and is not defamatory, libelous, unlawful, or otherwise objectionable. You shall not provide, promote, distribute, place or otherwise publish as an Vendor (or in connection with the Affiliate Program) any content, or website that includes content, that is libelous, defamatory, obscene, pornographic, abusive, fraudulent or violates any law. You are solely responsible for the content, data, and information You provide, promote, distribute, place or otherwise publish and for Your website.
14. Representations, Warranties, and Covenants .
a. Mutual Representations .
Each party represents and warrants that: (i) it has the right to enter into and fully perform the services contemplated herein, consistent with this Agreement; (ii) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with this Agreement; and (iii) at all times while Vendor is participating in any of PayGenie's services, using the Site, or participating in the Affiliate Program, each party shall comply with all applicable laws and regulations. Neither party makes any guarantee, representations or warranties, express or implied, as to the level of consumer response that will result from the Affiliate Program.
b. Vendor Representations .
Vendor represents and warrants that: (i) Vendor's websites, advertisements, links, disclosures, landing pages, claims, representations, scripts, videos, and any other media related to Vendor's sale or promotion of its products or services (collectively the "Advertisements") will comply with all applicable State and Federal laws; (ii) Advertisements do not contain or promote, nor link to another website that contains or promotes, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content, products, services or activities; (iii) Vendor owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on Vendor's websites and other media; (iv) Affiliate shall not offer or promote products or services (or websites or links to websites) containing any pornographic, racially or ethnically discriminatory, political, software pirating or hacking, hate-mongering, or otherwise objectionable or illegal content; (v) Vendor shall at no time use PayGenie's proprietary software or any materials provided by PayGenie or an Affiliate in any manner other than that which is specifically contemplated herein; (vi) Vendor will not engage in any kind of deceitful, misleading or other unfair trade practices, or fraudulent or other unlawful practice; (vii) Vendor shall at no time engage in, disseminate, promote or otherwise distribute links or marketing materials through the use of contextual media, specifically, downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable); (viii) Vendor will not provide Links to any website or provide any other advertising materials that contain inappropriate content, which includes, but is not limited to, content that: (a) promotes the use of alcohol, tobacco or illegal substances, nudity, sex, pornography, adult-oriented content (such as phone sex or escort services), expletives or inappropriate language; (b) promotes gratuitous violence, abuse or threats of physical harm; (c) promotes illegal or unethical activity, racism, hate, SPAM, mail fraud, gambling, sweepstakes, pyramid schemes, investment and money-making opportunities or illegal advice; (d) promotes use of illegal substances or illegal activities (such as bomb building, counterfeiting money or using pirate software (e.g., Warez or Hotline)); (e) is libelous, defamatory, infringing, false, misleading or contrary to public policy; (f) is otherwise prohibited by Federal or State law; or (g) may bring PayGenie or its associated Affiliates (or both) negative publicity; (ix) Vendor will not engage in any spoofing, redirecting or trafficking from adult-related websites in an effort to gain traffic or websites that are point, lottery or rewards based and encourage users to click on offers or use offers to generate revenue for users to win points, rewards, or other incentives (unless expressly approved in writing by PayGenie); (x) Vendor will not violate any third party terms and conditions, which includes, but is not limited to, the unauthorized use of a third party website for commercial gain or post bulletins to non-owned accounts; (xi) Vendor will not use deceptive or misleading practices (such as the use of spyware, adware, devices, programs, robots, iframes, hidden pictures, redirects, spiders, computer scripts or other automated, artificial or fraudulent methods designed to appear as if a consumer is generating a lead); and (xii) Vendor will not engage in any deceptive form of advertising.
Vendor further represents and warrants that all of Vendor's Advertisements (as defined above) and all information contained in or linked through the Advertisements comply with the following: (1) Advertisements are truthful and not deceptive or misleading; (2) Vendor and Advertisements present all material information clearly and conspicuously; (3) Vendor can substantiate any express or implied health, safety, or beauty claims with competent and reliable scientific evidence consisting of tests, analyses, research, studies, or other evidence based upon the expertise of professionals in the relevant area that have been conducted and evaluated in an objective manner by persons qualified to do so, using procedures accepted in the profession to yield accurate and reliable results, and will produce such substantiating materials to PayGenie upon request; (4) Vendor can demonstrate the accuracy and factual basis for any assertions that a specific level of scientific support exists for an express or implied health, safety, or beauty claim, and Advertiser will produce such substantiating materials to PayGenie upon request; (5) Vendor can substantiate any earnings claims or other specific claims asserted regarding Vendor's products or services, including, but not limited, to the amount of earnings or leads a customer can expect from using the Vendor's product; (6) Advertisements contain all necessary disclosures and disclaimers to comply with all FTC rules and guidance concerning the use of testimonials or representations concerning specific results obtained by customers of the Vendor's products and whether the average customer can reasonably expect to achieve similar results; (7) Vendor and Advertisements comply with (i) the FTC Guides Concerning Use of Endorsements and Testimonials in Advertising, (ii) the FTC's Business Opportunity Rule, as amended from time to time, (iii) the FTC Guide Concerning Use of the Word "Free" and Similar Representations, (iv) the FTC's Advertising Guide for Dietary Supplements, (v) the FTC's .com Guidelines for Disclosures for Digital Advertising, (vi) all applicable FDA statutes, regulations, and guidelines, including, but not limited to, the Nutrition Labeling and Education Act, the Federal Food, Drug, and Cosmetic Act, the Dietary Supplements Health and Education Act, and the regulations implementing these Acts, (vii) the Restore Online Shopper's Confidence Act, (viii) the Children's Online Privacy Protection Act, (ix) Telemarketing and Consumer Fraud and Abuse Prevention Act and all rules and regulations promulgated by the Federal Trade Commission or Federal Communications Commission thereunder, (x) any and all other applicable federal or state laws, rules, codes and regulations; (8) all emails must comply with the CAN-SPAM Act of 2003; (9) Advertisements will not load any computer program onto an individual's computer (excluding cookies) without PayGenie's prior written approval and the individual's express consent; (10) Advertisements do not infringe upon the rights of any third party; (11) Advertisements do not use celebrity photos or claimed endorsements unless prior consent has been obtained from the celebrity by the Vendor; and (12) Advertisements include a conspicuously posted privacy policy that complies with all laws and regulations and fully and accurately discloses Vendor's collection and use of user data
Vendor further represents and warrants that the products or services Vendor offers through the Advertisements either: (1) do not constitute a Business Opportunity as defined by 16 C.F.R. § 437.1(c); or (2) may constitute a Business Opportunity as defined by 16 C.F.R. § 437.1(c) and Vendor complies with the Business Opportunity Rule and provides all appropriate disclosures and forms to Vendor's prospective customers as required by the Rule, including the completed "Disclosure of Important Information About Business Opportunity" in the time and form required by the FTC under 16 C.F.R. § 437.3. Vendor further represents and warrants that the Vendor and the Advertisements either: (1) do not make any Earnings Claims as defined by 16 C.F.R. § 437.1(f); or (2) if the Vendor or Advertisements may make an Earnings Claim as defined by 16 C.F.R. § 437.1(f) then Vendor shall disclose to Vendor's prospective customers the completed Earnings Claim Statement required by the FTC under 16 C.F.R. § 437.4. Vendor further represents and warrants that Vendor has a reasonable basis for such Earnings Claims, has in its possession written materials that substantiates such Earnings Claims, and will produce such substantiating materials to PayGenie immediately upon request.
15. Limitation of Liability; Disclaimer of Warranty . IN NO EVENT SHALL PayGenie BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM: (A) VENDOR'S USE OF ANY OF PayGenie'S SERVICES OR THE SITE, INCLUDING ANY RELIANCE ON ANY AFFILIATE OR VENDOR RATING ON THE SITE, (B) ANY RATING OF VENDOR AND/OR ANY AFFILIATE DISPLAYED BY PayGenie ON THE SITE, (C) VENDOR'S PARTICIPATION IN THE AFFILIATE PROGRAM, (D) ANY OF VENDOR'S PRODUCTS OR SERVICES OR ADVERTISING OR PROMOTIONAL MATERIALS, OR (E) VENDOR'S PAYMENT PROCESSING ACCOUNT OR ACTS OR OMISSIONS OF YOUR SELECTED PAYMENT PROCESSOR.
DUE TO THE NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY, DOWN TIME OR OTHER INTERRUPTIONS IN SERVICE REGARDING THE SITE, THE LINKS, YOUR SELECTED PayGenie SUPPORTED PAYMENT PROCESSOR'S WEBSITE AND ITS SERVICES, OR THE OTHER SERVICES DESCRIBED HEREIN MAY OCCUR. WITHOUT LIMITING THE ABOVE, THE LINKS, THE SITES, THE MATERIALS IN THE PRODUCT LIBRARY AND ANY OTHER INFORMATION OR MATERIALS PROVIDED TO VENDOR ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY OF ANY KIND, AND PayGenie MAKES NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS THEREIN; (C) THAT THE SECURITY METHODS EMPLOYED BY PayGenie OR ITS AFFILIATES WILL BE SUFFICIENT IN ALL CIRCUMSTANCES OR AGAINST ALL ATTACKS; (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY OF ANY INFORMATION SET FORTH THEREIN OR THEREON; (E) REGARDING YOUR SELECTED PayGenie SUPPORTED PAYMENT PROCESSOR, ITS WEBSITE, ITS SERVICES, OR ITS SECURITY; OR (F) AGAINST INTERFERENCE WITH ENJOYMENT OF A PARTY'S WEBSITE. ALL INFORMATION AND COMPUTER PROGRAMS PROVIDED BY PayGenie 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. SOME STATES LIMIT THE ABILITY TO DISCLAIM ALL WARRANTIES, SO THIS CLAUSE OR SOME PORTIONS OF IT MAY NOT APPLY TO YOU.
PayGenie'S LIABILITY AND VENDOR'S REMEDIES are limited solely and exclusively to those described herein. PayGenie'S liability, whether based On tort, contract, warranty, strict liability, or another legal claim, shall not exceed the lesser of: (a) $1,000; or (b) the amount in commission FEEs paid to PayGenie PURSUANT TO THIS AGREEMENT during the six (6) month period PRECEDING THE CLAIM. In no event shall PayGenie be liable for any loss of profits, loss of use, or other indirect, incidental, special or consequential damages, even if PayGenie HAS been advised of the possibility of such damages.
PayGenie makes no representations and warranties whatsoever, and disclaims any responsibility and liability, regarding the content or nature of any advertisement or marketing materials, or any product or service advertised in connection therewith or on any linked pages. PayGenie has no liability to Vendor for unapproved hyperlinks or materials, including all copy, images, URL names and search terms used by Vendor for promotions, campaigns or programs. PayGenie makes no representations whatsoever about any other website that Vendor may access through PayGenie's services or the Affiliate Program. When Vendor accesses a website that is not associated with and is independent from PayGenie, Vendor acknowledges that PayGenie has no control over the content of such website.
16. Indemnity . Vendor will defend, indemnify, and hold harmless PayGenie, the Affiliates, and their affiliates, directors, employees, agents, successors and assigns from and against all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorneys' fees and expenses) (collectively "Claims") arising from, related to or associated with any acts or omissions of Vendor, any breach of this Agreement by Vendor, or any breach by Vendor of any representations or warranties contained herein. PayGenie reserves the right, at Vendor's expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Vendor hereunder. Vendor hereby acknowledges that the Affiliates are intended third party beneficiaries of the foregoing indemnification obligation. No settlement may be consummated without PayGenie's express written authorization, which shall not be unreasonably withheld. As part of this indemnification obligation, PayGenie shall have the right of offset against any amounts owed hereunder to Vendor for any indemnification obligations set forth above.
Vendor will immediately notify PayGenie of any current, impending, or potential legal action against it by a third party for matters relating to PayGenie, the Affiliate Program, this Agreement, or any information provided in connection therewith (or any combination of the foregoing) when the same arises.
17. Confidentiality . Subject to the Privacy Policy set forth on the Site, in the course of this Agreement, each party may have access to confidential and proprietary information ("Confidential Information") relating to the Vendor, PayGenie or Affiliates. Each party agrees not to disclose or disseminate the Confidential Information without prior express written consent from the relevant party to whom such Confidential Information relates, except to the extent required by law. The term "Confidential Information" shall include, without limitation, the terms of this Agreement (including pricing and payments) and information regarding existing or contemplated services, products, Affiliates, Vendors, processes, techniques, advertising or know-how, or any information or data developed pursuant to the performance of the services. However, Confidential Information shall not include information that is or becomes part of the public domain through no action or omission of the receiving party, that becomes available to the receiving party from third parties without such receiving party's knowledge of any breach of fiduciary duty, or that the receiving party had in its possession prior to the date of this Agreement. Notwithstanding the foregoing, in no event shall the ratings published by PayGenie on the Site or the Vendor's sales information and general performance data for Vendor's participation in the Affiliate Program be deemed Confidential Information.
18. Copyright Infringement . PayGenie has implemented procedures for receiving written notification of claimed infringements of copyright and for processing such claims, in accordance with the Digital Millennium Copyright Act ("DMCA"). To file a copyright infringement notification with Us, You will need to send Us a written communication that includes substantially the following information (see 17 U.S.C 512(c)(3) for further detail, or consult Your legal counsel to confirm these requirements):
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Site are covered by a single notification, a representative list of such works on the Site;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit Us to locate the material (the best way to tell Us this is to provide a URL in the body of an email);
4. Information reasonably sufficient to permit Us to contact You, such as an address, telephone number, and, if available, an electronic mail;
5. A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Such written notice should be sent to PayGenie's designated agent as follows:
PayGenie.com
1065 East Broadway Street
Unit 2
Oviedo, FL 32765
Only DMCA notices regarding copyright infringement should go to PayGenie's copyright agent. Your feedback, comments, requests for technical support and other communications should be directed to: [email protected].
Please note that under Section 512(f) of the Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. You acknowledge and agree that if You fail to fully comply with all of the requirements listed above, Your DMCA notice may not be valid.
If You believe that content You submitted that was removed (or to which access was disabled) is not infringing, or that You have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content, You may send a counter-notification containing the following information to PayGenie's designated copyright agent, at the above address/email:
1. Your physical or electronic signature;
2. Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
3. A statement that You have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
4. Your name, address, telephone number, and e-mail address, a statement that You consent to the jurisdiction of the federal court in Seminole County, Florida, and a statement that You will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by PayGenie's copyright agent, We may send a copy of the counter-notice to the original complaining party informing that party that We may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at PayGenie's sole discretion.
Please note that under Section 512(f) of the Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that We enforce a policy that provides for the termination in appropriate circumstances of subscribers who are repeat infringers.
19. Force Majeure . Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, however, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.
20. General .
a. Entire Agreement .
This Agreement, together with the terms for each of the applicable Insertion Orders, constitutes the entire agreement between the parties and supersedes all prior agreements or understandings between the parties.
b. Term . This Agreement shall begin upon Our acceptance of Your Vendor application and shall remain in effect until terminated by either party. Either party may terminate this Agreement at any time, with or without cause, upon providing written notice of termination to the other party. c. Governing Law .
This Agreement and all rights and obligations hereunder, including matters of construction, validity, and performance, shall be governed by and construed according to the laws of the State of Florida, without regard to its conflicts of laws provisions, and any disputes arising under or relating to this Agreement shall be brought exclusively in the state or federal courts of Seminole County, Florida.
d. Waiver .
No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.
e. Assignment .
Vendor may not assign any of its rights hereunder without the prior written consent of PayGenie, which consent may be withheld for any reason.
f. Severability .
In the event that any provision of this Agreement is found invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be deemed to apply only to the maximum extent permitted by law, and the remainder of this Agreement shall remain valid and enforceable according to its terms.
g. Relationship .
The parties agree that PayGenie is acting as an independent contractor in offering its services and managing the Affiliate Program and that the relationship between PayGenie and Vendor shall not constitute a partnership, joint venture or agency. Neither PayGenie nor any of PayGenie's employees or agents (collectively referred to herein as the "Employees") shall be considered: (i) an employee, agent or legal representative of Vendor, or (ii) shall have any authority to represent Vendor or to enter into any contracts or assume any liabilities on behalf of Vendor. PayGenie retains all the rights and privileges of sole employer of the Employees, including, without limitation, the right to control, hire, discipline, compensate and terminate such Employees. Neither PayGenie nor any of the Employees shall have any right to receive any employee benefits as are in effect generally for Vendor employees.
h. Amendments .
PayGenie reserves the right to change, modify, add or remove portions of this Agreement at any time and may add to, change, suspend or discontinue any aspect of the Affiliate Program at any time. In the event of any material change, PayGenie will notify You via e-mail, newsletter or the Site at least three (3) days prior to any such changes taking effect, at which time You may either agree to such changes or withdraw from the Affiliate Program.
i. No Third Party Benefit .
Except as explicitly stated herein, the parties intend that no other person or entity is or shall be entitled to bring any action to enforce any provision of this Agreement against either of the parties, and that the covenants, undertakings, and agreements set forth in this Agreement shall be solely for the benefit of, and shall be enforceable only by, the parties and their respective successors and assigns as permitted hereunder. j. Notice .
Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission or verified e-mail; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally recognized overnight courier service to Vendor at the address provided during the registration process and to PayGenie at the following address:
PayGenie.com
1065 East Broadway Street
Unit 2
Oviedo, FL 32765