Terms and Conditions
This is a legally binding Agreement by which you (the "Affiliate") agree to refer
potential customers (each a "Customer") to us ("Lavasoft") through the Internet.
Please read this Agreement carefully as it describes all of your rights and obligations
in your relationship with Lavasoft. Lavasoft is in the business of producing,
marketing and promoting various online affiliate management and reseller services
(the "Service") on the Internet.
1. Appointment of Affiliate
1.1. Appointment of Affiliate. Lavasoft grants the Affiliate
the non-exclusive, non-transferable right and license to advertise, market and promote
the Service in accordance with the terms and conditions hereof. All other rights
and licenses not expressly granted to the Affiliate herein are reserved by Lavasoft.
2. Obligations of Lavasoft
2.1. Services. Lavasoft shall provide the Services, subject to
the terms hereof. Lavasoft can change or terminate any part of the Service, at
any time and in any manner at its sole discretion and without prior notice to the
2.2 Commissions. Lavasoft shall pay to Affiliate commissions
(the "Commissions") at the rates set out by Lavasoft visible in the Affiliate's
account through www.Lavasoft.com (the "Site"), such as they may be from time to
time. Commissions shall be paid only when the Affiliate refers a valid sale of such
product through the Site.
3. Obligations of the Affiliate
3.1. Promotion. The Affiliate shall use its best efforts to actively
and effectively advertise, market and promote the Service.
3.2. Marketing. The Affiliate shall engage only in advertising,
marketing and promotional efforts which do not violate any law, and which reflect
positively upon the business reputation of Lavasoft and products who resell products
through Lavasoft. Lavasoft shall have the right to review and approve the manner
and methods of advertising, marketing and promotion used by the Affiliate in connection
with the Service. Affiliate shall send to Lavasoft a copy of any and all promotional
material used in performing hereunder. Whether or not Lavasoft reviews or comments
on such material shall not affect the obligations of Affiliate hereunder. Affiliate
shall cease any promotional campaign that Lavasoft deems inappropriate.
3.3 Costs. The Affiliate shall bear all costs and expenses incurred
in connection with the advertising, marketing and promotion of the Service; including
without limitation, all costs directly related to marketing. UNDER NO CIRCUMSTANCES
SHALL Lavasoft BE LIABLE HEREUNDER FOR ANY AMOUNTS OTHER THAN THE FEES.
3.4 Valid information. The Affiliate shall provide a valid and
public e-mail address as well as an accurate postal address (no mailboxes) for Lavasoft
or potential products to contact the Affiliate.
4.1. Commissions. Lavasoft shall pay the Commissions as per the
terms hereof. No Commissions shall be paid unless Affiliate is owed at least $100
during the then current Commission payment cycle.
4.2. Offset Right. Lavasoft shall have the right to withhold
any and all Commissions if Affiliate or any of its affiliates are in breach of this
Agreement any other agreement with Lavasoft or any of its affiliates. To the extent
that any chargebacks of transactions occur in respect of customers referred to Lavasoft
by Affiliate, Affiliate shall be obliged to refund both the Commissions earned in
respect of such transactions together with a share of the fees incurred by Lavasoft
in respect of the chargeback which corresponds to the share of the Commissions on
the transaction earned by the Affiliate. By way of example only, if Affiliate was
to earn 35% on the transaction in Commissions and the fee to Lavasoft for the
chargeback is $50, then the Affiliate shall be liable to reimburse Lavasoft for
any Commissions received in respect of the transaction, plus $17.50, being 35% of
$50.00. In the event of any inconsistency between these terms and the posted Commissions,
the latter shall prevail.
4.3 Reserve Account. Lavasoft shall withhold ten percent (10%)
of Commissions on a rolling period of three (3) months from when they would otherwise
be payable in a non-interest bearing reserve account (the "Reserve Account") which
account shall be used to offset liabilities (including, but not limited to, charge
backs and refunds) of the Affiliate to Lavasoft hereunder. In case of termination
amounts that accumulate in the Reserve Account shall be paid to Affiliate within
one (1) year of the termination hereof, unless this Agreement is terminated for
breach in which case the Affiliate forfeits its rights in the amounts held in the
Reserve Account. The Reserve Account is not insured in the event of a bankruptcy
5. Term and Termination
5.1 Term. The term of this Agreement shall begin as of the date
on which the Affiliate has agreed to the terms hereof either through the Site or
on paper and shall end one (1) year thereafter after which it shall automatically
renew for additional and successive one (1) year terms until terminated pursuant
to the terms hereof.
5.2 At Will. Either party may terminate this Agreement on notice
to the other party either via the Site or as provided below.
5.3. Default. Lavasoft may terminate this Agreement with immediate
effect if the Affiliate is in breach of the terms of this Agreement. Such breach
includes, but is not limited to, situations when the Affiliate engages in advertising,
marketing, distribution and promotional efforts that would impair the goodwill and
business reputation of Lavasoft or would expose Lavasoft to legal liability.
Lavasoft may terminate this Agreement with immediate effect if the Affiliate shall
become insolvent or make a bulk sale of its assets or if the Affiliate makes a general
assignment for the benefit of creditors, or any proceeding or filing is instituted
or made by the Affiliate seeking relief, or to adjudicate it a bankrupt or insolvent,
or seeking the liquidation, winding up, reorganization, arrangement, adjustment
or composition of it or its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors, or seeking the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its assets
or takes any action to authorize or in furtherance of any of the foregoing;
5.4. Effect of Termination. Upon any termination hereof, the Affiliate
shall immediately return to Lavasoft any and all materials, over which Lavasoft
has a proprietary right, that are in the Affiliate's possession and/or in the possession
of the Affiliate's agents and employees. The Affiliate shall also immediately remove
any hyperlinks and materials, over which Lavasoft has a proprietary right, from
the Affiliate's web site and/or the web sites of the Affiliate's agents.
5.5. Lavasoft Information. Any and all information concerning
Lavasoft resellers, products, customers and other affiliates shall remain the
sole and exclusive property of Lavasoft and may not be used or disclosed by Affiliate
without the prior express written consent of Lavasoft.
5.6 Commissions Following Termination. In the event that this Agreement
is terminated without default by Affiliate, Lavasoft shall continue to pay Commissions
to Affiliate for one month after such termination after which Lavasoft shall not
be liable for any Commissions to the Affiliate. In the event that this Agreement
is terminated on account of a default by Affiliate, Lavasoft shall not be liable
for any Commissions not already paid to the Affiliate from the time that said default
6. Fee Statements
6.1. Fee Statements. Payment of Commissions shall be accompanied
by a statement that specifies the calculation of the sum to be paid to the Affiliate.
Affiliate shall not be entitled to any Commissions on referrals of customers who
subsequently chargeback, return or obtain a refund in respect of their purchases
through Lavasoft. Fee statements will therefore be adjusted by Lavasoft from
time to time to reflect overpayments, customer chargebacks and/or credits or underpayments
to customers by Lavasoft. To the extent that Affiliate is liable to refund Commissions
pursuant to this provision, Lavasoft shall deduct the amount of such Commissions
from future Commissions payable hereunder. Lavasoft may also offset any liability
of Affiliate to Lavasoft by withholding Commissions that would be otherwise payable.
6.2 Online Monitoring. Affiliate shall be granted, during the term
hereof, the right to monitor the Commissions to which it is entitled, from time
to time, via its online login at the Site.
6.3 Lavasoft Reporting Definitive. In the event of any dispute
as to the amount of Commissions payable, the Lavasoft reports concerning such
Commissions shall be authoritative and shall supersede any other tracking that may
have been carried out by Affiliate or any third party.
7. Exclusivity and Non-Competition
7.1. Non-Exclusive. The Affiliate agrees, understands and acknowledges
that Lavasoft may enter into agreements of this type with third parties to promote
the Service or a similar version thereof.
7.2. Names. The Affiliate has not paid for the use of the trademarks,
logos, copyrights, trade names or designations belonging to Lavasoft, and nothing
contained in this Agreement shall give the Affiliate any right to, title to or interest
in any of them.
7.3. Software. The Affiliate acknowledges that Lavasoft owns
and retains all copyrights and other proprietary rights, as well as any software
supplied by Lavasoft, whether through the Site or otherwise. The Affiliate shall
not assert any claim or interest in any trademark, trade name, copyright, service
mark or logo belonging or licensed to Lavasoft, or do anything to adversely affect
their validity or enforceability. This includes any act or assistance in any act
that may infringe upon, or lead to the infringement of, any software copyright.
7.4. Registration of Names. Without limiting the generality of
the foregoing terms, the Affiliate shall not itself attempt, or assist any third
party in attempting, to register any trademark, trade name or other proprietary
right with any governmental agency (federal, provincial, local or otherwise) or
with any other entity or authority without the express, unequivocal and unambiguous
prior written consent of Lavasoft. The Affiliate shall not affix a trademark,
logo or trade name of Lavasoft to any non-Lavasoft product. The Affiliate shall
not alter, erase, deface or overprint any notice of proprietary rights on anything
provided by Lavasoft.
8. Confidentiality and Non-Disclosure
8.1 Confidential Information. The Affiliate and Lavasoft each
agree that each may have access to, and become acquainted with, confidential information
of the other. The Affiliate and Lavasoft each specifically agree not to misuse,
misappropriate or disclose any such confidential information, directly or indirectly,
to any third party.
9. Representations and Warranties
9.1. The Affiliate warrants, represents and covenants to Lavasoft:
(a) that it has all necessary rights, licenses, permissions and business permits;
and will comply with all applicable laws, rules and regulations in connection with
promoting the Service; (b) that its practices hereunder shall not consist of use
of SPAM, bulk e-mails, fax blasting for any illegal or distasteful business practices;
and (c) that Affiliate shall not make any misrepresentations concerning Lavasoft
or any products or services sold through Lavasoft.
10. Indemnification and Limitation of Liability
10.1 Indemnification. Affiliate shall defend, indemnify and hold
harmless the Lavasoft, its directors, officers, employees, agents, assigns, and
successors-in-interest from and against any and all third-party liability, damages,
losses, claims, demands, actions, causes of action and costs (including attorneys'
fees and expenses) arising out of or resulting from (i) Affiliate's performance
under this Agreement including, without limitation, performance, nonperformance,
or defect in performance, any statement, misstatement, representation or misrepresentation
made by Affiliate; (ii) the negligent or willful acts or omissions of Affiliate
or Affiliate's agents and/or employees; and (iii) any statements, claims, representations
or warranties made by Affiliate or Affiliate's agents and/or employees, relating
to the Products.
10.2 No Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, Lavasoft EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING
ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE SERVICES PROVIDED
BY Lavasoft OR THAT THE OPERATION OF THE SERVICES WILL BE INTERRUPTION OR ERROR
10.3 Limitations of Liability. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN, Lavasoft, ITS AFFILIATES, AGENTS AND LICENSORS, SHALL
NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE PUBLISHER FOR CONSEQUENTIAL, INCIDENTAL,
SPECIAL OR EXEMPLARY DAMAGES, EVEN IF Lavasoft HAS BEEN APPRISED OF THE LIKELIHOOD
OF SUCH DAMAGES OCCURING. EXCEPT AS REQUIRED BY LAW, IN NO EVENT SHALL Lavasoft'S
LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) TO
THE AFFILIATE IN ANY WAY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT EXCEED
THE FEES ACTUALLY PAID TO THE AFFILIATE DURING THE SIX (6) MONTHS PRIOR TO THE EVENT
GIVING RISE TO LIABILITY.
10.4 Force Majeure. Lavasoft shall use its commercially reasonable
efforts to perform its obligations hereunder, however, Lavasoft, its affiliates,
agents or licensors shall not be liable for any loss resulting from the activities
of the Affiliate, nor from any erroneous statements or errors in transmission, nor
for any loss resulting from any delay, interruption or failure to perform hereunder
due to any circumstances beyond Lavasoft's reasonable control including, without
limitation, acts of god, fire, explosion, earthquake, riot, terrorism, war, sabotage,
accident, embargo, storms, strikes, lockouts, any interruption, failure or defects
in Internet, telephone, or other interconnect services or in electronic or mechanical
equipment. Lavasoft's obligations hereunder shall be suspended during any of the
foregoing circumstances, which suspension shall not be a cause for termination of
this agreement by the Affiliate.
11.1 Notices. Any notice, demand, request or other communication
required or permitted to be given under this Agreement shall be in writing and delivered
personally, or sent by prepaid registered mail, return receipt requested (i) to
the Lavasoft at the postal address provided therefor on the Site; to the Affiliate
at the address provided therefor upon registration with the Site; or to such other
address as either party may have previously indicated to the other in writing in
accordance with the foregoing. Any such notice, request, demand or communication
shall be deemed to have been received on the day it was delivered personally, on
the fifth (5th) day following mailing, unless there is a disruption of any kind
of postal service.
11.2 On-Line or Written Formation of Contract. By acceptance of
the terms hereof on-line by the Affiliate or by execution of a written acceptance
of the terms hereof by the Affiliate, this Agreement together with any supplemental
agreements and appendixes constitute the entire validly legally binding agreement
between the parties pertaining to the subject matter contained in it and supersedes
all prior and contemporaneous agreements, representations and understandings of
the parties. No waiver of any of the provisions in this Agreement shall be deemed
or shall constitute, a waiver of any other provision, whether or not similar, nor
shall any waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
11.3 Amendments. None of the terms of this Agreement shall be amended
by either party unless such an amendment specifically references this Agreement
and is agreed to by both parties.
11.4 Assignment. None of the Affiliate or any of its successors
may assign this Agreement, or any rights hereunder, directly or by operation of
law, without the prior written consent of the Lavasoft which consent may be withheld
for any reason, at the Lavasoft's sole discretion.
11.5 Successors. This Agreement and the provisions hereof shall
enure to the benefit of and be binding upon the Parties and their respective successors
and permitted assigns.
11.6 Enforcement. The Affiliate shall be liable for and shall indemnify
and reimburse the Lavasoft for any and all reasonable attorneys' fees and other
costs and expenses paid or incurred by the Lavasoft in the enforcement of this
Agreement, or in collecting any amounts due from the Affiliate hereunder, or resulting
from any breach of any of the terms or conditions of this Agreement.
11.7 Remedies. All remedies of either party hereunder are cumulative
and may be exercised concurrently or separately. The exercise of any one remedy
shall not be deemed to be an election of such remedy and shall not preclude the
exercise of any other remedy. No failure on the part of either party to exercise
and no delay in exercising any right or remedy hereunder shall operate as a waiver
of such right or remedy.
11.8 Severability. If any provision of this Agreement is held invalid
or unenforceable by any court of final jurisdiction, it is the intent of the parties
that all other provisions of this Agreement be construed to remain fully valid,
enforceable and binding on the parties.
11.9 Governing Law and Choice of Forum. This Agreement shall be
deemed to be governed and enforced in accordance with the laws of the Province of
Quebec whose courts shall have exclusive jurisdiction over disputes arising hereunder.
The parties hereto agree that this agreement is drafted and executed in the English
language. Les parties aux présentes s'entendent pour que la présente convention
soit rédigée en langue anglaise.
11.10 Whole Agreement. References to "this Agreement" include any
schedules, supplementary agreements, addendum, appendixes and amendments and any
other agreements, schedules appendixes and amendments promulgated by the Lavasoft
and furnished to the Affiliate from time to time.