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| Terms of Use |
| Affiliate
Membership Agreement |
Date of Last Revision:
November 6, 2009.
This is the Affiliate Membership Agreement that will govern
your participation in this PlaySpan Affiliate Program.
Please read this Agreement, and then scroll to the bottom
of the page to digitally sign this Agreement. To print
a copy of this Agreement, please use your browser's print
command.
This Affiliate Membership Agreement is between PlaySpan,
Inc., ("PlaySpan") and You ("You"
or "Your"). If You have registered for or on
behalf of an entity, you are deemed to have accepted this
Agreement on behalf of that entity.
This "Agreement" refers to, individually and
collectively depending upon the context, this Affiliate
Membership Agreement and any and all Network Policies
and Guidelines as in effect from time to time.
We reserve the right, at our sole discretion, to change,
modify, add, or delete portions of these Terms of Use
at any time without further notice. If we do this, we
will post the changes to these Terms of Use on this page
and will indicate at the top of this page the date these
terms were last revised. Your continued use of the Affiliate
Program after any such changes constitutes your acceptance
of the new Terms of Use. If you do not agree to abide
by these or any future Terms of Use, do not use or access
(or continue to use or access) the program. It is your
responsibility to regularly check this page to determine
if there have been changes to these Terms of Use and to
review such changes.
In consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged,
the parties, intending to be legally bound, agree as follows:
| 1 |
Registration, etc. |
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1.1 |
Registration. To use (or
continue to use) PlaySpan Affiliate Program as a
Merchant, You must provide PlaySpan with truthful,
accurate and complete registration information.
If any such information changes, You must immediately
update Your registration information. |
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1.2 |
Verification. PlaySpan has the right
to confirm or otherwise verify or check, in its
sole determination, the truth and accuracy of any
registration information at any time.
Please note that the verification of Your registration
information, specifically, your name, address and
Tax identification number, against a third party
database may be considered under certain laws to
constitute a "credit check." Notwithstanding
that, your participation in the PlaySpan Affiliate
Program as a Network Affiliate does not depend on
Your credit worthiness or financial stability. PlaySpan
is not making as part of the registration process,
and will not otherwise make, any type of inquiry
to any third party regarding any individual's credit
history and personal financial information without
first obtaining such individual's express prior
authorization to do so.
Please
be advised that if any information is determined
in good faith by PlaySpan to be misleading, inaccurate
or untruthful, PlaySpan may restrict, deny or terminate
Your account, Your access and use of, and/or any
benefits derived from Your participation on, PlaySpan
Affiliate Program; PlaySpan may also withhold payment
of any commissions and/or other fees that may be
or become due or payable to You, and may asses charges
against such amounts for PlaySpan's activities in
connection with the investigation and/or verification
of such information and/or otherwise in accordance
with this Agreement. |
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1.3 |
Participation. To join PlaySpan Affiliate Program,
You must be an individual who is at least 18 years
old or an entity, and must provide at Your expense
your own computer equipment and Internet access. |
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1.4 |
1.4 Use of the Network. You may use any PlaySpan
Affiliate Program only for business purposes and
not for personal, household or family purposes. |
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| 2 |
Defined Terms |
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2.1 |
The following terms have the meanings indicated:
"Content" means
information, data, text, documents, software, music,
sound, photographs, graphics and video.
A "corporate Affiliate"
of a person is any other person that, directly or
indirectly, controls such person, is controlled
by such person, or is under common control with
such person, with "control" meaning the
possession, directly or indirectly, of the power
to direct or cause the direction of the management
and policies of a person.
An "end user" means an
actual or potential consumer, customer or other
natural person.
An "engagement" means
any type of agreement or arrangement between a Network
Advertiser and any Network Affiliate that can be
performed on or in relation to the Internet, including
Affiliate marketing, performance-based linking,
insertion order, or any other type of agreement
or arrangement.
An "entity" means a sole
proprietorship, corporation, partnership, limited
liability company, trust, government agency or instrumentality
or other entity recognized by law as a legal person
separate from its owners.
The words "include,"
"includes" and "including"
shall be deemed to be followed by the phrase "without
limitation."
"Intellectual
Property Rights" means technology,
templates, designs, Sites, methodologies, processes,
names, strategies, marks, logos, Content, documentation,
training manuals, and other materials, as well as
any and all patent, trade secret, trademark, copyright
and other intellectual property and proprietary
rights therein and thereto.
A "link" means any software,
software code, programming or other technology or
method (or any combination of the foregoing) that
(i) creates a hyperlink between two Sites, or (ii)
otherwise causes a Web access device to display
to its user a "banner," "button,"
text-mention, word, phrase, logo or other textual
or graphical material that, when activated by a
person, results in a Site being served to such person
or such person being able to electronically access,
receive or obtain Content, products, services or
other offerings from the linked Site.
"PlaySpan Market Place"
means one or more of the sites operated by PlaySpan,
Inc. ("PlaySpan") through which users
can buy and sell Virtual Goods, electronic
game code (“ESN”) and services
related to the Marketplace ("Services",
which include the service of providing the Marketplace).
A "Virtual Good" is any item that exists
within a multiplayer electronic game for which PlaySpan
has been authorized to provide the Marketplace.
Virtual Goods include characters, weapons, in-game
money, and other in-game items. A Virtual Good is
a set of rights to electronic in-game items, as
licensed by the Publisher and subject to the Publisher's
user agreement. An “ESN” is
one or more codes, serial numbers or passwords to
allow a user certain rights and privileges, including
game play, to a particular or series of games, virtual
worlds or social networks. PlaySpan does
not create or own any Virtual Goods, it merely provides
a platform through which to trade them. Each Publisher
gives PlaySpan the right to control transfers of
Virtual Goods for real-world money, pursuant to
which PlaySpan provides instructions to publishers
to terminate a seller's rights in the transferred
Virtual Good and grants those rights to the applicable
buyer.
"PlaySpan Offerings"
means PlaySpan's offerings to a Network Affiliate
participating in PlaySpan Market Place in the form
of technology, software, reports and databases,
customer support, account management and other client
services, symposia, summits and other educational
and networking events, as well as any other tools,
services, and other resources that may be provided
or otherwise made available from time to time.
"PlaySpan Related Parties"
means PlaySpan's corporate Affiliates and its and
their contractors, licensors, licensees and suppliers.
The phrase "provided by PlaySpan"
or "PlaySpan-provided"
shall, when used in relation to tools, services,
resources or other offerings, encompass the provision
thereof by PlaySpan or PlaySpan Related Parties.
The phrase "tracked by PlaySpan"
or "PlaySpan-tracked"
shall, when used in relation to any engagement,
encompass the tracking thereof by PlaySpan or PlaySpan
Related Parties.
"Network Affiliate"
refers to a Site that participates on PlaySpan Market
Places and, through such participation and use of
the appropriate PlaySpan Offerings, desires or makes
itself available to be recruited or to enter into
engagements to display, distribute or place qualifying
links provided by PlaySpan for compensation.
"Network Affiliate Account Area"
means, for PlaySpan Market Place, the Webpage(s)
or other area of the Site having the URL designated
from time to time by PlaySpan for use by members
of that Network for the purpose of facilitating
formation of qualifying links, accessing reports
and otherwise participating in such PlaySpan Market
Place.
"Network Advertiser"
refers to PlaySpan Market Place and of the appropriate
PlaySpan Offerings, desires or seeks to recruit
Network Affiliates to enter into engagements with
Playspan in order to display, distribute or place
its qualifying links for compensation.
A "person" is to be broadly
construed and includes any natural person or entity.
A "qualifying link" means
any type or format of link that is provided or authorized
by Playspan to be displayed, distributed or placed
on or by a Site pursuant to an engagement and which,
through addition and/or use of any technology and/or
methodology, can be tracked so that Playspan can
monitor the impressions, click-throughs and/or other
tracked activities achieved by the display, distribution
and/or placement of such link. The term "qualifying
link" shall also refer to any equivalent link,
mechanism or technology that, upon being activated,
causes the same result as clicking on a qualifying
link.
A "tracked activity"
means any type of pre agreed or predefined activity
or result that is sought by Playspan in relation
to a qualifying link. The kinds of tracked activities
that Playspan may seek to promote through such arrangements
may include, by way of example, impressions, click-throughs,
the sale of products or services, the downloading
of software, files or other items, the completion
of an application, registration or other form, the
opening of an account, membership enrolment, or
any other kind of action, transaction or activity
that can be tracked and reported upon.
"Web" or "Internet"
or "online" means the
global computer network currently referred to as
the Internet, including the World Wide Web, and
any and all successor networks, irrespective of
what wired, wireless or otherwise connected device,
platform or technology is used to access it.
"Site" means, as
the context requires, either (a) one or more Web
pages, database, computer files, emails, scripts,
software or other application, or other destination,
together with supporting files and programming,
that are on, provided, or accessible through the
Web or works on or in relation to the Web, or (b)
a person owning or operating any such Site, or (c)
both. A person that owns or operates a Site may
have offline businesses which would not preclude
it from being a Site for the purposes of this Agreement.
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| 3 |
Participation; Your Business |
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3.1 |
Participation. Subject to the terms and
conditions in this Agreement, You may use the PlaySpan
Offerings to Network Affiliates via the Network
Affiliate Account Area or otherwise to enter into,
track and report on, and/or manage (or have managed)
Affiliate marketing and/or other types of PlaySpan-tracked
engagements on behalf of Your business. |
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3.2 |
Voluntary Participation. Your participation
in PlaySpan Market Places is as an Online Affiliate.
Your participation is purely voluntarily and You
may terminate Your participation at any time. PlaySpan
shall not be construed or deemed as having solicited,
requested or procured You or Your services to promote
PlaySpan or its respective trade or business, or
goods, products, property, or services. |
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3.3 |
Not a Supplier, etc. You are not and
shall not, at any time, be deemed to be a vendor,
supplier or provider of goods or services to PlaySpan,
and neither Your participation on any PlaySpan Market
Place, use of any PlaySpan Offerings or receipt
of payment of any compensation under any PlaySpan-tracked
engagement shall be construed or be deemed to be
an inducement for, solicitation of You to provide
any products or services to PlaySpan. |
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3.4 |
Prohibited Activities. In respect or
in relation to any Site (or portion thereof) used
by You in connection with Your participation on
any PlaySpan Market Place, You may not engage in
any activity that is or constitutes, or that involves,
facilitates, advocates or promotes, one or more
of the following: (a) discrimination on the basis
of race, ethnicity, gender, religion, sexual orientation,
age or disability; (b) libelous, defamatory, threatening,
harassing, tortuous, or similarly abusive activities;
(c) obscene, pornographic, sexually explicit or
similar activities; (d) gambling; (e) sale, export
or use of illegal substances; (f) terrorism, sedition
or other illegal activities; (g) MP3, MPEG and/or
other proprietary materials for download, sale or
otherwise, in any case without the permission of
the owner of the Intellectual Property Rights (h)
a conflict or violation of any law or regulation
or any Intellectual Property Rights or other rights
of any person or entity; (i) harm to minors in any
way; (j) impersonation of any person, including
any PlaySpan representative, or misrepresentation
of affiliation with any person; or (k) conducting
of raffles, contests, lotteries or sweepstakes. |
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3.5 |
Regulated Business. You represent, warrant
and covenant that Your businesses and activities
will not cause, nor could cause, PlaySpan with which
You have entered into an engagement to be or become
subject to any law, rule or regulation adversely
affecting PlaySpan, and You shall defend and indemnify
PlaySpan against any such adverse effect. |
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| 4 |
Engagements; Qualifying Links. |
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4.1 |
Use of Qualifying Links. Each qualifying
link used by You in relation to a PlaySpan-tracked
engagement must include, in unaltered form, the
special "tagged" link codes and/or other
transaction tracking codes in the manner and format
made available or otherwise dictated by PlaySpan
that, among other things, associate such qualifying
link with such engagement. |
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4.2 |
Valid Referrals Only. You will place
or use qualified links of Playspan only with the
intention of delivering valid sales, leads, applications,
accounts, clicks or other specified compensable
tracked activities for the benefit of Playspan.
You may not, nor knowingly permit any person to,
activate a qualifying link or inflate the amount
of any sought-after or resulting tracked activities
through any method or technology that does not actually
deliver an end user to the destination Site associated
with such qualifying link. |
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4.3 |
PlaySpan's Determination Final and Binding.
All determinations of qualifying links and the compensation
due to You made by PlaySpan shall be final and binding
on You. PlaySpan's services do not involve investigating
or resolving any claim or dispute involving You
and any Network Advertiser or other third party
person. If PlaySpan, in its sole discretion, elects
to investigate or otherwise become involved in any
such claim or dispute, it shall not thereby undertake,
assume or have any duty, obligation or liability
to You or any other party to the claim or dispute.
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4.4 |
Distribution of Qualifying Links. If
You currently distribute, or plan to distribute,
qualifying links on, to or through Sites other than
those owned or operated by You and registered with
PlaySpan, You may do so till such time or date as
PlaySpan may designate. After such date, You will
be required to obtain PlaySpan's approval to continue
to do so. Such approval may be conditioned upon
Your agreement to additional terms and conditions
and additional disclosures in respect of Your distribution
and/or use of such qualifying links. |
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4.5 |
No Modification. etc. of Qualifying Links.
You will not modify, circumvent, impair, disable
or otherwise interfere with any tracking codes and/or
other technology and/or methodology required or
made available by PlaySpan to be used in connection
with such qualifying link so that it may be properly
tracked by PlaySpan. |
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4.6 |
Termination of Qualifying Links. You
must remove any qualifying links after any termination
of the corresponding engagements. If qualifying
links are not so removed, PlaySpan may redirect
such links as it determines in its sole discretion,
with or without compensation to You. |
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4.7 |
Discontinuing Use of Qualifying Links.
You may at any time discontinue use of qualifying
links by removing such qualifying links from Your
Site, with or without notice to PlaySpan, provided,
however, that You remain subject to such engagement
and this Agreement until you separately terminate
such engagement or Agreement. |
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| 5 |
Provision of Information |
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5.1 |
Reports; Revisions. You acknowledge and
agree that you shall receive reports from PlaySpan
that identify You and may include data about You
and Your qualifying links. If you are not notified
by Playspan then an error or omission or otherwise
require adjustment, PlaySpan may revise those reports
and make corresponding changes to Your Affiliate
Reports. Since the reports PlaySpan provides You
are the bases for calculating the compensation,
if any, due to You from Playspan Marketplace, any
such adjustment may affect the amount of compensation
to which You are entitled. |
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5.2 |
Errors. If You believe that any of Your
Affiliate Reports for any month contains errors
in the data, You must notify PlaySpan within ten
days after the end of that month or any shorter
period in Your engagement so that, if possible,
the matter may be resolved. If any Affiliate Reports
for any month are corrected or adjusted after the
end of the month, then the period within which You
must notify PlaySpan of errors in the corrected
or adjusted data shall be ten days after such correction
or adjustment is posted or any shorter period in
Your engagement. Any dispute between You and Playspan
about any error must be resolved by You and Playspan.
In the event, a dispute arises between you and the
Playspan regarding the amount of the funds that
are due, PlaySpan will be entitled to decline to
offer further processing services until such dispute
is resolved. You agree that PlaySpan shall have
no obligations and incur no liabilities to You in
connection with any such dispute. |
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5.3 |
No Personal End User Data. In order to
provide any of the PlaySpan Offerings, PlaySpan
does not require to be provided, nor does it capture,
any personally-identifiable information about any
end user who undertakes tracked activities in relation
to You. PlaySpan has no obligation or liability
to You, any end user or any other person if You,
or other person should provide such information,
for whatever reason, to PlaySpan. |
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5.4 |
Privacy Policy. You will ensure that
any and all Sites employed by You in connection
with Your participation in any PlaySpan Market Place
or any PlaySpan-tracked engagement will feature
an easy-to-understand privacy policy, linked, at
a minimum, conspicuously from such Site's home page,
with a link that contains the word "Privacy",
"Legal", "Terms" or similar
language. Such privacy policy shall, in addition
to the disclosures about Your privacy practices,
identify the collection and use of any information
You provide or may provide to PlaySpan or other
Sites or persons with which You have any PlaySpan-tracked
engagement or other arrangement in relation thereto.
As to Your personal information, PlaySpan may use
Your personal information in any manner or for any
purpose that it determines to be appropriate or
necessary in its sole discretion in connection with
conducting any activities of or on any PlaySpan
Market Place and in relation to PlaySpan's business. |
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5.5 |
Backing Up Data and Other Precautions.
Data transfer, conversion, processing and storage
are subject to the likelihood of human and machine
errors, delays, interruptions and losses. PlaySpan
is not liable for any such events or their consequences.
You are solely responsible for adopting measures
to limit the impact of such events, including backing
up any reports or data provided to You. PlaySpan
may, from time to time, with or without notice,
change the time period covered, type and/or scope
of current or historical data stored by PlaySpan
and/or to which it provides You with access. |
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| 6 |
Your Obligations |
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6.1 |
No Poaching. You may not use any PlaySpan
Offerings in connection with aggregating, soliciting
or recruiting other persons to form or join Affiliate
marketing, advertising or similar network. |
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6.2 |
No Sublicense, etc. You may not sublicense,
rent, lease, sell, resell, outsource or service
bureau any PlaySpan Offerings, and any attempt to
do so shall be null and void. |
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6.3 |
No Reverse Engineering. You will not
make unauthorized modifications, reverse engineer,
disassemble, decompile or attempt to derive source
code of any PlaySpan Offerings. |
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6.4 |
No Spam. You may not use any qualifying
links in any electronic message unless (a) You have
received the express written authorization of Playspan
to use email or other electronic messages to promote
it or its qualifying link and (b) any and all such
electronic messages comply in all respects with
Playspan's terms and conditions, and any and all
applicable laws, including the requirements of the
Can Spam Act of 2003 (Public Law No. 108-187). Further,
no electronic message initiated or sent by You or
on Your behalf may identify PlaySpan or, except
as expressly authorized by Playspan as a sender
or sponsor of such electronic message. |
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6.5 |
No Interference. You may not, through
downloadable or other technology, replace, intercept,
redirect, block, alter or otherwise interfere with
the full functioning and intended actions of any
qualifying link that has been placed or distributed
by Playspan including any action that would in any
way prevent the behavior or result that would occur
or would have occurred had an end user activated
such qualifying link without Your interference.
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6.6 |
No Infringing Uses. You may not use any
name, trademark, service mark, domain name or other
Intellectual Property Rights of any third party
in connection with Your use of any qualifying links,
any PlaySpan Market Place or any other PlaySpan
Offerings, in any way or for any purpose that infringes
or violates any Intellectual Property Rights or
other rights of such third party, whether for the
purpose of increasing the levels of tracked activities
attributable to Your qualifying links or for any
other purpose. |
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6.7 |
Fraud, Abuse, etc. You will not, and
will not knowingly permit other persons to, engage
in any fraudulent, abusive or illegal activity in
connection with Your participation on any PlaySpan
Market Place. |
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| 7 |
Grant of License to You |
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7.1 |
Your Use of PlaySpan Offerings. For each
PlaySpan Market Place of which You are a member
in good standing, PlaySpan grants You a personal,
non-exclusive, non-transferable, non-sublicense
able, revocable and limited license and right, subject
to the terms of this Agreement, to:
| a |
Participate in any PlaySpan
Market Place for which You have registered
as a Network Affiliate.
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| b |
Access the areas of the relevant Network
Affiliate Account Area necessary for Your
participation in such PlaySpan Market Place
as a Network Affiliate.
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| c |
Solely for Your use in connection with Your
participation in such PlaySpan Market Place,
download any reports made available to You
by PlaySpan.
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| d |
Solely for Your use in connection with Your
participation in such PlaySpan Market Place,
download any reports made available to You
by PlaySpan. |
Use any software code or other Content that is provided
by PlaySpan Solely for the purpose of creating and
maintaining qualifying links in accordance with
this Agreement and Your engagements, for such purpose,
and no other purpose, but only in the form so provided.
All other use of any PlaySpan Market Place, Network
Affiliate Account Area, any reports made available
to You by PlaySpan and such software code or Content,
including modification, publication, transmission,
transfer or sale of, reproduction, creation of derivative
works, distribution, performance, display, incorporation
into another Site or mirroring is prohibited. |
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7.2 |
Use of the PlaySpan Name. This Agreement
does not grant to You any license or right to use
PlaySpan's name or any of its logos or trade or
service names or marks, except to the extent required
to be used in connection with an URL. Any press
release or other public announcement by You regarding
this Agreement or any PlaySpan Market Place or that
mentions PlaySpan shall require the prior written
approval of PlaySpan. You agree that You shall not
disparage PlaySpan or any of the PlaySpan Market
Places or any other participants thereof. |
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7.3 |
Duration of License Rights; Reservation.
The above licenses with respect to any PlaySpan
Market Place are valid only while You remain a member
of such PlaySpan Market Place as a Network Affiliate
in good standing and comply with this Agreement.
PlaySpan may revoke any such license at any time
by giving You notice by e-mail or in writing. PlaySpan
reserves all rights that are not specifically granted
to You by this Agreement. |
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| 8 |
Grant of Licenses to PlaySpan |
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8.1 |
Use of Your Content. Other than as provided
below, in order to participate in the PlaySpan Market
Place, You are not required to provide PlaySpan
with any Content or other materials. Should You
do so, by way of uploading, delivering or otherwise
making available to PlaySpan any Content and/or
other materials (including any Intellectual Property
Rights therein and thereto), You agree to grant,
and hereby grant, to PlaySpan a non-exclusive, worldwide,
royalty-free, sublicense able, perpetual license
to use and store the same including in relation
to conducting its business or performing any services
in relation to any PlaySpan Market Place. This Section
will survive any termination. |
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8.2 |
Use of Your Name. PlaySpan shall have
the right to refer to You by Your name in connection
with any PlaySpan Market Place and/or the performance
or provision of any PlaySpan Offerings, including
in communications sent to actual or prospective
participants of the PlaySpan Market Places in which
You participate. |
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8.3 |
Disclosure of Business Relationship.
Nothing in this Agreement shall prevent PlaySpan
from making any public or private statements about
Your business relationship with PlaySpan and/or
any Network Advertiser and/or Your participation
in any PlaySpan Market Place. |
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8.4 |
Use of Your Logo. Except as expressly
provided above, PlaySpan shall not use any of Your
logos and/or other trademarks without Your prior
written approval. Any and all uses of Your logos
and/or other trademarks shall be in accordance with
Your specified usage guidelines. |
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| 9 |
Representations and Warranties |
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9.1 |
You represent, warrant and covenant as follows:
| a |
You have the legal right to
conduct any business conducted by You including
in respect of any Site(s) participating in
any PlaySpan Market Place; and
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| b |
Any and all information You provided as
part of the registration process or otherwise
shall be truthful, accurate and complete,
irrespective of any independent verification
or other determination made by PlaySpan; and
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| c |
This Agreement has been duly and validly
authorized, accepted, executed and delivered
by You (or Your authorized representative)
and constitutes Your legal, valid, and binding
obligation, enforceable against You in accordance
with its terms; and
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| d |
The performance by You of this Agreement
and the participation by You in any PlaySpan
Market Place and any relevant Network Advertiser's
engagement does not and shall not conflict
with or violate (i) any law, rule, regulation,
order, judgment, decree, agreement or instrument
applicable to You or (ii) if You are an entity,
any provision of Your certificate of incorporation
or other organizational documents. |
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| 10 |
Non-Disclosure |
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10.1 |
Confidential Information. You acknowledge
that in connection with Your participation on a
PlaySpan Market Place, You will be provided with
confidential and proprietary data and information
from time to time through reports as well as other
PlaySpan Offerings to You through Your Network Affiliate
Account Area or otherwise. Such confidential and
proprietary data and information may be owned variously
by PlaySpan. You will retain ownership of any data
and information that You independently collect through
Your Sites without the use of PlaySpan Offerings,
provided that any data and information that may
be provided by You to PlaySpan shall be deemed to
be covered by the licenses granted to PlaySpan under
this Agreement. |
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10.2 |
Duty of Care. You will keep all reports,
data and other confidential information provided
to You through the Network Affiliate Account Area
or otherwise strictly confidential. Without PlaySpan's
prior written consent, You will not disclose any
such confidential information to any third party
or use any such confidential information other than
solely as and to the extent required for you to
perform under this Agreement and/or Your engagements
with any Network Advertisers. |
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10.3 |
Need to Know Basis. You may disclose
any such confidential information only to Your employees,
officers and directors who need to know such information
in order to perform their respective duties; provided
that each such person has a legal or contractual
obligation to maintain the confidentiality of such
information. |
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10.4 |
Legally Required Disclosures. If You
receive any document request, interrogatory, subpoena
or other legal process ("Request") that
would, by its terms, require the disclosure of any
Confidential Information protected by this Agreement,
then promptly upon receipt thereof, and prior to
making any response thereto, You will notify PlaySpan
in writing of Your receipt of such Request, and
shall provide a copy thereof. Upon receipt of such
notice, PlaySpan may seek to intervene in the matter
in which the Request was issued to seek protection
of the confidentiality provided for by this Section.
Absent written agreement signed by PlaySpan, You
may not make such disclosure absent an order or
directive from the tribunal from which a Request
was issued. PlaySpan will be entitled to seek and
obtain injunctive relief preventing any breach of
Your obligations under this Section, without the
need to show irreparable harm, and without the need
to post a bond or undertaking. |
|
| 11 |
Payment; Fees |
| |
11.1 |
Responsibility for Payment. You acknowledge
that Your entitlement to any compensation reported
with respect to any tracked activity (including
if reported) is solely a function of the terms of
Your agreement. PlaySpan is liable to payment to
the extent of the commissions declared at the time
of floating the offer and if any changes thereafter.
Playspan might also set the minimum amount the network
affiliate should accrue for disbursement of payments.
Playspan might not pay until this minimum set limit
is reached as communicated at the time of signup.
Also Playspan hold the right to change this minimum
limit with 30 days notice to network affiliates.
Playspan is not responsible for any other payment
or collection other than what has been defined above. |
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| |
11.2 |
Payment Terms. The fact that a compensation
amount is reported for any tracked activity does
not necessarily mean that a payment is due to You
from Playspan, since payment may be subject to conditions
established by Playspan, including policies regarding
order cancellation, returned merchandise, fraudulent
sale, receipt of pay-by-cash confirmations, receipt
of pending credit card authorizations and/or chargeback’s
and minimums for earned compensation before payment
is made. |
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| |
11.3 |
PlaySpan's Right to Assess Fees. PlaySpan
may, at any time upon prior written notice to you
as described below, increase or decrease commissions
in relation to any or all PlaySpan Offerings made
available to You including Your participation on
any PlaySpan Market Place(s). Except as otherwise
expressly provided in this Agreement, in the event
PlaySpan elects to change commissions, You will
be notified at least one (1) month in advance in
writing by email or posting through the Network
Affiliate Account Area. You may elect not to agree
to such commission by discontinuing Your participation
in all PlaySpan Offerings prior to the commencement
of such commissions. Any and all commissions or
other payouts may be offset against or debited from
any amounts that might be held in account for You
by PlaySpan or PlaySpan Related Parties including
any amounts that may be due, payable or paid to
You by Playspan. |
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| |
11.4 |
Tax. You agree that You are solely responsible
for any and all tax obligations, if any, due to
all taxing authorities arising from or in connection
with Your participation in any PlaySpan Offerings
or PlaySpan Market Place. |
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12 |
Compliance with Laws |
| |
12.1 |
You and Your Affiliates, officers, directors,
employees, consultants, agents and representatives,
and the conduct of Your business, Your performance
under any engagements with PlaySpan Market Place
and/or PlaySpan Offerings shall comply at all times
with all applicable federal, state, provincial and
foreign laws, ordinances, rules, regulations, orders,
judgments and decrees. |
|
| 13 |
Termination of any offers |
| |
13.1 |
Any offers in PlaySpan Market Place may end or
be suspended for a number of reasons, including
expiration or early termination of its publisher’s
agreement with PlaySpan, and You shall not necessarily
receive any prior notice that such offers are ending.
|
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| |
13.2 |
If any offers in PlaySpan Marketplace affiliate
program ends or is suspended for any reason, PlaySpan
may, without notice to You, terminate or suspend
all qualifying links that offer might have. PlaySpan
shall have no obligation or liability to You because
of any such termination or suspension of any of
the offers. |
|
| 14 |
DISCLAIMER OF WARRANTIES |
| |
14.1 |
EACH PLAYSPAN MARKET PLACE AND ANY PLAYSPAN OFFERINGS
ARE PROVIDED "AS IS, WHERE IS" AND "AS
AVAILABLE." |
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| |
14.2 |
EACH OF PLAYSPAN AND PLAYSPAN RELATED PARTIES
HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING ANY WARRANTY AS TO ACCURACY,
ADVERTISERABILITY, COMPLETENESS, CURRENTNESS, SECURITY,
NON-INFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR
PURPOSE OF ANY PLAYSPAN MARKET PLACE OR ANY PLAYSPAN
OFFERINGS OR THAT YOUR USE OF THE SAME WILL BE UNINTERRUPTED
OR ERROR-FREE, OR THAT ANY NETWORK ADVERTISER WILL
BE AVAILABLE (INCLUDING IN THE EVENT OF BEING TERMINATED
FOR WHATEVER REASON FROM ANY PLAYSPAN MARKET PLACE)
OR CAN OR WILL BE WILLING TO ENTER INTO ANY ENGAGEMENT
WITH YOU. |
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| 15 |
Limitation On Liability |
| |
15.1 |
If You reasonably determine that any PlaySpan
Offering does not materially meet PlaySpan's obligations
under this Agreement, then You must notify PlaySpan
in writing within ten (10) days of receiving any
such allegedly nonconforming services. Your failure
to so notify PlaySpan on a timely basis shall mean
that You accept such services, and PlaySpan shall
thereafter have no liability whatsoever with respect
to such services. If upon receipt of any notice
under this Section, PlaySpan may, at its sole discretion,
reperform the service in question or otherwise provide
You with any substitution or replacement services
in lieu thereof. Any reperformance or provision
of substitute or replacement services shall in no
event be construed as an admission that the original
service was nonconforming or otherwise improper,
and Your acceptance of the same constitutes Your
sole remedy and in such case constitutes PlaySpan's
maximum liability for any such alleged breach of
this Agreement. |
|
| |
15.2 |
IF, NOTWITHSTANDING THE ABOVE, LIABILITY IS IMPOSED
ON PLAYSPAN OR PLAYSPAN RELATED PARTIES, THEN YOU
AGREE THAT THE TOTAL LIABILITY OF PLAYSPAN AND PLAYSPAN
RELATED PARTIES, AND ITS AND THEIR OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, SUBCONTRACTORS AND REPRESENTATIVES,
TO YOU WILL NOT EXCEED TWENTY-FIVE DOLLARS ($25.00).
YOU RECOGNIZE AND ACKNOWLEDGE THAT THIS LIMITATION
OF DAMAGES IS FAIR AND REASONABLE, IN LIGHT OF THE
FACT THAT PLAYSPAN IS PROVIDING THIS SERVICE TO
YOU AT NO CHARGE TO YOU. |
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| |
15.3 |
NONE OF PLAYSPAN AND PLAYSPAN RELATED PARTIES
WILL BE LIABLE TO YOU (WHETHER IN CONTRACT OR BASED
ON WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY
OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
RELIANCE, PUNITIVE OR SPECIAL DAMAGES, INCLUDING
LOSS OF REVENUE OR PROFITS, EVEN IF SUCH PERSON
WAS AWARE THAT SUCH DAMAGES COULD RESULT. |
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| |
15.4 |
Any claim or cause of action arising out of Your
use of any PlaySpan Market Place, this Agreement
or the Network Policies and Guidelines must be filed
within ninety (90) days after such claim or cause
of action arose or be forever barred. |
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| |
15.5 |
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION
OF CERTAIN WARRANTIES OR LIMITATION OF CERTAIN LIABILITIES.
ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF THIS
SECTION 15 MAY NOT APPLY TO YOU. |
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| 16 |
Indemnification |
| |
16.1 |
You agree to defend, indemnify and hold harmless
PlaySpan and PlaySpan Related Parties, and its and
their directors, officers, employees, agents, subcontractors
and representatives for and against any and all
claims, actions, demands, liabilities, losses, damages,
penalties, interest, judgments, settlements, costs
and expenses (including reasonable attorneys' fees)
that directly or indirectly arise out of or are
based on:
| a |
(a) any misrepresentation or
breach of any representation, warranty, or
covenant made by You in this Agreement,
|
| b |
(b) any conduct, or activity, error or omission
by You, including in relation to Your participation
on any PlaySpan Market Place, performance
of any PlaySpan-tracked engagement, or otherwise,
|
| c |
(c) any violation by You of any law, regulation
or rule,
|
| d |
(d) Your use of any other PlaySpan Offerings,
and/or
|
| e |
(e) any actual or alleged infringement by
You of any Intellectual Property Rights or
other rights of any person. |
|
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| |
16.2 |
PlaySpan may, at its election in its sole discretion,
assume the exclusive defense and control of any
matter otherwise subject to indemnification by You.
PlaySpan may participate in the defense of all claims
as to which it does not assume defense and control,
and You shall not settle any such claim without
PlaySpan's prior written consent. |
|
| 17 |
Amendments |
| |
17.1 |
Amendments. Upon prior written notice,
PlaySpan may, at any time, add to, remove or otherwise
amend any or all terms, conditions and/or other
provisions of this Agreement, including any Network
Policies and Guidelines. |
|
| |
17.2 |
Changes in Service. Upon prior written
notice, PlaySpan may add, remove, suspend or discontinue
any aspect of any PlaySpan Market Place or any other
PlaySpan Offering. |
|
| |
17.3 |
YOUR CONTINUED USE OF ANY PLAYSPAN MARKET PLACE
AND/OR PLAYSPAN OFFERING AFTER NOTICE IS GIVEN (AND
AFTER EXPIRATION OF ANY APPLICABLE PRIOR NOTICE
PERIOD) SHALL CONSTITUTE YOUR BINDING AND LEGALLY
ENFORCEABLE AGREEMENT TO SUCH CHANGE. IF YOU DO
NOT WISH TO ACCEPT ANY SUCH CHANGE, THEN YOU MUST
TERMINATE YOUR ACCOUNT WITH SUCH PLAYSPAN MARKET
PLACE AND/OR PLAYSPAN OFFERING AND CEASE USING SUCH
PLAYSPAN MARKET PLACE AND ANY ASSOCIATED PLAYSPAN
OFFERING. |
|
| 18 |
Termination, etc. |
| |
18.1 |
Termination. You or PlaySpan may, at
any time, with or without cause, terminate this
Agreement and Your participation on any PlaySpan
Market Place or use of any other PlaySpan Offering.
You may effect such termination through Your Network
Affiliate Account Area or by written notice to PlaySpan
subject to actual receipt thereof. |
|
| |
18.2 |
Restricted Use. Alternatively, PlaySpan
may, in its sole discretion, suspend, limit, restrict,
condition or deny Your access to or use of all or
any part of any PlaySpan Market Place or any PlaySpan
Offering. |
|
| 19 |
Effects of Termination |
| |
19.1 |
Upon any termination of this Agreement and/or
Your participation on all PlaySpan Market Places:
| 1 |
You shall immediately cease
to use and remove from any and all Site(s),
whether or not owned or operated by You, any
and all qualifying links and all other Content
or materials provided to You in connection
with Your participation on such PlaySpan Market
Place or Your use of any other PlaySpan Offerings.
|
| 2 |
Any and all licenses and rights granted
to You under this Agreement shall immediately
cease and terminate.
|
| 3 |
PlaySpan may terminate or, in its sole discretion,
direct or redirect to any destination Site
any and all qualifying links continued to
be used by You without PlaySpan incurring
any further liability or obligation to You.
|
| 4 |
Any and all confidential or proprietary
information of PlaySpan that is in Your possession
or control must be immediately returned or
destroyed. If requested, You will certify
in a writing signed by You or an authorized
officer as to the return or destruction of
all such confidential or proprietary information.
|
|
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| |
19.2 |
PlaySpan may withhold and offset against any and
all compensation and/or other fees that are then
unpaid to You. Following assessment of any fees
or other charges owing to PlaySpan, and subject
to PlaySpan holding any amount it determines in
its sole discretion to be needed to support any
of Your indemnification and/or other obligations
and/or liabilities under this Agreement, PlaySpan
may refund any remaining monies which You had entered
into a PlaySpan-tracked engagement. Such withholding
of such compensation and/or other fees is in addition
to any other rights and remedies that PlaySpan may
have in contract, at law or in equity. |
|
| |
19.3 |
All rights or remedies arising out of a breach
of any terms of this Agreement shall survive any
such termination of this Agreement. of Your participation
in any PlaySpan Market Place or Your use of other
PlaySpan Offerings. |
|
| |
19.4 |
Sections 19 and 20, and any provision which by
its terms are intended to survive any expiration
or termination of this Agreement, will survive any
expiration or termination of this Agreement. Your
representations and warranties in this Agreement
shall survive execution, delivery, acceptance, performance,
expiration or termination of this Agreement. |
|
| 20 |
Miscellaneous |
| |
20.1 |
Independent Contractors. The parties
are independent contractors and nothing in this
Agreement shall confer upon either party any authority
to obligate or bind the other in any respect. |
|
| |
20.2 |
Force Majeure. PlaySpan shall not be
liable to You by reason of any failure or delay
in the performance of its obligations hereunder
on account of strikes, shortages, riots, insurrection,
fires, flood, storm, explosions, acts of God, war,
governmental action, labor conditions, earthquakes,
interruptions in telecommunications services or
Internet facilities, or any other cause which is
beyond the reasonable control of PlaySpan, whether
or not similar to the foregoing. |
|
| |
20.3 |
Assignability. You shall not assign or
delegate any of the rights or obligations under
this Agreement, and any such attempted assignment
or delegation shall be void. Subject to the preceding
sentence, this Agreement is binding on and inures
to the benefit of the respective successors, heirs
and assigns of each party. |
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| |
20.4 |
Severability. If any portion of this
Agreement is held by a court with jurisdiction to
be invalid or unenforceable, the remaining portions
hereof, shall remain in full force and effect. If
any provision of this Agreement shall be judicially
unenforceable in any jurisdiction, such provision
shall not be affected with respect to any other
jurisdiction. |
|
| |
20.5 |
Governing Law; Consent to Jurisdiction; Jury
Trial Waiver. This Agreement shall be governed
by and construed in accordance with the laws of
the State of New York, U.S.A., without regard to
its conflicts of law principles. You consent to
the personal and exclusive jurisdiction of the Federal
and New York State courts sitting in New York County,
New York, U.S.A.. EACH PARTY WAIVES RIGHTS TO TRIAL
BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING
ARISING OUT OF THIS AGREEMENT. The U.N. Convention
on the International Sale of Goods shall not apply
to this Agreement. |
|
| |
20.6 |
Entire Agreement; Third Party Beneficiaries.
This Agreement is the entire agreement between the
parties pertaining to its subject matter, and supersedes
all prior written or oral agreements (including
prior versions of this Agreement and any conflicting
confidentiality agreements), representations, warranties
or covenants between the parties with respect to
such subject matter. There are no third party beneficiaries
of this Agreement. The headings of sections or other
subdivisions of this Agreement will not affect in
any way the meaning or interpretation of this Agreement.
|
|
| |
20.7 |
Notices. PlaySpan may provide notices
to You by posting notices or links to notices in
Your Network Affiliate Account Area. Notices to
You also may be made via e-mail, regular mail, overnight
courier or facsimile at your contact addresses of
record for any PlaySpan Market Place. If you provide
notice to PlaySpan, such notice shall be sent, postage
prepaid by U.S. registered or certified mail or
by international or domestic overnight courier,
to: PlaySpan Inc. Santa Clara, CA 95054, Attn: President.
Notices sent by email or telecopy, with or without
electronic confirmation, will not be deemed to be
valid unless actual receipt is confirmed in writing
by an authorized personnel member of PlaySpan. |
|
| |
20.8 |
Language. The English language versions
of this Agreement and Network Policies and Guidelines
are the controlling versions thereof. All support
and other inquiries regarding Your use of any PlaySpan
Offering must be submitted to PlaySpan in English,
and PlaySpan will communicate in English only. |
|
| |
20.9 |
Government Restricted Rights. With respect
to any acquisition or use of any PlaySpan Market
Place or other PlaySpan Offerings by or for any
unit or agency of the United States Government (the
"Government"), such items shall be classified
as "commercial computer software" as that
term is defined in the applicable provisions of
the Federal Acquisition Regulation (the "FAR")
and supplements thereto, including the Department
of Defense (DoD) FAR Supplement (the "DFARS").
The PlaySpan Offerings were developed entirely at
private expense, and no part of the PlaySpan Offerings
was first produced in the performance of a Government
contract. If any PlaySpan Offering is supplied for
use by the DoD, such PlaySpan Offering is delivered
subject to the terms of this Agreement and either
(i) in accordance with DFARS 227.7202-1(a) and 227.7202-3(a),
or (ii) with restricted rights in accordance with
DFARS 252-227-7013 (c)(l)(ii)(OCT 1988), as applicable.
If the PlaySpan Offering is supplied for use by
a Federal agency other than the DoD, such PlaySpan
Offering is restricted computer software delivered
subject to the terms of this Agreement and (i) FAR
12.212(a); (ii) FAR 52.227-19; or (iii) FAR 52.227-14(ALT
III), as applicable. The contractor/manufacturer
is PlaySpan, Inc., 215 Park Avenue South, 8th Floor,
New York, NY 10003. |
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