MERCHANT AFFILIATE PROGRAM AGREEMENT
THIS AGREEMENT and the materials referred to herein contain the complete terms and conditions that apply to an individual or entity's participation in the Merchant Affiliate Program (the "Program"). This Agreement is made and entered into between abc distributing LLC, a limited liability corporation ("Merchants"), and the applicant submitting a Program application ("Applicant").
As used in this Agreement, "we/us/our" shall refer to Merchant and "you/your" shall refer to the Applicant. "Our Site" or "Merchant's site" shall refer to abc distributing' World Wide Web site located at www.abcdistributing.com "Your Site" shall refer to Applicant's World Wide Web site.
LinkShare Corporation ("LinkShare") has been retained by us to organize, manage and oversee our Program. As a condition of your membership in the Program, you may be required to enter into separate agreements with certain third parties in connection with this Agreement and the Program including, but not limited to, an agreement with LinkShare. Your failure to enter into or adhere to any such required agreements shall result in immediate termination of this Agreement.
1. ENROLLMENT IN THE PROGRAM
To begin the enrollment process, you must submit a complete Program application ("Application"). Submission of your Application to the Program shall be deemed to acknowledge your acceptance of the terms and conditions set forth in this Agreement. Together with LinkShare, we will evaluate your Application and we will notify you of your acceptance or rejection.
We or LinkShare may reject your Application for any reason whatsoever, including, but not limited to, our determination (in our sole discretion) that Your Site is unsuitable for the Program. Unsuitable websites include, but are not limited to, those that: (i) contain or link to nudity or pornography or promote sexually explicit materials; (ii) promote violence; (iii) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) promote illegal activities; (v) promote tobacco, hard liquor, or gambling; (vi) infringe intellectual property rights of ours or any third party, or otherwise violate the rights of any third party; (vii) contain in our sole judgment material that is defamatory, fraudulent, or harassing to us or any third party; (viii) advocate the adoption or promote the ideology of a specific religious or political viewpoint (as opposed to discussing multiple religious or political viewpoints); (ix) promote the use of any pyramid or similar get rich quick schemes or (x) are non-U.S. based or primarily serve a non-U.S. audience. You represent that none of the aforementioned unsuitable website characteristics apply to Your Site.
f you become unsuitable during the term of this Agreement, we shall immediately terminate this Agreement. Once we or LinkShare accept your Application, you will be provided with access to our affiliate website ("Affiliate Gateway") for use in managing your Program account. If LinkShare or we reject your Application, you are welcome to reapply to the Program at any time. Subject to prior written consent from Merchant, Applicant may issue a press release upon the execution of this Agreement announcing the execution of this Agreement. Applicant may issue press releases that mention or discuss Merchant or the business relationship established or maintained by this Agreement only upon prior written consent of Merchant.
2. PRODUCT ICONS; PAGE LINKS; RESTRICTED USE OF MERCHANT MATERIAL AND KEYWORDS INVOLVING MERCHANT TRADEMARK "Merchant" AND ANY VARIATION THEREOF
We or LinkShare will provide you with access to various graphics ("Icons") to feature on Your Site in connection with the Program. You may change the selection of your featured Icons at any time, without our approval; provided, however, that you only use current Icons approved in writing by us or LinkShare. The nature, position and prominence of all Icons will be your sole responsibility and within your sole discretion provided that you comply with the terms of this Agreement. Notwithstanding the foregoing, Merchant may at any time and from time to time, in Merchant's sole discretion, require that you change the nature, position and/or prominence of any Icons on Your Site or cease use of Icons on Your Site and you shall comply with any such requirements.
For each selected Icon, we will provide an electronic link to Our Site using an affiliate URL provided by us ("Link[s]"). It is your sole responsibility to set up and maintain electronic Links connecting Your Site to the appropriate page on Our Site designated for a particular Icon, and to ensure that the electronic Links are in good and working order. You must ONLY place Icons, Links or other Merchant Material (as defined in Section 8 hereof) on Your Site utilizing the code provided to you by us or LinkShare. Unless otherwise authorized by us in writing, you shall NOT "hard" code any Merchant Material we provide for the Program on Your Site. You shall not alter or modify any of our Icons, Links or any Merchant Material (as defined in Section 8 below), in any way.
You may ONLY display discounts, coupons and other Merchant offers on Your Site that are provided to you by us or LinkShare and expressly approved for use in the Program. You shall NOT (i) display Merchant discounts, coupons or other offers on Your Site that you obtain from any other source or (ii) use any Merchant Material as metadata embedded on Your Site. You acknowledge and agree that any violation of the foregoing restrictions shall be grounds to immediately terminate this Agreement.
Applicant shall not purchase search engine keywords that use any Merchant Trademarks (as defined herein) or any Trademark of our Vendors, or any variations thereof. For purposes of this Agreement, "Merchant Trademarks" shall refer to any and all trademarks of Merchant, and/or any and all of Merchant's parent, related, affiliated and subsidiary companies. Merchant Trademarks include, but are not limited to...
Applicant agrees: (i) not to purchase or register keywords, AdWords, search terms or other identifying terms that include the Merchant Trademarks or any variation thereof for use in any search engine, portal, sponsored advertising service or other search or referral service and (ii) to apply the keyword term(s) contained in all the Merchant Trademarks as negative match terms in any and all paid search program(s) or any other search program(s) utilized by Applicant.
Applicant may not use "HYPERLINK "http://www.overstock.com/mgriffin/Local%20Settings/Temporary %20Internet%20Files/OLK62/www.Overstock.com" \t "_blank" www.abcdistributing.com" or any variation thereof as the display URL in any Search Engine or like marketing campaign without the prior written consent of Merchant. Applicant agrees not to place the word "abc distributing" or any variation of it or close spelling of it, in the Affiliate's site URL to the left of Affiliate's top-level domain name or sub-domain. An example of this prohibition is as follows: "abcdistributing.mydomain.com." However, the following example does not violate this prohibition: "mydomain.com/abcdistributing."
If Merchant determines, in Merchant's sole discretion, that Applicant has violated any of the foregoing restrictions, then Merchant may (without limiting any other remedies available to Merchant by law) pursue any or all of the following actions: (i) withhold all compensation otherwise payable to Applicant for the month(s) in which Applicant is deemed by Merchant to have been in violation of any of the foregoing restrictions; (ii) contact the search engine in which Applicant's advertisement(s) was found to ask that such advertisement(s) be removed immediately and permanently; (iii) contact the search program provider(s) used by Applicant and ask to apply the applicable keyword term(s) contained in all the Merchant Trademarks in accordance with the terms of this Agreement and/or (iv) terminate this Agreement, and remove Applicant from the Program permanently.
Notwithstanding anything to the contrary contained in this Agreement, you hereby consent to and grant Merchant the right to contact any third party and to order the inclusion and/or removal of any content and/or term(s) that Merchant deems, in Merchant's sole discretion, in violation of this Section 2.
3. PROHIBITIONS REGARDING EMAIL, FACSIMILE AND TELEPHONE MARKETING
nless otherwise authorized by Merchant in a separate writing, you shall not generate or send any email messages: (i) advertising or promoting any Merchant products or services or (ii) using or containing Merchant's name, any Merchant Material, or any variation thereof. You shall not forward, redistribute, or otherwise repurpose any email communication(s) that Merchant sends to its affiliates and/or customers. You shall not send any unsolicited commercial e-mail or other online communication(s) under this Agreement or in connection with the Program. You hereby represent that you will comply with all laws, rules, regulations and ordinances relating to the sending of commercial e-mails, including, but not limited to, the federal CAN-SPAM Act of 2003. In addition, you shall not generate or send any material advertising or promoting any Merchant products or services via facsimile or engage in any telemarketing activities with respect to Merchant products or services.
ou shall defend (if requested by Merchant and with counsel satisfactory to Merchant), indemnify and hold harmless Merchant, its parent, related, affiliated and subsidiary companies and the officers, directors, agents, employees and assigns of each (collectively, the "Merchant Parties"), from and against any and all claims, losses, liability, damages, costs and expenses (including, without limitation, attorneys' fees and costs) arising out of your breach of this Section 3 or Section 9. The Merchant Parties shall have no obligation to assert against any third party that any law violates any provision of the United States Constitution or the constitution of any state. If you violate Section 3 or Section 9, Merchant may terminate this Agreement immediately and you must promptly cease all activities conducted pursuant to this Agreement including, but not limited to, the display of Merchant Material on Your Site. Notwithstanding the foregoing, Merchant may, in its sole discretion, enter into separate written agreements with select affiliates permitting such affiliates to generate or send e-mails containing information regarding Merchant. The provisions of this Section 3 shall survive the termination of this Agreement.
4. ORDER PROCESSING
We will process product orders placed by Customers (as that term is defined in Section 7 below) who follow any Links from Your Site to Our Site. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. We will oversee all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments, cancellations, and returns and handle customer service. We will track sales made to Customers who purchase products using Links from Your Site to Our Site and will provide you with access to reports summarizing these specific sales' activity. The form, content and frequency of such reports may vary from time to time in our discretion but will generally be available on a continuous basis. These reports and any other information in connection with Merchant's business, provided by Merchant to you shall be deemed proprietary information and as such is protected as specified in paragraph 21 herein. To permit accurate tracking, reporting and fee accrual, you must ensure that the Links between Your Site and Our Site are properly formatted. All HTML tags are to be generated using the special HTML tags provided by us and are not to be altered in any manner. You acknowledge and agree that Merchant is not responsible for tracking and/or reporting sales that are not made through a Link formatted to our specifications.
5. REFERRAL FEE(S)
Referral Fee(s) hereunder are paid on certain products designated by Merchant, from time to time, in Merchant's sole discretion, which are sold to third parties in accordance with the rules set forth herein (such products are hereinafter individually and collectively referred to as "Eligible Product[s]"). For a product sale to generate a Referral Fee, a Customer must follow a Link (in the format specified by us) from Your Site to Our Site, purchase one or more of the Eligible Products sold on Our Site using our automated ordering system, and remit full credit card approved payment to Merchant (the "Referral Fee Process"). You may also earn a Referral Fee for Eligible Product(s) sold from Our Site to such Customer within seven (7) days following such Customer's initial fulfillment of the Referral Fee Process if such Customer returns directly to Our Site, and not by clicking a Link from Your Site; provided, however, that such Customer has not returned to Our Site prior to purchasing such Eligible Product(s) by clicking on any Link other than the Link on Your Site, including, but not limited to, Links included in other websites or communications published or distributed by Merchant or any party other than you, such as email messages, search engines, websites of other affiliates, banner advertisements on any website other than Your Site, or any other marketing effort not attributable to Your Site.
You may earn a Referral Fee based on the Sale Price (as defined herein) of Eligible Product(s), according to fee schedules to be established by us (and which we retain the absolute right to modify at any time). "Sale Price" means the sale price (as determined solely by Merchant) listed on Our Site for each Eligible Product at the time the product is purchased, less all discounts, shipping and handling costs, costs of gift-wrapping and gift boxes, and taxes (where and when applicable).
Notwithstanding the foregoing or anything to the contrary contained in this Agreement, a Referral Fee shall not be earned or paid: (i) on any purchase of Merchant Gift Cards, Merchant Online Gift Cards or decorative pins or pin sets or (ii) for any product(s) (including otherwise Eligible Product[s]) sold to any Customer, visitor, guest or consumer that returns to Our Site by clicking on any other marketing campaign, such as email marketing, search marketing, affiliate marketing, banner advertisements, or any other marketing effort not attributable to Your Site.
6. REFERRAL FEE SCHEDULE
A Referral Fee earned will be specified in your offer based on the Sale Price of the respective Eligible Product(s) sold in accordance with the provisions and procedures of this Agreement ("Referral Fees"). In our sole discretion, we may establish other special higher or lower commission rates with respect to certain promotions or otherwise modify the Referral Fees at any time. We will pay you Referral Fees through LinkShare on a calendar monthly basis. Within sixty (60) days following the end of each calendar month, LinkShare will send you a check for the Referral Fee(s) earned on any Eligible Product(s) that were shipped during the applicable month, less any taxes that we are required by law to withhold. However, if the Referral Fees payable to you for any calendar month are less than twenty-five dollars ($25.00), we or LinkShare may withhold such Referral Fees until the total amount due is at least twenty-five dollars ($25.00) or (if earlier) until this Agreement is terminated. If an Eligible Product that generated a Referral Fee is returned or cancelled, we will deduct the corresponding fee from any subsequent monthly payment. If there is no subsequent payment due to you, we will send you an invoice for the amount due and you hereby agree to remit the canceled Referral Fee to us within ten (10) days following receipt of such invoice.
Applicant acknowledges and agrees that Your Site shall, at all times during the Term hereof, comply with the terms and conditions of this Agreement.
7.POLICIES AND PRICING
Third parties who enter Our Site from a Link on Your Site will be deemed to be customers of Merchant ("Customers"), and, all Merchant rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those Customers. We may change our policies and operating procedures at any time and for any reason, including, but not limited to, determining and changing the prices to be charged for products sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. BECAUSE PRICE CHANGES MAY AFFECT PRODUCTS THAT YOU ALREADY HAVE LISTED ON YOUR SITE, YOU SHALL NOT INCLUDE PRICE INFORMATION IN YOUR PRODUCT DESCRIPTIONS OR OTHERWISE ON YOUR SITE. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.
8. LIMITED LICENSE
Merchant grants you a limited, non-exclusive, non-transferable, without right of sublicense, world-wide, revocable license during the term of this Agreement, to display the Icons, Links and such other icons, links, images, content, tools, search boxes, text, trademarks, trade names, logos or other material (collectively with the Icons and Links, the "Merchant Material") for which Merchant grants express written permission, on Your Site solely in accordance with the terms of this Agreement and solely for the purpose of identifying Your Site as a Program participant and generating product sales on Our Site. You shall not alter or modify any Icons, Links or Merchant Material in any way. Merchant reserves all rights in the Icons, Links and Merchant Material and all other intellectual property rights. Merchant may immediately revoke your license at any time and for any reason upon giving you oral, written or electronic notice.
You acknowledge and agree that: (i) the Merchant Material may include the trade name, trademark, service mark and/or logo of Merchant or our affiliated companies (the "Merchant Brand Features"); (ii) you do not have any right to alter or modify such Merchant Brand Features; (iii) you will not use or display Merchant Brand Features or any of the other Merchant Material in any manner that is defamatory, misleading, libelous, obscene or otherwise potentially damaging to the reputation of Merchant or the goodwill associated with the Merchant Brand Features and (iv) you acknowledge that all rights to the Merchant Brand Features are the exclusive property of Merchant or its affiliated companies and that any goodwill generated through your use of the Merchant Brand Features will inure to the benefit of Merchant or its affiliated companies.
You hereby acknowledge and agree that Merchant will own all right title and interest in and to all information that is created or collected in connection with this Agreement, including, without limitation, (i) any information collected from any Merchant Customer and (ii) any information regarding click-through rates or product purchases by Merchant Customers ("Sales Information").
Subject to the terms and conditions of this Agreement, Merchant grants you a limited worldwide, non-exclusive royalty-free license to use the Sales Information, only to the extent necessary to fulfill your obligations under this Agreement or for your internal research purposes. Such information is considered proprietary and as such is covered under Section 21 herein. You agree not to disclose any Sales Information or Customer information to any third party without Merchant's prior written approval.
9. RESPONSIBILITY FOR YOUR SITE
You will be solely responsible for the development, operation, and maintenance of Your Site and for all materials that appear on Your Site, including, but not limited to: (i) the technical operation of Your Site and all related equipment; (ii) posting Icons on Your Site and linking those Icons to Our Site; (iii) the accuracy and appropriateness of materials posted on Your Site (including, but not limited to, all product-related materials); (iv) ensuring that materials posted on Your Site do not violate or infringe upon the rights of any third party (including, but not limited to, copyrights, trademarks, privacy, or other personal or proprietary rights) and (v) ensuring that materials posted on Your Site are not libelous, do not violate any provision of this Agreement or are not otherwise illegal or unlawful. In addition, you will not modify Your Site to include any of the unsuitable website characteristics set forth in Section 1 above, or to allow Customers or Registered Consumers to rank or otherwise comment on or about Merchant, Our Site, the Program and/or our products.
10. TERM OF THE AGREEMENT AND TERMINATION
The term of this Agreement will begin upon our written acceptance of your Program Application and will end when terminated by either party (the "Term"). Either you or Merchant (or LinkShare on behalf of Merchant, when duly authorized by us) may terminate this Agreement at any time and for any reason, with or without cause, by giving the other party prior written notice of termination. You are only eligible to earn Referral Fees on sales occurring during the term of this Agreement, and fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. We and LinkShare may withhold your final payment for a reasonable time to ensure that the correct amount is paid. Upon termination of this Agreement: (i) all licenses hereunder shall terminate; (ii) you shall immediately remove any Merchant Material and any other Merchant intellectual property or Merchant Brand Features from Your Site and (iii) Sections 12 through 22 and this Section 10 will survive such termination.
Merchant reserves the exclusive right to may modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion, by posting a change notice or a new agreement on the Affiliate Gateway Site or otherwise providing the change notice or new agreement to you in writing. Modifications may include, but are not limited to, changes in Referral Fees, fee schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OR DELIVERY OF A CHANGE NOTICE OR NEW AGREEMENT WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
12. RELATIONSHIP OF PARTIES
You and Merchant are independent contractors, and nothing in this Agreement or by virtue of Merchant's participation in any other program(s) will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your Site or otherwise, that reasonably would contradict anything in this Section 12.
Except as expressly authorized by this Agreement, you shall not acquire any right under this Agreement to use, and shall not use, any Merchant Trademarks (either individually, in whole or in part, or in conjunction with or as part of any other word or name) or any fanciful characters or designs owned or licensed by The Merchant Company or any of its related, affiliated or subsidiary companies, in any advertisement, publicity or promotion on your behalf, to express or imply any endorsement by Merchant of any services provided by you, or in any other manner whatsoever (whether or not similar to the uses hereinabove specifically prohibited). You acknowledge and agree that any violation of the foregoing restrictions shall constitute a material breach of this Agreement, in which case Merchant may immediately terminate this Agreement and pursue any and all relief.
You hereby warrant and represent that: (i) you have the right, power and authority to enter into this Agreement and fully perform your obligations hereunder; (ii) you are adequately financed to meet any financial obligation you may be required to incur hereunder; (iii) by entering into this Agreement you do not violate any agreement existing between you and any other person or entity; (iv) all portions of Your Site that are not supplied by Merchant do not violate or infringe any right of privacy or publicity or any copyright, trademark, U.S. patent or other intellectual property right, or otherwise violate or infringe any other right of any third party and (v) you will comply with all applicable laws, rules, regulations and ordinances in effect during the term of this Agreement pertaining to your operation of Your Site and to the subject matter of this Agreement.
You shall defend (if requested by Merchant and with counsel satisfactory to Merchant), indemnify and hold harmless Merchant, its successors, assigns, affiliated and subsidiary companies, and the officers, directors, agents, and employees of each (collectively, the "Merchant Parties"), from and against any and all claims, losses, liability, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and costs) relating to: (i) the performance of your obligations under this Agreement, or any breach or alleged breach of any representation, warranty, obligation and/or covenant contained in this Agreement; (ii) the development, operation, maintenance, and contents of Your Site; (iii) the act and/or omission by you and/or any of your officers, employees, representatives and/or agents relating to the subject matter of this Agreement and/or (iv) the sale, use and/or offer for sale of any products other than Merchant Products on the Your Site.
16.LIMITATION OF LIABILITY
Under no circumstances will Merchant or any of the Merchant Parties be liable to you or any other person or entity for any special, indirect, consequential or exemplary damages (including, without limitation any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we, or any of our representatives, have been advised of the possibility of such damages. Further, the aggregate liability of Merchant or any Merchant Party arising with respect to this Agreement and the Program will not exceed the total Referral Fees paid or payable to you under this Agreement during the twelve (12) month period prior to the date such liability arose. All claims made hereunder by you against us shall be made within ninety (90) days of the act or omission which forms the basis of such claims.
We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of the Affiliate Gateway, the Merchant Site, or any website sponsored or used by us in connection with this Agreement will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions, errors or termination of any services or products or of this Agreement.
18. INDEPENDENT INVESTIGATION
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEBSITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPLICITLY SET FORTH IN THIS AGREEMENT.
19. IDENTIFICATION OF AFFILIATES
We and LinkShare may identify you or Your Site as a participant in the Program without providing you prior notice or obtaining your specific written consent. Such identification may be oral, written, or electronic, and may include, but is not limited to, public announcements, promotional materials, internal and external reports, and public filings.
20. NON-ASSIGNMENT AND SUCCESSORS
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. This Agreement and your rights and obligations hereunder are personal to you, may only be carried out by you and may not be assigned by you. Merchant may assign, transfer, delegate and/or grant all or any part of its rights, privileges and property hereunder to any party.
he term Proprietary Information shall include all information and data furnished by Merchant to Applicant, whether in oral, written, graphic or machine-readable form, including but not limited to, designs, procedures, formulas, discoveries, inventions, improvements, concepts, and ideas, except such information and data as the parties agree in writing is not proprietary or confidential. It also includes Sales Information provided to you in connection with this Agreement. Information made available to the general public shall not be considered to be Proprietary Information.
Except as required by any applicable laws, Applicant agrees not to disclose to any third party (other than to Applicant directors, officers, employees, agents, representatives and employees (collectively, "Representatives") on a need to know basis only), use for Applicant's own benefit (other than the right of Applicant's or its Representatives to use for purposes of performing Applicant's obligations under this Agreement), or permit any third party to disclose or to use any non-public, confidential or proprietary information that Merchant or its Representatives make available to Applicant or its Representatives in connection with this Agreement. Applicant further agrees to use reasonable means to safeguard such Proprietary Information and store the Proprietary Information in a safe place.
This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior or contemporaneous written or oral agreements or representations between the parties. The provisions of this Agreement are severable and the invalidity of any provision of this Agreement shall not affect the validity of the remainder of the provisions hereof. In the event any provision contained herein shall be deemed unenforceable or contrary to law, such provision shall be curtailed and limited, but only to the extent necessary to bring it within the legal requirements and all other provisions herein shall remain in full force and effect.
This Agreement will be governed by and construed in accordance with the laws of the United States and the state of Illinois without reference to rules governing choice of laws. Any action relating to this Agreement shall be commenced and maintained exclusively in the appropriate Illinois Court having subject matter jurisdiction in. You hereby consent to the jurisdiction of such court and to the service of process outside the State of Illinois pursuant to the requirements of such court in any matter so to be submitted to it, and expressly waive the right to a jury trial. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
As used herein, certain capitalized words (or any variation thereof) shall have the meaning as herein provided. Any conflict between said capitalized words and any other meaning shall be resolved as herein provided. Unless otherwise stated above, all notices and other communications required or permitted hereunder shall be in writing and shall be delivered personally or transmitted by email to LinkShare at email@example.com, or by Facsimile to (646) 602-0160 or by United States mail to LinkShare Corporation, 215 Park Avenue South, 8th Floor, New York, New York 10003, or if to you, at the email address designated on your Application.
If the person entering into this Agreement is acting on behalf of his or her company or organization, such person hereby represents to Merchant that he or she has all requisite power and authority to enter into this Agreement on behalf of such company or organization, that this Agreement has been duly authorized by such company or organization and that this Agreement will constitute a legal, valid, an binding obligation of such company or organization. Such person hereby agrees to indemnify and hold harmless Merchant from any and all claims, damages and expenses (including without limitation attorney's fees) arising from any breach of this Section 22.