- AFFILIATE PROGRAM AGREEMENT -
TERMS & CONDITIONS
SECTION 1: GENERAL
This Affiliate Agreement is between The Posture System ("The Posture System," "We" or "Us") and You ("You" or "Affiliate").
1.1. To become a The Posture System Affiliate and participate in the The Posture System Affiliate Program, you must be an individual over the age of eighteen (or any higher age required under the laws of your place of domicile in order to enter into contracts), a corporation, limited partnership, Limited Liability Company, or another kind of entity recognized by the law as a legal person separate from its owners.
1.2. To be a The Posture System Affiliate, you must agree to the terms of the following Affiliate Agreement. Please read the agreement carefully before joining or using The Posture System.
1.3. By clicking on the "accept" button or using The Posture System, you agree to be bound by all of the terms of this agreement. If you do not accept this agreement, do not use The Posture System.
1.4. In consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, the parties, intending to be legally bound, agree as follows:
1.4.1. Certain website owners ("Merchants") may seek to increase visitor traffic through a system commonly called an "Affiliate Program." A Merchant with an Affiliate Program invites website owners or others to join the Affiliate Program and display or distribute the Merchant's advertising that includes a hyperlink that leads to the Merchant's Website. Persons who join a Merchant's Affiliate Program ("Affiliates" of that Merchant) receive compensation from the Merchant based on tracked sales of products or services, application completions, or other specified activities by Web users who activate the hyperlink.
1.4.2. The Posture System directly or indirectly operates, over the Web, one or more Affiliate marketing networks that have two types of participants: (1) Merchants who join in order to operate an Affiliate Program and (2) others who join in order to participate as online Affiliates in the Affiliate Programs of those Merchants.
1.4.3 You desire to participate as a potential Affiliate for Merchants in such Affiliate Program(s), and this Agreement contains the terms and conditions for that participation.
1.5. The Posture System reserves the right to change, modify, add, or remove portions of this Affiliate Agreement at any time and may add to, change, suspend, or discontinue any aspect of The Posture System at any time. In either such case The Posture System will notify Affiliates via e-mail or The Posture System website of such changes, at which time Affiliates may either agree to such changes or withdraw from The Posture System.
SECTION 2. DEFINED TERMS
2.1. References to "this Agreement" are to the following, collectively: (i) this Affiliate Agreement, (ii) any additional or different terms specifically applicable to membership in any Affiliate Program that The Posture System posts on the relevant Site or otherwise makes available and requires that You accept in order to join or continue to use such Affiliate Program (the "Additional Terms"), and (iv) any supplement to this Affiliate Agreement signed by both parties (a "Supplement"), in each case as such terms may be amended, supplemented or replaced from time.
2.2. The term "Web" means the part of the Internet commonly referred to as the World Wide Web or any replacement or similar network or resource which permits the sharing of electronic files, graphics, or information, regardless of how it is accessed by users, whether through computers, WebTV, cable set-top boxes, cellular telephones, or other wireline or wireless device, platform, or technology. A capitalized term used in this Agreement is defined in the provision of this Agreement first used. Unless defined in this Agreement or unless the context otherwise requires, terms used in this Agreement that have commonly accepted meanings within the Web-based e-commerce industry are intended to have such meanings. The term "Website" means a site on the Web and, where the context requires, a person owning or operating a site on the Web.
2.3. The following terms have the meanings indicated:
2.3.1. "Content": Information, communications, software, photos, text, video, graphics, music, sounds, images, and other material.
2.3.2. "Link": Any software, software code, programming, or other technology or method (or any combination of the foregoing) that (i) creates a hyperlink between two Websites, 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 "clicked on" or otherwise activated by a person, results in a Website featured in the link being served to such person (i.e., the screen of the visitor's Web access device displays Content on the linked Website) or results in such person being able to electronically access or receive information, files, graphics, or other items from the linked Website.
2.3.4. "The Posture System": Any Affiliate marketing system now or hereafter operated by The Posture System or by a corporate Affiliate of The Posture System.
2.3.5. "Affiliate": As of any time and with respect to The Posture System, a person that is a member of The Posture System as a potential Affiliate for Merchants under an effective online or written agreement with The Posture System.
2.3.6. "Merchant": As of any time and with respect to The Posture System, a person that is under an effective Merchant Agreement with The Posture System for purposes of conducting one or more Affiliate Programs.
2.3.7. "Affiliate Program": A performance-based marketing arrangement that any Merchant conducts through The Posture System.
2.3.8. "Merchant Site": For any Affiliate Program, a Website that a Merchant is authorized to use in The Posture System.
2.3.9. "Promotion": A banner, text-mention, advertisement or other material by which a Merchant offers its products or services to Web users or otherwise seeks to attract Web users to its own Website.
2.3.10. "Affiliate Link": With respect to the Affiliate Program, a Link that (i) when activated by a viewer results in the viewer being redirected to or served a Webpage of a Merchant Site, (ii) You post on Your Site that is subject to any prohibitions or limitations imposed by such The Posture System Merchant, You make available to Web users, (iii) is of a kind and format for which The Posture System provides its tracking services for Merchants and (iv) is established as instructed by The Posture System and includes any tracking or other code required by The Posture System, in each case in accordance with The Posture System's technical guidelines.
2.3.11. "Your Site": For any Affiliate, a Website that You own and operate and have properly registered for use in The Posture System. Also known as an "Affiliate Site".
2.4. The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation." The word "or" means "and/or." If, in any provision of this Agreement, any example is given (through the use of the words "such as," "for example," "e.g." or otherwise) of the meaning, intent or operation of such provision, such example is intended to be illustrative only and not exclusive or limiting. The term "person" is to be broadly construed and includes any natural person or any corporation, trust, association, Limited Liability Company, partnership, joint venture, or other entity. A "corporate Affiliate" of any person is any other person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with such first 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. A "business day" is a weekday in New York City, USA, that The Posture System does not observe as a holiday. The word "Your" is a possessive pronoun that refers to You and the word "Our" is a possessive pronoun that refers to The Posture System.
2.5. Whenever the context requires, any pronoun shall include the corresponding masculine, feminine and neuter forms. Section or other headings or captions shall not affect in any way the meaning or interpretation of this Agreement. Unless otherwise stated, references in this Affiliate Agreement to a Section or subsection are to a Section or subsection of this Affiliate Agreement. All definitions apply equally to both the singular and plural forms of the terms defined. This Agreement shall be construed according to its fair meaning and not strictly for or against either party.
SECTION 3. AFFILIATE MEMBERSHIP
3.1. By clicking on an "Accept" or similar button on a Webpage on The Posture System Website, You acknowledge that You have read, accepted, and agreed to be bound by the terms of this Agreement with the same force and effect as if this Agreement were set forth in a written document that had been duly signed and physically delivered by You and The Posture System, and this Agreement becomes effective when You do so. In the event of any conflict between the respective express provisions of this Affiliate Agreement, any applicable Policies, any applicable Additional Terms, or any Supplement, the conflict shall be resolved in accordance with the following order of precedence: (i) Supplement, (ii) Additional Terms, (iii) Policies, and (iv) this Agreement.
3.2. To become an Affiliate of The Posture System, You must register on the page of The Posture System Site provided for such purpose. You agree to promptly provide The Posture System with accurate and complete updated registration information if and as such information changes. As part of the registration process for any The Posture System Affiliate Program, You select a unique alphanumeric password and user name. The Posture System may deny access to and use of any Webpage under The Posture System.com domain unless or until any preconditions established by The Posture System and published on the registration area of the Site are satisfied.
3.3. You represent and warrant to and agree with The Posture System as follows:
The information You provide as part of the registration process or otherwise shall be, at the time provided, accurate and complete.
3.4. You have carefully read this Agreement (including the applicable The Posture System Policies, Additional Terms and Supplements, if any) and consulted Your own legal counsel to the extent You deem necessary (or shall have consciously decided not to consult a lawyer). You fully understand that this Agreement creates legally binding obligations on Your part.
3.5. This Agreement has been duly and validly accepted, executed and delivered by You and constitutes Your legal, valid, and binding obligation, enforceable against You in accordance with its terms.
3.6. The execution and delivery or acceptance or deemed acceptance and performance by You of this Agreement and the participation by You in any Affiliate Program does not and shall not conflict with or violate (i) any law, rule, regulation, order, judgment, decree, agreement, or instrument applicable to You or binding upon Your assets or (ii) if You are an entity, any provision of Your certificate of incorporation or other organizational documents.
3.7. You shall independently evaluate the desirability of participating in any Affiliate Program You apply to or join. You agree that in deciding to participate in any The Posture System Affiliate Program, You shall not rely on any representation, warranty, guaranty, or statement by The Posture System other than any representation expressly set forth in this Agreement and expressly stated to be a representation.
3.8. You agree not to resell, assign, sublicense, or otherwise provide to any third person any of Your rights or benefits, or transfer or delegate any of Your obligations, under this Agreement or as an Affiliate without the prior written consent of The Posture System.
3.9. You agree that, during the applicable Restricted Period (as defined below), You shall not maintain or create any Link outside of an Affiliate Program with any Merchant on terms that provide for payment to You of compensation for levels of Web user activities attributable to such Link, other than a Affiliate Link through The Posture System Affiliate Program or otherwise enter into any agreement or arrangement with any Merchant intended to reduce the fees that would otherwise be payable to The Posture System by such Merchant. The term “Restricted Period” means, with respect to any Merchant, the period beginning on the effective date of this Agreement and ending on the first to occur of (i) one year after the date You cease to be a member of The Posture System Affiliate Program in accordance with this Agreement and (ii) the date such Merchant is entitled, by the express terms of its Merchant Agreement with The Posture System, to form links with Affiliates outside of The Posture System Affiliate Program without restriction. You may request The Posture System to inform You of the date referred to in clause (ii) of the immediately preceding sentence with regard to any specific Merchant by e-mailing The Posture System via the “Contact Us” page on The Posture System Website.
3.10. You agree that You are solely responsible for all tax obligations due to all taxing authorities arising from or in connection with Your participation in The Posture System Affiliate Program, including federal, state, provincial, local, and foreign withholding taxes, FICA, FUTA, Social Security, Medicare, SUI and any and all other federal, state, provincial, local, and foreign taxes. In addition, You agree that payments to You by The Posture System on behalf of a Merchant shall be subject to withholding under any applicable tax law, rule, or regulation. You shall promptly provide The Posture System with any information it reasonably requests in order to determine if withholding is required. If The Posture System acts for any Merchant in disbursing any payment due from it to You, then You authorize The Posture System to withhold taxes from payments to You that it believes in good faith are required. Without limiting the generality of the foregoing, You agree that, as between You and The Posture System, You are solely responsible for calculation and payment or collection of, accounting for and issuing or obtaining invoices relating to any applicable Value Added Taxes including goods and services taxes.
3.11. You understand and agree that participation in The Posture System Affiliate Program will involve establishing contractual arrangements with The Posture System (including this Agreement) or The Posture System Merchants that are stored electronically on servers and are formed by means of “clicking on” an accept button on The Posture System Website or through other electronic means. You agree not to assert that any such contract is invalid or unenforceable solely because it takes such form or was formed by such means rather than taking the form of a written document formed by the manual signatures of the parties or another form or method.
SECTION 4. MEMBERSHIP SERVICES
4.1. You shall have, on The Posture System Site, an individual account accessible through the Web by use of Your username and password (which You create upon signup) which displays the web related activities tracked by The Posture System for the Merchants with which You have Affiliate Links. The contents, format, and frequency of these account details (such as sales information, commissions, or number of clicks, etc.) may vary from time to time in The Posture System’s discretion.
4.2. You shall be responsible for maintaining the confidentiality and security of Your username and password and for all usage of Your account. Absent actual receipt of written notice to the contrary from You, The Posture System may assume that any person accessing any part of The Posture System Website using Your username and password is authorized to do so.
4.3. The Posture System shall not be liable to You as a result of failure by You or any Merchant to use Affiliate Links, including to the extent that such failure results in inaccurate reports or reduction of the amounts which would otherwise be payable to You by any Merchant.
4.4. You acknowledge that the accuracy, completeness and currency (in time) of the data included in Your Affiliate Reports is a function of the accuracy, completeness and currency of the underlying data that The Posture System obtains from Merchants. The Posture System shall not be responsible or liable for any errors in or omissions from such underlying data or any Merchant’s failure to make or delay in making such data available to The Posture System or for any intentional or inadvertent deletion or disablement by You or a Merchant of any of The Posture System’s tracking technology, or any consequences of the foregoing. The Posture System’s obligation, if any, to provide data or Affiliate Reports to You or any Merchant is subject to the provision to The Posture System, on a timely basis, of the necessary data of the kinds and in the form, format, and manner required by The Posture System. The Posture System may rely on any data, notice, instruction, or request furnished to The Posture System by You, any Merchant or any other third party which is believed by The Posture System in good faith to be genuine.
4.5. If a Merchant reports a transaction or activity that occurred in a particular month to The Posture System after such month ends, then The Posture System may, in its discretion, incorporate that event into Your Affiliate Reports for that month or for some subsequent period.
4.6. You acknowledge and agree that each Merchant whose Affiliate Program You join shall receive reports from The Posture System that identify You and may include data about You and Your Affiliate Links with that Merchant. If The Posture System is notified by a Merchant that it believes that its reports about its relationship with You contain an error or omission or otherwise require adjustment, The Posture System may elect to revise those reports as requested by the Merchant and make corresponding changes to Your Affiliate Reports. Since the reports The Posture System provides You and such Merchant are the bases for calculating the compensation, if any, due to You from that Merchant, any such adjustment may affect the amount of compensation to which You are entitled.
4.7. If You believe that any of Your Affiliate Reports for any month contains errors in the data, You must notify The Posture System within ten days after the end of that month 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 The Posture System of errors in the corrected or adjusted data shall be ten days after such correction or adjustment is posted.
4.8. You acknowledge that Your entitlement to any compensation reported with respect to any tracked or reported activity is solely a function of the terms of Your agreement with The Posture System and that The Posture System is solely responsible for its payment. The fact that a compensation amount is reported for any tracked activity does not necessarily mean that a payment is due to You from The Posture System, since payment may be subject to conditions established by the Merchant, including policies regarding order cancellation, returned merchandise, receipt of pending credit card authorizations, and minimums for earned compensation before payment is made. All determinations of Affiliate Links and the compensation due to You made by The Posture System shall be final and binding on You.
SECTION 5. CHANGES IN SERVICES AND MEMBERSHIP TERMS
5.1. The Posture System reserves the right to take, at any time, any of the following actions (each a “change”):
5.1.1. Add to, remove, or otherwise change the terms or provisions of this Agreement or replace this Agreement in its entirety.
5.1.2. Add, remove, suspend, or discontinue any aspect of any limit, restrict, condition, or deny access to or use of all or part of The Posture System or otherwise change Your right to use The Posture System.
5.1.3. Charge fees for continued access to or use of The Posture System or any aspect thereof or any services that The Posture System provides or makes available to You.
5.2. The Posture System may notify You of such change by posting a notice on The Posture System Site or, in its discretion, by e-mail, newsletter, postal mail, or personal or overnight delivery. Such change shall be effective when such notice is posted or otherwise given or any other time specified in such notice, except that:
5.3. If any such change would result in You becoming required to pay fees not previously payable or increase fees already payable, then such notice of such change shall be given by one of such means at least thirty days before such change becomes effective.
5.4. In the case of any other change that would, in The Posture System’s good faith and reasonable judgment, materially adversely affect Your rights or obligations under this Agreement, then such notice of such change shall be given by one of such means at least five business days’ before such change becomes effective, except that shorter advance notice (but not less than two business days) may be given in a situation that The Posture System believes in good faith to be an emergency or otherwise have an adverse effect if a longer notice were given.
5.5. You are responsible for regularly reviewing The Posture System’s website in order to learn of any changes. YOUR CONTINUED USE OF THE POSTURE SYSTEM AFTER SUCH NOTICE IS POSTED OR OTHERWISE GIVEN (AND AFTER EXPIRATION OF ANY APPLICABLE PRIOR NOTICE PERIOD SPECIFIED ABOVE) SHALL CONSTITUTE YOUR BINDING AND LEGALLY ENFORCEABLE AGREEMENT TO SUCH CHANGE. IF YOU DO NOT WISH TO ACCEPT ANY SUCH CHANGE, THEN YOU MUST WITHDRAW FROM THE POSTURE SYSTEM AND CEASE USING THE POSTURE SYSTEM.
5.6. You acknowledge and agree that The Posture System may at any time enroll any person as an Affiliate on terms that differ from those contained in this Agreement, and may also operate other Affiliate marketing networks or Affiliate Programs that are similar to or compete with any Affiliate Programs in which You are a member.
SECTION 6. PARTICIPATION IN THE POSTURE SYSTEM AFFILIATE PROGRAM
6.1. You agree to comply with the terms and requirements for participation established by each Merchant who participates in The Posture System Affiliate Program that You join. Merchants may or may not specify special terms or requirements for an Affiliate Program.
6.2. Subject only to compliance with Section 5, The Posture System may, with the consent of such Merchant, if required, but without Your prior approval, institute policies or procedures that have the effect of modifying the terms and requirements for participation with a Merchant. Upon effectiveness, such policy or procedure shall apply to You, notwithstanding any contrary provision of Your terms and requirements, and Your terms and requirements shall automatically be deemed to be modified to reflect such policy or procedure, without the necessity of any formal amendment of such terms and requirements or other action on Your, The Posture System’s, or any Merchant’s part. No such modification, however, may have retroactive effect without Your consent.
6.3. You agree that You shall not:
6.3.1. Place or use any Link of any Merchant except with the intention of delivering valid sales, leads, applications, accounts, clicks, or other specified compensable actions to that Merchant;
6.3.2. Distribute or display, or authorize or use any third party to distribute or display, any Affiliate Link or any other Link of any Merchant created or obtained through The Posture System by means of any browser extension or other software or technology which is downloaded to or installed on the Web user’s personal computer or other Web access device and which serves advertisements, promotional material, or links as an overlay upon, a substitute for content in, as a “pop-up” keyed by content or key words on a Webpage requested or viewed by such Web user;
6.3.3. Inflate the number of applications, accounts, clicks, or other specified compensable actions or any impressions of any Merchant’s Webpage, Promotion or other Content by any method or using any device, Affiliate Program, hidden frames, java pop ups, Web bot, robot, automatic redirecting of users, autospawning of browsers, or any other technique or means of generating automated click-throughs, requiring visitors to click on a Merchant’s Link before entering any area of Your Site(s), by placing or including Promotions or links on pages of Your Site that automatically reload or go to another page without interaction from the user (for example, client pull or server push technology, METATAG reload, or refresh command on page html), or on any page that is not generally accessible to all Web users (for example, pop-up windows and hidden frames);
6.3.4. Resell, assign, sublicense, or otherwise provide any third person any of Your rights or benefits, or otherwise transfer or delegate any of Your obligations, as a participant in any Affiliate Program, except to the extent authorized by The Posture System
Display, distribute or otherwise make available to Web users or others any Promotion of or any Link to any Merchant Site anywhere by any means or method prohibited by such Merchant or that violates any law, rule or regulation or any intellectual or other rights of such Merchant or any third party; or
6.3.5. Use any name, trademark, service mark, domain name or other intellectual property of any third party in connection with Your use of The Posture System, Your participation in The Posture System Affiliate Program or any Affiliate Link in any way or for any purpose that infringes or violates any law or any intellectual property or other rights of such third party, whether in order to increase the levels of compensable activities attributable to Your Affiliate Links or for any other purpose.
6.4. If You violate any The Posture System policy or engage in any actual or suspected fraudulent, abusive, or illegal activity as an Affiliate or participant in any Merchant’s Affiliate Program, The Posture System may suspend or terminate Your membership in, access to, and use of Affiliate Programs, and may require that any and all compensation otherwise due to You from any or all Merchants related to The Posture System be forfeited. Such suspension, termination, or forfeiture is in addition to any other rights and remedies that The Posture System or any Merchant may have in contract, at law, or in equity. In addition, such activity may result in referral to the appropriate law enforcement agencies for investigation and, where appropriate, prosecution.
6.5. USING ELECTRONIC OR OTHER TYPES OF MESSAGES. Without limiting the generality of the foregoing or any other obligations you have under the Affiliate Agreement and any obligations you may have under your terms and conditions with any Merchants, if you use email and/or, as applicable, mobile service messages (SMS), instant messaging (IM), or other types of electronic messages (individually and collectively, “electronic messages”) in connection with your participation on The Posture System and/or in The Posture System’s Affiliate Program, you agree as follows:
6.5.1. Except as expressly authorized by any Merchant or other relevant party, any and all such electronic messages initiated or sent by you or on your behalf must:
188.8.131.52. Identify you as the sender and may not suggest or imply, or mislead or be likely to mislead a recipient into believing that a Merchant, other Affiliate, or The Posture System is a sender or sponsor of, or has procured you to send, such electronic messages. You may not use a return address, subject heading, header information, or message contents that misleads or confuses or is likely to mislead or confuse a recipient as to you being the sender;
184.108.40.206. Feature the service or product offering(s) that you are offering the recipient (and not those of any Merchants) as its primary contents and purpose;
220.127.116.11. Contain a valid physical postal address for you (and not any other person or entity including any Merchant, other Affiliate, or The Posture System);
18.104.22.168. Be clearly and conspicuously identified as an advertisement or solicitation, unless you have received affirmative consent to send electronic messages to that recipient.
6.5.2. You will implement and employ in connection with each electronic message sent by you or on your behalf an effective mechanism and procedure for any recipient of such electronic message to be able to request during the following thirty (30) days at a minimum not to receive further electronic messages from you or those sending electronic messages on your behalf and except as otherwise expressly permitted by applicable law, such request shall be heeded within ten (10) business days of receipt of such request (collectively, an “opt-out procedure”).
22.214.171.124. You will insure that such opt-out procedure is fully compliant with any and all applicable laws, rules and regulations, including the requirements of the Can Spam Act of 2003 (Public Law No. 108-187).
126.96.36.199. Pursuant to or in addition to the requirements of the Can Spam Act of 2003, such opt-out procedure, you must also provide a means to share, and will promptly share upon The Posture System’s or any Merchant’s request, the email, SMS, IM, or other address of any recipients that exercised such opt-out procedure with any Merchants that are promoted in any electronic message giving rise to such opt-out request. You may not sell any lists of recipients that have exercised such opt-out procedure.
6.5.3. You may not use any Affiliate Links (or any equivalent link or mechanism that, upon being activated, causes the same result as clicking on an Affiliate Link) in any electronic message unless:
188.8.131.52. You have received the express authorization of the Merchant to use email or other electronic messages, as applicable, to promote its Affiliate Link; and
184.108.40.206. Any and all such electronic messages comply in all respects with this Addendum, the Affiliate Membership Agreement and any and all applicable laws.
220.127.116.11. Further, except as expressly authorized by an individual Merchant, any and all electronic messages initiated or sent by you or on your behalf may not:
18.104.22.168. Identify any other person or entity, including The Posture System, any Merchant or other Affiliate, as a sender or sponsor of any electronic message sent by you or on your behalf; nor
22.214.171.124. Contain content which has as its primary purpose the promotion of a Merchant, Affiliate (other than you) or The Posture System, whether or not any Affiliate Link is used. All electronic messages sent by you or on your behalf must feature the service or product offering you are providing as its primary purpose; nor
126.96.36.199. Contain sexually-oriented material without placing warning labels and otherwise complying with applicable laws including the Can Spam Act of 2003 in all respects; nor
188.8.131.52. Be sent by or through any computer without authorization, including by relay or retransmission, or contain false header information regarding the transmitting computers and transmission path including the originating electronic mail address, domain name or Internet Protocol address.
184.108.40.206. Should you be expressly authorized to promote any Merchant or Affiliate Link using an electronic message, in addition to any other applicable terms of the relevant terms and conditions, you agree to comply with the Can Spam Act of 2003 and any rules and regulations that are promulgated by any governmental authority in respect thereof and any and all orders, judgments and decrees of any court, agency or other authority relating thereto and any other applicable foreign, federal, provincial, state, or local law applicable to the use or transmission of electronic message. While some of the requirements of the Can Spam Act of 2003 are set forth as contractual obligations hereunder, compliance with the above provisions shall not be construed as or deemed to be sufficient to comply with any such or other applicable law.
6.5.4. You shall provide The Posture System with any information requested by The Posture System at any time, including evidence that you have complied with all required opt-out procedures and other aspects of your compliance herewith. Further, you authorize The Posture System to provide any information, including confidential information, and otherwise make any disclosures that The Posture System determines to be necessary or appropriate about you or your participation or activities on or in relation to any The Posture System or your use of any The Posture System-provided resources to any local, state, provincial, federal, or foreign governmental authority or Internet Service Provider bringing or contemplating the bringing of any action or conducting any investigation in relation to the enforcement of any applicable laws, including the Can Spam Act of 2003.
6.6. NOT AN EMAIL OR OTHER SERVICE PROVIDER
Your participation in The Posture System is as an Affiliate. Your participation is purely voluntarily and you may terminate your participation at any time.
6.6.1. Neither The Posture System nor any Merchant shall be construed or deemed as having “procured” you or your services to send or initiate any email or other types of electronic messages (as defined above) to any computer, including for the purposes of promoting The Posture System or any Merchant or its respective trade or business, or goods, products, property, or services.
6.6.2. You are not and shall not, at any time, be deemed to be a vendor, supplier, or provider of goods or services to The Posture System. You are not and shall not at any time be deemed, based on your participation in any The Posture System, to be a vendor, supplier, or provider of goods or services to any Merchant, unless a Merchant has expressly agreed in writing to engage you as a vendor, supplier, or provider of goods or services.
6.6.3. Neither your participation in The Posture System Affiliate Program (including your use of any resource made available and earning or receiving of any commissions or other monies) shall be construed as or deemed to be an inducement for, solicitation of, or payment or provision of other consideration to, you to provide any products or services to The Posture System or to any of the Merchants.
6.7. USING PLUG-INS, POP-UP ENGINES, AND OTHER DOWNLOAD TECHNOLOGY
6.7.1. No Interference. If you make available, directly or indirectly any downloadable or other technology, you agree to insure, and hereby insure, that such technology does not and will not “Interfere” (as defined below) during your participation in The Posture System Affiliate Program and afterwards, except with “an end user’s express and informed consent” (as defined below), with any of the following:
220.127.116.11. Any Affiliate’s or Merchant’s Web-based links, advertisements, sites, or other commercial offerings in any manner that is contrary to such party’s intentions; or
18.104.22.168. The tracking technology or network resources offered by The Posture System to its Merchants, Affiliates and other participants or users.
6.7.2. Testing and Compliance. Prior to any commercial release of any downloadable or other technology that is used in relation to or might affect in any manner The Posture System and/or any of its participants, including any Affiliates and/or Merchants, or any revisions to any such technology previously commercially released, you will notify The Posture System that such technology may be made available and provide The Posture System with a reasonable opportunity to test a representative copy thereof. Upon completing its testing of such technology, The Posture System shall provide you with a verbal report of any violations, if any, of the above “No Interference” provisions or any other errors or adverse problems caused by the technology in respect of The Posture System or any of its participants. If, for whatever reason, the technology has already been commercially released by the time any testing is conducted or completed, you will use reasonable best efforts to make any modifications, upon a mutually agreed timetable, but in any case such modifications shall be made within thirty (30) days (unless the parties have agreed based on good faith mutual discussion and consultation that a longer period is necessary). Once any version of any technology is approved by The Posture System, you will make available only such The Posture System-approved version of the technology and will use reasonable best efforts to cause any prior versions to be replaced or modified to bring such versions into compliance.
6.7.3. Defined Terms
22.214.171.124. “Interfere” (and its other grammatical variations) means, variously, to, whether intentionally or unintentionally:
a) Replace, intercept, redirect, disrupt, block, alter, or otherwise adversely affect (including by opening a pop-up or new window or using other types of diverting or disruptive mechanism); or
b) Substitute, insert, or append; or
c) Modify the behavior or functionality, or simulate, copy, or assume control of, or create a substitute or derivative version of, any browser, plug-in, email, software, file, or other platform or technology provided by any third party; or
d) Cause an error or unintended result to occur; or
e) Cause the parties involved or affected to violate any applicable laws; or
f) Aids, abets, contributes, facilitates, or supports any third party to do any of the foregoing;
in each case, including but not limited to (x) in relation to any tracking code, cookie, file, data record, sale, click-through, commercial activity, or other action or transaction facilitated or intended by the target of such interference or (y) with the result of reducing any payment owing to a third party or increasing any payment obligation by any third party.
126.96.36.199. “End user’s express and informed consent” refers to and requires (a) a reasonable opportunity to view and expressly consent to the download and use, including the rejection and removal, of any technology subject to this letter agreement, (b) full and prominent disclosure at the time of the relevant action or transaction originally intended by the target of such Interference sufficient, in The Posture System’s reasonable good faith determination, to insure that any choice to Interfere is fully informed as to the benefits and potential consequences, and (c) disclosure and consent that are consistent with any and all applicable laws.
6.8. QUALIFICATIONS AND RESTRICTIONS FOR USAGE OF AND CONTENT ON YOUR WEBSITES
6.8.1. The Posture System does not permit use of the following types of websites, content, or other technologies that are:
188.8.131.52. A Warez, emulator, hacking, or phreaking site,
184.108.40.206. Used to discriminate or advocate or endorse discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age, or disability,
220.127.116.11. Used to post Content that is libelous, defamatory, threatening, harassing, obscene, pornographic, sexually explicit, or abusive or advocates or assists in the use of illegal substances, sedition, or illegal activities or to display banners of or Links to any other Website that carries such Content,
18.104.22.168. used to offer or as a marketplace or exchange for pirated MP3 files or other pirated copyrighted items or Links to such files or items, or for any purpose or in any manner that infringes any third party’s copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy, or
22.214.171.124. Used in any way or for any purpose that violates any law, statute, ordinance or regulation (including laws and regulations governing export control, unfair competition, antidiscrimination or false advertising).
6.8.2. Certain Other Restrictions Related to Your Website and Content
126.96.36.199. You agree that you are solely responsible for the Content on your Website(s) and that you post on any Affiliate Site or distribute through the Affiliate Program or using any of The Posture System’s facilities or resources.
188.8.131.52. You agree that Content you distribute through your Website or through use of the Affiliate Program or any of The Posture System’s facilities or resources shall not be distributed to persons not legally permitted to receive such Content, or contain any virus, worm, bots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
184.108.40.206. You agree that Your Website(s) shall not, in any way, copy or resemble the look and feel of any Website of The Posture System or any Merchant, create the impression that any of your Website(s) is a Website of The Posture System or any Merchant or frame any page on any Website of The Posture System being viewed by a user of your Website(s),
220.127.116.11. You agree that You shall not include in your domain name the words “The Posture System” or any variation thereof or state or imply that you are an agent or partner of or otherwise Affiliated with The Posture System,
18.104.22.168. You agree that You shall not, through the selection of a domain name, Content posted on your Website, e-mail messages, or otherwise attempt to deceive Merchants, visitors to your Website, or others as to your true identity or create a false or misleading impression of your association or relationship with any Merchant, The Posture System, or any other person or entity, and
22.214.171.124. You agree that You shall not use any of your Websites or your rights or benefits as an Affiliate to conduct or forward illegal contests, pyramid schemes, or chain letters or otherwise to engage in any illegal activity or defraud any person.
6.9. At The Posture System’s option and without further notice, The Posture System may use and provide to Merchants for their use:
Content “spiders” to check the Content on your Website(s);
6.9.1. Anti-spam technologies, including automatic word and spam filters that may terminate your messages without delivering them or prevent messages from reaching you or lists of spammers or possible spammers generated by The Posture System or third parties, that may include your name or e-mail address; and
6.9.2. Other technologies and methods designed to monitor your Website(s), click-throughs from your Website(s) and other activities related to the Affiliate Program.
6.10. YOU ARE RESPONSIBLE FOR ANY EQUIPMENT, INTERNET SERVICE, AND OTHER ITEMS YOU NEED TO USE THE AFFILIATE PROGRAM
6.10.1. You are solely responsible for procuring all items required and bearing all costs and expenses in connection with using or preparing to use the Affiliate Program, including procuring, at your expense, all necessary servers, URLs, Websites, Internet connections, and other items needed. You are solely responsible for the design, creation, development, operation, and maintenance of your Website(s).
6.11. PERFORMANCE; DATA BACKUP; INTERRUPTIONS YOU CAUSE
6.11.1. Performance of The Posture System’s services depends on its receipt and use of the necessary data regarding your display or distribution of Affiliate Links and their activation by viewers and their actions and transactions that occur or originate on the Websites of Merchants after activation. Persons who click on or otherwise activate the human-readable expression of any of the Affiliate Links you display or distribute will be directed to the Website designated by the Merchant with which you have that Affiliate Link. If that person then completes a purchase of a product or service or engages in another transaction or activity which entitles you to compensation under the terms and conditions with that Merchant, such Merchant provides data to The Posture System that we use to prepare reports to you and such Merchant. You acknowledge and agree that The Posture System’s policy is to treat a Web user that activates an Affiliate Link with a Merchant as a customer of the Merchant, and not as a customer of yours.
6.11.2. Backing Up Data and Other Precautions. Data transfer, conversion, processing, and storage is subject to the likelihood of human and machine errors, delays, interruptions, and losses. The Posture System is not liable for any such events or their consequences, unless caused by its willful misconduct or gross negligence and then subject to the liability limits and exclusions contained in your Affiliate Agreement. You are solely responsible for adopting measures to limit the impact of such events, including backing up your data, adopting methods for replacing or reconstructing lost data, regularly reviewing and confirming the accuracy of the reports we provide, and notifying us of errors on a timely basis.
6.11.3. Interruptions or Errors You or a Merchant Causes. The Posture System shall not be liable or responsible for any interruption or failure of Affiliate Program access or services or any errors in tracking or reporting (or for any consequences of the foregoing) that results from (i) any software, system, or technology that you or any Merchant uses in combination or conjunction with The Posture System’s software, systems, or technology, (ii) any modification of or change in the software, systems, or technology you or any Merchant uses for any of your or its Websites or business; or (iii) other problems or errors that are caused or are specific to you or any Merchant (as opposed to being generic to The Posture System’s proprietary software). The foregoing does not limit or otherwise affect any other disclaimer, exclusion, or limitation of liability or responsibility on the part of The Posture System, nor create any duty or obligation not expressly created by your Affiliate Agreement.
6.12.1. In the case of The Posture System: The human-readable form of all written, electronic or telephonic notices, communications, materials or submissions made or provided by you to The Posture System or Merchants must be in the English language, and
6.12.2. The reports made available to you and Merchants by The Posture System and any other written, electronic or telephonic notices, communications, materials or submissions made or provided by The Posture System to you or Merchants need only be in the English language.
6.13. TAX RELATED INFORMATION YOU MUST PROVIDE
6.13.1. Participation in the Affiliate Program and payment of compensation you earn from any Merchant is conditioned upon your satisfactory completion of any Internal Revenue Service and other, federal state, local, or foreign tax forms that we or such Merchant, in our or its discretion, determines to be necessary or appropriate. You agree that if requested by The Posture System, you shall promptly complete, sign, and provide to The Posture System Internal Revenue Service Form W-9, and any other tax forms that The Posture System, in its discretion, determines to be necessary or appropriate. You shall not be entitled to payment of any compensation otherwise due unless and until you provide the necessary and appropriate Internal Revenue Service or other tax forms. It is each Affiliate’s (and not The Posture System’s or any Merchant’s) obligation to ensure that the Affiliate obtains, completes in full, and provides The Posture System with the necessary and appropriate IRS or other tax forms.
6.13.2. Without limiting the generality of the foregoing, if requested in the registration area for Affiliates or otherwise by The Posture System, you shall promptly furnish The Posture System with your Internal Revenue Service taxpayer identification number (or your social security number, if you do not have a taxpayer identification number), any VAT registration number you may have or any similar number used for tax purposes in any jurisdiction, and you authorize The Posture System to provide each such number to Merchants.
6.14. COMPLIANCE WITH LAWS
6.14.1. You shall at all times insure that you and your Affiliates, officers, directors, employees, consultants, agents, and representatives, the conduct of your business, your performance under any terms and conditions with any Merchant, and your use of The Posture System Affiliate Program in any manner must at all times comply with all applicable federal, state, provincial and foreign laws, ordinances, rules, regulations, orders, judgments, and decrees. Without limiting the generality of the foregoing, such laws shall include without limitation any state and federal laws dealing with the transmission and labeling of commercial and/or other electronic mail messages, laws relating to fraud or predatory or abusive business practices, and rules and regulations that are, from time to time, established by governmental agencies.
SECTION 7. The Posture System IS A HOST ONLY
7.1. The Posture System is the host of the Affiliate Program. Merchants and Affiliates are independent parties and The Posture System does not and shall not have any responsibility or liability for the acts, omissions, Promotions, Content, or Links of any Merchant, Affiliate, or other third party, including breaches of terms and conditions by Merchants, or for screening or policing the Websites or actions of Merchants or Affiliates. Without limiting the generality of the foregoing:
7.2. The obligation to pay any compensation You earn from Your Affiliate Links is solely the responsibility of each Merchant insofar as the Merchant compensating The Posture System so that The Posture System can compensate You accordingly. The Posture System acts as a Merchant’s agent for disbursing checks or payments and sends You a check or other payment drawn on a The Posture System account.
7.3. The Posture System’s services do not involve investigating or resolving any claim or dispute involving You and any Merchant or other third party. If The Posture System, in its 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.
SECTION 8. USE OF AFFILIATE PROGRAM, CONTENT, NAMES, AND LOGOS
8.1. If You are an Affiliate in good standing of The Posture System Affiliate Program, The Posture System grants You a personal, non-exclusive, non-transferable, revocable, and limited license and right, subject to the terms of this Agreement, to:
8.1.1. Participate in such Affiliate Program as an Affiliate.
8.1.2. Access the areas of the relevant The Posture System Site necessary for Your participation in such Affiliate Program as an Affiliate.
8.1.3. Solely for Your use in connection with Your participation in such Affiliate Program, download Your individual Affiliate Reports.
8.1.4. For the sole purpose of creating and maintaining Affiliate Links in accordance with this Agreement and Your terms and conditions, use any software code or other Content of The Posture System that is provided by The Posture System for such purpose, but only in the form so provided.
8.2. All other use of any The Posture System Site, Affiliate Reports, 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 Web site or mirroring is prohibited. You agree that You shall not alter or modify such licensed code or Content in any way. This Agreement does not grant to You any license or right to use The Posture System’s name or any of its logos or trade or service names or marks or, except for the limited licenses and rights expressly granted by the first sentence of this Section while they endure, any of The Posture System’s other intellectual property.
8.3. Your rights and licenses (if any) granted by this Agreement with respect to the Affiliate Program are valid only while You remain a member of such Affiliate Program as an Affiliate in good standing and comply with this Agreement. The Posture System reserves all of its rights in each Merchant Site and all such software code, reports, and Content and Our other proprietary rights. The Posture System may revoke any such license at any time by giving You notice by email or in writing.
8.4. You grant to Us a non-exclusive license to utilize Your corporate, service and trade names, domain name, and logos to advertise, market, promote, and publicize in any manner Our rights hereunder. This license shall terminate upon the effective date of the expiration or termination of this Agreement. You also hereby grant to Us a worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to exercise all copyright and publicity rights, in any media now known or not currently known, with respect to any Content You provide to The Posture System.
8.5. You agree to provide The Posture System, promptly following its request, the server log files for Your Site(s) and any other information or data reasonably requested solely for the purpose of auditing or confirming activities related to the Network or Your participation in the Affiliate Program, which The Posture System shall treat as Your confidential information and use solely for such purpose.
8.6. The Posture System makes no representation whatsoever about any other Website which You may access. You understand that when You access a non-The Posture System Website through the Affiliate Program, it is independent from The Posture System. The Posture System acts as a passive conduit for the unfiltered online distribution and publication of Content by the members of The Posture System and does not attempt to control the Content that You or visitors to Your Site(s) shall receive or view. By its very nature, other people’s Content may be offensive, harmful, or inaccurate, and in some cases, may be mislabeled or deceptive. The Posture System disclaims control over or responsibility or liability for the Content on any other person’s Website or posted or distributed on or through The Posture System Affiliate Program or its resources or facilities.
8.7. You represent and warrant to The Posture System that all Content You upload to any related Site or otherwise provide or use in connection with the Affiliate Program is solely owned by You or provided or used by You with the express authority of the owners, does not infringe upon any other individual’s or organization’s rights (including intellectual property rights). By submitting Content to or for use on any Site or otherwise by The Posture System or distributing any Content through the Affiliate Program or any of The Posture System’s services or facilities, You automatically grant to The Posture System a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, sell, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such Content (in whole or part) worldwide and to incorporate it in other works in any form, media, or technology; and represent and warrant to The Posture System that such Content does not contain any virus, trojan horse, worm, time bomb, cancelbot, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information.
8.8. As between You and The Posture System, The Posture System shall own all information about the identities, postal and e-mail addresses, telephone numbers, and names and contact information for Merchants and Affiliates (other than Your own) and the transactions conducted by any such person through the Affiliate Program.
SECTION 9. RISK MANAGEMENT
9.1. Any services from The Posture System are provided “as is” and “as available.” To the fullest extent permitted by applicable law, The Posture System disclaims all warranties and conditions, express or implied, legal, statutory or otherwise, including:
9.1.1. Warranties and conditions of merchantability and fitness for a particular purpose,
9.1.2. That the operation of any Affiliate program, Affiliate site, server, emails sent by The Posture System, or reports shall be uninterrupted or error-free or will not contain or introduce viruses or other harmful elements or components, as to the accuracy, reliability, or security of data, of non-infringement, or arising from course of dealing or course of performance.
9.1.3. Any links used or content or other item downloaded or otherwise obtained through participation in the Affiliate program as it pertains to any merchant is done at your own discretion and risk and The Posture System shall have no liability for any damage to computer systems or loss of data that may result.
9.2. To the fullest extent permitted by applicable law, you (for yourself and your corporate Affiliates) hereby release The Posture System and its corporate Affiliates, officers, directors, agents, subcontractors, and employees (the “released persons”) from any and all claims, demands, causes of action, debts, obligations, damages, costs, and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, now existing or hereafter arising that in any way result from, arise out of or relate to this agreement, your participation in The Posture System Affiliate program, use or misuse of such Affiliate program, reliance on such Affiliate program, inability to use or participate in any such Affiliate program, the interruption, suspension, or termination of such Affiliate program or your access to, use of, or participation in such Affiliate program, or any act or omission of The Posture System relative to the foregoing, except (and in any event subject to the exclusions and limitations set forth in and other applicable provisions of this section) only for any liability of The Posture System to you that results primarily and proximately from The Posture System’s willful misconduct or gross negligence.
9.3. To the fullest extent permitted by applicable law, you hereby waive the application of all existing and future laws that may limit the efficacy of such release. If you are a California resident, then without limiting the generality of the immediately preceding sentence, you waive California civil code section 1542, which says: “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This section shall survive the unenforceability or other failure of any provision of this agreement that purports to exclude or limit remedies or liability.
9.4. To the fullest extent permitted by applicable law, you agree that in no event shall The Posture System or any other released party be liable for any indirect, incidental, consequential, reliance, special, exemplary, or punitive damages or for any other damages (however denominated) for or based on or measured by harm to business, lost revenues, lost savings, loss of or on any investment, lost profits, loss of opportunity, loss of use, loss of data, loss of goodwill, costs of replacement goods or services or otherwise. This section shall survive the unenforceability or other failure of any provision of this agreement that purports to exclude or limit remedies or liability.
9.5. To the fullest extent permitted by applicable law, the parties agree that each of the releases, disclaimers, limitations and exclusions contained in these sections, inclusive, shall independently apply regardless of (i) the form of action (including any action in contract or based on warranty, negligence, tort, strict liability, or statute), (ii) any claim or finding that any breach of or default under this agreement was total or fundamental, (iii) the type of damages, (iv) any claim or finding with respect to the adequacy, failure, purpose or sufficiency of any remedy offered or provided for under this agreement and (v) whether a person was informed or aware of, or otherwise could have anticipated the possibility of, such damages or liability.
9.6. If, in a final decision of a court of competent jurisdiction (not subject to further appeal), it is held that any of the foregoing releases, disclaimers, limitations or exclusions may not be enforced, even though the express provisions hereof provide for such release, disclaimer, limitation or exclusion and the parties intend such exclusion or release to be enforced, then in such jurisdiction, The Posture System’s liability is limited to the smallest amount permitted by law.
9.7. The obligations of each party are solely corporate (or other organizational) obligations, no Affiliate, stockholder, director, officer, employee, consultant or agent of either party shall be subject to any personal liability whatsoever to the other party or any of its Affiliates, stockholders or creditors or any other person or entity, nor shall any such claim be asserted (directly, derivatively, or otherwise) by or on behalf of either party or any of its successors or assigns.
9.8. To the fullest extent permitted by applicable law, Affiliate agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to participation in the Affiliate Program or this agreement must be filed within one year after such claim or cause of action arose, or be forever barred.
9.9. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above exclusions, limitations, releases, and disclaimers may not apply to you. in particular, nothing in this agreement shall affect the applicable statutory rights of any consumer that may not, by law, be waived, released, limited or excluded or restricted, in any way or to any extent not permitted by applicable law, any liability of The Posture System for death or personal injury arising from the negligence or fraud of The Posture System. You acknowledge and agree, however, that The Posture System is designed for use in connection with the conduct of a business, that The Posture System is intended to be used by consumers and that you shall not use any of The Posture System’s services in your capacity as a consumer.
SECTION 10. TERMINATION; ABSENCE OF UNEXPRESSED EXPECTATIONS; YOUR INDEMNIFICATION OBLIGATIONS
10.1. Either You or The Posture System, by giving the other party notice, may, at any time and with or without cause, terminate this Agreement. Upon any termination of this Agreement, You shall no longer be entitled to use the Affiliate Program, all licenses and rights granted to You hereunder shall terminate, You shall immediately cease use of, and remove from Your Site(s), all links created though The Posture System Affiliate Program and all Content or items provided by or on behalf of The Posture System to You in connection with any Merchant and You shall immediately return or destroy all confidential information and trade secrets of The Posture System in the possession or control of You or any of Your employees, representatives or agents. All rights or remedies arising out of a breach of any terms of this Agreement shall survive any termination of this Agreement or Your participation in the Affiliate Program. Your representations and warranties in this Agreement shall survive execution, delivery, acceptance, performance, expiration, or termination of this Agreement. In addition, the provisions of this Agreement which, by their nature, should survive expiration or termination of this Agreement or Your participation in any Agreement shall survive expiration or any termination of this Agreement.
10.2. You and The Posture System desire to avoid the uncertainty and the potential for discord that would exist if the unstated expectation of either of the parties could be used to gain advantage through litigation, or expectations stated or expressed outside the confines of this Agreement could become actionable even though the other party does not agree with those expectations or has not assented to them. You and The Posture System, therefore, agree that (i) it is unreasonable for either party to have or rely on an expectation that is not reflected in this Agreement, (ii) either party that has or develops an expectation contrary to or in addition to the contents of this Agreement has a duty to immediately inform the other party and promptly seek to have this Agreement amended to reflect the expectation; and (iii) the failure of a party who has or develops an expectation contrary to or in addition to the contents of this Agreement to obtain an amendment shall be evidence that the expectation was not reasonable and estops that party from asserting that expectation.