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This Affiliate Agreement is between Bondware, Inc, the owner of Renderosity, a Tennessee, U.S.A. corporation ("Renderosity") and You ("You" or "Your"). If You have registered for or on behalf of a company, you are deemed to have accepted this Agreement on behalf of that company. In consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:
You must provide Renderosity with truthful, accurate and complete registration information. If any such information changes, You must immediately update Your registration information. Renderosity has the right to confirm or otherwise verify or check, in its sole determination, the truth and accuracy of any registration information at any time. To join the Renderosity Affiliate Program, You must be an individual who is at least 18 years old or a company, and must provide at Your expense your own computer equipment and Internet access.
Please be advised that if any information is determined in good faith by Renderosity to be misleading, inaccurate or untruthful, Renderosity may restrict, deny or terminate Your account, Your access and use of, and/or any benefits derived from Your participation on, any Renderosity service; Renderosity may also withhold payment of any commissions and/or other fees that may be or become due or payable to You, and may assess charges against such amounts for Renderosity's activities in connection with the investigation and/or verification of such information and/or otherwise in accordance with this Agreement.
2. Participation; Your Business
Your participation in the Renderosity Affiliate Program is purely voluntarily and You may terminate Your participation at any time. Renderosity shall not be construed or deemed as having solicited, requested or procured You or Your services to promote Renderosity. You are not deemed to be a vendor, supplier or provider of goods or services to Renderosity.
In respect or in relation to any Site (or portion thereof) used by You in connection with Your participation with the Renderosity Affiliate Program, You may not engage in any activity that is or constitutes, or that involves, facilitates, advocates or promotes, one or more of the following: (a) discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability; (b) libelous, defamatory, threatening, harassing, tortious, or similarly abusive activities; (c) obscene, pornographic, sexually explicit or similar activities; (d) gambling; (e) sale, export or use of illegal substances; (f) terrorism, sedition or other illegal activities; (g) MP3, MPEG and/or other proprietary materials for download, sale or otherwise, in any case without the permission of the owner of the Intellectual Property Rights (h) a conflict or violation of any law or regulation or any Intellectual Property Rights or other rights of any person or entity; (i) harm to minors in any way; (j) impersonation of any person, including any Renderosity representative, or misrepresentation of affiliation with any person; or (k) conducting of raffles, contests, lotteries or sweepstakes.
You represent, warrant and covenant that Your business and activities will not cause to become subject to any law, rule or regulation adversely affecting Renderosity, and You shall defend and indemnify Renderosity and such Sites against any such adverse effect.
3. Engagements; Qualifying Links
Each qualifying link used by You in relation to the Renderosity Affiliate Program must include, in unaltered form, the special "tagged" link codes and/or other transaction tracking codes in the manner and format made available or otherwise dictated by Renderosity that associate such qualifying link with You. You will place or use qualified links only with the intention of delivering valid sales, leads, applications, accounts, clicks or other specified compensable tracked activities for the benefit of Renderosity. You will not modify, circumvent, impair, disable or otherwise interfere with any tracking codes and/or other technology and/or methodology required or made available by Renderosity so that it may be properly tracked by Renderosity.
Renderosity may terminate Your affiliation at any time. You must remove the links from all Your sites after any termination or expiration of participation. If qualifying links are not so removed, Renderosity may redirect such links without compensation to You. You may at any time discontinue use of qualifying links by removing such qualifying links from Your Site. Please notify Renderosity immediately if you choose to terminate.
Renderosity is the host of the Renderosity Affiliate Program. Affiliates are independent parties and Renderosity does not and shall not have any responsibility or liability for the acts, omissions, promotions, Content or qualifying links or other links of any Affiliate.
Renderosity will pay ten percent (or special percent offers) on qualifying orders. Renderosity agrees that payments will be made to You by check or PayPal deposit with the information you provided. Payments will be made by the fifteenth of following month after $100 in commissions is earned.
5. Your Obligations
You agree that You will not in any way bypass or circumvent, or attempt to bypass or circumvent, Renderosity. This includes entering into a direct relationship or linking arrangement where Renderosity-provided qualifying links are not used in accordance with this Agreement such that Renderosity is unable to track and monitor the commissions owing to You. You may not enter into any relationship that would result in the avoidance or reduction of the Renderosity tracking process, the commissions to be paid pursuant to this Agreement, or the fees to be paid to Renderosity as a result of any tracked engagement.
You will not make unauthorized modifications, reverse engineer, disassemble, decompile or attempt to derive source code of Renderosity. You agree not to hack, abuse, adversely interfere with, infect with viruses, worms or other malicious or destructive code, or use or cause to be used in extraordinary and unreasonable or inappropriate ways or amounts, including any servers, bandwidth supply, equipment, software and other technological resources provided by Renderosity.
You may not, through downloadable or other technology, replace, intercept, redirect, block, alter or otherwise interfere with the full functioning and intended actions of any qualifying link or any action that would in any way prevent the behavior or result that would occur or would have occurred had an end user activated such qualifying link without Your interference.
You may not use any name, trademark, service mark, domain name or other Intellectual Property Rights of any party in connection with Your use of any qualifying links in any way or for any purpose that infringes or violates any Intellectual Property Rights or other rights of any party for any other purpose.
You will not, and will not knowingly permit other persons to, engage in any fraudulent, abusive or illegal activity in connection with Your participation on any Renderosity Network or in connection with any Network Advertiser's publisher marketing program or engagement.
This Agreement does not grant to You any license or right to use Renderosity's name or any of its logos or trade or service names or marks, except to the extent required to be used in connection with an URL. Any press release or other public announcement by You regarding this Agreement shall require the prior written approval of Renderosity.
The above licenses is valid while You remain a member of the Renderosity Affiliate Program and are in good standing and comply with this Agreement. Renderosity may revoke any such license at any time by giving You notice by e-mail or in writing. Renderosity reserves all rights that are not specifically granted to You by this Agreement.
6. Representations and Warranties
You represent, warrant and covenant as follows:
a. You have the legal right to conduct any business conducted by You including in respect of any Site(s) participating; and
b. Any and all information You provided as part of the registration process or otherwise shall be truthful, accurate and complete, irrespective of any independent verification or other determination made by Renderosity; and
c. This Agreement has been duly and validly authorized, accepted, executed and delivered by You (or Your authorized representative) and constitutes Your legal, valid, and binding obligation, enforceable against You in accordance with its terms; and
d. The performance by You of this Agreement and the participation by You does not and shall not conflict with or violate (i) any law, rule, regulation, order, judgment, decree, agreement or instrument applicable to You or (ii) if You are an entity, any provision of Your certificate of incorporation or other organizational documents.
Confidential Information. You acknowledge that in connection with Your participation, You will be provided with confidential and proprietary data and information from time to time through reports. Such confidential and proprietary data and information is owned by Renderosity. You will keep all reports, data and other confidential information provided to You strictly confidential. Without Renderosity's prior written consent, You will not disclose any such confidential information to any third party or use any such confidential information other than solely as and to the extent required for you to perform under this Agreement.
8. DISCLAIMER OF WARRANTIES
THE RENDEROSITY AFFILIATE PROGRAM IS PROVIDED "AS IS, WHERE IS" AND "AS AVAILABLE."
RENDEROSITY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY AS TO ACCURACY, ADVERTISERABILITY, COMPLETENESS, CURRENTNESS, SECURITY, NON-INFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE OF THAT YOUR USE OF THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE, OR WILL BE AVAILABLE (INCLUDING IN THE EVENT OF BEING TERMINATED FOR WHATEVER REASON) OR CAN OR WILL BE WILLING TO ENTER INTO ANY ENGAGEMENT WITH YOU.
9. LIMITATION ON LIABILITY
If You reasonably determine that any Renderosity Offering does not materially meet Renderosity's obligations under this Agreement, then You must notify Renderosity in writing within ten (10) days of receiving any such allegedly nonconforming services. Your failure to so notify Renderosity on a timely basis shall mean that You accept such services, and Renderosity shall thereafter have no liability whatsoever with respect to such services. If upon receipt of any notice under this Section, Renderosity may, at its sole discretion, reperform the service in question or otherwise provide You with any substitution or replacement services in lieu thereof. Any reperformance or provision of substitute or replacement services shall in no event be construed as an admission that the original service was nonconforming or otherwise improper, and Your acceptance of the same constitutes Your sole remedy and in such case constitutes Renderosity's maximum liability for any such alleged breach of this Agreement.
IF, NOTWITHSTANDING THE ABOVE, LIABILITY IS IMPOSED ON RENDEROSITY, THEN YOU AGREE THAT THE TOTAL LIABILITY OF RENDEROSITY, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBCONTRACTORS AND REPRESENTATIVES, TO YOU WILL NOT EXCEED TWENTY-FIVE DOLLARS ($25.00). YOU RECOGNIZE AND ACKNOWLEDGE THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE, IN LIGHT OF THE FACT THAT RENDEROSITY IS PROVIDING THIS SERVICE TO YOU AT NO CHARGE TO YOU. NONE OF RENDEROSITY WILL BE LIABLE TO YOU (WHETHER IN CONTRACT OR BASED ON WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOSS OF REVENUE OR PROFITS, EVEN IF SUCH PERSON WAS AWARE THAT SUCH DAMAGES COULD RESULT.
You agree to defend, indemnify and hold harmless Renderosity, and its and their directors, officers, employees, agents, subcontractors and representatives for and against any and all claims, actions, demands, liabilities, losses, damages, penalties, interest, judgments, settlements, costs and expenses (including reasonable attorneys' fees) that directly or indirectly arise out of or are based on:
a. any misrepresentation or breach of any representation, warranty, or covenant made by You in this Agreement,
b. any conduct, or activity, error or omission by You, including in relation to Your participation in the Renderosity Affiliate Program,
c. any violation by You of any law, regulation or rule,
d. Your use of any other Renderosity services, and/or
e. any actual or alleged infringement by You of any Intellectual Property Rights or other rights of any person.
Renderosity may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by You. Renderosity may participate in the defense of all claims as to which it does not assume defense and control, and You shall not settle any such claim without Renderosity's prior written consent. Upon prior written notice, Renderosity may, at any time, add to, remove or otherwise amend any or all terms, conditions and/or other provisions of this Agreement.
11. Termination, etc.
You or Renderosity may, at any time, with or without cause, terminate this Agreement and Your participation. You may effect such termination through written notice to Renderosity subject to actual receipt thereof. Alternatively, Renderosity may, in its sole discretion, suspend, limit, restrict, condition or deny Your access to or use. Upon any termination of this Agreement You shall immediately cease to use and remove from any and all Site(s), whether or not owned or operated by You, any and all qualifying links and all other Content or materials provided to You in connection with Your participation.
Any and all confidential or proprietary information of Renderosity that is in Your possession or control must be immediately returned or destroyed. If requested, You will certify in a writing signed by You or an authorized officer as to the return or destruction of all such confidential or proprietary information.
Renderosity may withhold and offset against any and all compensation and/or other fees that are then unpaid to You. Following assessment of any fees or other charges owing to Renderosity, and subject to Renderosity holding any amount it determines in its sole discretion to be needed to support any of Your indemnification and/or other obligations and/or liabilities under this Agreement.
If any portion of this Agreement is held by a court with jurisdiction to be invalid or unenforceable, the remaining portions hereof, shall remain in full force and effect. If any provision of this Agreement shall be judicially unenforceable in any jurisdiction, such provision shall not be affected with respect to any other jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, U.S.A., without regard to its conflicts of law principles. You consent to the personal and exclusive jurisdiction of the Federal and Tennessee State courts. EACH PARTY WAIVES RIGHTS TO TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT.