Visionary Strategies, LLC
TERMS OF SERVICE AGREEMENT
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:
Disclosures, Acknowledgments, Representations and Warranties:
Read This Entire Agreement Carefully
Enter Your Initials In Each Box Indicating You Understand and Agree
_____ SITE USER; ELIGIBILITY
To become a Site member and to access and use the Services: (a) I must comply with, the terms and conditions of this Agreement (all of the foregoing is collectively referred to as the "Registration Process").
SETTING UP MY SITE
Subject to the terms and conditions of this Agreement, Visionary Strategies, LLC will use commercially reasonable efforts to make available to Me an online means (the �Admin area�) to configure and manage a Site that will be hosted on and operated from the server(s) of Visionary Strategies, LLC or its designees. Through the Admin area, I will be able to select site template designs, site name, reports, etc. For each Product or Service listed in the Admin area, Visionary Strategies, LLC will display a short description, articles, other pertinent information and a link to apply for the Product. I understand that I may not be eligible for or approved to market every product offering.
_____ Content – Description of Products and Services/Design of Your Web Site
I know I will not be able to change or modify the design, content, images or information relating to products or services provided by Visionary Strategies, LLC which appear on the web site provided to Me.
SPECIFICALLY PROHIBITED ACTIVITIES
_____ I understand and agree that I cannot use any name, trademark, service mark, domain name or other intellectual property of any third party, or purchase any search term advertising identical to, or confusingly similar to, the trade name or service mark of any other party, including the names of any companies I elect to conduct marketing activities for, in connection with the marketing of My site.
_____ Because I will not be responsible for any aspect of order processing or fulfillment, I agree not to make any statement, whether on My Web Sites, the Site, or otherwise, representing or implying that I am responsible for order processing or fulfillment; and because I understand that federal and state laws seek to protect consumers from misleading advertising, I agree not to make any statement, whether on My Web Sites, the Site, or otherwise, that could be interpreted as a representation or warranty regarding any Product or Service.
_____ Site URL
I can choose from a list of available URLs provided by Visionary Strategies, LLC, or, in some cases, a URL that I suggest to be registered by Visionary Strategies, LLC The URL I select shall be used for the sole and exclusive purpose of operating a web site featuring the Products and Services of Visionary Strategies, LLC Visionary Strategies, LLC pays for the registration of the URL as part of the set-up fees and reserves the domain name in its name. I understand the URL I will be provided will not be a top level domain name, but, instead, a sub-domain. My URL may look similar to the following: myname.domainname.com.
_____ Using Your Site
I may use the Services and My Site solely in accordance with this Agreement. I will not permit anyone else to use the Site Admin Page. I understand that it shall be My responsibility to safeguard any login and password(s) required to access the Site Admin Page, or the secure areas of My Site, and I shall be solely liable for any unauthorized or misuse thereof. I may not use or attempt to use the Services or My site as a service bureau or to set up a service offering site services to third parties.
_____ SITE OWNERSHIP
I acknowledge and agree that Visionary Strategies, LLC is and shall remain the owner of the Network, the Site, and any and all component parts thereof, including but not limited to any intellectual property rights to the content I create and publish thereon. Except as otherwise expressly set forth in this Agreement, I agree not to copy, reverse engineer, disassemble, decompile, modify, or translate all or any part of the Visionary Strategies, LLC Web Site, the Network, or the Site, provided that I may modify My Site as permitted through the use of the Admin area and under the terms and conditions of this Agreement.
_____ I represent that I am at least 21 years old and am authorized to enter into this Agreement.
_____ I acknowledge and understand that (a) I have no obligation to enter into this Agreement; (b) that other companies in direct competition with Visionary Strategies, LLC exist and offer similar services; and that (c) I do not have to enter into this Agreement today.
_____ I HAVE NOT RECEIVED ANY, WARRANTY, GUARANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO THE POTENTIAL VOLUME, PROFITS, OR SUCCESS OF ANY BUSINESS WHICH MAY ARISE BY VIRTUE OF THIS AGREEMENT. I ACKNOWLEDGE THAT ALL FINANCIAL OR EARNINGS CLAIMS WERE RECEIVED DIRECT FROM THIRD PARTIES AND NOT CREATED OR VERIFIED BY Visionary Strategies, LLC, OR ANY AGENT OF Visionary Strategies, LLC I UNDERSTAND THAT Visionary Strategies, LLC, DOES NOT IN ANY WAY WARRANT OR CONFIRM THE ACCURACY OF SUCH INFORMATION. I ACKNOWLEDGE THAT I HAVE CONDUCTED AN INDEPENDENT INVESTIGATION OF THE Visionary Strategies, LLC SYSTEM, AND RECOGNIZE THAT ANY BUSINESS WHICH MAY ARISE BY VIRTUE OF THIS AGREEMENT INVOLVES BUSINESS RISKS, AND WILL BE DEPENDENT UPON MY OWN ABILITY AND EFFORT AS AN INDEPENDENT BUSINESS PERSON.
_____ I have independently evaluated the desirability of entering into this Agreement, and I am not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement.
_____ I represent and warrant that the Site will not be used in connection with or to achieve any illegal purpose or activity.
No warranties or commitments are hereby made that access or use by Me or others will be uninterrupted, error free or secure. No representations or warranties are made as to the results to be obtained from My access to or use of the Services. I acknowledge that Visionary Strategies, LLC shall have no responsibility for (a) any Products or Services provided by Me to others under this Agreement, (b) the ability (or inability) of others to apply for any Products or Services through web sites operated by Me under this Agreement, or (D) My site Name and URL/sub-domain. I agree that any dispute regarding any Products or Services shall be directed to the provider or supplier of the Products or Services, and not to Visionary Strategies, LLC I understand that this Agreement contains additional disclaimers that limit My rights. I warrant that I have read and understand them, or have had My own legal counsel explain them to Me, prior to entering into this Agreement.
_____ LIMITATION OF LIABILITY
The terms of this Agreement limit Visionary Strategies, LLC�s liability to Me and others. I warrant that I have read and understand these terms and conditions, or have had My own legal counsel explain them to Me, prior to entering into this Agreement.
SECTION 1 INTRODUCTION
1.1 Certain Website owners ("Merchants') may seek to increase visitor traffic through a program commonly called an "affiliate program." A Merchant with an affiliate program invites Website owners or others to join the 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 ("Online 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.
1.2 Visionary Strategies, LLC 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 the affiliate program and (2) others who join in order to participate as Online Affiliates in the affiliate programs of those Merchants.
1.3 You desire to participate in one or more such networks as a potential Online Affiliate for Visionary Strategies, LLC in such network(s), and this Agreement contains the terms and conditions for that participation.
SECTION 2. DEFINED TERMS
2.1 References to �this Agreement" include incorporation of the following; (i) this Visionary Strategies, LLC Agreement, (ii) any additional or different terms specifically applicable to membership in any Network (as defined in Section 2.3) that Visionary Strategies, LLC posts on relevant Network Site or otherwise makes available and requires that You accept in order to join or continue to use such Network, and (iii) any supplement to this Visionary Strategies, LLC Agreement signed by both parties as defined in Section 2.3 and created in accordance with Section 5.
2.2 The term 'Web" means the World Wide Web or any replacement or similar network or resource which permits the sharing of electronic files, graphics or information, regardless of the technology used or how it is accessed by users. 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:
a. Content includes: Information, communications, software, photos, text, video, graphics, music, sounds, images and other materials.
b. Link includes: 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.
c. Visionary Strategies, LLC Network includes: Any affiliate marketing network now or hereafter operated by Visionary Strategies, LLC or by a corporate affiliate of Visionary Strategies, LLC, including the affiliate marketing networks that Visionary Strategies, LLC currently operates under any service names of Visionary Strategies, LLC Network.
d. Network includes: As of any time, any Visionary Strategies, LLC Network, which You have joined in accordance with Visionary Strategies, LLC's requirements and of which You are a member as of such time.
e. Network Affiliate includes: A person which is a member of any Visionary Strategies, LLC Network at any time as a potential Online Affiliate for Network Merchants under an effective online or written agreement with Visionary Strategies, LLC
f. Network Merchant includes: A person which is or was a member of any Visionary Strategies, LLC Network under an effective Merchant Agreement with Visionary Strategies, LLC for purposes of conducting one or more affiliate programs.
g. Network Site includes: For any Network, the Webpage(s) or other area of the Website having a URL or sub-domain designated from time to time by Visionary Strategies, LLC for use by members of that Network for the purposes of facilitating formation of Qualifying Links, accessing reports and otherwise participating in such Network.
h. Program includes: An affiliate program or other performance-based marketing arrangement that any Network Merchant conducts through any Network.
i. Program Site includes: For any program, a Website that a Network Merchant is authorized to use in the relevant Network.
j. Promotion includes: A banner, text-mentioned, advertisement or other material by which a Network Merchant offers its products or services to Web users or otherwise seeks to attract Web users to its Website.
k. Qualifying Link includes: With respect to any Network and any Program in which You participate a Link that (i) when activated by a viewer results in the viewer being redirected to or served, through or on the Network Site, a Webpage or duplicate of a Webpage of a Program Site, (ii) You post on Your Site authorized to be used in such Network or, subject to any prohibitions or limitations imposed by such Network Merchant, You include in an e-mail message, incorporate into browser or browser extension software, make available for a "kiosk" or otherwise make available to Web users, (iii) is of a kind of format for which Visionary Strategies, LLC provides its tracking services for Network Merchants and (iv) is established through the interface of such Network Site or otherwise as instructed by Visionary Strategies, LLC and includes any tracking or other code required by Visionary Strategies, LLC, in each case in accordance with Visionary Strategies, LLC's technical guidelines.
I. Your Site includes: For any Network, a Website, URL or sub-domain that You operate and have properly registered for use in such Network.
2.4 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 anyway the meaning or interpretation of this Agreement. Unless otherwise stated, references in this Agreement to a Section or subsection are to a Section or subsection of this Agreement. All definitions apply equally to both the singular and plural forms of the terms defined.
2.5 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.
2.6 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 day that Visionary Strategies, LLC 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 Visionary Strategies, LLC
2.7 This Agreement shall be construed according to its fair meaning and not strictly for or against either party.
SECTION 3. NETWORK MEMBERSHIP
3.1 By clicking on an "Accept" or similar button on a Network Site or another Website of Visionary Strategies, LLC, or by using any Network, You acknowledge that You have carefully read, accepted and agreed to be bound by the terms of this Agreement (including the Network Policies) 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 Visionary Strategies, LLC and this Agreement becomes effective when You do so. In the event of any conflict between the respective express provisions of this Visionary Strategies, LLC Agreement, any applicable Network 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) Network Policies and (iv) this Agreement.
3.2 To use any Visionary Strategies, LLC Network as a Network Affiliate, You must register on the page of the relevant Network site provided by Visionary Strategies, LLC for such purpose. You agree to promptly provide Visionary Strategies, LLC with accurate and complete updated registration information if and as such information changes. As part of the registration process for any Network, You shall be assigned a unique alphanumeric password and user name for that Network (Your "Credentials'). Visionary Strategies, LLC may deny access to and the use of any of Visionary Strategies, LLC Network unless or until any preconditions established by Visionary Strategies, LLC and published on the registration area of the relevant Network Site are satisfied.
3.3 You represent and warrant to and agree with Visionary Strategies, LLC as follows: The information You provide as part of the registration process or otherwise shall be, at the time provided, accurate and complete. You agree that you have carefully read this Agreement (including the applicable Network 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. 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. The execution and delivery or acceptance of deemed acceptance and performance by You if this Agreement and the participation by You in any Network and any 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 if You are an entity, any provision of Your certificate of incorporation or other organizational documents. You shall independently evaluate the desirability of participating in any Network or Program You apply to or join. You agree that in deciding to participate in any Network or any Program, You shall not rely on any representation, warranty, guaranty or statement by Visionary Strategies, LLC other than any representation expressly set forth in this Agreement and expressly stated to be a representation.
3.4 You agree not to resell, assign, sublicense or otherwise proved to any third person any of Your rights or benefits, or transfer or delegate any of Your obligations under this Agreement or as a Network Affiliate without the prior written consent of Visionary Strategies, LLC except to the extent authorized by the Network Policies.
3.5 You agree that, during the applicable Restricted Period (as defined below), You shall not maintain or create any Link outside of a Network with any Network Merchant on terms that provide for payment to You for compensation for levels of Web user activities attributable to such Link, other than a Qualifying Link though the relevant Network, or otherwise enter into any agreement or arrangement with any Network Merchant intended to reduce the fees that would otherwise be payable to Visionary Strategies, LLC by such Network Merchant. The term �Restricted Period" means, with respect to any Network 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 relevant Network in accordance with this Agreement and (ii) the date such Network Merchant is entitled, by the express terms of its Merchant Agreement with Visionary Strategies, LLC to form links with Network Affiliates outside of the relevant Network without restriction.
3.6 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 any Network or any Program, including federal, state, local and foreign withholding taxes, FICA, FUTA, Social Security, Medicare, SUI and any and all other federal, state, local and foreign taxes. In addition, You agree that payments to You by a Network Merchant or Visionary Strategies, LLC on behalf of a Network Merchant shall be subject to withholding under any applicable tax law, rule or regulation. You shall promptly provide Visionary Strategies, LLC with any information it reasonably requests in order to determine if withholding is required. If Visionary Strategies, LLC acts for any Network Merchant in disbursing any payment due from it to You, then You authorize Visionary Strategies, LLC 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 Visionary Strategies, LLC, 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.
3.7 You understand and agree that participation in any Network will involve establishing contractual arrangements with Visionary Strategies, LLC (including this Agreement) or Visionary Strategies, LLC Merchants that are stored electronically on servers and are formed by means of "clicking on" an accept button on the Visionary Strategies, LLC or a Merchants Website or through other electronic means. You agree not to assert that any such contract is invalid or unenforceable solely because of its form 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 As a Network Affiliate in any Network, You shall be potentially eligible to join the Programs and receive offers to form Qualifying Links made by one or more Network Merchants who are members of that Network (�Link Offers�). As described in Section 6, the fact that Network membership makes You potentially eligible to join Programs or receive Link Offers does not necessarily mean that You shall also meet the eligibility requirements for participation in the Program or any Link Offer of any particular Network Merchant. Each Network Merchant is responsible for its own Programs and its own Link Offers, including providing the software code for the graphical artwork or other materials to use in Links.
4.2 You shall have, on the Network Site for any Network of which You are a member in good standing, an individual account accessible through the Web by use of Your Credentials. Visionary Strategies, LLC shall periodically post to Your account reports regarding activities tracked by Visionary Strategies, LLC for the Network Merchants with which You from time to time have Qualifying Links (Your "Affiliate Reports�). Subject to Section 5, the contents, format and frequency of Your Affiliate Reports for any Network shall be substantially the same as for the comparable reports that Visionary Strategies, LLC provides without separate charges to Network Affiliates in such Network.
4.3 You shall be responsible for maintaining the confidentiality and security of Your Credentials and for all usage of Your account. Absent actual receipt of written notice to the contrary from You, Visionary Strategies, LLC may asslll1e that any person accessing any Network Site using Your Credentials is authorized to do so.
4.4 Visionary Strategies, LLC shall not be liable to You as a result of failure by You or any Network Merchant to use Qualifying 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 Network Merchant.
4.5 You acknowledge that the accuracy, completeness and currency (in time) of the data included in Your Affiliate Reports is a function of accuracy, completeness and currency of the underlying data that Visionary Strategies, LLC obtains from Network Merchants. Visionary Strategies, LLC shall not be responsible or liable for any errors in or omissions from such underlying data or any Network Merchant's failure to make or delay in making such data available to Visionary Strategies, LLC or for any intentional or inadvertent deletion or disablement by You or a Network Merchant of any of Visionary Strategies, LLC's tracking code or technology, or any consequences of the foregoing. Visionary Strategies, LLC's obligation, if any, to provide data or Affiliate Reports to You or any Network Merchant is subject to the provision to Visionary Strategies, LLC on a timely basis, of the necessary data of the kinds and in the form, format and manner required by Visionary Strategies, LLC Visionary Strategies, LLC may rely on any data, notice, instruction or request furnished to Visionary Strategies, LLC by You, any Network Merchant or any other third party which is believed by Visionary Strategies, LLC in good faith to be genuine.
4.6 If a Network Merchant reports a transaction or activity that occurred in a particular month to Visionary Strategies, LLC after such month ends, then Visionary Strategies, LLC may, in its discretion, incorporate that event into Your Affiliate Reports for that month or for some subsequent period.
4.7 You acknowledge and agree that each Network Merchant whose Program You join shall receive reports from Visionary Strategies, LLC that identify You and may include data about You and Your Qualifying Links with that Network Merchant. If Visionary Strategies, LLC is notified by a Network Merchant that it believes that its reports about its relationship with You contain an error or emission or otherwise require adjustment, Visionary Strategies, LLC may elect to revise those reports as requested by the Network Merchant and make corresponding changes to Your Affiliate Reports. Since the reports Visionary Strategies, LLC provides You and such Network Merchant are the bases for calculating the compensation, if any, due to You from that Network Merchant, any such adjustment may affect the amount of compensation to which You are entitled.
4.8 If You believe that any of Your Affiliate Reports for any month contains errors in the data about Your relationship with any Network Merchant, You must notify Visionary Strategies, LLC and that Network Merchant within ten days after the end of that month or any shorter period that may be provided for in Your agreement with that Network Merchant 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 You must notify Visionary Strategies, LLC of errors in the correction or adjustment within 10 days after it is posted. Any dispute between You and a Network Merchant about any error You report must be resolved by You and that Network Merchant
4.9 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 relevant Network Merchant and that such Network Merchant 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 relevant Network Merchant, since payment may be subject to conditions established by that Network Merchant, including policies regarding order cancellation, returned merchandise, receipt of pending credit card authorizations and minimums for earned compensation before payment is made. You agree that all determinations of Qualifying Links and the compensation due to You shall be final and binding on You with respect to Visionary Strategies, LLC�s liability to You. You agree that any issues or disagreement which You may have about any compensation determination shall be between You and the Network Merchant only, and that Visionary Strategies, LLC, shall have no liability or responsibility to You regarding same.
SECTION 5. CHANGES IN NETWORK SERVICES AND MEMBERSHIP TERMS
5.1 Visionary Strategies, LLC reserves the right to take any of the following actions at any time: (a) add to, remove or otherwise change the terms or provisions of this Agreement or replace this Agreement in its entirety; and (b) add, remove, suspend or discontinue any aspect of any Network, limit, restrict, condition or deny access to or use of all or part of any Visionary Strategies, LLC Network or otherwise change any Network or Your right to use any Network. Visionary Strategies, LLC may notify You of such change by posting a notice on the relevant Network Site or, by any other electronic or manual means. Such change shall be effective when such notice is posted or otherwise given or any other time specified in such notice. Your continued use of any Network, or by clicking an "Accept" or similar button on a Network Site or another Website of Visionary Strategies, LLC, shall constitute Your acceptance to any new terms of conditions. In the case of a change that would, in Visionary Strategies, LLC'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 at least five business days before such change becomes effective, except that shorter advance notice may be given in a situation that Visionary Strategies, LLC believes in good faith to be an emergency or otherwise have an adverse effect on a Network if a longer notice were given.
5.2 You are responsible for regularly reviewing each Network Site in order to learn of any changes. Your continued use of any Network after such notice is posted or otherwise given 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 such Network and cease using such Network.
5.3 You acknowledge and agree that Visionary Strategies, LLC may at any time enroll any person as a Network Affiliate on terms that differ from those contained in this Agreement, and may also operate other affiliate marketing networks or programs that are similar to or compete with any Network in which You are a member.
SECTION 6. PARTICIPATION IN THE AFFILIATE PROGRAMS OF NETWORK MERCHANTS
6.1 Subject to the terms of its Merchant Agreement with Visionary Strategies, LLC, each Network Merchant has complete discretion in limiting the persons to whom it makes Link Offers or by whom its Link Offers may be accepted, and in establishing the terms and conditions of its Link Offers and agreements regarding its Qualifying Links and participation in its Program. In general, to accept any Link Offer by a Network Merchant, You shall be required to join the Program of such Network Merchant. Subject to the terms of its Merchant Agreement with Visionary Strategies, LLC, each Network Merchant has complete discretion in setting eligibility and other requirements and conditions for membership and participation in its Program and Link Offers.
6.2 In order to join the Program or accept a Link Offer of a Network Merchant You must follow the instructions and satisfy the requirements of that Network Merchant. By signing this agreement, you acknowledge that you may be required to agree to different sets of terms for different Network Merchants. In most cases, this will require that You enter into an online or written agreement (an "Engagement') with such Network Merchant by which You accept, electronically or in writing, such Network Merchant's terms and conditions for participation in it Program or for accepting a Link Offer.
6.3 You agree to comply with the Engagements and other terms and requirements for participation established by each Network Merchant whose Program You join.
6.4 Subject only to compliance with Section 5.1, Visionary Strategies, LLC may institute policies or procedures that have the effect of modifying the terms of Your Engagements with a Network Merchant upon consent of such Network Merchant. Upon effectiveness, such policy or procedure shall apply to You, notwithstanding any contrary provision of Your Engagements, and Your Engagements shall automatically be deemed to be modified to reflect such policy or procedure, without the necessity of any formal amendment of such Engagements or other action on Your, Visionary Strategies, LLC's, or any Network Merchant's part. No such modification, however, may have retroactive effect without Your consent.
6.5 You agree that You shall not:
(i) Place or use any Link of any Network Merchant except with the intention of delivering valid sales, leads, applications, accounts, clicks or other specified compensable actions to that Network Merchant;
(ii) Distribute or display, or authorize or use any third party to distribute or display, any Qualifying Link or any other Link of any Network Merchant created or obtained through the Network 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;
(iii) Inflate the number of applications, accounts, clicks or other specified compensable actions or any impressions of any Network Merchant's Webpage, Promotion or other Content by any method or using any device, 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 Network 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);
(iv) 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 Program, except to the extent authorized by the Network Policies if You meet the requirements for acting as a "superaffiliate" set forth in the Network Policies;
(v) Display, distribute or otherwise make available to Web users or others any Promotion of or any Link to any Program Site anywhere by any means or method prohibited by such Network Merchant or that violates any law, rule or regulation or any intellectual or other rights of such Network Merchant or any third party; or
(vi) Use any name, trademark, service mark, domain name or other intellectual property of any third party, or any search term confusing similar thereto, in connection with Your use of the Network, Your participation in any Program or any Qualifying 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 Qualifying Links or for any other purpose.
6.6 By signing this agreement you, the Affiliate, further agree:
(i) not to promote Visionary Strategies, LLC merchant products/services in any manner including but not limited to the following manners: newsgroups, message boards, unsolicited email, banner/pop-up networks, counters, chat rooms, guest books, automated forms, or any use of spyware;
(ii) not to promote any merchant products or services on any website that contains offensive content, including but not limited to: pornography, adult oriented material, gambling, illegal material, cracking, hacking, warez, violent material, discriminatory material or material endorsing discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age, or disability, libelous material, defamatory material, threatening, harassing, or obscene material, or any content that advocates or assists any illegal activity;
(iii) not to engage in any offline promotions of a specific merchant offer(s) without written permission from Visionary Strategies, LLC;
(iv) not to run any incentive based promotion(s) to compensate visitors of their site for filling out forms, applications and/or purchasing of products from Visionary Strategies, LLC merchants without the written consent of Visionary Strategies, LLC;
(v) not to use or register any domain name that contains a Visionary Strategies, LLC merchant trade name or service mark, or is confusingly similar to the trade name or service mark of any other party. For example, Bank-of- America-offers.com would not be acceptable, whereas Credit-Card-Offers.com would be permissible under this provision;
(vi) not to promote offers on any pay per click search engine or portal if the keyword contains a merchant or third party�s trade name or service mark, or any search terms confusingly similar thereto, unless Visionary Strategies, LLC obtains and provides You with written permission to do so;
(vii) not to engage in opt-in email campaigns unless permission has been received from Visionary Strategies, LLC;
(viii) to use the approved content as provided by Visionary Strategies, LLC;
(ix) not to change content as provided by Visionary Strategies, LLC unless receiving approval from Visionary Strategies, LLC;
(x) to make changes to or remove content related to Visionary Strategies, LLC Merchants as required by Visionary Strategies, LLC within 48 hours of notification. Failure to do so may result in withholding of commission payments and/or suspension or removal of you from the merchant programs and/or the Visionary Strategies, LLC Affiliate Network.
(xi) not to download, transfer or otherwise export or re-export any Confidential Information (a) into (or to a national or resident of) any country to which the United States has embargoed the sale of goods or technology; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. You represent and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list.
6.7 Network Merchants' offers and Engagements for payment to Network Affiliates of compensation per click-through or per specified number of click-throughs are subject to any and all restrictions, limitations and policies that Visionary Strategies, LLC may institute at any time. Such restrictions, limitations and policies apply to all such offers and Engagements, even if not so stated in their terms or even if their terms state something different.
6.8 If You violate any Network policy or engage in any actual or suspected fraudulent, abusive or illegal activity as a Network Affiliate or participant in any Network Merchant's Program, Visionary Strategies, LLC may suspend or terminate Your membership in, access to and use of any or all Networks and Network Merchant's programs, and may require that any and all compensation otherwise due to You from any or all Networks or Network Merchants be forfeited. Such suspension, termination or forfeiture is in addition to any other rights and remedies that Visionary Strategies, LLC or any Network 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.
SECTION 7. TERMINATION OF MERCHANTS' PARTICIPATION IN A NETWORK
Any Network Merchant's participation in any Network may end or be suspended for a number of reasons, including expiration or early termination of its merchant agreement with Visionary Strategies, LLC and you shall not necessarily receive any prior notice that such Merchant's participation is ending. If a Network Merchant's participation in any Network ends or is suspended for any reason, its Program conducted through such Network shall end or be suspended and Visionary Strategies, LLC may, without notice to you, terminate or suspend all Qualifying Links that You have with that Merchant immediately or, in Visionary Strategies, LLC's discretion, at any time thereafter. You agree that Visionary Strategies, LLC shall have no obligation or liability to You because of any termination or suspension of the participation of any Network Merchant or any of Your Qualifying Links with such Network Merchant or any consequence thereof, whether such termination or suspension is by such Network Merchant or Visionary Strategies, LLC, is with or without cause or occurs with or without notice.
SECTION 8. Visionary Strategies, LLC IS A HOST ONLY
8.1 Visionary Strategies, LLC is the host of each Network. Network Merchants and Network Affiliates are independent parties and Visionary Strategies, LLC does not and shall not have any responsibility or liability for the acts, omissions, Promotions, Content or Links of any Network Merchant, Network Affiliate or other third party, including breaches of Engagements by Network Merchants, or for screening or policing the Websites or actions of Network Merchants or Network Affiliates. Without limiting the generality of the above, the obligation to pay any compensation You earn from Your Qualifying Links is solely the responsibility of each Network Merchant with which you form those Qualifying Links, and Visionary Strategies, LLC is not liable or responsible for payment or collection. That is true even if Visionary Strategies, LLC at any time acts as a Network Merchant's agent for disbursing checks or payments and sends You a check or other payment drawn on a Visionary Strategies, LLC account. The Engagements You enter into with a Network Merchant are solely obligations of such Merchant, not of Visionary Strategies, LLC If the terms of any such Engagement purport to create any obligation of Visionary Strategies, LLC on the part of Visionary Strategies, LLC, those terms shall not bind Visionary Strategies, LLC
8.2 Visionary Strategies, LLC services do not investigate or resolve any claim or dispute involving You and any Network Merchant or other third party. If Visionary Strategies, LLC 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 9. USE OF NETWORK CONTENT NAMES AND LOGOS
9.1 For each Network of which you are a member in good standing, Visionary Strategies, LLC grants You a personal, non-exclusive, non-transferable, revocable and limited license and right, subject to the terms of this Agreement, to:(a) Participate in such Network as a Network Affiliate; (b)Access the areas of the relevant Network Site necessary for Your participation in such Network as a Network Affiliate; (c) Download Your Individual Affiliate Reports for Your use in connection with Your participation in such Network for purpose of creating and maintaining Qualifying Links in accordance with this Agreement and your Engagements; (d) Use any software code or other Content of Visionary Strategies, LLC that is provided by Visionary Strategies, LLC for the purpose of creating and maintaining Qualifying Links in accordance with this Agreement and Your Engagements, but only in the form so provided.
9.2 All other use of any Network, Network 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 Website or mirroring is prohibited. You agree that You will not alter or modify or reverse engineer such licensed code or Content in any way. This Agreement does not grant to You any license or right to use Visionary Strategies, LLC's name or any of its logos, trade, services names, marks or any of Visionary Strategies, LLC's other intellectual property except for the limited licenses and rights expressly granted herein.
9.3 Your rights and licenses (if any) granted by this Agreement with respect to any network are valid only while You remain a member of such Network as a Network Affiliate in good standing and comply with this Agreement Visionary Strategies, LLC reserves all of its rights in each Network Site and all such software code, reports and Content and Our other proprietary rights. Visionary Strategies, LLC may revoke any such license at any time by giving You notice by any means.
9.4 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 or any Network. This license shall terminate upon the effective date of the expiration or termination of this Agreement. You also hereby grant to Visionary Strategies, LLC a worldwide, perpetual, irrevocable, royalty-free sublicensable 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 Visionary Strategies, LLC
9.5 You agree to promptly provide Visionary Strategies, LLC, upon 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 any Program. Visionary Strategies, LLC shall treat such information as confidential.
9.6 Visionary Strategies, LLC makes no representation whatsoever about any other Website which You may access through any Network. You understand that when You access a non-Visionary Strategies, LLC Website through any Network, it is independent from Visionary Strategies, LLC Visionary Strategies, LLC acts as a passive conduit for the unfiltered online distribution and publication of Content by the members of a Network 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. Visionary Strategies, LLC, disclaims control over or responsibility or liability for the Content on any other person's Website or posted or distributed on or through the Network or its resources or facilities.
9.7 You represent and warrant to Visionary Strategies, LLC that all Content You upload to any Network Site or otherwise provide or use in connection with any Network 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 Network Site or otherwise by Visionary Strategies, LLC or distributing any Content through the Network Site or otherwise by Visionary Strategies, LLC or distributing any Content through the Network or any of Visionary Strategies, LLC's services or facilities, You automatically grant to Visionary Strategies, LLC 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 Visionary Strategies, LLC that such Content does not contain any other programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
9.8 As between you and Visionary Strategies, LLC, Visionary Strategies, LLC shall own all information about the identities, postal and e-mail addresses, telephone numbers and names and contact information for Network Merchants and Network Affiliates (other than Your own) and the transactions conducted by any such person through any Network. Such information shall be considered Confidential Information under this Agreement.
SECTION 10. RISK MANAGEMENT
10.1 "As Is" Clause. Network support or services from Visionary Strategies, LLC are provided "as is" and "as available."
10.2 Disclaimer Of Warranties. To the fullest extent permitted by applicable law, Visionary Strategies, LLC disclaims all warranties, express or implied, including warranties of merchantability and fitness for a particular purpose, that the operation of any network, network site, server, emails, sent by Visionary Strategies, LLC, 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. Any links used or content or other item downloaded or otherwise obtained through participation in the network or any program of any Network Merchant is done at your own discretion and risk and Visionary Strategies, LLC shall have no liability or any damage to computer systems or loss of data that may result.
10.3 Release Of Claims. To the fullest extent permitted by applicable law, You (for Yourself and Your Corporate Affiliates) hereby release Visionary Strategies, LLC 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 any Network or any Merchant's Program, reliance on any Network or any such program, inability to use any network or participate in any such program, the interruption, suspension or termination of any network, any such program or your access to, use of or participation in any network or any such program, or any act or omission of Visionary Strategies, LLC relative to the foregoing. You hereby waive the application of all existing and future laws that may limit the efficacy of such release. Neither We, nor any of Our affiliates, licensors, or business partners, nor any of Our or their respective personnel shall in any event have, in the aggregate, any liability whatsoever in connection with this Agreement in excess of an amount equal to the amounts payable to you as profits during the calendar year in which occurred the first claim alleging liability hereunder.
10.4 California Residents. If you are a California resident, then without limiting the generality of the immediately preceding paragraph, 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 10.4 shall survive the unenforceability or other failure of any provision of this Agreement that purports to exclude or limit remedies or liability.
10.5 Release. To the fullest extent permitted by applicable law, you agree that in no event shall Visionary Strategies, LLC 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.
10.6 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.
10.7 To the fullest extent permitted by applicable law, member 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 any network, the program of any Merchant or this Agreement must be filed within one year after such claim or cause of action arose, or be forever barred.
10.8 Each party acknowledges that each provision of this section constitutes an essential element of the benefit of the bargain reflected in this agreement, and but for such provisions, Visionary Strategies, LLC would not permit you to access and use any network or would require you to pay fees or other consideration for such access or use that either have not been required or that would be in excess of any that such consideration now or hereafter required.
10.9 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. You acknowledge and agree, however, that each Visionary Strategies, LLC network is designed for use in connection with the conduct of a business, that none of the Visionary Strategies, LLC networks is intended to be used by consumers and that you shall not use any network or any of Visionary Strategies, LLC's services in your capacity as a consumer.
SECTION 11. TERMINATION� ABSENCE OF UNEXPRESSED EXPECTATIONS� YOUR INDEMNIFICATION OBLIGATIONS
11.1 Termination. Either You or Visionary Strategies, LLC, by giving the other party notice, may, at any time and with or without cause, terminate this Agreement. Upon any termination of this Agreement: (1)You shall no longer be entitled to use any Network; (2) Licenses and rights granted to You hereunder shall terminate; (3) You shall immediately cease use of, and remove from Your Site( s); all links created through any Network and all Content or items provided by or on behalf of Visionary Strategies, LLC to You in connection with any Network and You shall immediately return or destroy all confidential information and trade secrets of Visionary Strategies, LLC in the possession or control of You or any of Your employees, representatives, or agents.
11.2 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 any Network. 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.
11.3 You and Visionary Strategies, LLC 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 Visionary Strategies, LLC, therefore, agree that (i) it is not agreeable 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 prevents that party from asserting that expectation as a basis for any claim against the other party. Neither party has a duty to agree to such proposed amendment.
11.4 Indemnification. You agree to indemnify and hold harmless Visionary Strategies, LLC and the other Released Persons 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
(i) any misrepresentation or breach of any warranty, covenant or agreement made by You in this Agreement or any Engagement,
(ii) operation of any of Your Site(s),
(iii) any violation by You of any law, regulation or rule,
(iv) Your use of any Network,
(v) any claim related to any of Your Site(s), Your acts or omissions, Your participation in any Network or any Program, any Content, goods or services offered, sold or otherwise made available by You to any person, or Your acts or omissions in using, displaying or distributing any Links obtained or formed through any Network,
(vi) any claim that Visionary Strategies, LLC is obligated to pay tax obligations in connection with compensation paid to You pursuant to any such pogrom,
(vii) any violation or alleged violation by You of any rights of another, including Your use of any Content, trademarks, service marks, trade names, copyrighted or patented material, or other intellectual property used in connection with Your Site(s) or
(viii) any claim of any violation by Visionary Strategies, LLC or any other Released Person of any law, rule or regulation that is a direct or indirect result of Your use of any Network or the provision of Visionary Strategies, LLC gathering or storage of data or tracking, reporting or other services, other than any knowing and intentional violation by Visionary Strategies, LLC or other such Released Person. Visionary Strategies, LLC reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, but doing so shall not excuse Your indemnity obligations. Visionary Strategies, LLC shall have the right to 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 Visionary Strategies, LLC's prior written content. You also agree to indemnify Visionary Strategies, LLC for any reasonable legal fees or other costs incurred by Visionary Strategies, LLC acting reasonably, in investigating or enforcing its rights under this Agreement.
SECTION 12. SUBMISSION TO BINDING ARBITRATION
You agree that any controversy between you and Visionary Strategies, LLC directly or indirectly arising out of or relating in any way to this Agreement or any Network or Program (including the performance, construction or breach of this Agreement) shall be submitted to and finally settled by binding arbitration before a single arbitrator reasonably satisfactory to both parties in accordance with the commercial arbitration rules of the American Arbitration Association then in effect. The parties further and expressly agree that no dispute shall be subject to class arbitration. Any such controversy or claim so submitted to arbitration shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any third party, or subject to class arbitration. The arbitration shall be conducted in Missiouri and judgment on the arbitration award may be entered into any court having jurisdiction. Either You or Visionary Strategies, LLC may seek any interim or preliminary injunctive relief from a court of competent jurisdiction in a jurisdiction and venue as agreed upon by the parties and as set forth in this Agreement if necessary to protect rights or property pending the completion of arbitration. If You are not residing in the United States at the time of any such controversy or claim, You agree to the following additional provisions:
(i) You waive any objection to the place designated above for the arbitration.
(ii) You agree to the personal jurisdiction and venue of the courts sitting in Missouri, U.S.A. to interpret and enforce the arbitration provisions of this Agreement; and
(iii) All arbitrations shall be held in the English language. You expressly acknowledge that You understand that if arbitration is required:
(i)The decision in the arbitration shall be final and binding on the parties;
(ii)Except as provided above as to injunctive relief, you are waiving your right to seek remedies in court, including the right to jury trial; and
(iii)Any party's right to appeal or to seek modification of rulings by the arbitrator is strictly limited.
SECTION 13. INDEPENDENT CONTRACTOR
13.1 Independent Contractors. The parties are independent contractors and nothing in this Agreement shall confer upon either party any authority to obligate or bind the other in any respect. Neither this Agreement nor any course of dealing between the parties shall confer upon You any exclusive right with respect to any Network Visionary Strategies, LLC's software or services.
SECTION 14. FORCE MAJEURE
14.1 Force Majeure. Visionary Strategies, LLC shall not be liable to You by reason of any failure or delay in the performance of its obligations hereunder on account of, including but not limited to, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, interruptions in telecommunications services or Internet access, or any other cause which is beyond the reasonable control of Visionary Strategies, LLC
SECTION 15. ASSIGNABILITY AND SEVERABILITY
15.1 Assignability. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by You, and any such attempted assignment or transfer shall be void and without effect.
15.2 Visionary Strategies, LLC may assign this Agreement to any successor, affiliate or assign. If Visionary Strategies, LLC sells or otherwise transfers ownership of any Network to any corporate affiliate of Visionary Strategies, LLC, a joint venture in which Visionary Strategies, LLC has an equity interest, or an entity which licenses Visionary Strategies, LLC technology or any other third party, then the rights, obligations and liabilities of Visionary Strategies, LLC under this Agreement shall transfer to the third party. This Agreement, insofar as it relates to other Networks shall continue in effect as binding obligations of You and Visionary Strategies, LLC
15.3 Severability. If any provisions of this Agreement, or its application to any person or circumstances, is held by a court with jurisdiction to be invalid or unenforceable, the remaining provisions hereof, or the application of such provision to persons or circumstances other than those as to which it has been held invalid or unenforceable, 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.
SECTION 16. CONFIDENTIALITY AND NON-DISCLOSURE
16.1 Discloser and Recipient: The disclosing party shall be referred to herein as ADiscloser.@ The receiving party shall be referred to herein as ARecipient.@
16.2 Confidential Information of Visionary Strategies, LLC (�VS�): AConfidential Information of VS@ means any proprietary information, technical data, trade secrets or know-how, including, but not limited to, all inventions, improvements, developments, ideas, processes, prototypes, plans, drawings, designs, models, formulations, specifications, methods, techniques, shop-practices, hardware configuration information, discoveries, innovations, creations, technologies, formulae, algorithms, data, computer databases, reports, laboratory notebooks, papers, writings, photographs, source and object codes, software programs, other works of authorship, know-how, patents, trademarks and copyrights (including all records pertaining to any of the foregoing), whether or not reduced to writing and whether or not patented or patentable or registered or registerable under patent, copyright, trademark or similar statute, that are owned by VS or that are required to be assigned to VS by any person, including, without limitation, any employee or consultant of VS, or that are licensed to VS by any person. Without limiting the generality of the foregoing, Confidential Information shall further include, but is not limited to, (i) other business information disclosed by VS either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment; (ii) information regarding VS=s plans for research and development or for new products; (iii) engineering or manufacturing information proprietary to VS or any of its operations or products; (iv) information regarding regulatory matters concerning VS; (v) information regarding any acquisition or strategic alliance effected by VS or any proposed acquisition or strategic alliance being considered by VS; (vi) information regarding the status or outcome of any negotiations engaged in by VS; (vii) information regarding the existence or terms of any contract entered into by VS; (viii) information regarding any aspect of VS=s intellectual property position; (ix) information regarding prices or costs of VS; (x) information regarding any aspect of VS=s business strategy, including, without limitation, VS=s marketing, selling and distribution strategies; (xi) information regarding customers or suppliers of VS; (xii) information regarding the skills, compensation and other terms of employment or engagement of VS=s employees and consultants; (xiii) business plans, budgets, unpublished financial statements and unpublished financial data of VS; (xiv) information regarding marketing and sales of any actual or proposed products or services of VS; (xv) any information regarding processes, methods or coding specifications relating to the production of consumer credit card application solicitations over the web; (xvi) any information obtained from or created for any programmer, manufacturer, seller and/or designer of any form of print media, electronic data, computer software, code, hardware or manufacturing device that touches upon or relates to consumer credit card application solicitations over the web; (xvii) any information obtained from or created for any person or entity not party to this contract; (xviii) samples, specimens or data (collectively ASamples@) exchanged between VS, Signatory and/or any other party; and (ixx) any other information that VS may designate as confidential.
16.3 Activity Period: This Agreement covers Information and Samples supplied or received while this agreement is in effect.
16.4 Confidentiality Obligations of Signatory: Unless VS specifically authorizes in writing, Signatory agrees:
a) not to disclose the Confidential Information to any third party except for those third parties who require such access to achieve the purpose of this Agreement only (the �Purpose�), and who have agreed to confidentiality provisions in writing no less restrictive than those contained herein; and
b) not to use VS=s Information or Samples except for Purpose; and
c) to limit access to VS=s Information or Samples disclosed under this Agreement only to personnel of the Signatory who have a need to know and who have been made aware of the obligations of confidence and non‑use described herein, which apply to such personnel; and
d) that any Information or Samples exchanged, shall be used only for the Purpose; and
e) not to reverse engineer or analyze any of VS=s Information or Samples for composition, except for Purpose.
16.5 Confidentiality Period: The obligations of Paragraph 16.4 are binding for a period of five (5) years after the termination of this Agreement.
16.6 Exclusions: The obligations of confidence and non‑use do not apply to information already available to the public at the time of disclosure.
a) The obligation of confidence does not apply to information required to be disclosed by law, provided, however that the Recipient notifies the Discloser promptly at any time it believes it is legally required to disclose the Discloser=s Information and does not disclose such Information until the Discloser has the opportunity to oppose such disclosure or obtain an acceptable protective order.
b) Detailed information is not excluded from the obligations of Paragraph 16.4 merely because that detailed information is embraced by more general information excluded under Paragraph 16.6(a). Information concerning combinations of items is not excluded from the obligations of Paragraph 16.4 unless the combination itself and its principles of operation fall within Paragraph 16.6(a).
16.7 Disclaimers: VS disclaims all express and implied warranties for its Information and Samples, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, against infringement, and all implied representations and warranties provided by statute or common law. VS does not warrant or make representation regarding the use, results of the use, or appropriateness of the use of its Information or Samples for any purpose. No right or license whatsoever, either express or implied, is granted to Signatory pursuant to this Agreement under any patent, patent application, or other proprietary right now or hereafter owned or controlled by VS.
16.8 Limitation of Liabilities: VS shall not be liable to Signatory for any loss, claim, damage, or liability, of whatsoever kind or nature, which may arise from or in connection with Signatory=s use, handling, or storage of the Information or Samples. VS shall not be liable to Signatory for any consequential, punitive, incidental, exemplary, or special damages arising out of Signatory=s use of VS=s Information or Samples.
16.9 Export Compliance: Recipient shall comply with all laws and regulations related to the import/export of technology and products received from Discloser, or the direct products of that technology or those products.
SECTION 17. GOVERNING LAW
17.1 Governing Law. This Agreement shall be governed by the law of the state of Missouri.
17.2 Consent to Jurisdiction. Each party consents to the jurisdiction of the Circuit Court of Missouri and agrees to commence any litigation hereunder in such court.
17.3 If any provision of this Agreement is or shall become inconsistent with or unenforceable under any provision of applicable law that may be waived or the applicability of which may otherwise be varied or excluded by You or by You and Visionary Strategies, LLC then You and You and Visionary Strategies, LLC hereby waive or exclude the applicability of such provision of law.
17.4 The parties agree that the provisions of the Uniform Computer Information Transaction Act, as it may have been or hereafter may be in effect in any jurisdiction, shall not apply to this Agreement or any course of dealing between the parties.
SECTION 18. THIRD PARTY BENEFICIARIES
18.1 Third Party Beneficiaries. Except as provided in Section 10 with respect to the Released Parties, there are no third party beneficiaries of this Agreement.
18.2 Without limiting the generality of the immediately proceeding paragraph, if this Agreement requires that You refrain from acting or requires that You take an action that may be considered to indirectly benefit or harm third parties, that requirement is included in the conditions upon which You are authorized to use any Network and which permits Visionary Strategies, LLC to terminate this Agreement or pursue other remedies for its own benefit if You behave contrary to such requirement.
18.3 You are responsible for any claim made against Visionary Strategies, LLC by any third party because of any of Your acts or omissions.
18.4 The preceding paragraph is not intended to create any right, duty, obligation or liability on the part of Visionary Strategies, LLC to any third party, including (i) any obligation to monitor Your compliance with the aforementioned paragraphs are held; or (ii) to create any duty, obligation or liability upon Visionary Strategies, LLC as to control over You or (iii) as to create any responsibility for Your acts or omissions. Any such requirement shall be stricken from this Agreement and this paragraph shall have no affect on Your indemnification obligations with respect to any claim arising out of Your acts or omissions that would otherwise violate such requirement or any of Visionary Strategies, LLC' s rights or remedies otherwise available.
SECTION 19. AMENDMENTS AND WAIVERS
19.1 Amendments. Any amendments of this Agreement must be in writing and signed by both parties.
19.2 No failure or delay in exercising any power, right, or remedy under this Agreement shall operate as a waiver. A waiver on the part of Visionary Strategies, LLC, to be effective, must be written and signed by an officer of Visionary Strategies, LLC and physically delivered to You.
SECTION 20. EFFECT OF TERMINATION
20.1 The exercise of any right to terminate this Agreement or suspend access or service granted a party in this Agreement shall not result in a breach of this Agreement by such party, and neither the exercise of such right nor any consequence thereof shall give rise to or be the basis for any claim by or liability to the other party, whether in contract, tort or otherwise, even if the terminating party was informed or aware of, or otherwise could have anticipated the possibility of, such consequence.
SECTION 21. MEDIA RELATIONS
21.1 Public statements. Any press release or other public announcement by You regarding this Agreement, any Visionary Strategies, LLC Network or that mentions Visionary Strategies, LLC shall require the prior approval of Visionary Strategies, LLC You agree that You shall not disparage Visionary Strategies, LLC or any of the Visionary Strategies, LLC Networks.
SECTION 22. DISCRETION
22.1 Exercise of Discretion. Where this Agreement states that any consent, approval, agreement or other discretionary action on the part of Visionary Strategies, LLC is in its discretion, then such consent, approval, agreement or other action can be withheld for any reason or no reason or conditioned in any manner desired by such party, in each case in such party's sole and absolute discretion.
SECTION 23. CITIZENS OR RESIDENTS OUTSIDE OF THE UNITED STATES
23.1 Information Visionary Strategies, LLC publishes on the Web may contain references or cross references to products, programs and services that are not announced or available in countries outside of the United States. Such references do no imply that Visionary Strategies, LLC intends to announce or make available such products, programs or services in such other countries. Visionary Strategies, LLC makes no representations or warranties that any Visionary Strategies, LLC Network, the Content on Visionary Strategies, LLC's Website(s), or products/services offered or referenced thereon are appropriate or available for use in other countries. Access to or use of such products, services, contents or network from or in territories where their Contents are illegal or where access or use would subject Visionary Strategies, LLC to taxes, laws or regulations that otherwise would not apply or to the jurisdiction of any court or other governmental authority to which it would not otherwise be subject is prohibited. You and You alone are responsible for compliance with all laws and regulations that apply to Your use of any Network or Visionary Strategies, LLC products or services, including services You offer to citizens or residents outside the United States.
SECTION 24. ENTIRE AGREEMENT
24.1 This Agreement is the entire agreement between the parties pertaining to its respective subject matter, and all written or oral agreements, representations, warranties or covenants, if any, previously existing between the parties with respect to such subject matter are canceled. The statements made by Visionary Strategies, LLC on any of its Websites or otherwise than in an express provision of this Agreement are not representations or warranties and do not create contractual obligations. If, prior to the date of this Agreement, the parties have entered into a separate confidentiality agreement and there is any conflict or inconsistency between this Agreement and such separate confidentiality agreement, the terms of this Agreement shall prevail and govern with respect to the information provided pursuant to this Agreement.