Please read this carefully. By using any part of the Alacrastore.com website (the "Alacra Site"), or by accessing the Alacra Store or Service (as defined below) via any part of the Alacra Site; and/or by registering as a User on the Registration page, you are deemed to have entered into this Agreement (the "Agreement"), with Alacra, Inc. ("Alacra") and to have accepted all the terms and conditions set forth below, which will govern all of your use of the Alacra Site.
If you do not agree to be bound by all the terms set forth below, do not use the Alacra Site, Alacra Store or Service.
Alacra operates the Alacra Store via the Alacra Site, which provides services and content, information, links or other material (collectively, the "Service") to you ("User", "You" or "Your") for your individual use. "Individual use" shall be defined as individual's personal use, individual's use in the normal course of his or her business, or in the case of independent information professionals, use in the production of research for a specific client project.
If You have entered into a separate written agreement with Alacra governing Your access to and use of the Service, the terms of such written agreement shall prevail if there are any additional terms in such agreement or if there is any inconsistency with the terms set out below.
Alacra does not and cannot guarantee the completeness, accuracy or timeliness of the Service made available to User via the Alacra Store. User agrees that Alacra and its licensors and content providers will not be liable for any action User takes or decision User makes in reliance on such Service. User is responsible for User's own investment decisions. Alacra is not providing User with investment advice. User should seek investment and other advice from User's financial, tax, legal, and other professional advisers before making investment and other decisions.
1. Alacra Store: The Service will be provided to you through the Alacra Site, a World Wide Web ("Web") site that is comprised of proprietary search technology and software and makes available to the User content, information, links or other material, including third party content (collectively, "Content"). The Service and the Content are collectively referred to in this Agreement as the "Service" or "the Alacra Store".
2. How to Use the Alacra Store:
(a) Any and all use of the Alacra Site and the Alacra Store is governed by this Agreement whether or not you are a registered User.
(b) Site Registration for Registered Users: On the Registration page, User shall complete the Registration form, including providing User's e-mail as a user name, and choosing a password. User will then review this Agreement appearing on that page and click through the "I have read and accept the Alacra Terms of Service" box. After completing the Registration, User will receive an email automatically generated by Alacra. Registration will be complete when User responds to that email confirming User's user name and password. A registered User may then use the Alacra Store by entering User's user name and password each time that User enters the Alacra Store via the Web. User may use the Alacra Store's online HELP feature or call Alacra by telephone for information on how to navigate and utilize the features of the Alacra Store, which may be revised by Alacra from time to time.
(c) Credit Card and Debit Card Registration: When a registered User's use of the Alacra Store incurs charges, User will be asked to submit User's credit card or debit card information so that such charges can be billed to User's account via Alacra's payment processing service provider. Such activities will be subject to the then-current terms set forth by Alacra's payment processing service provider. Without a valid credit card or debit card, and User's compliance with such terms, User will not be permitted to use the Alacra Store in any manner that incurs charges. If requested by User, Alacra may store the credit card or debit card information that User submits to Alacra for use in connection with charges incurred during User's future visits to the Alacra Store.
(d) Permitted Uses:
In User's use of the Alacra Store, User may:
|(i)||Display the Content on the screen of a terminal and print one copy for User's individual use; and|
|(ii)||Download reasonable portions of the Content for User's individual use;|
User shall include the existing copyright notices and trademarks whenever reproducing, printing or downloading any portion of the Content. User shall make no other use of the trademarks of Alacra, its Licensors, or its Content Providers, as defined below.
3. Scope of License:
(a) Subject to the terms and conditions of this Agreement, Alacra hereby grants User a non-exclusive, non-transferable license to access and use the Alacra Store via the Web for User's Individual Use only. Alacra grants User no other licenses under this Agreement, either expressly or by implication.
(c) Alacra assumes no responsibility for the results of use of the Alacra Store or of any Service, Content or software available from any of the Sites, or for any offensive or otherwise objectionable Content. User assumes total responsibility and risk of use of the foregoing.
4. Prohibited Uses:
(a) User may not:
|(i)||Directly or indirectly, allow any other person to use or share User's user name or password, or to otherwise have access to the Alacra Store;|
|(ii)||reproduce or store in or transmit to any other website, newsgroup, mailing list, electronic bulletin board, local area or wide area network or regularly or systematically store in electronic or print form all or any part of the Alacra Store; or|
|(iii)||publish, transmit, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display or in any way exploit all or any part of the Service or Content (including, but not limited to, as part of any library, archive or similar service).|
Any use of the Service or Content not specified in Section 2 above, is expressly prohibited.
User may use the Alacra Store (including, but not limited to, Content obtained via the Alacra Store) for purposes other than User's Individual Use only pursuant to a separate agreement with Alacra and User's payment of separate fees.
(b) The license granted under Section 3 above may not be assigned, transferred or sublicensed without the prior written consent of Alacra. User shall not sell, lease, sublicense, assign, export, retransmit, publish, reproduce, reverse engineer, disassemble, decompile, otherwise attempt to discern the source code, modify or otherwise transfer in any manner any aspect of the Alacra Store (including, but not limited to, any underlying software, technology or Content in any form) without the prior written permission of Alacra. User will not engage in, or cooperate with any third party engaging in, any activities with regard to the Alacra Store that may be described as "framing".
5. User Access, Passwords, Responsibilities and Privacy:
(a) If a User's user name or password has been revealed to a person not expressly authorized by User to use it, User shall immediately notify Alacra by telephone or e-mail, confirming such notice in writing. Upon receipt of such notice, Alacra will, as promptly as practicable, freeze access to the Service for that user name and password and will assign User a new user name and password. User is responsible for all Use, whether permitted or not under this Agreement that is made under User's name and password unless such use is solely Alacra's fault.
6. Access and Force Majeure: Alacra will use reasonable efforts to make the Service available 24 hours a day, 365 days a year, except for repairs, maintenance, and upgrades. User acknowledges that the Service may be unavailable at times due to such problems as unavailability of the Web or downtime of Internet service providers. Alacra reserves the right to add to or remove any parts of the Alacra Store at any time without prior notice. Alacra shall not be responsible for any failure to perform, or delay in performance, in whole or in part, due to unforeseen circumstances or circumstances beyond Alacra's reasonable control, including but not limited to acts of God, war, riot, terrorism, embargoes, acts of civil or military authority; communication line, server or Internet failures, attacks or viruses; or fire, flood, earthquakes, accidents, strikes, shortages of fuel, labor or materials.
7. Proprietary Rights in the Service and Intellectual Property Protection: User acknowledges that: (a) the Service and Content are proprietary to Alacra or its Licensors or its Content Providers and shall remain the exclusive property of Alacra and such Licensors or Content Providers; (b) copyrights, trademarks, product or service names, brand names, company names, and logos appearing in the Service or Content are the property of their respective owners; and (c) User has, and shall acquire in connection with this Agreement, no rights in the Service or Content other than as expressly set forth in this Agreement. User agrees to prevent the unauthorized access, duplication, distribution, modification, or other use of the Service and Content. Use of any third party software that User elects to use with the Service or Content shall be governed by such third party's license and not by this Agreement, and Alacra shall have no responsibility or liability for such software.
8. Fees and Taxes; No Refunds:
(a) User shall pay Alacra for the Service and Content the fees shown to User from time to time when using the Service and Content, subject to the credit card provisions set forth in Section 2(b) above. Alacra reserves the right to terminate this Agreement at any time without prior notice for failure to pay, and the right to require that User prepay any fees incurred. Overdue amounts shall bear interest at a rate of 1.5% per month, but no greater than the maximum permitted by law.
(b) User is responsible for all sales, use, property or similar taxes and all customs, VAT, tariffs, duties or similar import fees applicable to User's use of the Alacra Store (collectively, "Taxes") and all attorney's and service fees resulting from collections of overdue fees and Taxes.
(c) All purchases from the Alacra Store are final. If User is in any doubt about any transaction User enters into through the Alacra Store, User should contact Alacra before clicking on the purchase button on the Alacra Store's final checkout screen. If User feels that an error has occurred in any transaction User enters into through the Alacra Store, User should contact Alacra to discuss the problem with a member of Alacra's customer service team.
9. Term and Termination: Alacra may, in its sole discretion, terminate or suspend your access to all or part of the Alacra Site with or without cause upon notifying User.
If User is in breach of this Agreement, Alacra may terminate this Agreement and User's access to the Alacra Site and Alacra Store without notice. In the event of termination, User's rights of access and use of the Alacra Store will cease immediately. The rights of termination are in addition to, not in lieu of any and all other rights or remedies of Alacra set forth in this Agreement or in law or equity.
The following provisions of this Agreement shall survive its expiration or termination: Sections 4, 5(b), 7, 8, 10, 11, 12, 13, and 14.
10. Warranty Disclaimer, Limitations of Liability and Indemnification:
(a) THE SERVICE AND CONTENT, INCLUDING BUT NOT LIMITED TO, ANY CONTENT, ALACRA SITE, SITE, SITE-LINK OR ANY SITE-RELATED SERVICE, OR ANY PRODUCT OR SERVICE ACCESSED, LICENSED OR PURCHASED THROUGH THE SERVICE, OR ANY SOFTWARE USED IN OR DOWNLOADED FROM THE SITES, IS PROVIDED "AS IS."
(b) ALACRA, ITS LICENSORS AND ITS CONTENT PROVIDERS DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE AND CONTENT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ALACRA MAKES NO WARRANTY THAT THE SERVICE OR CONTENT: (i) WILL MEET USER'S REQUIREMENTS: (ii) THAT USE OF THE SERVICE AND CONTENT WILL BE ACCURATE, TIMELY, OR COMPLETE; OR (ii) THAT USE OF THE SERVICE AND CONTENT WILL BE ERROR, DEFECT OR VIRUS FREE, OR UNINTERRUPTED OR SECURE. USER SHALL BE SOLELY RESPONSIBLE FOR ANY RESULTING DAMAGE TO USER'S COMPUTER SYSTEM OR NETWORK OR LOSS OR DAMAGE TO ANY DATA. ANY WARRANTY THAT IS PROVIDED BY ANY THIRD PARTY IN CONNECTION WITH ANY OF THE CONTENT OR SERVICES DESCRIBED HEREIN IS PROVIDED SOLELY BY THE OWNER, LICENSOR, OR PROVIDER OF THAT CONTENT OR SERVICE, AND NOT BY ALACRA.
(c) USER AGREES, AND SHALL REQUIRE ANY THIRD PARTY WHO INDIRECTLY USES THE SERVICE OR CONTENT THROUGH USER ("THIRD PARTY USER"), TO AGREE THAT IN NO EVENT SHALL ALACRA OR ITS LICENSORS OR CONTENT PROVIDERS BE LIABLE FOR THE RESULTS OF USER'S OR ANY THIRD PARTY'S USE OF THE SERVICE OR CONTENT, FOR ITS INABILITY OR FAILURE TO CONDUCT ITS BUSINESS, OR FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST DATA, DAMAGED COMPUTER SYSTEMS OR FILES OR LOST PROFITS, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE.
(d) ALACRA'S SOLE LIABILITY TO USER AND THIRD PARTY USERS FOR ANY AND ALL CLAIMS, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY, UNDER STATUTE, IN EQUITY, AT LAW OR OTHERWISE, WILL NOT EXCEED THE LESSER OF THE AGGREGATE AMOUNT PAID BY USER FOR SERVICE IN THE PRECEDING ONE (1) MONTH PERIOD OR ONE THOUSAND DOLLARS ($1,000), EVEN IF ALACRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, LOSS OR DAMAGE. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
(e) USER AGREES TO DEFEND AND HOLD ALACRA, ITS LICENSORS AND ITS CONTENT PROVIDERS HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES OR LIABILITY (INCLUDING ATTORNEY'S FEES) ASSERTED AGAINST ALACRA OR ITS LICENSORS OR ITS CONTENT PROVIDERS AS A RESULT OF USE OF THE SERVICE OR CONTENT UNDER THIS AGREEMENT BY USER OR A THIRD PARTY USER.
(f) The provisions of this Section shall survive any termination of this Agreement.
11. Exceptions to Exclusions and Limitations: Some states do not allow the exclusion or limitation of implied warranties or of incidental or consequential damages, so the above limitations may not apply. User may also have other rights, which vary from state to state.
12. Export Controls and Subscriber Representations: User may not export or re-export any underlying software, technology or other Content accessed through the Service, except in full compliance with this Agreement and all U.S. and other applicable laws and regulations. In particular, but without limitation, none of the underlying information or technology of the Service may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any U.S. embargoed country or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's or State Department's Table of Denial Orders. User represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list. User agrees to indemnify and hold harmless and defend Alacra against any and all liability arising from or relating to User's breach of this Section.
13. Governing Law and Severability:
(a) Any questions concerning the validity, construction, or performance of this agreement shall be governed by the internal laws of the State of New York, or, where there is no applicable state law, the law of the United States, without regard to the principles of conflict of laws and as if this Agreement was a contract wholly entered into and wholly performed within the State of New York. Subject to subsection (b) below, the parties agree to exclusive jurisdiction of the Federal or State Courts in the County and State of New York with regard to any and all matters arising out of, or in connection with, the Alacra Store and/or this Agreement ("Dispute") and waive any jurisdictional, venue or inconvenient forum objections to such courts. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, such provision shall be reformed to as nearly as possible approximate the intent of the parties and all other provisions shall remain in full force and effect.
(b) If there is any Dispute that cannot be resolved informally, User and Alacra agree to submit the Dispute to binding arbitration, unless prohibited by applicable law; provided, however, that Alacra may instead submit to the courts specified above any Dispute relating to Alacra's, its Licensors' or its Content Providers' proprietary rights. The rules of the American Arbitration Association will govern any such arbitration. A single arbitrator shall conduct any such arbitration. Arbitration is final and binding. By agreeing to arbitration, User gives up the right to resolve disputes in court, including the right to a jury trial, unless a waiver would violate applicable law. Arbitration differs from court proceedings in several ways. Discovery is generally more limited and follows different rules. Arbitrators are not judges. The arbitrators' decision may not include factual findings or legal reasoning. User's right to appeal or seek to change the decision is strictly limited.
(a) Entire Agreement: Subject to subsection (b) below, this Agreement constitutes the entire agreement of the parties on the subject matter hereof, and all prior agreements and all prior written or oral understandings shall be deemed to be superseded hereby. No waiver, alteration or modification of any of the provisions hereof shall be binding unless (i) in writing and signed by authorized representatives of Alacra and User; or (ii) provided by Alacra to User electronically by publishing on the Alacra Store. User agrees that it shall be User's responsibility to check the Alacra Store frequently for amended versions of this Agreement. If User uses the Site after this Agreement has been amended, User shall be agreeing to be bound by the amended Agreement. If User does not agree to be bound by such an amendment, User should not use the Alacra Store after the amended Agreement is published on the Alacra Store.
(b) Additional Terms: Alacra may be required to "pass through" additional terms to User as a result of a separate agreement between Alacra and a Licensor or Content Provider. Failure of User to electronically accept such "pass through" terms may result in: (i) denial of access to certain portions of the Service and/or certain Content; and/or (ii) termination of this Agreement.
(c) Assignment: Alacra may assign or transfer its interest in this Agreement. User may not assign or transfer its interest in this Agreement without Alacra's prior written consent.
(d) Headings: Headings in this Agreement are included for convenience or reference only and shall not constitute a part of this Agreement for any other purpose.
(e) Statute of Limitations: No suit or action shall be brought against Alacra, its Licensors or its Content Providers more than one (1) year after the accrual of any cause of action or claim.
(f) Third Party Rights:Licensors and Content Providers may invoke the provisions hereof against any claims by the User, any Third Party User of the Alacra Store, or any other third party's claims arising out of or in connection with this Agreement. Except for the foregoing, Alacra and User intend that no third parties shall have any rights under, or arising from, this Agreement.
15. Notice to S&P Users:
(a) Neither Alacra, Standard & Poor's ("S&P"), nor any third-party licensor shall have any liability for the accuracy or completeness of the information furnished through the Alacra Store, or for delays or omissions therein nor for any lost profits, indirect, special or consequential damages;
(b) Either Alacra, S&P or third-party licensors have exclusive proprietary rights in the information received;
(c) End User and Alacra Subscriber shall not use or permit anyone to use the information provided through the Alacra Store for any unlawful or unauthorized purpose;
(d) End User or Alacra Store is not authorized or permitted to furnish such information to any person or firm for reuse or retransmission without prior written approval of the source of such information; and
(e) The relevant provisions of the customer agreement are subject to termination in the event that any agreement between Alacra and a provider of information distributed through the Alacra Store is terminated in accordance with its terms.
16. Notice to D&B Users:
A. User Notice for Non-Subscription Users
"THE INFORMATION IS PROVIDED FOR YOUR INTERNAL USE ONLY AND MAY NOT BE COPIED OR REDISTRIBUTED FOR ANY REASON. THIS INFORMATION IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. THE INFORMATION IS THE INTELLECTUAL PROPERTY OF THE PROVIDER OR ITS INFORMATION PROVIDERS. IN NO EVENT WILL PROVIDER OR ITS INFORMATION PROVIDERS BE LIABLE IN ANY WAY WITH REGARD TO SUCH INFORMATION. YOUR USE OF THE INFORMATION MUST IN ALL CASES COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS."
B. User Notice for Subscription Users
" 1. You acknowledge that all information (the "Information") furnished to you by Dun & Bradstreet, Inc. is licensed for the exclusive use of End-Users. Regardless of the form or format in which the Information is furnished, none of the Information may be made available in whole or in part to any third party. You agree that the Information will not be reproduced, revealed or made available to anyone else, it being understood that the Information is licensed for your internal use only, except that you may make one copy solely for backup purposes. You agree that you will use the Information solely as one factor in your credit, insurance, marketing or other business decisions and you are expressly prohibited from using the Information as a factor in establishing an individual's eligibility for (i) credit or insurance to be used primarily for personal, family or household purposes, or (ii) employment. You agree not to use the Information to engage in unfair or deceptive practices.
2. Information furnished hereunder may be used throughout the continuous 12-month period commencing thirty (30) days from the effective date of this agreement. Upon expiration or termination the license period, you shall immediately destroy all originals and copies of any D&B Information, unless you are otherwise instructed by D&B or COMPANY; and upon request, provide D&B or COMPANY with certification thereof. You represent and warrant that your use of any Information shall in all cases comply with all applicable federal, state and local laws and regulations
3. You agree to indemnify, defend and hold harmless D&B from any claim or cause of action against D&B arising out of or relating to use of the Information by (i) individuals or entities which have not been authorized by this Agreement to have access to and/or use the Information and (ii) you, which use may be in violation of your license.
4. YOU ACKNOWLEDGE THAT D&B AND ITS THIRD PARTY INFORMATION PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY, COMPLETENESS, TIMELINESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE INFORMATION OR OF THE MEDIA ON WHICH THE INFORMATION IS PROVIDED. YOU ALSO ACKNOWLEDGE THAT EVERY BUSINESS DECISION INVOLVES THE ASSUMPTION OF A RISK AND THAT D&B, IN FURNISHING THE INFORMATION TO YOU, DOES NOT AND WILL NOT UNDERWRITE THAT RISK, IN ANY MANNER WHATSOEVER. YOU THEREFORE AGREE THAT D&B AND ITS THIRD PARTY INFORMATION PROVIDERS WILL NOT BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR INJURY ARISING OUT OF OR CAUSED IN WHOLE OR IN PART BY D&B'S NEGLIGENT ACTS OR OMISSIONS IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING OR DELIVERING THE INFORMATION.
5. YOU AGREE THAT D&B AND ITS THIRD PARTY INFORMATION PROVIDERS WILL NEVER BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ALSO AGREE THAT D&B'S AND ITS THIRD PARTY INFORMATION PROVIDERS' AGGREGATE LIABILITY, IF ANY, FOR ANY AND ALL LOSSES, DAMAGES OR INJURIES WHICH YOU SUFFER OR INCUR ARISING OUT OF ANY ACTS OR OMISSIONS OF D&B IN CONNECTION WITH ANYTHING TO BE DONE OR FURNISHED HEREUNDER, REGARDLESS OF THE CAUSE OF THE LOSS, DAMAGE OR INJURY (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL NEVER EXCEED $10,000.00 AND YOU COVENANT AND PROMISE THAT YOU WILL NOT SUE D&B FOR A GREATER AMOUNT. YOU ALSO AGREE TO GIVE D&B IMMEDIATE WRITTEN NOTICE OF ALL ACTIONS, CLAIMS, LOSSES OR DAMAGES ARISING OUT OF THE USE OF THE INFORMATION.
6. You acknowledge and agree that the copyright to the Information is and shall remain with D&B. You acknowledge that the Information, regardless of form or format, is proprietary to D&B and comprises: (a) works of original authorship, including compiled information containing D&B's selection, arrangement and coordination and expression of such information or pre-existing material it has created, gathered or assembled; (b) confidential and trade secret information; and (c) information that has been created, developed and maintained by D&B at great expense of time and money, such that misappropriation or unauthorized use by others for commercial gain would unfairly and irreparably harm D&B. You agree that you will not commit or permit any act or omission by your agents, employees or any third party that would impair D&B's copyright or other proprietary and intellectual property rights in the Information. You agree to notify D&B immediately upon obtaining any information regarding a threatened or actual infringement of D&B's rights. You also agree that you will not use any D&B trade name, trademark, service mark, logo or copyrighted materials in listings or advertising in any manner without the prior written approval of D&B. You shall reproduce D&B's copyright notice and proprietary rights legend on all authorized copies of such Information.
7. These Terms of Agreement are in addition to those found in any COMPANY service agreement and D&B is a third party beneficiary hereof. You agree that D&B may, in its own name or in COMPANY's name, enforce this Agreement against you; provided, however, that you agree that you will look only to COMPANY and not to D&B for performance by COMPANY of its obligations hereunder. If there is a conflict between these Terms of Agreement and those found in any such service agreement, then these Terms of Agreement will apply. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, United States of America, without giving effect to its conflicts of laws provisions. Any disputes arising hereunder must be filed and shall be venued in the United States District Court for the District of New Jersey or in the courts of the State of New Jersey and the parties hereby submit to the jurisdiction of such courts."
D&B shall have the right to modify the notice set forth in Section A above. Licensee shall implement such modifications within five (5) days of written request by D&B.
17. Notice to Experian Users:
A. User agrees that information provided by Experian Information Solutions, Inc. ("Experian"):
(i) will be used solely in connection with a present or prospective credit or financial transaction with the business entity inquired upon or for other legitimate commercial purposes;
(ii) will not be used as a factor in establishing an individual's eligibility for credit or insurance to be used primarily for personal, family or household purposes or employment purposes;
(iii) will be used in compliance with all applicable laws, regulations, ordinances and the use restrictions set forth in the Agreement or adopted by Experian and/or Alacra hereafter; and
(iv) will be maintained in confidence and disclosed only to persons whose duties reasonably relate to the business purposes for which the information was requested.
B. User acknowledges and agrees to the following:
(i) NEITHER ALACRA, EXPERIAN NOR THEIR SOURCES GUARANTEE OR WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE INFORMATION AND SHALL NOT BE LIABLE TO USER FOR ANY LOSS OR INJURY ARISING OUT OF OR CAUSED IN WHOLE OR IN PART BY ALACRA'S, EXPERIAN'S OR THEIR SOURCES' ACTS OR OMISSIONS, WHETHER NEGLIGENT OR OTHERWISE, IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING OR DELIVERING THE INFORMATION. IN NO EVENT SHALL ALACRA, EXPERIAN OR THEIR SOURCES BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS OR LOST PROFITS), WHETHER FORESEEABLE OR NOT, AND HOWEVER CAUSED, EVEN IF ALACRA, EXPERIAN OR THEIR SOURCES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PARAGRAPH STATES EXPERIAN'S AND ITS SOURCES' ENTIRE LIABILITY AND THE SOLE REMEDY OF USER IN CONNECTION WITH THE PROVISION OF THE INFORMATION BY EXPERIAN.
(ii) IF, NOTWITHSTANDING THE PRIOR PARAGRAPH, LIABILITY CAN BE IMPOSED ON ALACRA, EXPERIAN OR THEIR SOURCES, THEN USER AGREES THAT THE AGGREGATE LIABILITY FOR ANY OR ALL LOSSES OR INJURIES TO USER IN CONNECTION WITH ANYTHING TO BE DONE OR FURNISHED UNDER THE AGREEMENT, REGARDLESS OF THE CAUSE OR THE LOSS OR INJURY (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL NEVER EXCEED THE AMOUNT PAID TO ALACRA FOR THE AFFECTED SERVICES AND USER COVENANTS AND PROMISES THAT IT WILL NOT SUE ALACRA, EXPERIAN OR THEIR SOURCES FOR AN AMOUNT GREATER THAN SUCH SUM AND THAT IT WILL NOT SEEK PUNITIVE DAMAGES IN ANY SUIT AGAINST ALACRA, EXPERIAN OR THEIR SOURCES.
(iii) These terms and conditions for Experian Users are in addition to those in the remainder of this Agreement with Alacra and Experian is a third party beneficiary thereof.
Premium Content Advertising Network (PCAN) - AFFILIATE AGREEMENT
This agreement ("Agreement") contains the complete terms and conditions for your participation in the Alacra, Inc. ("Alacra") Premium Content Advertising Network Affiliate Program (the "Program"), and the establishment of links from your World Wide Website(s) to Alacras World Wide Website(s). As used in this Agreement, "you" and "your" means and refers to Affiliate (as defined below) and "we", "us", "our", and "ours" means and refers to Alacra.
THIS IS A LEGALLY BINDING AND ENFORCEABLE AGREEMENT BETWEEN YOU, THE AFFILIATE, AND ALACRA. BY CLICKING ON THE "I ACCEPT BUTTON ON, YOU ARE AFFIRMATIVELY STATING THAT YOU HAVE CAREFULLY READ, UNDERSTAND AND AGREE TO BE BOUND BY EACH AND EVERY TERM AND CONDITION OF THIS AGREEMENT. IF YOU DISAGREE WITH ANY OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, DO NOT CLICK THE "I ACCEPT BUTTON" ON THIS APPLICATION.
1.1 "Affiliate" means any person, partnership, joint venture, corporation or other form of enterprise, whether domestic or foreign, that is seeking to participate in the Program.
1.2 "Affiliate Customer(s)" means any person, partnership, joint venture, corporation or other form of enterprise whose first Eligible Sales Transaction (as defined in Section 8.1 below) occurs as a direct result of an Alacra Link on an Affiliate Site and who has not previously been an Affiliate Customer of another Affiliate of the Program. For purposes of clarification, a person, partnership, joint venture, corporation or other form of enterprise who completes an Eligible Sales Transaction but does not qualify as an Affiliate Customer shall be considered a "Customer" as defined in Section 1.8 below.
1.3 "Affiliate Site(s)" means one or more of Affiliates World Wide Websites, and any successor to those sites, approved and accepted into the Program by Alacra.
1.4 "Alacra Link(s)" means any graphical or text link approved by Alacra that are located on an Affiliate Site through which an Affiliate Customer or Customer may directly Link to an Alacra Site.
1.5 "Alacra Site(s)" means www.alacra.com, www.alacrastore.com, and any other World Wide Website operated by Alacra that enables an Affiliate Customer or Customer to shop for Content and engage in a Sales Transaction via a personal computer (or other interactive device) connected to the Internet or any other network. This Agreement is deemed to also refer to all future versions of Alacras World Wide Websites and other services described in this Agreement, regardless of the name under which it is offered from time to time, and includes, without limitation, any and all additional, follow-on, successor or replacement versions of these sites or services.
1.6 "Commencement Date" means the date upon which an Affiliate Customer has completed the first Eligible Sales Transaction (as further defined in Section 8.1 below).
1.7 "Content" means any report, content, data, or business information of any kind made available on an Alacra Site through this Program.
1.8 "Customer(s)" means any person, partnership, joint venture, corporation or other form of enterprise who completes an Eligible Sales Transaction (as defined in Section 8.1 below) as a direct result of an Alacra Link on an Affiliate Site who does not otherwise qualify as an Affiliate Customer as defined above in Section 1.2.
1.9 "Link(s)(ed)" means either (i) one or more hyperlinks located on the applicable areas of your Affiliate Site or an Alacra Site; (ii) any "keywords" that invoke your software program on your Affiliate Site and returns an Alacra Link; or (iii) any other alternative method that enables a Customer to access an Alacra Site or an Affiliate Site. A Link also includes any connection to an Alacra Site through the Internet, e-mail, broadband, Internet II, wireless and handheld devices, cell phones, digital appliances, or other digital interactive means, networks, devices, or transmissions (whether existing now or in the future).
1.10 "Look and Feel" means the distinctive and particular elements of graphics, design, organization, presentation, layout, user interface, navigation, trade dress, colors and stylistic convention (including the digital implementations thereof) within a World Wide Website, and the total appearance and impression substantially formed by the combination, coordination and interaction of such elements, and any derivative works.
1.11 "Net Revenue" means the amount of money Alacra receives as a direct result of a completed Sales Transaction on the Alacra Site by an Affiliate Customer or Customer excluding: (i) any costs, royalty or other fees owed by Alacra to make the Content available on the Alacra Site; (ii) taxes; and/or (iii) applicable processing fees.
1.12 "Royalty(ies)" shall have the meaning set forth in Section 8.3 below.
1.13 "Sales Transaction(s)" means the completed purchase of Content by an Affiliate Customer or Customer, subject to and in accordance with the terms and conditions of this Agreement. Transactions that are not completed and not paid in full by an Affiliate Customer or Customer, or where payment in full is not received by Alacra for such Content, do not constitute Sales Transactions.
2. ENROLLMENT IN THE PROGRAM
2.1 To begin the enrollment process, you will submit a completed Program application to Alacra via an Alacra Site ("Program Application"). Alacra will evaluate your Program Application in good faith and will do our best efforts to notify you of your acceptance or rejection in a timely manner.
2.2 Alacra may reject your Program Application if we determine, in our sole discretion, that your World Wide Website is not suitable for the Program for any reason, including, but not limited to, World Wide Websites that: (i) contain images or content that are in any way unlawful, harmful, threatening, defamatory, obscene, sexually explicit, or harassing; (ii) promote violence, illegal activities, or unlawful discrimination of any kind; (iii) promote or incorporate any materials that infringe or assist others in infringing upon the intellectual property or proprietary rights of others; and/or (iv) are otherwise reasonably objectionable (collectively, the "Site Restrictions").
2.3 If Alacra rejects your Program Application, you are welcome to re-apply to the Program by re-submitting another Program Application at any time.
2.4 If Alacra accepts your Program Application, but your World Wide Website subsequently is determined in Alacras sole discretion to be unsuitable for the Program or fails to satisfy the requirements for the Program, Alacra reserves the right to terminate this Agreement.
3. YOUR OBLIGATIONS AS AN AFFILIATE
If you are accepted into the Program as an Affiliate, you agree to the following:
3.1 At all times during your participation in the Program, Affiliate shall prominently display and maintain the Alacra Links somewhere on your Affiliate Site. Alacra may, from time to time, request that Affiliate replace or modify the Alacra Links on Affiliates Site, in which case Alacra shall provide Affiliate with reasonable advance notice. Affiliate agrees to implement the new or modified Alacra Links within fourteen (14) days following receipt of such notice from Alacra. If Affiliate fails to comply with this requirement, Alacra reserves the right to terminate this Agreement.
3.3 Affiliate shall ensure that the Affiliate Site: (i) at all times during participation in the Program will be in compliance with all applicable laws and regulations; (ii) at all times during participation in the Program will be suitable in all respects to be Linked to Alacra, shall not contain any of the Site Restrictions described in Section 2.2 above, and shall not disparage Alacra in any way; (iii) does not copy or otherwise resemble the "Look and Feel" of an Alacra Site or any other product belonging to Alacra; (iv) does not create an impression that it is an Alacra Site or part of Alacra, and will not frame any page on an Alacra Site.
3.4 At all times during your participation in the Program, Affiliate shall not: (i) read, intercept, record, redirect, interpret, or fill-in the contents of any electronic form or other materials submitted to Alacra by any Customer, Affiliate Customer or any other person or entity; (ii) in any way modify, redirect, suppress, or substitute the operation of any button, Link, or other interactive feature of an Alacra Link or an Alacra Site; (iii) attempt to artificially increase your Royalties; (iv) attempt to intercept or re-direct traffic from, to or on, or divert Royalties from, any World Wide Website that participates in the Program; (v) copy, reverse engineer, disassemble, decompile, otherwise attempt to discern the source code or the structural framework of an Alacra Site or any other product belonging to Alacra; (vi) purchase any Content through an Alacra Site or the Alacra Links for resale or commercial use of any kind; and/or (vii) in any manner misrepresent, embellish or take any action that could reasonably cause confusion as to the relationship between Alacra and Affiliate or as to our respective World Wide Websites, except as otherwise expressly permitted by this Agreement.
3.5 At all times during your participation in the Program, Affiliate shall be solely responsible for the development, operation, maintenance and updating of your Affiliate Site and for all materials that appear on your Affiliate Site. Affiliate acknowledges and agrees that Alacra may monitor your Affiliate Site, as we feel necessary from time to time to determine whether Affiliate is following the terms and conditions of this Agreement or the Program requirements.
3.7 Affiliate agrees to fully cooperate with Alacra in order to establish and maintain the Alacra Links between your Affiliate Site and an Alacra Site.
3.8 Affiliate acknowledges that, as a participant in the Program, Alacra may from time to time send you e-mail updates about the Program. By participating in the Program, Affiliate consents to our sending you these e-mail updates.
4. ALACRA'S OBLIGATIONS TO YOU AS AN AFFILIATE
Upon acceptance to the Program:
4.1 Alacra grants Affiliate a non-exclusive, revocable, limited, worldwide right and license during the term of this Agreement to access and use the Alacra Links (including the Alacra Marks described in Section 10.1 below and such other text or images for which we grant you express permission) on your Affiliate Site in accordance with the terms and conditions set forth herein and solely for the purposes of identifying yourself as a Program participant, generating Sales Transactions and/or complying with this Agreement.
4.2 Alacra shall provide Affiliate with access to a secure World Wide Website where Affiliate will be able to download the HTML code, the Alacra Marks and any such other graphics or text links that Alacra may make available to Affiliate to create the Alacra Links from your Affiliate Site to an Alacra Site. From this site, Affiliate also will be able to receive sales statistics, reports, and other information regarding Eligible Sales Transactions, including Royalties and credits, if any, that have accrued for such Eligible Sales Transactions. Affiliate agrees that the statistics appearing on this site will be the final, determinative measurement of the Royalties and credits, if any, for Eligible Sales Transactions.
4.3 Alacra shall process Sales Transactions, subject to and in accordance with the terms and conditions of this Agreement, and any such policies and procedures that Alacra may establish from time to time concerning the processing of Sales Transactions. Alacra shall be responsible for all aspects of order processing, tracking and fulfillment.
4.4 Alacra shall provide customer support and fulfillment services to Affiliate Customers and Customers in accordance with our then-current standard terms and conditions and standard customer service policies and procedures applying generally to users of the relevant Alacra Site.
4.5 Alacra shall pay Royalties to Affiliate for Eligible Sales Transactions, in accordance with Section 9 below, as long as the terms and conditions of this Agreement and requirements for payment set forth below in Section 8 have been met.
5. FEES AND EXPENSES
5.1 Except as specifically provided in this Agreement, each party shall be responsible for its own costs and expenses in connection with the performance of this Agreement and the Program, including, but not limited to, costs and expenses of technical integration and support.
6. CUSTOMERS AND PRICING
6.1 The parties agree that Affiliate Customers, Customers or any other persons or entities that are directed from an Affiliate Site to an Alacra Site by way of an Alacra Link, whether or not such persons complete a Sales Transaction, shall be deemed to be customers of Alacra. Accordingly, the parties agree that all of Alacras rules, policies, and operating procedures concerning customer orders, customer service, and sales transactions will apply to these customers. Alacra may, from time to time, and in its sole discretion, change such policies and operating procedures that may apply to these customers.
6.2 In connection with the Program and/or Sales Transactions, personally identifiable information regarding Affiliate Customers, Customers or any other persons or entities that are directed from an Affiliate Site to an Alacra Site by way of an Alacra Link ("Customer Information") may be gathered. The parties agree to ensure that all Customer Information gathered shall be maintained, accessed and transmitted in a secure environment and to take all commercially reasonable steps to protect the privacy and confidentiality of such Customer Information.
6.3 Prices to be charged for Content sold under this Program will be determined solely by those persons or entities supplying such Content to Alacra, in their sole discretion, and in accordance with their own pricing policies, if any. Content prices and availability may vary from time to time. Alacra shall use commercially reasonable efforts to present accurate information, but cannot and does not guarantee the availability or price of any particular Content.
7. ORDER PROCESSING
7.1 Alacra shall assign each Affiliate Customer, Customer or person or entity that registers on an Alacra Site a unique identification number ("Customer ID"). This unique Customer ID shall be used by Alacra for the purpose of tracking, processing and reporting all Eligible Sales Transactions, including Royalties and credits, if any
7.2 Alacra reserves the right to reject Sales Transactions or any other orders for Content, and/or refuse to provide customer services to an Affiliate Customer or Customer, in our sole discretion, that do not comply with any requirements that Alacra periodically may establish, including, but not limited to: (i) purchase rejection by an applicable credit card company; (ii) inability to authenticate a credit card; (iii) inability to authenticate a credit card holder; and/or (iv) Affiliate Customers or Customers purchase history with Alacra.
8. ELIGIBLE SALES TRANSACTIONS AND ROYALTIES
8.1 Alacra shall receive payments from an Affiliate Customer or Customer for completed, eligible Sales Transactions ("Eligible Sales Transaction(s)"). Affiliate is eligible to earn Royalties from such payments during the term of this Agreement. For an Affiliate Customers or Customers transaction to qualify as an Eligible Sales Transaction, all of the following must occur:
(i) An Affiliate Customer or Customer must place an order for Content on an Alacra Site;
(ii) An Affiliate Customers or Customers order must be approved by Alacra and the Content must be processed by Alacra;
(iii) An Affiliate Customer or Customer must pay Alacra, and payment must be received in full by Alacra, for the Content; and
(iv) An Affiliate Customers or Customers transaction must not be cancelled and/or the Content must not be exchanged, refunded, returned or rebated in any manner.
8.2 Royalties may be earned by Affiliate during the term of this Agreement in two (2) ways:
(i) Royalties for Affiliate Customer Transactions. For Affiliate Customers, Affiliate may earn Royalties for any and all Eligible Sales Transactions undertaken by an Affiliate Customer within the first seven (7) calendar days after a Commencement Date, whether or not such Eligible Sales Transaction occurred through Affiliate, Affiliates Site or an Alacra Link.
(ii) Royalties for Other Transactions. For Customers who do not qualify as Affiliate Customers AND/OR for Eligible Sales Transactions of an Affiliate Customer that take place after seven (7) calendar days after a Commencement Date, Affiliate may earn a Royalty for the particular Eligible Sales Transaction that is a direct result of an Alacra Link on an Affiliate Site or directly through an Alacra Site.
8.3 The Royalty for each Eligible Sales Transaction, whether completed by an Affiliate Customer or Customer, shall be twenty-five percent (25%) on Net Revenue for the relevant Content purchased ("Royalty").
8.4 No Royalty will be earned or awarded by Affiliate in the event of the following:
(i) Credit card fraud, bad debt, and credits due for cancellations or returns;
(ii) An Affiliate Customer, Customer or Eligible Sales Transaction cannot be correctly tracked or credited by our internal ordering system. It is Affiliates responsibility to ensure that the Alacra Links between the Affiliate Site and the Alacra Site are properly formatted. Alacra will pay Affiliate a Royalty only if the Affiliate Customer, Customer and Eligible Sales Transaction is tracked on our internal online ordering system from the time the Link is initiated on your Affiliate Site to the time of the completed, Eligible Sales Transaction; or
(iii) Affiliate attempts to artificially increase the Royalties.
If Alacra determines, in our sole discretion, that Affiliate has engaged in any of the foregoing activities, Alacra may (without limiting any other rights or remedies available to Alacra) withhold any Royalties otherwise payable to Affiliate under this Agreement and/or immediately terminate this Agreement.
9 ACCRUAL, REPORTING AND PAYMENT OF ROYALTIES
9.1 Alacra shall accrue Royalties, if any, on a monthly basis for Eligible Sales Transactions in the applicable month. At such time as the cumulative value of the Royalties accrued by Affiliate is equal to or exceeds one thousand dollars ($1,000) (the "Minimum Royalty Threshold"), Alacra will begin to pay, by check, any Royalties due Affiliate. No Royalties will be paid to Affiliate until the Minimum Royalty Threshold has accrued, and Alacra has received payment in full from Affiliate Customers and Customers for the relevant Eligible Sales Transactions. In the event that the monthly Royalties payable to Affiliate are less than the Minimum Royalty Threshold, Alacra will hold the Royalty payment to Affiliate until the aggregate total Royalties meet or exceed the Minimum Royalty Threshold. Payment of any Royalties to Affiliate shall be sent by check to Affiliates main contact listed on the Program Application thirty (30) days after the close of the financial quarter in which the aggregate total Royalties accrued is equal to or exceeds the Minimum Royalty Threshold and will follow in successive quarterly intervals. Affiliate may request that Royalties be paid by wire transfer, providing, however, that the cumulative value of the Royalties equals or exceeds ten thousand dollars ($10,000). Alacra reserves the right to charge Affiliate for any and all wiring fees that may apply to such wire transfers. Affiliate will be solely and entirely responsible for any and all taxes and/or other fees or obligations associated with the receipt of the Royalty under this Agreement.
9.2 Alacra shall provide Affiliate with access to certain reporting tools on a secure World Wide Website that will enable Affiliate to review statistics relating to completed, Eligible Sales Transactions and Royalties, if any, accrued by Affiliate. Any representations or statistics provided to Affiliate through these reports regarding Eligible Sales Transactions and/or Royalties may not reflect any taxes or processing, or other applicable, fees. Accordingly, the Royalty payment paid to Affiliate by Alacra may differ from the amount reflected in any reports made available to Affiliate by Alacra. Alacra reserves the right to utilize the services of a third party to assist in fulfilling its tracking, reporting and or Royalty payment requirements hereunder.
9.3 Upon the termination or expiration of this Agreement, Royalties shall remain payable by Alacra to Affiliate in accordance with Section 12 below.
9.4 Alacra is obligated by United States federal law to obtain tax information from Program participants who are United States citizens, United States residents or United States corporations and from Program participants who are not United States citizens or residents but whose businesses are taxable in the United States. If Alacra believes that Affiliate is a Program participant from whom we are obligated to obtain tax information and Affiliate does not provide this information to Alacra after we have requested it, Alacra may withhold Affiliates Royalty payments until such time as Affiliate provides this information to Alacra or otherwise satisfies us that Affiliate is not a person from whom we are required to obtain tax information.
10. USE OF MARKS
10.1 As a Program participant, Alacra may make available to you, the Affiliate, Alacras logos, trademarks, service marks, trade names, graphic images and text and similar identifying material ("Alacra Marks"). Alacra represents and warrants to Affiliate that: (i) Alacra is the sole and exclusive owner of the Alacra Marks and/or has all right, title, permission, approval, authority and power to grant Affiliate the license to use the Alacra Marks in the manner described herein; (ii) such grant does not or will not breach, conflict with, or constitute a default under any agreement or other instrument applicable to Alacra or binding upon Alacra; and (iii) such grant does not or will not infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity. Except as expressly permitted in this Agreement, Affiliate may not without Alacras express, prior consent (i) use the Alacra Marks in any manner; and/or (ii) modify the Alacra Marks in any way. Alacra agrees that our consent will not be unreasonably withheld. Alacra reserves all rights to the Alacra Marks. Alacra may revoke Affiliates license to the Alacra Marks at any time by giving Affiliate written notice.
10.2 Affiliate agrees that Alacra may include Affiliates logos, trademarks, service marks, trade names and similar identifying material ("Affiliate Marks") on an Alacra Site in a listing of companies who are participating in the Program, provided, however, that in no event shall Alacra be required to include your Affiliate Marks in any such listing. Affiliate represents and warrants to Alacra that: (i) Affiliate is the sole and exclusive owner of the Affiliate Marks and/or has all right, title, permission, approval, authority and power to grant Alacra the license to use the Affiliate Marks in the manner described herein; (ii) such grant does not or will not breach, conflict with, or constitute a default under any agreement or other instrument applicable to Affiliate or binding upon Affiliate; and (iii) such grant does not or will not infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity. Except as expressly permitted in this Agreement, Alacra may not without Affiliates express, prior consent (i) use the Affiliate Marks in any manner; and/or (ii) modify the Affiliate Marks in any way. Affiliate agrees that its consent will not be unreasonably withheld. Affiliate reserves all rights to the Affiliate Marks. Affiliate may revoke Alacras license to the Affiliate Marks at any time by giving Alacra written notice.
11.1 Alacra shall own all rights (including, without limitation, all copyrights, trademarks, service marks, product or service names, brand names, company names, trade secrets, logos and intellectual property or proprietary rights of any kind) in connection with Alacra, and all versions of the Alacra Sites, the Alacra Links, the Alacra Marks or any other product belonging to Alacra. Alacra also will own all data generated by Affiliate Customers, Customers or any other persons or entities that access an Alacra Site via the Alacra Links on an Affiliate Site. Except for the express, limited license granted Affiliate in this Agreement, Affiliate shall not obtain any rights (including, without limitation, all copyrights, trademarks, service marks, product or service names, brand names, company names, trade secrets, logos and intellectual property or proprietary rights of any kind) to Alacra, or any versions of the Alacra Sites, the Alacra Links, the Alacra Marks, or any other product belonging to Alacra.
11.2 Any and all rights (including, without limitation, all copyrights, trademarks, service marks, product or service names, brand names, company names, trade secrets, logos and intellectual property or proprietary rights of any kind) in connection with the Content shall belong to the respective Content owner or rights holder, and except for the express, limited license granted Affiliate in this Agreement, nothing in this Agreement shall be construed as transferring to or otherwise conferring upon Affiliate in any manner any rights (including, without limitation, all copyrights, trademarks, service marks, product or service names, brand names, company names, trade secrets, logos and intellectual property or proprietary rights of any kind) to any Content.
11.3 Affiliate shall own all intellectual property rights (including, without limitation, all copyrights, trademarks, service marks, product or service names, brand names, company names, trade secrets, logos and intellectual property or proprietary rights of any kind) in connection with and in all versions of the Affiliate Sites and the Affiliate Marks, and, except for the express, limited license granted Affiliate in this Agreement, nothing in this Agreement shall be construed as transferring to or otherwise conferring upon Alacra or Content provider in any manner any rights (including, without limitation, all copyrights, trademarks, service marks, product or service names, brand names, company names, trade secrets, logos and intellectual property or proprietary rights of any kind) to an Affiliate Site or the Affiliate Marks.
12. TERM AND TERMINATION
12.1 This Agreement shall commence upon Alacras acceptance of your Program Application and shall continue until terminated by either party. Either party may terminate this Agreement at any time, with or without cause, by giving the other party thirty (30) days written notice of termination. Notwithstanding the foregoing, Alacra may immediately terminate this Agreement if, in Alacras sole discretion, Affiliate has violated the terms and conditions of this Agreement and/or Affiliate has failed to comply with any Program requirement. Written notice can be in the form of mail, e-mail or facsimile.
12.2 Upon the termination or expiration of this Agreement for any reason, Affiliate shall cease being eligible to earn Royalties. Royalties earned through the date of termination will remain payable by Alacra to Affiliate in accordance with the terms and conditions of this Agreement, including, but not limited to, Sections 8 and 9 above. Alacra reserves the right to withhold final payment to Affiliate for a reasonable time to ensure that the correct Royalty amount is paid.
12.3 Upon the termination or expiration of this Agreement for any reason: (i) Affiliate immediately will cease use of, and remove from any and all Affiliate Sites the Alacra Links, any other links to an Alacra Site, the Alacra Marks, and all other materials provided by or on behalf of Alacra to Affiliate, pursuant to this Agreement or in connection with the Program; (ii) Alacra will remove from an Alacra Site your Affiliate Marks from any listing of companies who are participating in the Program; and (iii) both parties shall comply with the confidentiality obligations set forth in Section 16 below. Upon request, either party shall promptly provide an affidavit certifying compliance with this Section.
13. REPRESENTATIONS AND WARRANTIES
13.1 Affiliate represents and warrants to Alacra that: (i) This Agreement has been duly and validly executed by Affiliate by virtue of its submission to Alacra and such submission constitutes a legal, valid and binding obligation, enforceable against Affiliate in accordance with the terms and conditions set forth herein; (ii) Affiliate, or if Affiliate is a company, the person entering into this Agreement on Affiliates behalf, are at least eighteen (18) years of age; (iii) Affiliate has and will have all rights, titles, permissions, approvals and financial wherewithal necessary to enter into and to perform the obligations required of Affiliate under this Agreement and to grant Alacra the rights granted hereunder; (iv) Affiliate shall comply with all laws, enactments, orders, standards and regulations relevant to the performance of the obligations under this Agreement; (v) The performance of the obligations set forth in this Agreement does not conflict with any other agreement either signed or contemplated by Affiliate; (vi) There are no known regulatory investigations or inquiries, lawsuits, potential lawsuits, or criminal charges pending, which would affect Affiliates performance under this Agreement; (vii) Affiliate shall not in any way, copy, reverse engineer, disassemble, decompile, otherwise attempt to discern the source code or the structural framework of an Alacra Site, the Alacra Links or any other product belonging to Alacra; (viii) Affiliates Site or any other domain name belonging to Affiliate does not and will not contain the word "Alacra" or any variation of that word, Affiliate will not purchase any domain name containing the word "Alacra" or any variation of that word, and Affiliate will not otherwise contract with a third party to exploit the word "Alacra" or any variation of that word; and (ix) the Affiliate Marks shall not infringe upon or otherwise violate any copyright, trademark, trade name, service mark, or other intellectual property or p roprietary right of any third party.
13.2 Affiliate further represents and warrants to Alacra that an Affiliate Site: (i) shall be in compliance with all applicable laws and regulations at all times during its participation in the Program; (ii) is suitable in all respects to be Linked to Alacra, and shall not contain any of the Site Restrictions described in Section 2.2 above, and shall not disparage Alacra in any way; (iii) shall not resemble the "Look and Feel" of an Alacra Site or any other product belonging to Alacra; (iv) will not create an impression that an Affiliate Site is an Alacra Site or part of Alacra, and will not frame any page on the Alacra Site being viewed by an Affiliate Customer or Customer of your Affiliate Site who links to an Alacra Site through an Alacra Link. 13.3 Except for the express, limited license granted Affiliate in this Agreement, in no event shall Affiliate or Affiliates agents make or extend any statements, promises, representations or warranties on Alacras behalf with respect to Alacra, an Alacra Site, the Alacra Links or the services or Content available therein without Alacras prior, express written consent. 13.4 Alacra represents and warrants to Affiliate that: (i) Alacra has and will have all rights, titles, permissions, approvals and financial wherewithal necessary to enter into and to perform the obligations required of Alacra under this Agreement and to grant Affiliate the rights granted hereunder; (ii) Alacra shall comply with all laws, enactments, orders, standards and regulations relevant to the performance of the obligations under this Agreement; (iii) The performance of the obligations under this Agreement does not conflict with any other agreement either signed or contemplated by Alacra; (iv) There are no known regulatory investigations or inquiries, lawsuits, potential lawsuits, or criminal charges pending, which would affect Alacras performance under this Agreement; and (v) the Alacra Sites, the Alacra Links and/or the Alacra Marks shall not infringe upon or otherwise violate any copyright, trademark, trade name, service mark, or other intellectual property or proprietary right of any third party.
13.5 These representations, warranties and covenants shall survive termination or expiration of this Agreement.
14. DISCLAIMERS AND LIMITATION OF LIABILITY
14.1 ALACRA MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ALACRA, THE PROGRAM, THE ALACRA LINKS, THE ALACRA SITE OR ANY SERVICE OR CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY LAW, CUSTOM OR CONDUCT, OR AS TO THE ACCURACY OR COMPLETENESS OF THE INFORMATION OR ANY CONTENT PROVIDED BY US. IN ADDITION, ALACRA MAKES NO REPRESENTATION THAT THE OPERATION OF AN ALACRA SITE, THE ALACRA LINKS OR ANY OTHER SERVICE OR CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, AND ALACRA SHALL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. THE ALACRA LINKS, THE ALACRA SITES AND ANY SERVICE OR CONTENT ARE PROVIDED "AS IS".
14.2 IN NO EVENT SHALL ALACRA OR ITS RESPECTIVE OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES HAVE ANY LIABILITY FOR OR IN CONNECTION WITH ANY AFFILIATE SITE.
14.3 EXCEPT FOR LIABILITY ARISING UNDER THE INDEMNIFICATION PROVISIONS OF THIS AGREEMENT OR A PARTYS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, ANY CONTENT PROVIDER, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES BE LIABLE FOR THE RESULTS OF AN AFFILIATE CUSTOMERS, CUSTOMERS OR ANY OTHER THIRD PARTYS USE OF AN AFFILIATE SITE, AN ALACRA SITE, THE ALACRA LINKS OR ANY OTHER SERVICE OR CONTENT, OR FOR THE INABILITY OR FAILURE TO CONDUCT ITS BUSINESS.
14.4 EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, OR A PARTYS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY, A CONTENT PROVIDER, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT, THE PROGRAM, AN AFFILIATE SITE, AN ALACRA SITE, THE ALACRA LINKS, OR ANY SERVICE OR CONTENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.5 EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, OR A PARTYS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EACH PARTYS SOLE LIABILITY TO THE OTHER PARTY, ANY AFFILIATE CUSTOMER, CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY AND ALL CLAIMS, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY, UNDER STATUTE, IN EQUITY, AT LAW OR OTHERWISE, WILL NOT EXCEED THE TOTAL ROYALTIES PAID OR PAYABLE BY ALACRA TO AFFILIATE (FROM PAYMENTS ACTUALLY RECEIVED BY ALACRA FROM AFFILIATE CUSTOMERS OR CUSTOMERS FOR COMPLETED, ELIGIBLE SALES TRANSACTIONS) UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING ANY CLAIM, CAUSE OF ACTION, SUIT OR PROCEEDING. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT.
15.1 Affiliate hereby agrees to defend, indemnify, and hold harmless Alacra, Alacras Content providers, and their respective officers, directors, agents, and employees (an "Alacra Indemnified Party") from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' or other professionals' fees) asserted against an Alacra Indemnified Party as a result of or in connection with: (i) your Affiliate Site; (ii) any claim that Alacras use of any Affiliate Marks infringes or allegedly infringes any copyright, trademark, trade name, product or service name, service mark, intellectual property, or another proprietary right of any third party; and/or (iii) any breach of this Agreement (including breach of the confidentiality obligations set forth below in Section 16 and any misrepresentation of a representation, covenant, warranty and agreement made by Affiliate herein). The foregoing indemnities shall not apply to the extent that the relevant claim, action or demand is caused by an Alacra Indemnified Partys own malfeasance.
15.2 Alacra shall, at its expense, indemnify and defend Affiliate and Affiliates officers, directors, agents, and employees (an "Affiliate Indemnified Party") from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' or other professionals' fees) asserted against an Affiliate Indemnified Party as a result of or in connection with (i) any claim that an Alacra Site, the Alacra Links and/or the Alacra Marks infringe or allegedly infringe upon any copyright, trademark, trade name, product or service name, service mark, intellectual property, or another proprietary right of any third party; and/or (ii) any breach of this Agreement (including breach of the confidentiality obligations set forth below in Section 16 and any misrepresentation of a representation, covenant, warranty and agreement made by Alacra herein). The foregoing indemnities shall not apply to the extent that the relevant infringement: (i) arises out of an Affiliate Indemnified Partys modification or misuse of an Alacra Site, the Alacra Links, and/or the Alacra Marks, or information contained therein; and/or (ii) is caused by an Affiliate Indemnified Partys own malfeasance.
15.3 A party seeking indemnification under this Section 15 shall: (i) provide prompt written notice to the indemnifying party of the commencement of the claim, suit, or proceeding for which indemnification is sought; (ii) provide reasonable cooperation to the indemnifying party; and (iii) allow the indemnifying party to control the defense and settlement; provided, however: (a) the party seeking indemnification may, at its option and expense, participate and appear on an equal footing with the indemnifying party in the claim, suit, or proceeding; and (b) neither party may settle a claim, suit, or proceeding without written approval of the other party, which approval shall not be unreasonably withheld.
16. CONFIDENTIAL INFORMATION
16.1 If Affiliate has entered into a non-disclosure agreement with Alacra, Affiliate agrees that the terms of that agreement shall be deemed to be incorporated herein. If Affiliate has not entered into a non-disclosure agreement with Alacra, then Affiliate understands and agrees that the following terms and conditions will apply to certain information that may be disclosed as a result of Affiliates participation in the Program.
16.2 For purposes of this Agreement, the term "Confidential Information" shall mean the confidential and/or proprietary information of Alacra, Affiliate, Affiliate Customer, Customer or any other person or entity, which is disclosed pursuant to or in furtherance of this Agreement, the Program and/or a Sales Transaction. The confidentiality provisions of this Agreement shall not apply to information that; (i) is publicly known at the time of its disclosure or becomes publicly known through no fault of the receiving party; (ii) is lawfully received from a third party not bound by a confidential relationship with the disclosing party; or (iii) was already known to the receiving party at the time of disclosure by the disclosing party, as evidenced in writing, and not subject to a separate non-disclosure agreement or any other obligation of confidentiality.
16.3 Each party agrees to maintain the confidentiality of the Confidential Information using procedures no less rigorous than those used to protect and preserve the confidentiality of its own similar proprietary or confidential information and shall not, without the prior written consent of the disclosing party, directly or indirectly: (i) transfer or disclose any Confidential Information to any third party, except as otherwise permitted under this Agreement; (ii) use any Confidential Information for any purpose, except and solely as may be necessary to perform the obligations required by this Agreement, the Program and/or a Sales Transaction; or (iii) take any other action with respect to the Confidential Information inconsistent with the confidential and proprietary nature of such information.
16.4 Notwithstanding the foregoing or anything to the contrary in this Agreement, the receiving party may disclose Confidential Information without the prior consent of the disclosing party: (i) to such officers, directors, employees and agents (including those of any parent company or subsidiary) who have a need to know such Confidential Information; (ii) to the receiving partys auditors or other such financial advisors, where such disclosure is required in order to comply with regulatory auditing or accounting requirements, provided such auditors or other such financial advisors are advised of the proprietary and confidential nature of the Confidential Information and are bound by confidentiality obligations substantially equivalent to those set forth in this Agreement before access to such Confidential Information is granted; (iii) as is reasonably necessary for purposes of order fulfillment, billing, reporting and/or administration of the Program or Sales Transactions; and/or (iv) to enforce this Agreement.
16.5 In the event that a receiving party becomes compelled to disclose any Confidential Information because of any applicable law, legal process, court of competent jurisdiction, or by a governmental or regulatory authority, the receiving party shall provide the disclosing party with prompt notice so that the disclosing party may seek a protective order or other appropriate remedy and/or waive compliance (in writing) with the provisions hereof. In the event that such protective order or other remedy is not obtained, or the disclosing party waives (in writing) compliance with the provisions hereof, the receiving party will furnish only that portion of such Confidential Information, which is legally required and will exercise its reasonable business efforts to obtain appropriate assurance that confidential treatment will be accorded such Confidential Information.
16.6 Upon the expiration or termination of this Agreement, each party shall deliver to the other party, or destroy, all Confidential Information that such party may have in its possession or control as a result or in furtherance of this Agreement, the Program and/or a Sales Transaction. Upon request, either party shall promptly provide an affidavit certifying compliance with this Section.
16.7 The confidentiality obligations set forth herein shall survive termination of this Agreement.
17.1 Force Majeure. Neither party shall be responsible for any failure to perform, or delay in performance, in whole or in part, due to unforeseen circumstances or circumstances beyond their control, including, but not limited to, acts of God, war, terrorism, riot, embargoes, acts of civil or military authority; communication line, server or Internet failures, attacks or viruses; fire, flood, accidents, strikes; and/or shortages of fuel, labor or materials.
17.2 Governing Law. This Agreement is made and entered into in the State of New York. Any questions concerning the validity, construction or performance of this Agreement shall be construed according to the internal laws of the State of New York, without regard to its principles pertaining to choice or conflicts of laws. The parties hereto, their successors and assigns, consent to the exclusive jurisdiction of the State or Federal courts in the County and State of New York and waive any jurisdictional, venue or inconvenient forum objections to such courts. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, such provision shall be reformed to as nearly as possible approximate the intent of the parties and all other provisions shall remain in full force and effect. Except for the indemnification obligations set forth in this Agreement, or a partys gross negligence or willful misconduct, no suit or action shall be brought against a party more than one (1) year after the accrual of the cause of action therefore.
17.3 Notices. All notices or other communications required or permitted to be given, made or delivered under this Agreement shall be in writing (unless otherwise specifically provided herein) and shall be delivered to the parties as follows:
If to Alacra:
100 Broadway, Suite 1101
New York, NY 10005
Attn: Vice President, E-Commerce
If to Affiliate:
To Affiliates main contact listed on the Program Application.
17.4 Relationship of the Parties. The parties acknowledge and agree that they are independent contractors, and that nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Neither party shall have authority to make or accept any offers or representations on the others behalf, and neither party shall make any statement, whether on a World Wide Website or otherwise, that reasonably would contradict anything in this Section.
17.5. Assignability. Neither party may sell, transfer or otherwise assign this Agreement or any rights or obligations created hereunder without the prior consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement or its rights hereunder, upon written notice to the other, to a parent, subsidiary, affiliate under common control or to any successor to all or substantially all of its business or assets. This Agreement and all of its terms and conditions shall inure to the benefit and shall bind the parties and their respective successors and assigns.
17.6 Entire Agreement. This Agreement contains the entire agreement and understanding between the parties regarding the subject matter hereof and supersedes any prior oral or written agreements and/or representations.
17.7 No Waiver. Any forbearance or delay on the part of either party in enforcing any provision of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or of its right to enforce same for such occurrence or any future occurrence.
17.8 Survival. The provisions of Sections 6, 9, 10, 11, 12, 13, 14, 15, 16, 17 shall survive the expiration or termination of this Agreement or any portion thereof.
17.9 Modification. Alacra may modify any of the terms and conditions contained in this Agreement, or any documents referenced herein, at any time in our sole discretion. Notification to Affiliate of any change by e-mail or posting of a change notice on any Alacra Site, at Alacras sole option, shall be considered sufficient notice to Affiliate of such modification. Modifications may include, but are not limited to, changes in the scope of available Royalties, Royalty payment procedures, and/or Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, AFFILIATES SOLE RECOURSE IS TO TERMINATE THIS AGREEMENT. AFFILIATES CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING NOTICE OF A MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE OF THE MODIFICATION BY AFFILIATE. Except as otherwise permitted in this Agreement, no amendment to this Agreement or waiver of any right or obligation created by this Agreement will be effective unless it is in writing and signed by a duly authorized officer of both parties.
These terms were last updated on November 29, 2011.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
Notification must be submitted to the following Designated Agent:
Name of Agent Designated to Receive Notification of Claimed Infringement:
Craig Kissel, Chief Financial Officer
Full Address of Designated Agent to Which Notification Should be Sent:
Alacra, Inc., 100 Broadway, Suite 1101, New York, NY 10005
Telephone Number of Designated Agent:
Facsimile Number of Designated Agent:
Email Address of Designated Agent:
To be effective, the notification of a claim of copyright infringement must be a written communication including the following information: contact name, address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
Upon receipt of the communication, a designated agent will contact the complaining party for additional information in order to process and investigate the claim of copyright infringement.