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Terms & conditionsBLACKWELL’S AFFILIATE AGREEMENT – TERMS AND CONDITIONS</p><br /><br /><br /><br /> <p>In this Agreement, “Blackwell UK Ltd.” trading as “Blackwell’s,” “we,” and “us” means Blackwell UK Ltd., and “you”, or “Affiliate” means the applicant desiring to participate in Blackwell’s Affiliate Programme (the “Affiliate Programme”). “Link” or “Links” refers to any hypertext link, URL, banner, graphical or text ad containing a reference to Blackwell’s or its products or services or web properties pursuant to this Agreement. The ” Blackwell’s Site” or “Our Site” means the web site located at http://www.Blackwells.co.uk or http://www.Blackwells.com or other Blackwell’s-owned Internet properties, “our” meaning belonging to or pertaining to Blackwell’s. “Your Site” means the web site or sites, or other online marketing venues upon which you establish the Links to Our Site as part of the Affiliate Programme. The term “Blackwell’s Services” means any Blackwell’s service or product as well as any services or products that Blackwell’s may introduce from time to time in the future and offer through the Affiliate Program.</p><br /><br /><br /><br /> <p>By checking the box indicating that you agree to the terms and conditions of this agreement, or by continuing to participate in the program, you agree to be bound by this agreement; acknowledge and agree that you have independently evaluated the desirability of participating in the program and are not relying on any representation, guarantee, or statement other than as expressly set forth in this agreement; and hereby represent and warrant that you are lawfully able to enter into contracts (e.g., you are not a minor) and that you are and will remain in compliance with this agreement. in addition, if this agreement is being agreed to by a company or other legal entity, then the person agreeing to this agreement on behalf of that company or entity hereby represents and warrants that he or she is authorized and lawfully able to bind that company or entity to this agreement.</p><br /><br /><br /><br /> <p>1. ELIGIBILITY FOR BLACKWELL’S AFFILIATE PROGRAM<br /><br /><br /><br /><br /> 1.1. Eligibility<br /><br /><br /><br /><br /> We may reject your participation in this Programme if we determine, at any time and at our sole discretion, that Your Site is unsuitable for the Programme. Your Site may be deemed by us to be unsuitable if, in our view, it:</p><br /><br /><br /><br /> <p>1.1.1.<br /><br /><br /><br /><br /> contains, promotes or links to discriminatory, sexually explicit or violent material;</p><br /><br /><br /><br /> <p>1.1.2.<br /><br /><br /><br /><br /> promotes, depicts or links to material that promotes or depicts discrimination based on race, gender, religion, national origin, physical or mental disability, sexual orientation, or age;</p><br /><br /><br /><br /> <p>1.1.3.<br /><br /><br /><br /><br /> contains unlawful material, including but not limited to materials that may violate another’s intellectual property rights, or links to a site that contains such material;</p><br /><br /><br /><br /> <p>1.1.4.<br /><br /><br /><br /><br /> contains information regarding, promotes or links to a site that provides information or promotes illegal activity; or</p><br /><br /><br /><br /> <p>1.1.5.<br /><br /><br /><br /><br /> for any other reason that is deemed by us to be unsuitable.</p><br /><br /><br /><br /> <p>1.2.<br /><br /><br /><br /><br /> You understand that Blackwell’s reserves the right to conclude that Your Site is unsuitable in accordance with our standards, in our sole discretion, and we may come to such a conclusion even if it is based upon our opinion or mere suspicion or belief, without any duty to prove that our opinion or suspicion is well-founded and even if our opinion or suspicion is proven not to be well-founded or if others’ sites have not been deemed unsuitable despite having the same or similar characteristics as Your Site.</p><br /><br /><br /><br /> <p>2. USAGE<br /><br /><br /><br /><br /> 2.1.<br /><br /><br /><br /><br /> Subject to the terms of this Section, we will provide to you all Links, and any related banners, graphics, or text ads necessary to promote and offer Blackwell’s Services to Your Site’s visitors and/or its members. The Link may consist of ads containing text or graphic images provided by us (and is subject to change from time to time in our sole discretion) and may contain our logo or other references to Blackwell’s. This Link will serve to identify you as a member of our Affiliate Programme and will establish a Link from Your Site to Our Site.</p><br /><br /><br /><br /> <p>2.2.<br /><br /><br /><br /><br /> In utilising any Blackwell’s provided Link, you agree that you will cooperate fully with us in order to establish and maintain such Link. You also agree that you will display only those Links that are provided by us, and you will substitute such Links with any new or update Links provided by us from time to time throughout the term of this Agreement. All Links may be modified by us and/or expanded from time to time throughout the term of this Agreement.</p><br /><br /><br /><br /> <p>2.3.<br /><br /><br /><br /><br /> Each Link connecting users of Your Site to the pertinent area of Our Site shall in no way alter the look, feel or functionality of Our Site.</p><br /><br /><br /><br /> <p>2.4.<br /><br /><br /><br /><br /> You may not use unsolicited commercial e-mail (UCE), spam, search engine spam, or other illegal or unethical means by which to generate referral commissions.</p><br /><br /><br /><br /> <p>2.5.<br /><br /><br /><br /><br /> To obtain permission to advertise the Link in ways not specifically covered in this Agreement, you must e-mail affiliates@backwells.co.uk with your proposed advertising method, affiliate ID, and personal contact information and we will then contact you regarding this request. Such requests will be given due consideration, however, Blackwell’s reserves the right to deny any such requests without reason or justification, in Blackwell’s’ sole discretion. IMPORTANT NOTE: We do not authorize affiliates to use any form of SEM (Search Engine Marketing) and PPC (pay-per-click) advertisement to link directly to our site.</p><br /><br /><br /><br /> <p>2.6.<br /><br /><br /><br /><br /> You understand that the Links and any related banners, graphics, artwork, or text are Blackwell’s’ intellectual property, and that your use of those links is governed by the terms of Section 9 of this Agreement and by relevant Laws of England and Wales, and International Law.</p><br /><br /><br /><br /> <p>3. OUR RESPONSIBILITIES<br /><br /><br /><br /><br /> 3.1.<br /><br /><br /><br /><br /> We will be responsible for providing all information necessary to allow you to make appropriate Link from Your Site to Our Site. We will be solely responsible for processing every order application for Blackwell’s products placed by a customer following a Link from Your Site, for tracking the number and amount of sales generated by the Link from Your Site, and for providing information to you regarding commission payments. Also, we will be responsible for credit card authorisations, payment processing, cancellations, returns, and related customer service for Blackwell’s Services, it being understood that such activities shall be for our account. We are responsible for establishing commission schedules and payouts of earned Commissions as detailed in Section 6 of this Agreement.</p><br /><br /><br /><br /> <p>4. YOUR RESPONSIBILITIES<br /><br /><br /><br /><br /> 4.1.<br /><br /><br /><br /><br /> If you qualify and agree to participate as an Affiliate:</p><br /><br /><br /><br /> <p>4.1.1.<br /><br /><br /><br /><br /> You may display the provided Link prominently throughout Your Site as you see fit and without our prior consent subject to the terms and limitations of this Agreement.</p><br /><br /><br /><br /> <p>4.1.2.<br /><br /><br /><br /><br /> You may not be entitled to participate and promote on Your Site any sweepstakes, contests, and special promotions we may offer, and in connection therewith, only upon our discretion shall we make such contests and promotions available to users of Your Site. If we do decide to allow affiliates to participate, you will be provided with approved licensed ads only for those you are allowed to offer, and you may become entitled to earn referral fees as set forth in Articles 5 and 6 below.</p><br /><br /><br /><br /> <p>4.1.3.<br /><br /><br /><br /><br /> You shall not misrepresent Blackwell’s or its products or services, or otherwise make any claims, representations, or warranties in connection with Blackwell’s other than as expressly authorized by Blackwell’s, and</p><br /><br /><br /><br /> <p>4.1.4.<br /><br /><br /><br /><br /> You shall have no authority to, and shall not bind Blackwell’s to any obligations, except as may be expressly set forth herein to the contrary or as otherwise agreed to and approved in advance in writing by Blackwell’s. Nothing in this Agreement nor any conduct of either party shall be deemed to constitute an employment or agency relationship.</p><br /><br /><br /><br /> <p>4.2.<br /><br /><br /><br /><br /> You are solely responsible for ensuring that Your Site and your products and services that you offer from Your Site comply with all applicable copyright and other laws including anti-spam laws. You must have express permission to use another party’s copyrighted or other proprietary material. We will not be responsible if you use another party’s copyrighted or other proprietary material on Your Site in violation of the law or any agreement, and your indemnity as outlined in Section 17 will protect us if you do so.</p><br /><br /><br /><br /> <p>4.3.<br /><br /><br /><br /><br /> You are solely responsible for the development, operation and maintenance of Your Site and for all materials that appear on Your Site. Such responsibilities include, but are not limited to, the technical operation of Your Site and all related equipment; the accuracy and propriety of materials posted on Your Site; and ensuring that materials posted on Your Site do not violate or infringe upon the rights of any third party and are not libellous or otherwise illegal. We disclaim all liability for all such matters.</p><br /><br /><br /><br /> <p>4.4.<br /><br /><br /><br /><br /> The Affiliate hereby undertakes to comply with all applicable EU- and national laws and regulations in force from time to time including, but not limited to, the EU-directive 2002/58/EC.<br /><br /><br /><br /><br /> You may not:</p><br /><br /><br /><br /> <p>4.4.1.<br /><br /><br /><br /><br /> directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money (including any rebate), or granting of any discount or other benefit) for using the Link on your site to access Our Site without prior approval;</p><br /><br /><br /><br /> <p>4.4.2.<br /><br /><br /><br /><br /> read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to us by any person or entity;</p><br /><br /><br /><br /> <p>4.4.3.<br /><br /><br /><br /><br /> take any action that could reasonably cause any customer confusion as to our relationship with you, or as to the site on which any functions or transactions (e.g., search, order, browse, and so on) are occurring;</p><br /><br /><br /><br /> <p>4.4.4.<br /><br /><br /><br /><br /> other than providing the Link on your site in accordance with this Agreement, post or serve any advertisements or promotional promoting Our Site or otherwise around or in conjunction with the display of the Blackwell’s Site (e.g., through any “framing” technique or technology or pop-up or pop-under windows); or</p><br /><br /><br /><br /> <p>4.4.5.<br /><br /><br /><br /><br /> seek to purchase or register any keywords, search terms or other identifiers that include the trade or service marks or names of Blackwell’s, including misspellings or variations thereof for use in any search engine, portal, sponsored advertising service or other search or referral service.</p><br /><br /><br /><br /> <p>4.4.6.<br /><br /><br /><br /><br /> seek to purchase or register any domains or other identifiers that include the trade or service marks or names of Blackwell’s, nor may you seek to purchase or register any domains or other identifiers intended to approximate misspellings or typographical mistakes of same, or which otherwise would constitute typo or domain squatting, including variations thereof for use in any search engine, portal, sponsored advertising service or other search or referral service.</p><br /><br /><br /><br /> <p>4.4.7<br /><br /><br /><br /><br /> use Blackwell’s affiliate system to place your own orders or place orders which will be, or are being, sold on to a third party, except as may be expressly set forth herein to the contrary or as otherwise agreed to and approved in advance in writing by Blackwell’s. If you are suspected of using the site in this way without our prior written permission then we reserve the right to withdraw you from the program and cancel all pending commissions.</p><br /><br /><br /><br /> <p>4.4.8<br /><br /><br /><br /><br /> promote coupon codes without prior authorisation. You may ONLY advertise coupon codes that are provided through the affiliate program. You may NOT advertise coupon codes obtained from any other sources. You must NOT mislead visitors into clicking on an offer or coupon that does not exist or practice similarly deceptive tactics. These include, but are not limited to using knowingly expired offers or presenting offers that do not exist or are not affiliate offers, making claims that a visitor must click on a link first to activate or receive an offer, presenting a button that claims to show all offers and sets the affiliate cookie in the background, using technology that generates a click or sets the cookie from the action of copying a coupon code or though a pop under. Generic Coupon Codes not advertised as affiliate-friendly on the affiliate system are not compatible with affiliate tracking and commission will not be generated when placing an order with such coupon codes.</p><br /><br /><br /><br /> <p>4.4.9<br /><br /><br /><br /><br /> Use third-party services that generate clicks or impressions such as paid-to-click, paid-to-surf, autosurf and click-exchange programs ; Be promoted through unsolicited mass emails or unwanted advertisements on third-party websites; Be loaded by any software that can trigger pop-ups, redirect users to unwanted websites, modify browser settings or otherwise interfere with site navigation.</p><br /><br /><br /><br /> <p>4.5.<br /><br /><br /><br /><br /> If we determine, in our sole discretion, that you have engaged in any of the activities outlined in Section 4.4, we may (without limiting any other rights or remedies available to us) withhold any Commissions otherwise payable to you under this Agreement and/or terminate this Agreement.</p><br /><br /><br /><br /> <p>4.6.<br /><br /><br /><br /><br /> We have the right, but not the obligation, in our sole discretion, to monitor Your Site and your usage of the Link at any time and from time to time to determine if you are in compliance with the terms of this Agreement.</p><br /><br /><br /><br /> <p>4.7.<br /><br /><br /><br /><br /> You are responsible for the payment of all tax and national insurance payable on any payments made to you by Blackwell’s.</p><br /><br /><br /><br /> <p>5. REFERRAL FEES<br /><br /><br /><br /><br /> 5.1.<br /><br /><br /><br /><br /> Subject to the Payments and Fees Schedule, we will pay you, a single referral fee (“Commission”) on sales to third parties. Your entitlement to an earned commission will accrue only if the customer:</p><br /><br /><br /><br /> <p>5.1.1.<br /><br /><br /><br /><br /> accesses Our Site through the use of a Link on Your Site;</p><br /><br /><br /><br /> <p>5.1.2.<br /><br /><br /><br /><br /> purchases Blackwell’s Services using our online signup process;</p><br /><br /><br /><br /> <p>5.1.3.<br /><br /><br /><br /><br /> remits full payment to us;</p><br /><br /><br /><br /> <p>5.2.<br /><br /><br /><br /><br /> The affiliate system we use stores the cookie and visitors’ IP for 30 days. The 30 day cookie will expire once that particular visitor carries out their purchase or if the visitor didn’t carry out the purchases within 30 days the cookie will automatically expire.</p><br /><br /><br /><br /> <p>Blackwell’s works on a last click wins basis, the last referring site will be credited for the purchase. </p><br /><br /><br /><br /> <p>6. PAYMENTS AND FEE SCHEDULE<br /><br /><br /><br /><br /> 6.1.<br /><br /><br /><br /><br /> You will earn Commissions based on the sale of Blackwell’s Services according to the current fee schedule for the Affiliate Programme and the guidelines of this Agreement, set forth herein, during the month in which such products are sold. We reserve the right to modify the commission value of a sold product or service at any time.</p><br /><br /><br /><br /> <p>6.2.<br /><br /><br /><br /><br /> The Commissions are accumulated for every unique paying customer referred to us by Your Site, utilizing the Links between Your Site and Our Site, excluding sales/amounts due to credit card or other fraud, charge backs and bad debt and credits for cancelled services (“Net Sales”).</p><br /><br /><br /><br /> <p>6.3.<br /><br /><br /><br /><br /> Payment will be made via PayPal.</p><br /><br /><br /><br /> <p>6.4.<br /><br /><br /><br /><br /> Blackwell’s will track the Commissions earned per Agent/Affiliate. Blackwell’s will track all Commissions earned and may, at its absolute discretion, decide not to pay any Commission to you should Blackwell’s believe that any referral has been made in violation of its technical guidelines, due to referral/customer fraud, or due to referral/customer contract cancellation. It is the Affiliate’s sole and absolute duty to follow precisely this Agreement and its guidelines at all times. Blackwell’s is under no obligation whatsoever to pay any Commission to any Affiliate who does not strictly follow this Agreement and its guidelines, as modified from time to time. Blackwell’s’ determination of the commissions due shall be dispositive.</p><br /><br /><br /><br /> <p>6.5.<br /><br /><br /><br /><br /> Blackwell’s reserves the right to prosecute or take legal action against any fraud, or conspiracy to defraud and to recover any Commissions paid to an Affiliate which were earned as a result of such fraud. Fraud includes knowingly violating the terms and spirit of this Agreement.</p><br /><br /><br /><br /> <p>7. PUBLICITY<br /><br /><br /><br /><br /> 7.1.<br /><br /><br /><br /><br /> You shall not create, publish, distribute, or permit any written or graphical material that makes reference to Blackwell’s other than those mentioned in this Agreement or otherwise provided by Blackwell’s, without our prior written consent, which may be granted, in our sole discretion, provided such materials are not in direct conflict with Blackwell’s’ own marketing efforts.</p><br /><br /><br /><br /> <p>8. LICENSES AND USE OF BLACKWELL’S LOGOS AND TRADEMARKS<br /><br /><br /><br /><br /> 8.1.<br /><br /><br /><br /><br /> We grant you a non-exclusive, non-transferable, revocable right:</p><br /><br /><br /><br /> <p>8.1.1.<br /><br /><br /><br /><br /> to access Our Site through the Link solely in accordance with the terms of this agreement; and</p><br /><br /><br /><br /> <p>8.1.2.<br /><br /><br /><br /><br /> solely in connection with the Link, to use our logos, trade names, trademarks and similar identifying material relating to us and which we provide to you (collectively, the “Licensed Materials”), for the sole purpose of establishing a link to Our Site so users of Your Site can purchase Blackwell’s Services.</p><br /><br /><br /><br /> <p>8.2.<br /><br /><br /><br /><br /> You may not alter, modify or change the Link or Licensed Materials in any way. You may use only authorized, licensed advertising creatives or ads.</p><br /><br /><br /><br /> <p>8.3.<br /><br /><br /><br /><br /> Other than establishing a link from Your Site to Our Site, you shall not make any use of any Licensed Materials without first obtaining our prior written consent. You shall not use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light. We reserve all of our rights in the Licensed Materials and of our other proprietary rights. We, in our sole discretion, may revoke your license to use our Link or the Licensed Materials at any time. Affiliate shall comply with all guidelines provided by Blackwell’s with respect to the text or graphic reproduction, appearance, and “look and feel” related to the marketing and representation of the Links and Blackwell’s.</p><br /><br /><br /><br /> <p>8.4.<br /><br /><br /><br /><br /> The licenses described in this Section 8 shall expire upon the effective date of the expiration or termination of this Agreement, and is dependent upon your status as defined in Section 1.</p><br /><br /><br /><br /> <p>8.5.<br /><br /><br /><br /><br /> Any unauthorized use of the Blackwell’s links, text, banners or other ads not approved of or provided by Blackwell’s may be cause for immediate termination of this Agreement.</p><br /><br /><br /><br /> <p>8.6.<br /><br /><br /><br /><br /> Except for the license granted under this Section 8, you do not obtain any rights under this Agreement in any intellectual property, including, without limitation, any intellectual property with respect to the Licensed Materials, the Link, link formats, technical specifications, guidelines or graphical artwork referenced above, or with respect to the Blackwells.co.uk and Blackwells.com domain names. You shall not assert the invalidity, unenforceability, or contest the ownership by Blackwell’s of the Licensed Materials, Blackwell’s Site, or any related links, artwork, logos or other materials in any action or proceeding of whatever kind or nature, and shall not take any action that may prejudice Blackwell’s’ rights in the marks, render the same generic, or otherwise weaken their validity or diminish their associated goodwill.</p><br /><br /><br /><br /> <p>8.7.<br /><br /><br /><br /><br /> You grant to us a non-exclusive license to utilize your company name and logo, as the same may be amended from time to time (the “Affiliate Trademarks”), to advertise, market, promote and publicize in any manner your participation in the Programme or our rights hereunder; provided, however, that we shall not be required to so advertise, market, promote or publicize.</p><br /><br /><br /><br /> <p>9. TERM OF THIS AGREEMENT AND TERMINATION<br /><br /><br /><br /><br /> 9.1.<br /><br /><br /><br /><br /> The term of this Agreement will begin upon your acceptance of this Agreement, by your use of an assigned Blackwell’s affiliate link, and/or our acceptance of your application for the Affiliate Programme, and will end when terminated by either party. Blackwell’s may terminate this Agreement immediately at any time, with or without cause. Should you cease your publication of the Link this Agreement shall be deemed terminated by you. Violation of this Agreement shall constitute grounds for immediate termination of this Agreement.</p><br /><br /><br /><br /> <p>9.2.<br /><br /><br /><br /><br /> Upon termination of this Agreement:</p><br /><br /><br /><br /> <p>9.2.1.<br /><br /><br /><br /><br /> Blackwell’s’ acceptance of referrals obtained through Your Site shall not constitute a continuation or renewal of this Agreement or a waiver of such termination;</p><br /><br /><br /><br /> <p>9.2.2.<br /><br /><br /><br /><br /> you shall be entitled only to those Commissions, if any, earned by you on or prior to the date of termination excluding amounts due to actual fraud, credit card fraud, credit card chargebacks and bad debt and credits for cancelled services or as otherwise in violation of this Agreement;</p><br /><br /><br /><br /> <p>9.2.3.<br /><br /><br /><br /><br /> you shall in no event be entitled to Commissions with respect to referrals delivered after the date of termination, irrespective of whether any service or product order, contract, or commitment relating thereto was entered into prior to the date of termination;</p><br /><br /><br /><br /> <p>9.2.4.<br /><br /><br /><br /><br /> upon termination, your rights and licenses under this agreement shall immediately terminate and you shall remove the Link or other Licensed Materials from Your Site; and</p><br /><br /><br /><br /> <p>9.2.5.<br /><br /><br /><br /><br /> you shall return to Blackwell’s any confidential information, and all copies thereof, in its possession, custody and control and will cease all uses of any trade names, trademarks, service marks, logos and other designations of Blackwell’s and the Affiliate Programme.</p><br /><br /><br /><br /> <p>9.3.<br /><br /><br /><br /><br /> We may withhold payment of Commissions, or any portion thereof, for a reasonable time to ensure that the correct amount is, although generally payments will continue to follow the schedule as outlined in Article 6.</p><br /><br /><br /><br /> <p>9.4.<br /><br /><br /><br /><br /> Upon any termination of this Agreement, you and Blackwell’s will be released from all obligations and liabilities to the other occurring or arising after the date of such termination or the transactions contemplated hereby, except with respect to those obligations which by their nature are designed to survive termination as provided herein; provided that no such termination will relieve you from any liability arising from any breach of this Agreement occurring prior to termination.</p><br /><br /><br /><br /> <p>9.4.<br /><br /><br /><br /><br /> The Affiliate consents to Blackwell’s sending newsletters to the Affiliate’s e-mail address and using the information given by the Affiliate for marketing purposes.</p><br /><br /><br /><br /> <p>10. MODIFICATION<br /><br /><br /><br /><br /> 10.1.<br /><br /><br /><br /><br /> We reserve the right to modify any of the terms and conditions contained in this Agreement at any time and in our sole discretion. Modifications may include, but are not limited to, changes in the scope of available referral fees, commission schedules, payment procedures and Programme rules. If any modification is unacceptable to you, your only recourse is to terminate this agreement as provided in article 9.</p><br /><br /><br /><br /> <p>10.2.<br /><br /><br /><br /><br /> Your continued participation in the Programme following our posting of a change notice or new Agreement on Our Site will constitute binding acceptance of the change. No amendment, modification or supplement to this Agreement shall be effective unless it is posted by an authorized representative of Blackwell’s at Blackwell’s Web Site.</p><br /><br /><br /><br /> <p>11. RELATIONSHIP OF PARTIES<br /><br /><br /><br /><br /> 11.1.<br /><br /><br /><br /><br /> You and Blackwell’s are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on Your Site or otherwise, that reasonably would contradict anything in this Section.</p><br /><br /><br /><br /> <p>12. REPRESENTATIONS AND WARRANTIES<br /><br /><br /><br /><br /> 12.1.<br /><br /><br /><br /><br /> You hereby represent and warrant to us that you are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use your trademarks in the manner contemplated herein, and such grant does not and will not:</p><br /><br /><br /><br /> <p>12.1.1.<br /><br /><br /><br /><br /> breach, conflict with or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or</p><br /><br /><br /><br /> <p>12.1.2.<br /><br /><br /><br /><br /> infringe upon any trademark, trade name, service mark, copyright or other proprietary right of any other person or entity.</p><br /><br /><br /><br /> <p>12.2.<br /><br /><br /><br /><br /> You further represent that:</p><br /><br /><br /><br /> <p>12.2.1.<br /><br /><br /><br /><br /> You are duly organized, validly existing, and in good standing under the laws of the state or country of your origin, or you are an adult at least eighteen (18) years of age;</p><br /><br /><br /><br /> <p>12.2.2.<br /><br /><br /><br /><br /> you have all requisite power and authority to enter into this Agreement and to carry out and perform its obligations under the terms of this Agreement;</p><br /><br /><br /><br /> <p>12.2.3.<br /><br /><br /><br /><br /> This Agreement has been duly authorized, executed, and delivered by you and is a valid and binding obligation enforceable in accordance with its terms; and</p><br /><br /><br /><br /> <p>12.2.4.<br /><br /><br /><br /><br /> The execution, delivery, and performance of and compliance with this Agreement does not and will not (i) conflict with, or constitute a default under, or result in the creation of, any mortgage, pledge, lien, encumbrance or charge upon any of your properties or assets, nor result in any violation of any term of your governing documents, (ii) in any material respect, any term or provision of any mortgage, indenture, contract, agreement, instrument, judgment or decree, or (iii) to the best of your knowledge, any order, status, rule or regulation applicable to you, the violation of which would have a material adverse effect on your business or properties</p><br /><br /><br /><br /> <p>13. CONFIDENTIALITY<br /><br /><br /><br /><br /> 13.1.<br /><br /><br /><br /><br /> Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or you, respectively, or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilised, directly or indirectly, by such party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public or through a source or sources other than such party hereto or its affiliates.</p><br /><br /><br /><br /> <p>13.2.<br /><br /><br /><br /><br /> Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information</p><br /><br /><br /><br /> <p>13.2.1.<br /><br /><br /><br /><br /> to any person pursuant to a subpoena issued by any court or administrative agency,</p><br /><br /><br /><br /> <p>13.2.2.<br /><br /><br /><br /><br /> to its accountants, attorneys or other agents on a confidential basis</p><br /><br /><br /><br /> <p>14. LIMITATION OF LIABILITY<br /><br /><br /><br /><br /> 14.1.<br /><br /><br /><br /><br /> Without limiting the generality of the foregoing, Blackwell’s shall in no event be liable to you or any other person, including, without limitation, subscribers, for indirect, incidental, or special damages, lost profits, lost savings, or any other form of consequential damages, regardless of the form of action, even if Blackwell’s has been advised of the possibility of such damages, whether resulting from breach of its obligations under this agreement or otherwise. Further, our aggregate liability arising with respect to this agreement and the programme will not exceed the total referral fees paid or payable to you under this agreement.</p><br /><br /><br /><br /> <p>14.2.<br /><br /><br /><br /><br /> Blackwell’s makes no warranties, either express or implied, concerning the performance or functionality of Blackwell’s services, or our affiliate programme, including but not limited to the link or other affiliate advertisements and hereby expressly disclaims all implied warranties, including warranties of merchantability or fitness for a particular use or purpose.</p><br /><br /><br /><br /> <p>14.3.<br /><br /><br /><br /><br /> Under no circumstances shall Blackwell’s be liable to you or any other person or entity, including, without limitation, customers, for any loss, injury, or damage, of whatever kind or nature, resulting from or arising out of any mistakes, errors, omissions, delays, or interruptions in the receipt, transmission, or storage of any messages or information arising out of or in connection with the affiliate programme or Blackwell’s.</p><br /><br /><br /><br /> <p>15. INDEMNIFICATION<br /><br /><br /><br /><br /> 15.1.<br /><br /><br /><br /><br /> You hereby agree to indemnify and hold harmless Blackwell’s, its parent company, sister companies, subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, expenses (including reasonable attorneys’ fees), and costs (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on, or in any way connected with this Agreement, including but not limited to:</p><br /><br /><br /><br /> <p>15.1.1.<br /><br /><br /><br /><br /> any breach by you of any warranty, representation, or agreement contained herein,</p><br /><br /><br /><br /> <p>15.1.2.<br /><br /><br /><br /><br /> the performance of your duties and obligations hereunder,</p><br /><br /><br /><br /> <p>15.1.3.<br /><br /><br /><br /><br /> your negligence,</p><br /><br /><br /><br /> <p>15.1.4.<br /><br /><br /><br /><br /> any injury (including death) to persons or damages to property caused directly or indirectly by your negligent or intentional acts or omissions, or</p><br /><br /><br /><br /> <p>15.1.5.<br /><br /><br /><br /><br /> the unauthorized use of any Blackwell’s intellectual property, including but not limited to the banners, logos, text or graphics; Blackwell’s, and or any part of the Affiliate Programme.</p><br /><br /><br /><br /> <p>15.1.6.<br /><br /><br /><br /><br /> any claim that our use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party,</p><br /><br /><br /><br /> <p>15.1.7.<br /><br /><br /><br /><br /> any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein,</p><br /><br /><br /><br /> <p>15.1.8.<br /><br /><br /><br /><br /> the development, operation, maintenance and of Your Site and products and services offered from Your Site, or</p><br /><br /><br /><br /> <p>15.1.9.<br /><br /><br /><br /><br /> any claim related to Your Site, including, without limitation, therein not attributable to us.</p><br /><br /><br /><br /> <p>16. NOTIFICATION<br /><br /><br /><br /><br /> 16.1.<br /><br /><br /><br /><br /> All notices to us in connection with this Agreement shall be deemed given as of the day they are received either by messenger, delivery service or Royal Mail, postage prepaid, certified or registered, return receipt requested, and addressed as follows:<br /><br /><br /><br /><br /> Blackwell Ltd<br /><br /><br /><br /><br /> 50 Broad Street<br /><br /><br /><br /><br /> Oxford, OX1 3BQ<br /><br /><br /><br /><br /> U.K.<br /><br /><br /><br /><br /> Attention: Affiliate Programme Manager</p><br /><br /><br /><br /> <p>16.2.<br /><br /><br /><br /><br /> Any notice under this Agreement shall be given by Blackwell’s to you via e-mail at the address provided by you to Blackwell’s at the commencement of this Agreement or as Blackwell’s is subsequently advised. Notice to you at this address is deemed sufficient regardless of your receipt of such e-mail.</p><br /><br /><br /><br /> <p>17. INDEPENDENT INVESTIGATION<br /><br /><br /><br /><br /> 17.1.<br /><br /><br /><br /><br /> You acknowledge that you have read this agreement and agree to all its terms and conditions. You understand that we may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this agreement or operate web sites that are similar to or compete with your site. You have independently evaluated the desirability of participating in the programme and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.</p><br /><br /><br /><br /> <p>18. CONFIDENTIAL INFORMATION<br /><br /><br /><br /><br /> 18.1.<br /><br /><br /><br /><br /> You acknowledge that, during the term of this Agreement, you may be entrusted with confidential information relating to the business, operations, or underlying technology of Blackwell’s and/or the Affiliate Programme (the “Confidential Information”). You shall provide care to avoid disclosure or unauthorized use of the Confidential Information to any other person or entity.</p><br /><br /><br /><br /> <p>18.2.<br /><br /><br /><br /><br /> You shall not use the Confidential Information for purposes other than those necessary to further the purposes of this Agreement. You shall not disclose the Confidential Information to third persons or outside parties without the prior written consent of Blackwell’s. Should you be required under applicable law, rule or regulation, or pursuant to the order of any court or governmental entity of legal process of any governmental entity of competent jurisdiction to disclose Confidential Information in its possession, custody or control, you shall:</p><br /><br /><br /><br /> <p>18.2.1.<br /><br /><br /><br /><br /> give at least thirty (30) days prior written notice of such disclosure to Blackwell’s;</p><br /><br /><br /><br /> <p>18.2.2.<br /><br /><br /><br /><br /> use its best efforts to limit such disclosure; and</p><br /><br /><br /><br /> <p>18.2.3.<br /><br /><br /><br /><br /> make such disclosure only to the extent so required.</p><br /><br /><br /><br /> <p>18.3.<br /><br /><br /><br /><br /> Your obligations hereunder with respect to Confidential Information shall survive the expiration or earlier termination of this Agreement.</p><br /><br /><br /><br /> <p>19. MISCELLANEOUS<br /><br /><br /><br /><br /> 19.1.<br /><br /><br /><br /><br /> Assignability: You shall not assign or delegate its obligations under this Agreement, either in whole or in part, without the prior written consent of Blackwell’s, in its sole discretion. Any attempted assignment in violation of the provisions of this Agreement, whether by operation of law or otherwise, will be void. This Agreement is not intended to and shall not be construed to provide any rights, remedies or benefits to or for any person or entity not a party to this Agreement. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.</p><br /><br /><br /><br /> <p>19.2.<br /><br /><br /><br /><br /> Severability: If any provision of this Agreement, or the application thereof to any person or circumstance, shall be held invalid or unenforceable under any applicable law, such invalidity or unenforceability shall not affect any other provision of this Agreement that can be given effect without the invalid or unenforceable provision, or the application of such provision to other persons or circumstances, and, to this end, the provisions hereof are severable.</p><br /><br /><br /><br /> <p>19.3.<br /><br /><br /><br /><br /> Non-Waiver: No delay or failure by Blackwell’s in exercising any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right.</p><br /><br /><br /><br /> <p>19.4.<br /><br /><br /><br /><br /> Remedies: The rights and remedies of Blackwell’s hereunder shall not be mutually exclusive, i.e., the exercise of one or more of the provisions hereof shall not preclude the exercise of any other provision hereof. You acknowledge, confirm, and agree that damages may be inadequate for a breach or a threatened breach of this Agreement and, in the event of a breach or threatened breach of any provision hereof, the respective rights and obligations hereunder shall be unenforceable by specific performance, injunction, or other equitable remedy. Nothing contained in this Agreement shall limit or affect any rights at law or otherwise of Blackwell’s for a breach or threatened breach of any provision hereof, it being the intent of this provision to make clear that the respective rights and obligations of Blackwell’s shall be enforceable in equity as well as at law or otherwise.</p><br /><br /><br /><br /> <p>19.5.<br /><br /><br /><br /><br /> Interpretation: This Agreement shall not be construed or interpreted in favour or against Blackwell’s or you on the basis of draftsmanship or preparation of the Agreement.</p><br /><br /><br /><br /> <p>19.6.<br /><br /><br /><br /><br /> Headings: The headings, captions, and other typographical formatting used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement</p><br /><br /><br /><br /> <p>19.7.<br /><br /><br /><br /><br /> Affiliates must allow Blackwell’s access to the HTTP referer (the referring page) for each transaction generated.</p><br /><br /><br /><br /> <p>19.8.<br /><br /><br /><br /><br /> Purchases that do not qualify for affiliate commission include the following:</p><br /><br /><br /><br /> <p>- any product purchase that is not correctly tracked or reported due to the links from your site to the relevant Blackwell’s site are not properly formatted;<br /><br /><br /><br /><br /> – any product purchased for resale or commercial use of any kind;<br /><br /><br /><br /><br /> – any product purchased after termination of this Operating Agreement;<br /><br /><br /><br /><br /> – any product order that is cancelled or returned;<br /><br /><br /><br /><br /> – eReaders, NOOK products, Gift cards, Book tokens;<br /><br /><br /><br /><br /> – eBooks; and<br /><br /><br /><br /><br /> – any product purchased by a customer who is referred to Blackwell’s site through any of the following methods:</p><br /><br /><br /><br /> <p>a. a Prohibited Paid Search Placement<br /><br /><br /><br /><br /> b. a link to Blackwell’s Site, including a Redirecting Link, that is generated or displayed on a Search Engine in response to a general Internet search query or keyword (i.e., in natural, free, organic, or unpaid search results), whether those links appear through your submission of data to that site or otherwise.</p><br /><br /><br /><br /> <p>20. GOVERNING LAW<br /><br /><br /><br /><br /> 20.1.<br /><br /><br /><br /><br /> This Agreement shall be governed by, and construed in accordance with the laws of England. Blackwell’s shall not be liable for the legality of Blackwell’s’ service in countries other than the United Kingdom. The Affiliate is solely responsible for the legality of the use of the service if the Affiliate is registered to Blackwell’s’ service from a country other than the United Kingdom or if the Affiliate’s website is on a server in a country other than the United Kingdom.</p><br /><br /><br /><br /> <p>21. DISPUTE RESOLUTION<br /><br /><br /><br /><br /> 21.1.<br /><br /><br /><br /><br /> This Agreement shall be construed and governed in all respects in accordance with the Law of England and Wales and the English Courts shall have exclusive jurisdiction in respect of any disputes arising hereunder. Blackwell’s shall not be liable for the legality of Blackwell’s’ service in countries other than the United Kingdom. The Affiliate is solely responsible for the legality of the use of the service if the Affiliate is registered to Blackwell’s’ service from a country other than the United Kingdom or if the Affiliate’s website is on a server in a country other than the United Kingdom.</p><br /><br /><br /><br /> <p>21.2.<br /><br /><br /><br /><br /> If any dispute arises out of this Agreement the Parties will attempt to settle it by mediation in accordance with the Model Mediation Procedure of the Centre for Dispute Resolution (‘CEDR’) or such other mediation procedure as the parties may agree in writing. To initiate the mediation one Party must give notice in writing (‘the ADR Notice’) to the other Party requesting a mediation in accordance with this clause. The mediation is to take place not later 28 days after the giving of the ADR Notice. If there is any issue upon which the Parties cannot agree within 14 days after the giving of the ADR Notice, CEDR (or such other mediation body as the Parties may have agreed) will, at the request of either Party, decide the issue for the Parties, having consulted with them</p><br /><br /><br /><br /> <p>22. EXECUTION AND ACCEPTANCE<br /><br /><br /><br /><br /> By using a Link provided by Affiliate Programme, you execute, accept, enter into, and become party to this Agreement. At such point, Blackwell’s simultaneously and automatically becomes counter-party to this Agreement. The Effective Date of such Agreement is the day on which Link is used by you.</p><br /><br /><br /><br /> <p>23. ENTIRE AGREEMENT<br /><br /><br /><br /><br /> 23.1.<br /><br /><br /><br /><br /> Together with the above guidelines, this Agreement constitutes the entire agreement between the Parties. No prior or contemporaneous written or oral representation of the Affiliate Programme form a part of this Agreement, and this Agreement supersedes all prior agreements between the Parties relating to the subject matter of this Agreement.</p><br /><br /><br /><br /> <p>24. ATTORNEYS FEES<br /><br /><br /><br /><br /> 24.1.<br /><br /><br /><br /><br /> In the event Blackwell’s shall commence formal legal action to interpret and/or enforce the terms of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorneys’ fees and costs incurred in connection therewith.
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