Optmyzr Inc. values our affiliates. We do our best to treat You with fairness and respect and request the same consideration in return. To facilitate a productive relationship, we have the following written terms and conditions. This agreement contains the complete terms and conditions that apply to your participating as an affiliate of the www.optmyzr.com affiliate marketing program, and the establishment of hypertext links from your website to www.optmyzr.com for the purpose of earning referral fees from qualifying purchases made by third parties who have navigated by your website to www.optmyzr.com via said hypertext links.
PLEASE READ THE ENTIRE AGREEMENT CAREFULLY. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND OPTMYZR INC. BY SUBMITTING AN AFFILIATE APPLICATION YOU REPRESENT THAT YOU HAVE FULLY READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
1. Definitions .
1.1. “ Affiliate ,” “ You ,” or “ your ” collectively mean the business, individual or entity applying for participation in the Optmyzr Affiliate Program in exchange for receiving remuneration from Optmyzr for Qualified Affiliate Sales.
1.2. “ Affiliates ” means all persons or entities participating in our Affiliate Program whether currently or in the future.
1.3. “ Affiliate Program ” means the program managed by or on behalf of Optmyzr whereby participating persons or entities place links on their website that direct new customers to the optmyzr.com website and for which a commission is earned.
1.4. “ Commission ” or “ Commission Fee ” means money duly earned by, payable to, or previously paid to the Affiliate in regard to the payout schedule set forth on the Affiliate Portal Website and received by Affiliate for Qualified Affiliate Sales made under the terms of this Agreement and the Affiliate Program and acknowledged as such by Optmyzr, at our sole discretion.
1.5. “ EffectiveDate
” the date Optmyzr accepts and processes your affiliate application.
1.6. “ LicensedMaterials
” means logos, trade names, trademarks, and similar
1.7. “ Optmyzr ,” “ our ,” or “ we ” collectively means Optmyzr, Inc.
1.8. “ Party ” individually may refer to You or Optmyzr and “ Parties ” refers to both You and Optmyzr.
1.9. “ Qualified Affiliate Sale ” or “ Qualified Affiliate Sales ” means a optmyzr.com paid subscription purchased by a new customer during a visit to optmyzr.com following navigation to the designated URL on optmyzr.com through a hypertext link from You under this Affiliate Program.
1.10. “ Application ” means any and all order forms, registration forms or other signup or acceptance form submitted by You.
1.11. “ Referred Customer ” means each new and unique customer referred from Affiliate through a Link (as defined in Section 8 below) provided by or approved by us, which meets the criteria set forth in Section 5 hereof.
2. Affiliate Requirements and Obligations .
2.1. To begin the enrollment process, you must submit a completed Partner Program Application and select the option to become an affiliate. The Application can be found at http://www.optmyzr.com/information/optmyzr-partner-application
2.2. You must be a current, active customer of Optmyzr, in good standing. We reserve the right, in our sole discretion, to accept or reject any application to the program, for any reason or no reason, without explanation for any rejection .
2.3. If we reject your application, for any reason or no reason, You may not reapply to the Optmyzr Affiliate Program utilizing the same domain name/URL if that domain name/URL has already been rejected nor may you reapply using a different domain/URL name then add the previously rejected domain name/URL. Optmyzr, in its sole discretion, reserves the right to notify or to not notify any prospective affiliate of their rejection or removal from the Optmyzr Affiliate Program at any time nor the basis for any rejection.
2.4. We have the right, but not the obligation, to monitor your website at any time to determine if you are following the terms and conditions of this Agreement. We may notify You of any changes to your website that we feel should be made, or to make sure that your links to our website are appropriate and to notify You of any changes that we feel should be made. If You do not make the changes to your website that we feel are necessary, we reserve the right to terminate your participation in our Affiliate Program.
2.5. You will be solely responsible for the development, operation, and maintenance of your website and for all materials that appear on your website. Such responsibilities include, but are not limited to, the technical operation of your website and all related equipment; creating and posting product reviews, descriptions, and references on your website and linking those descriptions to our website; the accuracy and propriety of materials posted on your website (including, but not limited to, all materials related to Optmyzr Products and Services); ensuring that materials posted on your website do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. We disclaim all liability and responsibility for such matters.
3. Optmyzr Obligations
We will be responsible for providing all information necessary to allow You to make appropriate Links from your website to our website. Optmyzr will solely be responsible for order processing for orders/Qualified Affiliate Sales placed by a Referred Customer following a Link from your website, for tracking the volume and amount of Qualified Affiliate Sales generated by your website, and for providing information to Affiliates regarding Qualified Affiliate Sales statistics. Optmyzr will be solely responsible for all order processing, including but not limited to
payment processing, cancellations, refunds and related Optmyzr service. Any determination made by Optmyzr regarding the foregoing shall be binding absent manifest error.
4. License .
4.1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access www.optmyzr.com through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use Licensed Materials that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing with Optmyzr’s Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of Optmyzr and the good will associated therewith will inure to the sole benefit of Optmyzr.
4.2. You agree not to use Optmyzr’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays Optmyzr in a negative light. Optmyzr reserves all of our respective rights in the proprietary materials covered by this license. Other than the license granted hereunder, Optmyzr retains all right, title, and interest to our respective rights and no right, title, or interest is transferred to You.
5. Commission Fee and Payments .
5.1. Under the Affiliate Program, you will be paid a Commission Fee for each Qualified Affiliate Sale by a Referred Customer that You refer to Optmyzr under and in accordance with the terms of this Agreement. Each Referred Customer and each Qualified Affiliate Sale must meet the following criteria (the "Criteria"):
(a) Each Referred Customer must be a new and unique visitor to Optmyzr and must register by completing and submitting the subscription form using a valid and unique account and billing information.
(b) Commission may not be paid for a Referred Customer that has transferred from any of our Affiliates or partners.
(c) Each Referred Customer constitute a Qualified Affiliate Sale, and provide a valid payment for the purchased Optmyzr Products or Services. To generate a Commission Fee for You, each Referred Customer must be an active, qualified customer of Optmyzr and must be up-to-date in all payments at the time the Commission Fees are processed and not have been subject to a refund, credit, cancellation, suspension or chargeback.
(d) Each Referred Customer must sign up in a manner, which in our sole judgment, definitively establishes that the Referred Customer was referred directly from You to Optmyzr under this Agreement.
(e) Each Referred Customer must remain in compliance with our Terms of Service, and other policies that are active at the time the Commission Fees are processed.
5.2. Affiliate agrees and acknowledges that no payment of any kind, other than the Affiliate Commission as provided in this Agreement, is due from Optmyzr to Affiliate as a result of Affiliate making Referrals under this Agreement. Affiliate shall not charge any Referral customer any fees, costs or charges of any kind on behalf of Optmyzr nor accept any payment of any kind on behalf of Optmyzr other than guiding a Referral customer to make payment through the Optmyzr website.
5.3. Subject to the terms of this Agreement, we will pay a Commission Fee equal to the specified percentage or dollar amount set forth in the Commission Report on the Affiliate Portal Website on a Qualified Affiliate Sale by a Referred Customer which occurs during the month for which such Commission Fee is being calculated.
5.4. Commission fee shall be paid on or about the 1st of each month. If during any calendar month referral fees do not exceed twenty-five dollars ($25.00), then You will not receive payments until the following calendar month during which your aggregate commission payments equal or exceed said amount or until the termination of this agreement, whichever occurs earlier.
5.5. You understand and agree that payouts will be delayed by a period of at least thirty (30) days to adjust your commission fee regarding customers that cancel the subscription with
6. Payment Types .
6.1. Commission Fees shall be paid based on the current information in your Affiliate profile. Please notify us promptly of any change in your address by updating your profile information in the Affiliate Portal Website. You are responsible for informing Optmyzr of your desired Payment form/type:
(a) By PayPal payment (please review PayPal’s policy to ensure you are eligible to receive payment if You reside outside the United States ;
6.2. Optmyzr is not responsible for any third-party fees charged by PayPal, bank or other financial institute used to receive Affiliate Commission Fees. Check payments will only be reissued within 120 days of original issue date in the case of a lost check or stop payment request. After 120 days, the payment will be voided. Check cancellation fees may be applied. PayPal payments will only be reissued within 120 days of original issue date in the case of incorrect PayPal address or refusal from PayPal to accept payment.
6.3. You can update or change desired payment form at any time by updating your Affiliate Profile located in the Affiliate Portal Website. Changes to desired payment form may take up to two payout cycles to take effect.
6.4. We, in our sole discretion, reserve the right to modify the terms of this Commission payment method or schedule at any time. Such changes shall take effect when posted in the Affiliate Portal Website.
6.5. Commission Disputes : Affiliate has access to Optmyzr's real-time Affiliate Program statistics and activity and specifically agrees to file any tracking or commission disputes as well as any other disputes and discrepancies within thirty (30) calendar days after the end of the month in which the sale or event that is disputed occurred. Affiliate understands and agrees that all disputes filed after thirty (30) calendar days of the date on which the Qualified Affiliate Sale occurred will not be accepted by Optmyzr and Affiliate forever forfeits any rights to a potential claim.
7. Access to Affiliate Portal Website .
7.1. You may log into the Affiliate Portal Website to review your click through and potential Qualified Affiliate Sales statistics on a daily basis. The potential Qualified Affiliate Sales shown in this report have not been reviewed to confirm they meet all criteria for Qualified Affiliate Sales. As such, Commission Fees may not be issued on all Referred Customers that appear in the Affiliate Portal Website. Optmyzr does not warrant that the Affiliate Portal Website will be up-to-date and accurately reflect your Qualified Affiliate Sales for any commission period.
8. Promotion of Affiliate Relationship .
8.1. In the event You qualify and agree to participate as an Affiliate, we will make available to You a variety of graphic and textual links (individually “ Link ” or collectively “ Links ”), which are subject to the terms and conditions hereof. The Links will serve to identify your website as a member of the Optmyzr Affiliate Program and will establish a Link from your website to ours. The Links may connect to any area of our website (although commissions will only be issued on Qualified Affiliate Sales). You will be responsible for integrating the Links into your website to properly enable sales tracking, and we will not be responsible for your failure to do so, including to the extent such failure may result in any reductions of amounts that would otherwise be paid to You under this Agreement.
8.2. You also agree that You will display on your website only those graphic or textual images provided by us or expressly approved in advance in writing by Optmyzr. Affiliate shall display Optmyzr graphic images prominently in the relevant sections of the website(s).
8.3. You may promote your own website(s), however, any promotion that mentions www.optmyzr.com or Optmyzr is subject to the restrictions in this Agreement.
9. Prohibited Conduct
9.1. This Agreement will be terminated without notice if, in our sole discretion, Optmyzr determines that You have breached any or all of the following explicitly prohibited actions. YOU UNDERSTAND AND AGREE THAT YOU WILL FORFEIT ANY ACCUMULATED EARNINGS IF THE AGREEMENT IS TERMINATED UNDER THIS PROVISION.
(a) Your Subscription . You will not earn a commission on your own (b) Incentivized Sign - ups . You will not provide, directly or indirectly,
incentives for new customer signups. (c) Misrepresented Affiliation . At all times, You must clearly represent
yourself and your website(s) as independent from Optmyzr.
(d) Spamming . You will not engage in advertising commonly referred to as "spamming" as it may damage our name and reputation. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the Merchant.com Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitations.
(e) Concealed Identity . You may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address.
(f) Commercial emails and Newsgroups . You may not use unsolicited commercial email, postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. You may use mailings to customers to promote optmyzr.com so long as the recipient is already a customer or subscriber of your services or website, and recipients have the option to remove themselves from future mailings.
(g) Fraudulent Clicks . You will not, directly or indirectly, act, encourage or require users to click on links to optmyzr.com and/or generate clicks or orders through any means that could be reasonably interpreted as misleading, malicious, coercive, or otherwise fraudulent.
(h) Inappropriate Content . No Link will be placed on any page or screen that contains content that: incites, encourages, advocates or promotes discrimination based on race, religion, gender, origin, nationality, disability, age, or sexual orientation; incites, encourages, advocates or promotes the sexual abuse or exploitation of children and minors; incites, encourages, advocates or promotes illegal activities including, but not limited to, violence against persons or property, terrorism, armed insurrection, or piracy; violates the intellectual property rights of third parties; or contains or promotes deceptive information.
(i) Advertising . You may advertise on AdWords, but You will not direct traffic directly to optmyzr.com.
10. FTC Endorsement Compliance .
10.1. Optmyzr complies fully with all Federal Trade Commissions' regulations related to advertising. As such, we require our affiliates to comply with these regulations. This includes, but is not limited to, Federal Trade Commission 16 CFR Part 255: Guide Concerning the Use of Endorsements and Testimonials in Advertising , which requires, among other criteria, that material connections between advertisers and endorsers be disclosed. This means that directories, review/rating websites, blogs and other websites, email or collateral that purport to provide an endorsement or assessment of an advertiser—in this case Optmyzr--must prominently disclose
the fact financial or in-kind compensation is provided from the advertiser. Nothing contained herein should be deemed to constitute legal advice, nor does it guarantee that You will be in compliance with FTC regulations should you follow any suggestions in the above referenced link. You should seek and obtain your own legal advice on how these rules apply to your website or other promotional activities for which you receive compensation.
10.2. Optmyzr reserves the right to withhold commission fees and cancel the affiliate relationship with You should we determine, at our sole discretion, that You are not in compliance with the previously mentioned guide or other FTC regulations/guides we deem relevant.
11. Confidentiality .
11.1. Confidential Information . Parties understand and agree that in the performance of this Agreement, each Party may have access to or may be exposed to, directly or indirectly, confidential and sensitive information of the other Party (the " Confidential Information "). Confidential Information includes Customer Data, transaction volume, marketing and business plans, business, financial, technical and operational information, usage statistics, ranking data, information in respect of rate, product and availability parity, pricing policies, conversion data and volume of click-troughs, and other related statistics, personal data of Guests, any software or information regarding software provided or used by Optmyzr in connection with this Agreement, the terms of this Agreement and such other non-public information that either a disclosing Party designates as being private or confidential or of which a receiving Party should reasonably know that it should be treated as private and confidential.
11.2. Restriction of Confidential Information . Each Party agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing Party and receiving Party shall not use any Confidential Information for any purpose except in furtherance of this Agreement, (b) it shall maintain, and shall use prudent methods to cause its employees, officers, representatives, contracting parties and agents (the "Permitted Persons") to maintain, the confidentiality and secrecy of the Confidential Information, (c) it shall disclose Confidential Information only to those Permitted Persons and who need to know such information in furtherance of this Agreement, (d) it shall not, and shall use prudent methods to ensure that Permitted Persons do not (i) copy, publish, transmit, reproduce, divulge, disclose or make the Confidential Information available to any third party, or (ii) use or store it in an unprotected retrieval system or data base (other than pursuant to the terms hereof), and (e) it shall return or destroy all ((hard and soft) copies of) Confidential Information upon written request of the other Party.
11.3. Permitted Disclosure . Confidential Information shall not include information that: (i) is or becomes generally available to the public other than through your breach of this Agreement; (ii) is communicated to you by a third party that had no confidentiality obligations with respect to such information; or (iii) is required to be disclosed by law, including, without limitation, pursuant to the terms of a court order; provided that You have given the disclosing Party prior notice of such disclosure and an opportunity to contest such disclosure.
12. Customer Data .
13. Announcements .
Affiliate shall not create, publish, distribute, or permit any written materials, which makes reference to Optmyzr without first submitting to Optmyzr such material and receiving prior written consent from Optmyzr.
14. Covenants and Undertakings .
Each Party shall, at its own costs and expenses, use all reasonable efforts to take, or cause to be taken, all appropriate action, do or cause to be done all things necessary, proper or advisable under applicable law or upon reasonable request of Optmyzr, and execute and deliver such instruments of assignment, transfer, deeds, documents and other papers, as may be reasonably required to carry out the provisions of this Agreement or perform under or in accordance with the Agreement
15. Representations and Warranties . You warrant and represent that:
15.1. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement, whether as an individual or on behalf of an Entity, and to perform your obligations hereunder, without the approval or consent of any other party;
15.2. You have the requisite right, title, and interest in and to the rights granted to us in this Agreement.
15.3. Affiliate represents and warrants that Affiliate is not an agent of Optmyzr and has no authority to make any representations to any third party on behalf of Optmyzr, nor any right or authority to bind Optmyzr to any action or agreement whatsoever. Affiliate represents, warrants and covenants that Affiliate shall not make any misrepresentations, including by omission, regarding or the services and products that Optmyzr provides, in any manner whatsoever.
15.4. This Agreement has been duly and validly executed and delivered by You and constitutes your legal, valid, and binding obligation, enforceable against You in accordance with the terms herein.
16. Taxes .
16.1. It is your responsibility to provide Optmyzr with accurate tax and payment information that is necessary to issue a Commission Fee. If Optmyzr does not receive the
necessary tax or payment information within 90 days of a Qualified Affiliate Sale which would otherwise trigger Commission Fees, the applicable commissions shall not accrue and no Commission Fees will be owed with respect to such Qualified Affiliate Sale.
16.2. You are responsible for informing Optmyzr about changes to postal and e-mail addresses, as well as any changes to your name, email address, contact information, tax identification number, or other personal information that will impact Optmyzr’s ability to issue a valid Commission payment. Any address changes must be made in the Affiliate profile in the Affiliate Portal Website at least ten (10) business days prior to the end of the calendar month in order for Commission Fees for that month to be sent to the revised address.
16.3. You are responsible for the payment of all taxes related to the commissions you receive under this Agreement. In compliance with U.S. tax laws, Optmyzr will issue a Form 1099 to Affiliates whose earnings meet or exceed the applicable threshold. As regards Affiliates outside the U.S., Optmyzr will provide relevant tax documents as required in your jurisdiction.
17. Disclaimer .
17.1. WE MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING OUR SERVICE AND WEBSITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN AND ANY USE OF OUR SERVICES, IS AT YOUR OWN RISK AND PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, NEITHER OPTMYZR NOR OUR PARENT, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, LICENSEES, SERVICE PROVIDERS, AND OTHER AFFILIATES (COLLECTIVELY “ ASSOCIATED PARTIES ") REPRESENT OR WARRANT THAT THE WEBSITE NOR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED; FREE OF CORRUPTION OR INTERCEPTION, DELAY OR LOSS OF DATA; THAT DEFECTS WILL BE CORRECTED, THAT THE WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
17.2. TO THE FULLEST EXTENT PROVIDED BY LAW, OPTMYZR HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR PARTICIPATION IN OUR AFFILIATE PROGRAM.
18. Limitation of Liability .
18.1. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, WE AND OUR ASSOCIATED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY LOSS OR
DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY AND/OR INCIDENTAL DAMAGES) (INCLUDING, BUT NOT LIMITED TO, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS) ARISING OUT OF OR IN ANY WAY RELATING, DIRECTLY OR INDIRECTLY, TO YOUR PARTICIPATION IN OUR AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL OPTMYZR.COM'S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
18.2. YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF OPTMYZR’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF THE OPTMYZR.COM WEBSITE, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE OPTMYZR AFFILIATE PROGRAM, OR THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEBSITE, PROPERTY, PRODUCT, SERVICE OWNED OR CONTROLLED BY OPTMYZR AND ASSOCIATED PARTIES.
18.3. BY APPLYING TO BECOME AN OPTMYZR AFFILIATE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF CALIFORNIA CODE § 1542, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW
19. Indemnification .
You agree to indemnify and hold harmless Optmyzr.com, and its Associated Parties, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (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 (i) 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, (ii) any misrepresentation of a representation or warranty or breach of a covenant and
agreement made by you herein, or (iii) any claim related to your website, including, without limitation, content therein not attributable to us.
20. Interruption of Service .
Optmyzr will remain solely responsible for the operation of the optmyzr.com website, and You will remain solely responsible for the operation of your website. Each Party acknowledges that their respective websites may be suspended, discontinued or closed, temporarily or permanently, due to causes beyond their reasonable control subject to the specific terms of this Agreement. Each Party retains sole right and control over the programming, content and conduct of transactions over its respective website or service.
21. Term; Termination; Suspension . 21.1. Term . This Agreement shall remain in effect from the Effective Date until
terminated by either Party, subject to the provisions of this Section 21 .
21.2. Termination . This Agreement may be terminated by either party upon five (5) days written notice to the other Party. In addition, this Agreement will terminate immediately and automatically (i) upon any default by Affiliate under this Agreement; or (ii) as set forth in Section 9 .
21.3. Commissions Post Termination . Optmyzr may terminate Affiliate for any reason or no reason, at our sole discretion. At the date of termination You will no longer be eligible to earn commissions. Thirty (30) days after the date of termination You will receive your final commission payment for commission earned to the date of termination, subject to adjustment for cancellation of subscription by customer, or customer ceased to otherwise be a customer of Optmyzr.
21.4. Lifetime Commission Restrictions . Lifetime Recurring Commission will terminate upon any of the following conditions:
(a) You are no longer a customer in good standing; (b) the customer referred by You is no longer in good standing (c) in the event You or the referral customer regain good standing, neither
YOU nor the referral customer will be eligible to qualify to resume earning the lifetime commissions.
21.5. Removal of Links . Immediately on the date of termination, Affiliate will remove any and all links to optmyzr.com and any other Optmyzr Websites, all Optmyzr-related content, links, banners, logos, and other references to Optmyzr.
22. Non-Solicitation . You acknowledge the character of Optmyzr’s business and the substantial amount of time, money, and effort that Optmyzr has spent and will spend in building relationships with customers and recruiting competent employees and service providers. You agree that, during the Term and for a period of one year thereafter,
You will not (i) solicit, hire or engage, or actively assist any other person or entity which competes with Optmyzr in soliciting, hiring or engaging, any consultant, manager, executive, or any other person who is employed by Optmyzr as of the Effective Date or any time during the Term.
23. Non-Exclusive with Restriction . You agree during the Term that you will not directly or indirectly complete with Optmyzr, including in your own business and/or as a consultant or advisor for a business that provides direct competitive services to Optmyzr's services. In all other respects your engagement shall be non-exclusive during the Term.
24. Governing Law ; Jurisdiction .
Any legal suit, action, or proceeding arising out of, or related to, these Terms or the Website shall be instituted exclusively in the federal courts of the United States located in the Northern District of California or the courts of the State of California located in Santa Clara County, California although we retain the right to bring any suit, action, or proceeding against You for breach of these Terms in your country of residence or any other relevant country if You reside outside the United States. You waive any and all objections to the exercise of jurisdiction over You by such courts and to venue in such courts, including all forum non conveniens defenses.
25. Dispute Resolution .
25.1. The relationship we have with our affiliates is important to us. We ask that You first try to resolve your dispute by contacting us. If we cannot informally resolve your dispute within thirty days (30) of written notice of the dispute, You agree that all disputes between You and Optmyzr arising out of or relating to this Agreement (including any alleged breach) will be resolved by binding arbitration.
25.2. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by confidential, binding arbitration in Santa Clara County, California, before one (1) arbitrator. The arbitration shall be initiated and conducted according to JAMS Arbitration Rules and Procedures, and where consistent, California law, without regard to or application of conflict of law principles of your state or country of residence, at the San Jose, California office of JAMS, including the Optional Appeals Procedure. If You reside out the state of California or the United State You understand and agree to submit to the jurisdiction and venue of Santa Clara County, California and hereby waive all forum non conveniens defenses.
25.3. The arbitrator shall be a disinterested attorney or retired judge experienced in e-commerce and/or intellectual property matters. Such arbitration shall include discovery proceedings as provided under Section 1283.05 of the California Code of Civil Procedure. The arbitration will be conducted in the English language, but any witness whose native language is not English may give testimony in the witness’ native language, with simultaneous translation into English at the expense of the party presenting the witness. Judgment on any award may be entered in any court of competent jurisdiction. The Parties hereto consent to the jurisdiction of the Superior Court of the State of California, and the U.S. Northern Judicial District of California, for purposes of enforcing this arbitration agreement and proceedings and entry of
judgment on any award and further consent that any process or notice of motion or other application to the Court or the judge thereof may be served by certified or registered mail, return receipt requested. The prevailing party shall be awarded costs and reasonable attorneys’ fees associated with the arbitration.
25.4. You understand that You ARE GIVING UP YOUR RIGHT TO GO TO COURT, to assert or defend any claims between You and Optmyzr BEFORE A JUDGE OR JURY. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction over the parties. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.
25.5. Attorney Fees : In any arbitration or court action between the parties to enforce this Agreement or the rights of the parties hereunder, the prevailing party in such action (as determined by the arbitral panel or court) will be entitled to receive a reasonable sum for its attorney’s fees and all other reasonable costs and expenses incurred in such action or suit.
25.6. No Class Action : You agree to give up your right to participate in a class action or class proceeding, including class arbitration, limited attorney general action, or other representative action or proceeding against Optmyzr.
26. Limitation on Time to File Claim .
Terms . The following provisions shall survive termination of this Agreement and remain in full force and effect: Paragraph 4.2 (License); Section 5 (Commission Fee and Payments); Section 11 (Confidentiality); Section 12 (Customer Data); Section 16 (Taxes); Section 17 (Disclaimer); Section 18 (Limitation of Liability); Section 19 (Indemnification) Section 21 (Term and Termination); Section 22 (Non-Solicitation); Section 24 (Governing Jurisdiction); Section 25 (Dispute Resolution); Section 26 (Limitation of Time to File Claim); Sections 28 (Miscellaneous Provisions). MiscellaneousProvisions
28.1. Headings . The headings and titles contained in this Agreement are included for
convenience only, and shall not limit or otherwise affect the terms of this Agreement.
28.2. Independent Contractor Relationship . Nothing in this Agreement shall operate to create an employment relationship of any kind between Affiliate and Optmyzr. If any court or agency construes this Agreement to have created an employment relationship as between Affiliate and Optmyzr, then this Agreement shall have no force and effect, and shall be null and void, beginning on the date on which such employment relationship is deemed to have taken effect. Affiliate represents and warrants that Affiliate is not currently an employee of Optmyzr, has not been an employee of Optmyzr during the Term, and that if Affiliate becomes an employee of Optmyzr after the Effective Date, this Agreement shall immediately terminate
without the need for any notice upon the date such employment begins, unless otherwise stated by Optmyzr shareholders which takes presidency in such an event.
28.3. Assignment . This Agreement is personal to You and any assignment made by You of any rights or obligations hereunder shall be null and void. Optmyzr shall have the unrestricted right to assign this Agreement, or any rights and obligations hereunder, without consent or notice to You.
28.4. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. This Agreement may not be assigned by You whether by operation of law or otherwise without the prior written consent of Optmyzr. Optmyzr may assign its rights under this Agreement.
28.5. Waiver; Amendments . Subject to the applicable law, this Agreement may be amended, modified, and supplemented only by written agreement signed by the Buyer and the Seller. Any failure by any party to this Agreement to comply with any obligation, covenant, agreement, or condition contained herein may be expressly waived in writing by the other parties hereto, but such waiver or failure to insist upon strict compliance shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. Whenever this Agreement requires or permits consent by or on behalf of any party hereto, such consent shall be given in a manner consistent with the requirements for a waiver of compliance as set forth in this Paragraph 22.5 .
28.6. Severability . If any provision of this Agreement becomes or is deemed invalid, illegal or unenforceable in any applicable jurisdiction by reason of the scope, extent or duration of its coverage, then such provision will be deemed amended to the minimum extent necessary to conform to applicable law so as to be valid and enforceable or, if such provision cannot be so amended without materially altering the intention of the parties, then such provision will be stricken and the remainder of this Agreement will continue in full force and effect.
28.7. Notices . All notices, requests, and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally, by facsimile transmission, by certified mail, or by email to Affiliate at the address, and email address provided by Affiliate in the fields provided in the Affiliate Application form and to Optmyzr at Attn: Affiliate Manager, 551 Pilgrim Drive, Suite B, Foster City, Ca 94404; email@example.com. Any party from time to time may change its address, email, or other information for notices to that party by giving notice specifying such change to the other party hereto.
28.8. No Authority to Bind . 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 website or any other of your Website or otherwise, that reasonably would contradict anything in this Paragraph 22.9 .
28.9. Successors; Assigns; Third-Party Beneficiaries . This Agreement is concluded for the benefit of the Affiliate and Optmyzr and their respective successors and permitted assigns, and nothing herein is intended to or shall implicitly confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement, except to the extent explicitly stated otherwise in this Agreement. Affiliate and
Optmyzr agree and intend that there are no third-party beneficiaries to this Agreement, unless otherwise stated by Optmyzr shareholders which takes presidency in such an event.
28.10. Force Majeure . Neither Party shall have any liability or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances (force majeure events) beyond the control of the Party whose performance is being affected, including but not limited to natural disasters, governmental or regulatory actions or restrictions, sanctions, embargoes, hostilities of any kind, wars, civil wars, terrorist acts, riots, insurrections, nuclear incidents, EMP, essential utilities failure, etc. A force majeure event shall not prevent the Parties from exercising their right to terminate this Agreement in accordance with the relevant provisions set out herein.
28.11. Execution, performance and effect . The Agreement only enters into force and effect upon written confirmation of acceptance and approval of your affiliate application by Optmyzr. By registering and signing up to the Optmyzr Affiliate Program as an affiliate partner, You agree, acknowledge and accept the terms and conditions of this Agreement, including the provisions related to modifications to this Agreement.
28.12. Modifications . Optmyzr reserves the right, in its sole discretion, to modify any of the terms and conditions contained in this Agreement, by posting a change notice or a new Agreement to the Affiliate Website Portal on the first of any month. Modifications will take effect on the first of the following month. IF ANY MODIFICATION IS UNACCEPTABLE TO THE AFFILIATE, THE AFFILIATE’S ONLY RECOURSE IS TO NEGOTIATE AN INDIVIDUAL AMENDMENT OR TO TERMINATE THE AGREEMENT. IT IS THE AFFILIATE’S RESPONSIBILITY TO CHECK THE WEBSITE AFTER THE FIRST OF ANY MONTH FOR CHANGES IN THE PROGRAM OR AGREEMENT. IF THE AFFILIATE CANNOT LOCATE THE AGREEMENT ON THE AFFILIATE PORTAL WEBSITE, IT IS THE AFFILIATE’S RESPONSIBILITY TO NOTIFY OPTMYZR AND OPTMYZR SHALL HAVE FIFTEEN (15) BUSINESS DAYS TO PROVIDE A COPY TO THE AFFILIATE. CONTINUING PARTICIPATION IN THE PROGRAM, FOLLOWING POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE AFFILIATE INFORMATIONAL PAGE, WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE. SHOULD OPTMYZR STOP PROVIDING THE SERVICES TO ALL AFFILIATES, THIS AGREEMENT SHALL IMMEDIATELY TERMINATE WITH OR WITHOUT NOTICE TO THE AFFILIATES.
28.13. Translations . Any translation of the original English version of this Agreement into any other language is a courtesy translation for informational purposes only. Affiliate cannot derive any rights from the translated version. In the event of a dispute about the contents or interpretation of these terms and conditions of this Agreement or in the event of a conflict, ambiguity, inconsistency or discrepancy between the English version and any other language version of this Agreement, the English language version shall apply and prevail and be conclusive and binding. The English version shall be used in legal proceedings. The English version is available at: https://www.optmyzr.com/information/affiliate-terms.
28.14. Entire Agreement . This Agreement is the entire agreement and understanding of the parties hereto and supersedes all prior agreements and understandings between the Parties with respect to such subject matter.
28.15. Independent Investigation . YOUR APPLICATION SUBMISSION ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS FOR AN AFFILIATE. YOU UNDERSTAND THAT OPTMYZR MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEBSITES THAT ARE SIMILAR TO OR COMPETE WITH THE AFFILIATE’S WEBSITE. THE AFFILIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATION IN THE PROGRAM AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. THE AFFILIATE EXPLICITLY AGREES THAT ELECTRONIC ACCEPTANCE OF THIS AGREEMENT AND ITS TERMS AND CONDITIONS, INCLUDING THOSE RELATED TO MODIFICATIONS, IS VALID, BINDING AND ENFORCEABLE.
I INDICATE MY APPROVAL AND ACCEPTANCE OF THIS AGREEMENT AND DESIRE TO BECOME AN AFFILIATE UNDER THESE TERMS AND CONDITIONS BY COMPLETING AND SUBMITTING THE AFFILIATE PROGRAM SIGNUP FORM, BY SUBMITTING PROPOSED REFERRED CUSTOMERS OR QUALIFYING AFFILIATE SALES TO OPTMYZR UNDER OPTMYZR’S AFFILIATE PROGRAM AND/OR
BY COLLECTING AND COMMISSION FEES FROM OPTMYZR.