8.2. Affiliates that among other keywords or exclusively bid in
their Pay-Per-Click campaigns on keywords such as MigraLens, migralens.com and/or any misspellings or
similar alterations of these – be it separately or in combination with
other keywords – and do not direct the traffic from such campaigns to
their own website prior to re-directing it to ours, will be considered
trademark violators, and will be banned from the MigraLens Affiliate
Program. We will do everything possible to contact the affiliate prior
to the ban. However, we reserve the right to expel any trademark
violator from our affiliate program without prior notice, and on the
first occurrence of such PPC bidding behavior.
8.3. Affiliates are not prohibited from keying in prospect’s
information into the lead form as long as the prospects’ information is
real and true, and these are valid leads (i.e. sincerely interested in MigraLens’s service).
8.4. Affiliate shall not transmit any so-called “interstitials,”
“Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance
Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets”
or “deceptive pop-ups and/or pop-unders” to consumers from the time the
consumer clicks on a qualifying link until such time as the consumer
has fully exited Merchant’s site (i.e., no page from our site or any MigraLens content or branding is visible on the end-user’s screen).
As used herein a. “Parasiteware™” and “Parasitic Marketing” shall mean
an application that (a) through accidental or direct intent causes the
overwriting of affiliate and non affiliate commission tracking cookies
through any other means than a customer initiated click on a qualifying
link on a web page or email; (b) intercepts searches to redirect traffic
through an installed software, thereby causing, pop ups, commission
tracking cookies to be put in place or other commission tracking cookies
to be overwritten where a user would under normal circumstances have
arrived at the same destination through the results given by the search
(search engines being, but not limited to, Google, MSN, Yahoo, Overture,
AltaVista, Hotbot and similar search or directory engines); (c) set
commission tracking cookies through loading of Merchant site in . s,
hidden links and automatic pop ups that open the migralens.com site; (d)
targets text on web sites, other than those web sites 100% owned by the
application owner, for the purpose of contextual marketing; (e) removes,
replaces or blocks the visibility of Affiliate banners with any other
banners, other than those that are on web sites 100% owned by the owner
of the application.
9. Grant of Licenses
9.1. We grant to you a non-exclusive, non-transferable, revocable
right to (i) access our site through HTML links solely in accordance
with the terms of this Agreement and (ii) solely in connection with such
links, to use our logos, trade names, trademarks, and similar
identifying material (collectively, the "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 of the MigraLens Affiliate Program. You agree that all uses of
the Licensed Materials will be on behalf of MigraLens and the good
will associated therewith will inure to the sole benefit of MigraLens.
9.2. Each party agrees not to use the other's proprietary materials
in any manner that is disparaging, misleading, obscene or that otherwise
portrays the party in a negative light. Each party reserves all of its
respective rights in the proprietary materials covered by this license.
Other than the license granted in this Agreement, each party retains all
right, title, and interest to its respective rights and no right,
title, or interest is transferred to the other.
10. Disclaimer
MEDIVIEW LTD. MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR
WARRANTIES REGARDING MIGRALENS.COM SERVICE AND WEB SITE OR THE PRODUCTS
OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF MIGRALENS.COM
ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE
EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO
REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR
ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY
INTERRUPTIONS OR ERRORS.
11. Representations and Warranties
You represent and warrant that:
11.1. 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 its terms;
11.2. You have the full right, power, and authority to enter into and
be bound by the terms and conditions of this Agreement and to perform
your obligations under this Agreement, without the approval or consent
of any other party;
11.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
12. Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF
THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT
LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST
BUSINESS), 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 MEDIVIEW'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.
13. Indemnification
You hereby agree to indemnify and hold harmless MediView Ltd., and its
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, 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 site, including, without limitation,
content therein not attributable to us.
14. Confidentiality
All confidential information, including, but not limited to, any
business, technical, financial, and customer information, disclosed by
one party to the other during negotiation or the effective term of this
Agreement which is marked "Confidential," will remain the sole property
of the disclosing party, and each party will keep in confidence and not
use or disclose such proprietary information of the other party without
express written permission of the disclosing party.
15. Miscellaneous
15.1. You agree that you are an independent contractor, and nothing
in this Agreement will create any partnership, joint venture, agency,
franchise, sales representative, or employment relationship between you
and MediView. 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 any other of Your Site or otherwise,
that reasonably would contradict anything in this Section.
15.2. Neither party may assign its rights or obligations under this
Agreement to any party, except to a party who obtains all or
substantially all of the business or assets of a third party.
15.3. This Agreement shall be governed by and interpreted in
accordance with the laws of the United Kingdom without regard to the
conflicts of laws and principles thereof.
15.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
15.5. This Agreement represents the entire agreement between us and
you, and shall supersede all prior agreements and communications of the
parties, oral or written.
15.6. 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.
15.7. If any provision of this Agreement is held to be invalid or
unenforceable, that provision shall be eliminated or limited to the
minimum extent necessary such that the intent of the parties is
effectuated, and the remainder of this agreement shall have full force
and effect.
