This GuestForce RevShare Program Agreement (the “Agreement”), is by and between GuestForce, a Connecticut Limited Liability Partnership Company with an address at 61 North Plains Industrial Road #184, Wallingford, Connecticut, 06492 (the “GuestForce”), and RevShare Partner (the “Company”), and together with GuestForce, (the “Parties”).
BACKGROUND: GuestForce is a tourism and hospitality technology company driven by Experiential Intelligence®, which collects, aggregates and curate local experiences. GuestForce has developed a first-of-a-kind turn-key experience discovery and booking platform you can point your audience to, or better yet, integrate as your own to resell as an addition to your own portfolio of guest-facing services. It's either a stand-alone platform or bolt-on via URL. We essentially put anyone/business instantly in the local-discovery and booking business anywhere in the US. (international in the works). Not only do we provide the SaaS technology, we also provide the most relevant localized attraction and event content (updated daily), we also pay a dividend to you and or your clients on ALL qualified "book now" purchasable content positioned throughout the content categories. for the purpose of saving time, energy and money for organizations, companies, and individuals, while simultaneously increasing the satisfaction of users by providing a unique and valuable experience.
GuestForce currently offers:
GuestForce Concierge Co-Op – Powerful Do-It-Yourself Editor. Includes 50% RevShare dividend
GuestForce Concierge Co-Op PLUS – Business Class Enhancements. Fully managed support. Includes 50% RevShare dividend
GuestForce Concierge Enterprise – Fully Customized Solutions & Partnership. Partners keep up to 100% RevShare dividend
CONSIDERING THAT, the Company is interested in having access to the GuestForce RevShare™ Program (the “Program”).
NOW, THEREFORE, in consideration of the mutual promises contained in this agreement and other valuable consideration, the receipt, and sufficiency of which are hereby acknowledged, the Parties agree as follows:
In order to maintain a high-quality network, GuestForce, LLC, reminds all applicants that Company' websites) and online activity must comply with the GuestForce RevShare™ Program Agreement.
By filling out and submitting this form, the Company agrees to all terms of the GuestForce RevShare™ Program Agreement, including but not limited to the following obligations:
Not to mislead others;
Not to use promotional means that contain objectionable content, including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities;
Not to engage in and/or facilitate spamming, indiscriminate advertising or unsolicited
commercial email; and/or
Not to infringe on GuestForce Advertiser's, GuestForce's or a third party's proprietary right.
Introduction to The RevShare™ program
The below RevShare™ Program Agreement and related marketing materials may be translated into different languages. In the event of any conflict or inconsistency between any term in GuestForce materials in the English language and any translation thereof in any other language, the English version shall prevail.
GuestForce facilitates a Performance Based "RevShare Program" (the “Program”) by providing to Company an opportunity to earn a dividend from 500+ various Advertisers, and Content providers via GuestForce Concierge. GuestForce aggregates all transactions through global providers of secured, trusted dividend sharing technology. GuestForce provides to Company set of ready to use tools and customized marketing materials (the “Materials”) available on the “Business Dashboard”.
Section 1. Participation in Programs.
1(a) Generally. During the Agreement the Company may advertise and promote GuestForce Concierge Co-Op to their Guests, Clients, Users, etc. whereby the Company has the opportunity to earn complying with Agreement and Advertisers Chart in Exhibit 1. Company may use all available marketing Materials available in the Business Dashboard or request new customizations to fit the Company’s specific needs. (Additional charges may apply.)
1(b) (“Program”) Terms. The List shall be available in the Advertisers Chart in the Company’s Business Dashboard, inside of GuestForce. The Transactions are defined in the Advertisers Chart” in Exhibit 1. The Advertisers may change any Payout rate upon no less than 7 days written notice with effect from the 8th day (or such later date as specified by Advertiser). GuestForce will update Advertisers Chart” in Exhibit 1 and notify through the Business Dashboard about such changes.
1(c) Prohibited Uses of Links.
Locations. The Company may not place Links to a GuestForce Concierge Co-Op and any Advertiser's Web site or Web site content in third party newsgroups, message boards, blogs, unsolicited email and other types of spam, link farms, counters, chatrooms, or guestbooks. Company using IRC channels, instant messages or similar Internet resources must designate their program as special requiring manual review and acceptance by GuestForce.
Non-Bona Fide Transactions. The Company must promote GuestForce Concierge Co-Op such that they do not mislead the Visitor or/and Referred Members, and such that the Links deliver bona fide Transactions by the Visitor to Advertiser from the Link. The Company shall not cause any Transactions to be made that are not in good faith, including, but not limited to, using any device, program, robot, Iframes, or hidden frames. The Company may or may not be compensated for Transactions where they or their agent are the Visitor. Multiple Leads from the same individual, entity or IP address may be considered non-bona fide Transactions. The Company shall not earn Payouts for non-bona fide Transactions.
Infringement. None of the promotional activities of the Company may infringe GuestForce Concierge Co-Op or/and an Advertiser’s proprietary rights (including but not limited to trademark rights), GuestForce's proprietary rights, or a third party's proprietary right.
1(d) Updating Links. If Links to GuestForce Concierge Co-Op are not dynamically updated, upon notification. Company are obligated to update Links in order to earn Payouts.
1(e) Emails. The Company hereby understands, acknowledges and accepts that GuestForce, GuestForce systems, GuestForce partners' systems and/or third-party systems may and has/have the right granted by the Company to send emails and other communications to them on behalf of GuestForce, Advertisers, and other GuestForce partners and affiliates, including solicitation and service solicitation emails. Company may have the ability to change some of their email settings and preferences.
Section 2. Company Obligations to GuestForce.
2(a) Accurate, Up-to-Date Information in the Business Dashboard. Company agree to provide GuestForce with accurate information about their promotional methods, and to maintain up-to-date “Account” information (such as contact information, Web sites used, etc.). Company must accurately, clearly and completely describe all promotional methods by selecting the appropriate descriptions and providing additional information when necessary in the Business Dashboard. Some promotional methods will be designated by the system as “special”. Special programs are linked to promotional methods and practices considered unique and require manual approval and acceptance by the GuestForce.
2(b) Use of Links. Company represent and warrant that all promotional means used by them will not contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities), and that Company will not mislead others.
Company agree to:
use ethical and legal business practices,
comply with the Program terms and this Agreement,
inform GuestForce in writing if the Company promotes GuestForce Concierge Co-Op by any means other than displaying Materials on their Web site. GuestForce must approve all of the Company’s promotional activities and may deem their promotional activities inappropriate and a material breach of this Agreement in GuestForce's sole discretion. Our network quality department reviews Company conduct and any suspected fraudulent, abusive or otherwise illegal content or activity by through their promotional methods, or that is perpetrated through the use of the Network Service, is grounds for immediate termination of this Agreement or deactivation of Their Account.
2(c) Promotional Methods. Company represent and warrant that they will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation), and/or any other laws and/ or regulations that govern email marketing and/or communications. Company represent and warrant that they will not engage in a pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/under are acceptable on a first party basis only when triggered by their site content /site visit or by downloadable software applications for which they are the owner/operator. Pop up/under delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results. Pop up/under must honor the GuestForce Company Code of Conduct requirements (as such requirements may be modified from time to time), including but not limited to:
end user agreement requirements,
requirements prohibiting usurpation of a Transaction that might otherwise result in
a Payout to another Company (e.g. by purposefully detecting and forcing a subsequent click-through on a link of the same Advertiser) and,
non-interference with competing advertiser/ Company referrals.
2(d) Personally Identifiable Information of Visitors. The Company represents and warrants that they will not enable the Tracking Code to collect personally identifiable information
2(f) Applicable Codes and Code Maintenance. In order for GuestForce to record the tracking of Visitors' Transactions resulting from clicks on Links to Advertisers promoted on GuestForce Concierge Co-Op the Company must include and maintain a GuestForce Tracking Code and use only Materials available within the Business Dashboard.
2(g) Usage and Security of Account. The Company shall be responsible for all usage and activity on their account and for loss, theft or unauthorized disclosure of their password (other than through GuestForce's negligent or willful conduct or omission). You shall provide GuestForce with prompt written notification of any known or suspected unauthorized use of their Account or breach of the security of their Account.
Section 3. GuestForce's Services.
3(a) Tracking Transactions and Payouts. GuestForce shall determine (where possible) actual Payouts that should be credited to the Company’s Account. GuestForce may, in GuestForce’s sole discretion, apply an estimated Payout amount, if:
Company are referring Visitors to GuestForce Concierge Co-Op as verified by clicks through Links to Third Party with GuestForce Tracking Code,
Where there is an error in the Advertisers transmission of Tracking Code data
where GuestForce is able to utilize a historical analysis of the Company’s Referred Members to determine an equitable Payout amount.
3(b) Charge-backs. An Advertiser may apply, or GuestForce may apply, a debit to the Company’s Account in an amount equal to a Payout previously credited to their Account in circumstances of:
duplicate entry or other clear error;
non-bona fide (“Transactions”);
non-receipt of payment from, or refund of payment to, the Visitor by the Advertisers;
company failure to comply with Program or other agreement with Advertisers
Charge back. Charge-backs may be applied to the Company’s Account at any time, including previous payment cycles.
3(c) Access to Tracking and Reporting Tools. GuestForce shall provide the Company with access to tracking and reporting tools, and to support services within Business Dashboard. From time to time GuestForce may offer optional services for a fee. Fees for such optional services are at GuestForce’s then-current published rates or as may be quoted by GuestForce and are payable in advance or may be off-set against the Company’s positive Account balance at GuestForce’s discretion. Tracking detail regarding Referred Members Transactions is not available on a real-time basis for all Advertisers and there may be reporting delays regarding Transactions for some Advertisers. GuestForce may make available, for fees that GuestForce shall publish from time-to-time, enhanced reporting capabilities and other services that are not included in the standard Network Service.
3(d) Support. Support for the Company’s program is available on-line through the "Contact Us" area in the Business Dashboard, which allows the Company to categorize and describe their issue. Phone support may also be available during operating hours, except holidays.
3(e) Facilitating Payment of Payouts. Subject to other provisions in this Agreement, GuestForce shall credit the Company’s Account with a Payouts for each Transaction in accordance with the Advertisers Chart and Program terms for the relevant Transaction. On or about the last day of each calendar month, GuestForce will issue to the Company any positive balance in their Account for Transactions reported for the previous month, provided their Account balance exceeds the required “Minimum Account Balance.” GuestForce shall have no obligation to make payment of any Payouts for which GuestForce has not received payment from the relevant Advertisers of all monies due to GuestForce including for all Payout owed by such Advertisers. The Company agrees that GuestForce has the right, but not the obligation, to seek on behalf of any and all amounts due from Advertisers, including, but not limited to Payouts. If GuestForce elects, in its own discretion, not to make payment to the Company for amounts not received from an Advertisers, those amounts shall not be included in the Minimum Balance Amount. The Company’s recourse for any earned Payout not paid to them shall be to make a claim against the relevant Advertiser(s), and GuestForce disclaims any and all liability for such payment. The Company may elect to receive payment in any of the currencies that GuestForce supports as may be amended by GuestForce. The conversion rate shall be determined in accordance with GuestForce's operating standards. GuestForce has the right to assess service fees in order to process or stop their payment as necessary. The number or amount of Transactions, credits for Payouts, and debits for Charge-backs, as calculated by GuestForce, shall be final and binding on the Company.
3(f) Dormant Accounts. If the Company’s Account has not been credited with a valid, compensable Transaction that has not been Charged-back during any rolling, six consecutive calendar month period Dormant Account, a dormant account fee at GuestForce’s then-current rate shall be applied to the Company’s Account each calendar month that their Account remains an open yet Dormant Account, or until the Company’s Account balance reaches a zero balance, at which time the Account shall become deactivated. Transactions will not be counted if the Transaction subsequently becomes a Charge-back.
3(g) Negative Accounts. Company may have a negative balance if their Account is debited amounts equivalent to the previous Payout for Charge-backs and the Company does not have an adequate Account balance to cover the Charge-back amounts. When the Company has a negative balance, they must immediately remit payment to GuestForce in an amount sufficient to bring their Account to a zero balance, or their Account is subject to 1.5% interest per month, compounded monthly.
Section 4. Proprietary Rights.
4(a) Linking to the GuestForce Concierge Co-Op. For each Materials that are available to the Company in the Business Dashboard, GuestForce is granting to the Company the right to display and Link to the GuestForce’s web site or web site content in accordance with the Program terms for the limited purposes of Promoting the GuestForce Concierge Co-Op, subject to the terms and conditions of this (“Program”). The Company’s use of the Link signifies their agreement to refrain from copying or modifying any icons, buttons, banners, graphics files or content contained in the Link, including but not limited to refraining from removing or altering any copyright or trademark notices. As between GuestForce and Company GuestForce owns all rights in and to all information regarding the Visitors that they refer to Advertisers through GuestForce.
4(b) GuestForce’s Use of the Company’s Marks. Company authorizes GuestForce to utilize their trademarks, service marks, tradenames, and/or copyrighted material that the Company provides to GuestForce through their Account and Business Dashboard to promote their participation in the Network Services.
4(d) Retention of Rights. All proprietary rights of, the Company, and GuestForce,
and all goodwill arising as a result of such rights, inure to the benefit of such owner.
4(e) No Challenge to GuestForce’s /Advertiser’s Proprietary Rights. The Company acknowledges that they obtain no proprietary rights in GuestForce's trademarks, service marks, tradenames, URLs, copyrighted material, patents, and patent applications, and agree not to challenge GuestForce’s and Advertiser’s proprietary rights. The Company acknowledges that they obtain no proprietary rights in GuestForce’s proprietary rights and agree not to challenge GuestForce or any Advertiser’s such proprietary rights.
4(f) Data Ownership. The Company understands that all personally identifiable information,
if any, provided by Referred Members through the Tracking Code or in response to an advertisement or request for information and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by GuestForce from such data is the sole and exclusive property of GuestForce and GuestForce Companies (defined below) and is considered GuestForce's Confidential Information pursuant to this Agreement. GuestForce and any divisions, subsidiaries and affiliates of GuestForce. The GuestForce Companies and/or its Advertisers, in their sole discretion, shall have the right to use, market and re-market any Referred Members and/or data without further obligation to them. The Company shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such data or Referred Members, or any portion thereof, to any third-party.
Section 5. Confidentiality.
5(a) Obligations. The Company or GuestForce may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential (the "Confidential Information"). The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, the Company must destroy or return to GuestForce any Confidential Information provided by GuestForce to them under this Agreement.
5(b) Provision of Info to GuestForce / Third Parties. The Company agree that GuestForce may, but is not obligated to, provide the Company’s email address(es) and basic Company Account detail (including but not limited to the Company’s address, phone and fax number, Web site name, the date the website or subscription email first entered into operation, and visitor demographics) to any third Parties in GuestForce’s sole discretion. GuestForce may provide any and all Referred Members, Transaction data to any third Party in GuestForce’s sole discretion, including but not limited to all regulatory, legislative and judicial bodies, and pursuant to allegations and claims of proprietary rights infringement.
Section 6. Term, Termination, Deactivation and Notices.
6(a) Term. This Agreement shall commence upon the Company’s indication that they have accepted this Agreement by providing the required information and ‘clicking through' the acceptance button on the GuestForce Web site and shall continue until terminated in accordance with the terms of this Agreement. This Agreement may be terminated by either party upon 15 days’ notice. This Agreement can be terminated for Program Participation fee 2-month non-payment. Also, this Agreement may be terminated immediately upon notice for the Company’s breach of this Agreement. The Company’s Account may be deactivated and/or Payouts may be withheld during the investigation of the breach of this Agreement. If this Agreement is terminated based upon their breach, they shall not be eligible to enter into a new click-through RevShare™ Program Agreement with GuestForce, and any attempt to do so shall be null and void.
6(b) Termination or Deactivation by GuestForce. GuestForce may terminate the Company and any of the Referred Members, one of the Company’s Web sites, or their use of Materials, from the GuestForce Concierge Co-Op, at any time in GuestForce’s sole discretion. Breach of any Section of this Agreement is cause for immediate termination from Program and/or termination of this Agreement and may result in Charge-back of one or more Payout. GuestForce may temporarily deactivate or terminate their Account if:
The Company or their agent are responsible for the improper functioning of Ad Content, or if they otherwise interfere with and/or fail to maintain the Tracking Code;
The Company’s Account has not been logged into and/or there have been no Transactions credited to their Account for any 30-day period;
The Company maintains a negative balance in their Account;
GuestForce determines that the Company is diluting, tarnishing or blurring GuestForce’s proprietary rights;
The Company begins proceedings to challenge GuestForce’s proprietary rights;
a third party (including a GuestForce Advertisers) disputes the Company’s right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or good offered on their Web site, or through any of their promotional means. Upon termination of this Agreement, or in case of deactivation of the Company’s Account, they shall no longer accrue Payout in their Account, including but not limited to subsequent sales and/or Leads for click-throughs that occurred prior to termination.
6(c) Termination of Programs and Offers. Programs and Offers may be discontinued at any time.
6(d) Notices. Except as provided elsewhere herein, both parties must send all notices relating to
this Agreement to:
for GuestForce, via registered mail, return receipt requested or via an internationally recognized express mail carrier to GuestForce, LLC 61 North Plains Industrial Rd. #184 Wallingford, CT 06492 USA, Attn: Legal Affairs (effective upon actual receipt);
for the Company, at the email or physical address listed on their Account (effective upon sending as long as GuestForce does not receive an error message regarding delivery of the email) or five (5) days after mailing).
6(e) Post-termination. Upon termination of this Agreement, any outstanding payments shall be
paid by GuestForce to the Company within 90 days of the termination date, and any outstanding debit balance shall be paid by the Company to GuestForce within 30 days of termination of this Agreement. All payments are subject to recovery for Charge-backs. Upon termination of this Agreement, any permissions granted under this Agreement will terminate, and the Company must immediately remove all Links to Advertiser(s). Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement shall survive the termination of this Agreement to the extent that and as long as is necessary to preserve a party's rights under this Agreement that accrued prior to termination.
Section 7. Representations, Warranties, Disclaimers, and Limitations.
7(a) Business Operations. Each party will make reasonable commercial efforts to keep its Website operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other or their Advertisers liable for any of the consequences of such interruptions. GuestForce may modify the Network Service, or discontinue providing the Network Service, or any portion thereof, at any time.
7(b) Authority. Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party's behalf. IF YOU ARE ANINDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
7(c) Non-infringement Warranties. The Company represents and warrants that:
The Company has all appropriate authority to operate, and to any and all content on, their Web site(s);
The Company has all appropriate authority in any promotional method they may choose to use;
The Company’s Web site(s) and their promotional methods do not and will not infringe a third party's, a GuestForce Advertiser's, or ("GuestForce")'s, proprietary rights,
The Company shall remain solely responsible for any and all Web sites owned and/or operated by them and all of their promotional methods. GuestForce may or may not review all content on the Company’s Web site or used by the Company in their promotional methods.
7(d) Compliance with Laws. The Company is responsible for compliance with the requirements of all relevant legislation (including subordinate legislation and the rules of statutorily recognized regulatory authorities) in force or applicable in the United States or in any other applicable territory, and warrant that no promotion method used by The Company or the content of their Web site(s) will render GuestForce liable to any proceedings whatsoever.
7(e) Limitation of Liabilities. ANY OBLIGATION OR LIABILITY OF GUESTFORCE THE COMPANY’S PAYOUTS PAID TO THEM BY GuestForce UNDER THIS AGREEMENT DURING THE YEAR PRECEDING THE CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE OTHER PARTY TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. THE COMPANY AGREES THAT GuestForce SHALL NOT BE LIABLE TO THEM, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY ANOTHER COMPANY OR AN ADVERTISER OF THE NETWORK SERVICE), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
7(f) Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, GUESTFORCE DISCLAIMS ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT GUESTFORCE’S SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF THE PUBLISHER'S INFORMATION OR WEB SITE. ALL 'INFORMATION' AND 'COMPUTER PROGRAMS' PROVIDED TO THE COMPANY IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE COMPANY. GUESTFORCE IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY ADVERTISER OR PUBLISHER, OR SUCH ADVERTISER OR PUBLISHER'S WEB SITE(S), AND/OR THE CONTENT OF AN ADVERTISER'S WEB SITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH THE NETWORK SERVICE.
7(g) Remedies. No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
7(h) Benefit of the Bargain. THE PROVISIONS OF THIS SECTION 7 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.
Section 8. Publisher's Indemnification Obligations.
Company shall defend, indemnify and hold GuestForce and Advertisers harmless against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys' fees) incurred, claimed or sustained by third parties, including but not limited to Advertisers, directly or indirectly as a result of:
(a) Publisher's breach of or non-compliance with this Agreement,
(b) Publisher's violation of any law, or an alleged violation of law by GuestForce, that is a direct or indirect result of Publisher's use of the Network Service,
(c) Publisher's use of the Network Service,
(d) Publisher's participation in any Program,
(e) any content, goods or services offered, sold or otherwise made available by Company to any person,
(f) Publisher's acts or omissions in using, displaying or distributing any internet links obtained from the Network Service or elsewhere, including but not limited to Publisher's use of internet links via email distribution,
(g) any claim that GuestForce is obligated to pay tax obligations in connection with a payment made to Company pursuant to this Agreement and/or any Advertiser's Program, and
(h) any violation or alleged violation by Company of any rights of another, including breach of a person's or entity's intellectual property rights (each (a)-(h) individually is referred to hereinafter as a Claim.
Should any Claim give rise to a duty of indemnification under this Section 8, GuestForce shall promptly notify Publisher, and GuestForce shall be entitled, at its own expense, and upon reasonable notice to Publisher, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Publisher's obligations to indemnify or hold GuestForce harmless. Company shall not settle any Claim without GuestForce’s prior written consent. Company also shall indemnify for any reasonable attorneys' fees or other costs incurred by an indemnified party in investigating or enforcing this Section 8. In the context of this Section 8 only, the term GuestForce shall include officers, directors, employees, corporate affiliates, subsidiaries, agents, and subcontractors.
Section 9. Miscellaneous.
9(a) Headings and References. Headings of Sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms, including those definitions contained in the opening paragraph.
9(b) Third Party Disputes. In the event of a third-party claim against either:
(a) GuestForce’s intellectual property; or
(b) against GuestForce’s right to offer any service or good on GuestForce’s Website(s) or if, in GuestForce’s opinion, such a claim is likely, GuestForce shall have the right, at its sole option and in its sole discretion, to:
secure the right at GuestForce’s expense to continue using the intellectual property or good or service, or
at GuestForce’s expense replace or modify the same to make it non-infringing or without misappropriation.
9(c) Relationships of Parties/Third Party Rights. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint ventures or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of the independent contractor. The Company agrees that their consent is not necessary to modify any Advertiser Service Agreement.
9(d) Choice of Law/Attorneys' Fees. This Agreement is governed by the laws of the State
of Connecticut without respect to choosing of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts in Connecticut for such purpose. The parties consent to such venue and jurisdiction and waive any right to a trial by jury. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys’ fees and costs. GuestForce controls and operates its Web site from its offices in the USA and access or use where illegal is prohibited.
9(e) Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
9(f) Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
9(g) Assignment and Acknowledgement. Neither party may assign this Agreement without the prior express wrote permission of the other party. Notwithstanding the foregoing, the Company’s consent shall not be required for assignment or transfer made by GuestForce:
(1) due to the operation of law,
(2) to an entity that acquires substantially all of GuestForce’s stock, assets or business,
(3) to a related entity (e.g. parent or subsidiary of parent).
The Company’s use of the Network Service is an irrefutable acknowledgement by them that they have read, understood and agreed to each and every term and provision of this Agreement. GuestForce may establish from time to time rules and regulations regarding use of the Network Service as published on the Network Service and incorporated herein.
9(h) Marketing. Company agrees that GuestForce may identify it as a GuestForce’s Company in client lists and may use the Company’s name and/or Company logo solely for such purpose in its marketing materials. Any other uses of the Company’s name or and Company name and logo not otherwise described or contemplated herein shall require the Company’s prior written consent. By entering into this Agreement, the Company acknowledges and accepts that they may receive marketing messages from GuestForce, including newsletters, regarding GuestForce services and products. The Company may always opt-out of receiving future commercial emails and newsletters from GuestForce by clicking on the “unsubscribe” link within any emails received. If the Company has an active account with GuestForce, they may also correct or update their information and communication preferences by logging into their GuestForce Account Profile. Please note that the Company’s request not to receive unsolicited commercial emails from GuestForce will not apply to messages that they request or that are not commercial in nature unless such request is specifically made in such email communications. For example, GuestForce may contact the Company concerning any services purchased, requested or received from GuestForce, even if they opt out of receiving unsolicited commercial messages.
9(i) Tax Status and Obligations. GuestForce is not obligated to and shall not provide
the Company with tax and/or legal advice. GuestForce undertakes no duty to investigate or research the Company’s tax status and/or obligations, and such research and investigation is solely their responsibility. The Company is obligated to independently assess and comply with all relevant tax and legal requirements, and Advertiser is responsible for its own sales tax collection and reporting obligations arising from sales made to Visitors. If GuestForce provides the Company with information regarding a particular Advertiser or Publisher, the information shall not be deemed tax or legal advice, and GuestForce shall not be responsible for the accuracy of such information. Any Advertiser addresses provided to the Company are addresses provided by the relevant Advertiser or Publisher, and such addresses may not necessarily indicate the location or presence of the Company or Advertiser in such location or elsewhere.
9(j) Entire Agreement, Assignment and Amendment. This Agreement, including
the Introduction, contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by a written instrument signed by the parties or through a "click through" acknowledgement of assent. No interlineations to this Agreement shall be binding unless initialed by both parties. Notwithstanding the foregoing, GuestForce shall have the right to change, modify or amend Change this Agreement, in whole or in part, by posting a revised Agreement at least 14 days prior to the effective date of such Change. The Company’s continued use of the Network Service after the effective date of such Change shall be deemed the Company’s acceptance of the revised Agreement.
IF THE COMPANY IS AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
61 North Plains Industrial Rd. #184
Wallingford, CT 06492