TERMS
Houseplans, LLC. Publisher Service
Agreement
This Publisher Service Agreement
("Agreement") is made by and agreed to between Houseplans, LLC., Inc., a
1. Participation in Program.
(a)
Acceptance by Houseplans. During this Agreement You may apply to
Houseplans Programs for the opportunity to earn Commission by promoting
Houseplans in accordance with houseplans' Program terms and complying with this
Agreement. Upon approval by Houseplans for acceptance into its Program, You may
display (and remove) Links to houseplans' Web site or Web site content in
accordance with houseplans' Program terms and this Agreement. A houseplans'
acceptance of You extends only to the entity, or individual, that enters into
this Agreement with HOUSEPLANS.
(b) Program Terms. The details of
houseplans' Program shall be available through the Partner Programs page
located at http://www.houseplans.com/partnering.asp. Transactions qualifying for
a Commission are defined by Houseplans. Houseplans may change any Commission
rate upon no less than 7 days written notice through the Partner Programs page
located at http://www.houseplans.com/partnering.asp with effect from the 8th day
(or such later date as specified by Houseplans).
(c) Prohibited Uses of
Links.
(i)
Locations. You may not place Links to houseplans' Web site or Web site
content in third party newsgroups, message boards, blogs, unsolicited email and
other types of spam, link farms, counters, chat rooms, or guest books.
Publishers using IRC channels, instant messages or similar Internet resources
must designate their program as special requiring manual review and acceptance
by Houseplans.
(ii) Non-Bona Fide Transactions. You must promote
Houseplans such that You do not mislead the Visitor, and such that the Links
deliver bona fide Transactions by the Visitor to Houseplans from the Link. You
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. You may or may not be compensated for Transactions where You or
Your agent are the Visitor. Multiple Leads from the same individual, entity or
IP address may be considered non-bona fide Transactions. You shall not earn
Commission for non-bona fide Transactions.
(iii) Infringement. None of
Your promotional activities may infringe houseplans' proprietary rights
(including but not limited to trademark rights), houseplans' proprietary
rights, or a third party's proprietary rights.
(e) Updating
Links. If Links to Houseplans are not dynamically updated through the
Partner Programs page located at http://www.houseplans.com/partnering.asp, upon
notification You are obligated to update houseplans' Links in order to earn
Commission.
2. Publisher Obligations to
HOUSEPLANS.
(a) Accurate, Up-to-Date Information. You agree to
provide Houseplans with accurate information about You and Your promotional
methods, and to maintain up-to-date "Account" information (such as contact
information, Web sites used, etc.). In Partner's Account, You must accurately,
clearly and completely describe all promotional methods by selecting the
appropriate descriptions and providing additional information when necessary.
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 Houseplans. HOUSEPLANS reserves the
right to define any program as special.
(b) Use of Links. You
represent and warrant that all promotional means used by You 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 You will not mislead
others. You agree to: (i) use ethical and legal business practices, (ii) comply
with Houseplans' Program terms and this Agreement, (iii) maintain a privacy
policy on Your Web site and for any non-Web site based promotional method made
available to Visitors, and (iv) designate Your Publisher Account as "special" if
You promote Houseplans(s) by any means other than displaying a Link to
Houseplans on Your Web site. HOUSEPLANS must approve all of Your promotional
activities and may deem Your promotional activities inappropriate and a material
breach of this Agreement in houseplans' sole discretion. Our staff may review
publisher conduct and any suspected fraudulent, abusive or otherwise illegal
content or activity by You through Your promotional methods, or that is
perpetrated through use of the Partner Programs page located at
http://www.houseplans.com/partnering.asp, is grounds for immediate termination
of this Agreement or deactivation of Partner's Account.
(c) Promotional
Methods. You represent and warrant that You 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. You represent and warrant that You
will not engage in pop-up or pop-under advertising using any means involving
third party properties and/or services (software). Pop up/unders are acceptable
on a first party basis only when triggered by Your site content /site visit or
by downloadable software applications for which You are the owner/operator. Pop
up/unders 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/unders must honor the HOUSEPLANS Publisher Code
of Conduct requirements (as such requirements may be modified from time to
time), including but not limited to: (i) installation requirements, (ii) enduser
agreement requirements, (iii) afsrc=1 requirements, (iv) requirements
prohibiting usurpation of a Transaction that might otherwise result in a
Commission to another Publisher (e.g. by purposefully detecting and forcing a
subsequent click-through on a link of the same Houseplans) and (v)
non-interference with competing advertiser/ publisher referrals.
(d)
Personally Identifiable Information of Visitors. You represent and
warrant that You will not enable the Tracking Code to collect personally
identifiable information of Visitors that would allow HOUSEPLANS to personally
identify Visitors.
(e) Privacy. You must conspicuously post Your
privacy policy on Your Web site and otherwise make it available to all Visitors.
Your privacy policy must comply with all laws and regulations regarding the
privacy of Visitor information, be commercially reasonable, and fully and
accurately disclose Your collection and use of Visitor information. You must
fully and accurately disclose Your use of third party technology, including
houseplans' tracking technology, use of cookies and options for discontinuing
use of such cookies.
(f) Applicable Codes and Code Maintenance. In
order for HOUSEPLANS to record the tracking of Visitors' Transactions resulting
from clicks on Links to Houseplans promoted by You, You must include and
maintain a HOUSEPLANS "Tracking Code" within houseplans' Links. All Houseplans
Links and all advertisements ("Ad Content") must be in a Partner Programs page
located at http://www.houseplans.com/partnering.asp compatible format.
(g)
Usage and Security of Account. You shall be responsible for all usage and
activity on Your account and for loss, theft or unauthorized disclosure of Your
password (other than through houseplans' negligent or willful conduct or
omission). You shall provide HOUSEPLANS with prompt written notification of any
known or suspected unauthorized use of Partner's Account or breach of the
security of Partner's Account.
3. houseplans' Services.
(a)
Tracking Transactions and Commission. HOUSEPLANS shall determine (where
possible) actual Commission that should be credited to Partner's Account.
HOUSEPLANS may, in houseplans' sole discretion, apply an estimated amount of
Commission, if: (i) You are referring Visitors to Houseplans as verified by
clicks through Links to Houseplans with HOUSEPLANS Tracking Code, (ii) where
there is an error in houseplans' transmission of Tracking Code data to
HOUSEPLANS, and (iii) where HOUSEPLANS is able to utilize a historical analysis
of Your promotion of Houseplans to determine an equitable amount of estimated
Commission.
(b) Charge-backs. Houseplans may apply, a debit to
Partner's Account in an amount equal to a Commission previously credited to
Partner's Account in circumstances of: (i) product returns; (ii) duplicate entry
or other clear error; (iii) non-bona fide Transactions; (iv) non-receipt of
payment from, or refund of payment to, the Visitor by Houseplans; or (v)
Publisher failure to comply with houseplans' Program terms or other agreement
with Houseplans ("Charge-back"). Charge-backs may be applied to Partner's
Account at any time, including previous payment cycles.
(c) Access to
Tracking and Reporting Tools. From time to time HOUSEPLANS may offer
optional services for a fee. Fees for such optional services are at houseplans'
then-current published rates or as may be quoted by HOUSEPLANS, and are payable
in advance or may be off-set against Your positive Account balance (at
houseplans' discretion). Tracking detail regarding Visitor Transactions is not
available on a real-time basis for all Houseplans and there may be reporting
delays regarding Transactions for some Houseplans. HOUSEPLANS may make
available, for fees that HOUSEPLANS shall publish from time-to-time, enhanced
reporting capabilities and other services that are not included in the standard
Partner Programs page located at
http://www.houseplans.com/partnering.asp.
(d) Support. Support for
your program is available on-line through the "Contact Us", which allows You to
categorize and describe Your issue Phone support may also be available during
operating hours, except holidays.
(e) Facilitating Payment of
Commission. Subject to other provisions in this Agreement, HOUSEPLANS shall
credit Partner's Account with a Commission for each qualifying Transaction in
accordance with houseplans' Commission rate and Program terms for the relevant
Transaction. On the 20th day of each calendar month, HOUSEPLANS will issue to
You any positive balance in Partner's Account for Transactions reported for the
previous month, provided Partner's Account balance exceeds the required "Minimum
Account Balance." HOUSEPLANS shall have no obligation to make payment of any
Commission for which HOUSEPLANS has not received payment for the Transaction. If
HOUSEPLANS elects, in its own discretion, not to make payment to You for amounts
not received for Transactions, those amounts shall not be included in the
Minimum Balance Amount. You will receive payment in United States Dollars (USD).
The number or amount of Transactions, credits for Commission, and debits for
Charge-backs, as calculated by HOUSEPLANS, shall be final and binding on
You.
(f) Dormant Accounts. If Publisher'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 houseplans' then-current rate shall be applied to
Publisher's Account each calendar month that Publisher's Account remains an open
yet Dormant Account or until Partner'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.
(g)
Negative Accounts. You may have a negative balance if Partner's Account
is debited amounts equivalent to previous Commission for Charge-backs and You do
not have an adequate Account balance to cover the Charge-back amounts. When You
have a negative balance, You must immediately remit payment to HOUSEPLANS in an
amount sufficient to bring Partner's Account to a zero balance, or Partner's
Account is subject to 1.5% interest per month, compounded
monthly.
4. Proprietary Rights.
(a)
Linking to Houseplans. For each houseplans' Program that You have been
accepted to, Houseplans is granting to You the right to display and Link to
houseplans' Web site or Web site content in accordance with houseplans'
Program terms for the limited purposes of Promoting houseplans' Program,
subject to the terms and conditions of this Agreement. Your use of the Link
signifies Your 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 HOUSEPLANS and Publisher, HOUSEPLANS owns all rights in and
to all information regarding the Visitors that You refer to Houseplans through
HOUSEPLANS.
(b) houseplans' Use of Your Marks. You authorize
HOUSEPLANS to utilize Your trademarks, service marks, trade names, and/or
copyrighted material that You provide to HOUSEPLANS through Partner's Account to
promote Your participation in the Partner Programs page located at
http://www.houseplans.com/partnering.asps.
(c) Your Use of houseplans'
Proprietary Rights. You agree that Your use of any HOUSEPLANS Web site (such
as www.Houseplans.com) and Your use of any
HOUSEPLANS trademarks, service marks, trade names, and/or URLs is subject to the
license and terms of use that are available from such Web site ("Terms of Use").
You explicitly agree not to adopt or use in any manner any trademarks, service
marks, trade names, and/or URLs that are the same or confusingly similar to, or
are combined with, those of HOUSEPLANS.
(d) Retention of Rights. All
proprietary rights of Houseplans, You, and HOUSEPLANS, and all goodwill arising
as a result of such rights, inure to the benefit of such owner.
(e) No
Challenge to houseplans' Proprietary Rights. You acknowledge that You
obtain no proprietary rights in houseplans' trademarks, service marks, trade
names, URLs, copyrighted material, patents, and patent applications, and agree
not to challenge houseplans' proprietary rights. You acknowledge that You
obtain no proprietary rights in Your Houseplans' proprietary rights, and agree
not to challenge such houseplans' proprietary rights.
(f) Data
Ownership. You understand that all personally identifiable information, if
any, provided by Visitors 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 HOUSEPLANS from
such data is the sole and exclusive property of Houseplans and HOUSEPLANS and is
considered houseplans' Confidential Information pursuant to this Agreement.
HOUSEPLANS and/or its Houseplans, in their sole discretion, shall have the right
to use, market and re-market any Visitors and/or data without further obligation
to You. You 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 Visitors, or any portion thereof, to any
third-party.
5. Confidentiality.
(a)
Obligations. You or HOUSEPLANS 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 ("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, You must destroy or return to HOUSEPLANS any
Confidential Information provided by HOUSEPLANS to You under this
Agreement.
(b) Provision of Info to Houseplans/Third Parties. You
agree that HOUSEPLANS may, but is not obligated to, provide Your email
address(es) and basic Publisher Account detail (including but not limited to
Your address, phone and fax number, Web site name, the date the website or
subscription email first entered into operation, and visitor demographics) to a
third party. HOUSEPLANS may provide any and all Visitor, Transaction and/or
Tracking Code data to any third party in houseplans' sole discretion, including
but not limited to all regulatory, legislative and judicial bodies, and pursuant
to allegations and claims of proprietary rights
infringement.
6. Term, Termination, Deactivation and
Notices.
(a) Term. This Agreement shall commence upon Your
indication that You have accepted this Agreement by providing the required
information and ‘clicking through' the acceptance button on the HOUSEPLANS 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 may be terminated immediately upon notice for Your breach of this
Agreement. Partner's Account may be deactivated during investigation of breach
of this Agreement. If this Agreement is terminated based upon Your breach, You
shall not be eligible to enter into a new click-through Publisher Service
Agreement with HOUSEPLANS, and any attempt to do so shall be null and
void.
(b) Termination by Houseplans. Houseplans may terminate You, one of Your
Web sites, or Your ability to use a promotional method, from houseplans'
Program for any or no reason, upon 7 days written notice with effect from the
8th day. Additionally, Houseplans may terminate You from houseplans' Program
for breach of a third party's proprietary rights, and/or diluting, tarnishing or
blurring houseplans' trademarks, trade names, and/or service marks, or for Your
material breach of houseplans' Program terms or of this Agreement.
(c)
Termination or Deactivation by HOUSEPLANS. HOUSEPLANS may terminate You,
one of Your Web sites, or Your use of a promotional method, from houseplans'
Program, at any time in houseplans' sole discretion. Breach of any Section of
this Agreement is cause for immediate termination from houseplans' Program
and/or termination of this Agreement, and may result in Chargeback of one or
more Commission. HOUSEPLANS may temporarily deactivate or terminate Partner's
Account if: (i) You or Your agent are responsible for the improper functioning
of Ad Content, or if You otherwise interfere with and/or fail to maintain the
Tracking Code; (ii) Partner's Account has not been logged into and/or there have
been no Transactions credited to Partner's Account for any 30 day period; (iii)
You maintain a negative balance in Partner's Account; (iv) HOUSEPLANS determines
You are diluting, tarnishing or blurring houseplans' proprietary rights; (v)
You begin proceedings to challenge houseplans' proprietary rights; or (vi) a
third party disputes Your right to use any Link, domain name, trademark, service
mark, trade dress, or right to offer any service or good offered on Your Web
site, or through any of Your promotional means. Upon termination of this
Agreement, or in case of deactivation of Partner's Account, You shall no longer
accrue Commission in Partner's Account, including but not limited to subsequent
sales and/or Leads for click-throughs that occurred prior to termination.
(d)
Termination of Programs and Offers. Programs and Offers may be
discontinued at any time.
(e) Notices. Except as provided elsewhere
herein, both parties must send all notices relating to this Agreement to: (i)
for HOUSEPLANS, via registered mail, return receipt requested or via an
internationally recognized express mail carrier to Houseplans, LLC., Inc., Attn:
Legal Dept., 504 Redwood Blvd, Suite 310 Novato, CA 94947 USA (effective upon
actual receipt); and, (ii) for You, at the email or physical address listed on
Partner's Account (effective upon sending as long as HOUSEPLANS does not receive
an error message regarding delivery of the email) or five (5) days after
mailing).
(f) Post-termination. Upon termination of this Agreement,
any outstanding payments shall be paid by HOUSEPLANS to You within 90 days of
the termination date, and any outstanding debit balance shall be paid by You to
HOUSEPLANS 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 You must
immediately remove all Links to Houseplans(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.
7. Representations, Warranties,
Disclaimers and Limitations.
(a) Business Operations. Each party
will make reasonable commercial efforts to keep its Web site 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 Your
Houseplans liable for any of the consequences of such interruptions. HOUSEPLANS
may modify the Partner Programs page located at
http://www.houseplans.com/partnering.asp, or discontinue providing the Partner
Programs page located at http://www.houseplans.com/partnering.asp, or any
portion thereof, at any time.
(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 AN
INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON
THE EFFECTIVE DATE OF THIS AGREEMENT.
(c) Non-infringement Warranties.
You represent and warrant that: (i) You have all appropriate authority to
operate, and to any and all content on, Your Web site(s); (ii) You have all
appropriate authority in any promotional method you may choose to use; (iii)
Your Web site(s) and Your promotional methods do not and will not infringe a
third party's, houseplans', proprietary rights; and (iv) You shall remain
solely responsible for any and all Web sites owned and/or operated by You and
all of Your promotional methods. HOUSEPLANS may or may not review all content on
Your Web site or used by You in Your promotional methods.
(d) Compliance
with Laws. You are 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 You or the content of Your Web site(s) will render
HOUSEPLANS liable to any proceedings whatsoever.
(e) Limitation of
Liabilities. ANY OBLIGATION OR LIABILITY OF HOUSEPLANS UNDER THIS AGREEMENT
SHALL BE LIMITED TO THE TOTAL OF YOUR COMMISSION PAID TO YOU BY HOUSEPLANS 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. YOU AGREE THAT HOUSEPLANS
SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A
CLAIM BY ANOTHER PUBLISHER 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.
(f) Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE
PURSUANT TO APPLICABLE LAW, HOUSEPLANS 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 houseplans' 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 YOU 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 YOU. HOUSEPLANS 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.
(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.
(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.
8. Publisher's Indemnification
Obligations. Publisher shall defend, indemnify and hold Houseplans 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 Houseplans, 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 HOUSEPLANS, that is a direct or indirect result
of Publisher's use of the Partner Programs page located at
http://www.houseplans.com/partnering.asp, (c) Publisher's use of the Partner
Programs page located at http://www.houseplans.com/partnering.asp, (d)
Publisher's participation in any Program, (e) any content, goods or services
offered, sold or otherwise made available by Publisher to any person, (f)
Publisher's acts or omissions in using, displaying or distributing any internet
links obtained from the Partner Programs page located at
http://www.houseplans.com/partnering.asp or elsewhere, including but not limited
to Publisher's use of internet links via email distribution, (g) any claim that
HOUSEPLANS is obligated to pay tax obligations in connection with payment made
to Publisher pursuant to this Agreement and/or any houseplans' Program, and (h)
any violation or alleged violation by Publisher 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, HOUSEPLANS shall
promptly notify Publisher, and HOUSEPLANS 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 HOUSEPLANS harmless. Publisher shall not settle
any Claim without Houseplans prior written consent. Publisher 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 "HOUSEPLANS" shall include officers, directors,
employees, corporate affiliates, subsidiaries, agents, and
subcontractors.
9. Miscellaneous.
(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.
(b) Third Party Disputes. In the event of a
third party claim against either: (a) houseplans' intellectual property; or (b)
against houseplans' right to offer any service or good on houseplans' Web
site(s) or if, in houseplans' opinion, such a claim is likely, HOUSEPLANS shall
have the right, at its sole option and in its sole discretion, to (i) secure the
right at houseplans' expense to continue using the intellectual property or
good or service; or (ii) at houseplans' expense replace or modify the same to
make it non-infringing or without misappropriation.
(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 independent contractor. You agree that Your consent is not
necessary to modify any Houseplans Service Agreement.
(d) Choice of
Law/Attorneys' Fees. This Agreement is governed by the laws of the State of
California (USA), except for its conflict of law provisions. The exclusive forum
for any actions related to this Agreement shall be in the state courts, and, to
the extent that federal courts have exclusive jurisdiction, in
(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.
(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.
(g) Assignment and
Acknowledgement. Neither party may assign this Agreement without the prior
express written permission of the other party. Notwithstanding the foregoing,
Your consent shall not be required for assignment or transfer made by HOUSEPLANS
(1) due to operation of law, or (2) to an entity that acquires substantially all
of houseplans' stock, assets or business, or (3) to a related entity (e.g.
parent or subsidiary of parent). Your use of the Partner Programs page located
at http://www.houseplans.com/partnering.asp is irrefutable acknowledgement by
You that You have read, understood and agreed to each and every term and
provision of this Agreement. HOUSEPLANS may establish from time to time rules
and regulations regarding use of the Partner Programs page located at
http://www.houseplans.com/partnering.asp as published on the Partner Programs
page located at http://www.houseplans.com/partnering.asp and incorporated
herein.
(h) Marketing. Publisher agrees that HOUSEPLANS may identify
it as a HOUSEPLANS Publisher in client lists and may use Publisher's name and/or
logo solely for such purpose in its marketing materials. Any other uses of
Publisher's name and/or logo not otherwise described or contemplated herein
shall require Publisher's prior written consent.
(i) Tax Status and
Obligations. HOUSEPLANS is not obligated to and shall not provide You with
tax and/or legal advice. HOUSEPLANS undertakes no duty to investigate or
research Your tax status and/or obligations, and such research and investigation
is solely Your responsibility. You are obligated to independently assess and
comply with all relevant tax and legal requirements, and Houseplans is
responsible for its own sales tax collection and reporting obligations arising
from sales made to Visitors. If HOUSEPLANS provides You with information
regarding a particular Publisher, the information shall not be deemed tax or
legal advice, and HOUSEPLANS shall not be responsible for the accuracy of such
information. Any Publisher or Houseplans addresses provided to You are addresses
provided by the relevant Publisher, and such addresses may not necessarily
indicate the location or presence of the Publisher in such location or
elsewhere.
(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 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, HOUSEPLANS 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. Your continued use of the Partner Programs page located at
http://www.houseplans.com/partnering.asp after the effective date of such Change
shall be deemed Your acceptance of the revised Agreement.
IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND
WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS
AGREEMENT.
Contact Information:
Houseplans,
LLC., Inc.
Tel.
510 Redwood Blvd, Suite
310
Exhibit A
Commission Schedule
Net Revenue less than $5000.00 per month = 10% commission
Net Revenue greater than $5000.00 and less than $10,000.00 per month = 15% commission
Net Revenue greater than $10,000.00 and less than $15,000.00 per month = 17% commission
Net Revenue greater than $15,000.00 and less than $20,000.00 per month = 18% commission
Net Revenue greater than or equal to $20,000 per month = 20% commission