AFFILIATE AGREEMENT

Lead Generating Tools

AFFILIATE AGREEMENT

This Affiliate Agreement ("Agreement") is made by and agreed to between Lead Generating Tools, a Internet Marketing corporation, and you or your company (referred to in this document as the "AFFILIATE" or you).

IF THE AFFILIATE IS AN INDIVIDUAL, THE AFFILIATE REPRESENTS AND WARRANTS THAT THE AFFILIATE IS AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.

 

1. PARTICIPATION.

A. The AFFILIATE has the opportunity to earn a commission by promoting the Lead Generating Tools in accordance with the terms of this Agreement. Upon approval by the Lead Generating Tools, the AFFILIATE may display (and remove) Links to the Lead Generating tools Web site or Web site content in accordance with the Lead Generating tools terms of this Agreement. Acceptance of the AFFILIATE extends only to the entity, or individual, that enters into this Agreement with the Lead Generating Tools.

B. The AFFILIATE may qualify for valid referrals to the Lead Generating Tools in two ways:

i. The AFFILIATE places or uses qualified links to the Lead Generating Tools only with the intention of delivering valid sales, leads, applications, accounts, business, clicks or other specified compensable tracked activities for the benefit of to the Lead Generating Tools. The AFFILIATE may not, nor knowingly permit any person to, activate a qualifying link or inflate the amount of any sought-after or resulting tracked activities through any method or technology that does not actually deliver an end user to the Lead Generating Tools.

ii. When valid sales, leads, applications, accounts, business or other specified compensable tracked activities for the benefit of to the Lead Generating Tools and mention that the AFFILIATE referred them to the Lead Generating Tools.

C. The AFFILIATE shall not do the following:

i. The AFFILIATE shall not place Links the Lead Generating Tools on third party newsgroups, message boards, blogs, unsolicited email and other types of spam, link farms, counters, chatrooms, or guestbooks, IRC channels, instant messages or similar Internet resources without prior, written acceptance by the Lead Generating Tools.

ii. The AFFILIATE must promote the Lead Generating Tools such that the AFFILIATE shall not mislead the Visitor, and such that the Links deliver bona fide Transactions by the Visitor to the Lead Generating Tools from the Link. The AFFILIATE 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 AFFILIATE may or may not be compensated for Transactions where the AFFILIATE or the AFFILIATE’s agent is the Visitor. Multiple Leads from the same individual, entity or IP address may be considered non-bona fide Transactions. The AFFILIATE shall not earn a compensation for non-bona fide Transactions.

iii. None of the AFFILIATE’s promotional activities may infringe the Lead Generating tools proprietary rights (including but not limited to trademark rights), or a third party’s proprietary rights.

D. The AFFILIATE shall update the Lead Generating tools Links in order to earn commission either upon request or by the AFFILIATE own volition.

 

2. AFFILIATE OBLIGATIONS TO Lead Generating Tools.

A. The AFFILIATE agrees to provide the Lead Generating Tools with accurate information about the AFFILIATE and promotional methods, and to maintain up-to-date information (such as contact information, Web sites used, etc.). In the AFFILIATE shall accurately, clearly and completely describe all promotional methods by selecting the appropriate descriptions and providing additional information when necessary. All promotional methods and practices that are not either a Link on the Affiliate’s Web Site or by word of mouth shall be considered unique and require written acceptance by the Lead Generating Tools. The Lead Generating Tools reserves the right to define any promotional methods and practices as unique. The Lead Generating Tools reserves the right to deny the AFFILIATE the use of any unique promotional methods and practices.

B. The AFFILIATE represents and warrants that all promotional means used by the AFFILIATE will not contain objectionable content (including but not limited to content that is misleading, libellous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities), and that the AFFILIATE will not mislead others.

C. The AFFILIATE agrees to:

i. Use ethical and legal business practices;

ii. Comply with the terms and this Agreement;

iii. Maintain a privacy policy on the Affiliate’s Web site and for any non-Web site based promotional method made available to Visitors;

C. The AFFILIATE agrees to submit all unique promotional methods or activities, which are not clearly permissible herein, to the Lead Generating Tools, prior to use for the Lead Generating tools written approval. If the AFFILIATE does not acquire the Lead Generating tools written approval prior to use, this will be deemed a material breach of this Agreement.

D. Reviews, conduct and any suspected fraudulent, abusive or otherwise illegal content or activity by the AFFILIATE or through the AFFILIATE’s promotional methods, or that is perpetrated through use of the AFFILIATE’s promotional methods, is grounds for immediate termination of this Agreement.

E. The AFFILIATE represents and warrant that the AFFILIATE 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. the AFFILIATE represent and warrant that the AFFILIATE 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 the AFFILIATES site content /site visit or by downloadable software applications for which the AFFILIATE 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 Lead Generating tools requirements (as such requirements may be modified from time to time), including but not limited to:

i. Installation requirements;

ii. End-user agreement requirements;

iv. Non-interference with competing advertiser/ the AFFILIATE referrals.

F. The AFFILIATE will be solely responsible for the development, operation and maintenance of the AFFILIATE’s Web Site and for all materials that appear on the AFFILIATE’s Web Site, including but not limited to:

i. The accuracy and appropriateness of materials posted on the AFFILIATE’s Web Site;

ii. Ensuring that materials posted on the AFFILIATE’s Web Site do not violate or infringe upon the rights of any third party;

iii. Ensuring that the AFFILIATE’s Web Site does not contain any Improper Content; and

iv. Ensuring that the AFFILIATE’s Web Site does not engage in any Improper Promotion.

Affiliate hereby agrees to indemnify and hold the Lead Generating Tools harmless from any and all claims, damages and expenses (including, without limitation, attorneys’ fees) arising from the development, operation, maintenance and contents of the AFFILIATE’s Web Site.

G. The AFFILIATE represents and warrants that the AFFILIATE will not enable the Tracking Code to collect personally identifiable information of Visitors that would allow the Lead Generating Tools to personally identify Visitors.

H. The AFFILIATE must conspicuously post the AFFILIATE’s privacy policy the AFFILIATE’s Web Site and otherwise make it available to all Visitors. The AFFILIATE’s privacy policy must comply with all laws and regulations regarding the privacy of Visitor information, be commercially reasonable, and fully and accurately disclose the AFFILIATE’s Web Site collection and use of Visitor information. The AFFILIATE’s Web Site must fully and accurately disclose the AFFILIATE’s use of third party technology, including the Lead Generating tools tracking technology, use of cookies and options for discontinuing use of such cookies.

3. Lead Generating tools OBLIGATIONS TO AFFILIATE.

A. The Lead Generating Tools shall determine (where possible) the actual referrals that should be credited to the AFFILIATE. The Lead Generating Tools may, in the Lead Generating tools sole discretion, apply an estimated amount of referrals if:

i. The AFFILIATE referring Visitors to the Lead Generating Tools is verified by clicks through Links to the Lead Generating Tools with the Lead Generating tools Tracking Code and the Visitor became a confirmed customer to the Lead Generating Tools; or

ii. Where the Lead Generating Tools is able to estimate the number of valid sales, leads, applications, accounts, business or other specified compensable tracked activities for the benefit of to the Lead Generating Tools and mention that the AFFILIATE referred them to the Lead Generating Tools.

B. The Lead Generating Tools may deduct Charge-back amounts from the compensation owed to the AFFILIATE’s referrals if:

i. The Visitor returns the product or discontinues the service;

ii. A duplicate entry or other clear error was made;

iii. Non-bona fide Transactions;

iv. Non-receipt of payment from, or refund of payment to, the Visitor by the Lead Generating Tools; or (v) The AFFILIATE fails to comply with the Lead Generating tools terms of this Agreement.

The deductions or Charge-back amounts to the Affiliates compensation may be applied at any time, including previous payment cycles.

C. The Lead Generating Tools shall provide the AFFILIATE with access to tracking and reporting tools, and to support services. From time to time the Lead Generating Tools may offer optional services for a fee. Fees for such optional services are at the Lead Generating tools then-current published rates or as may be quoted by the Lead Generating Tools, and are payable in advance by the AFFILIATE (at Lead Generating tools discretion). Tracking detail regarding Visitor Transactions is not available on a real-time basis for all Advertisers and there may be reporting delays regarding Transactions for some Advertisers. Lead Generating Tools may make available, for fees that Lead Generating Tools shall publish from time-to-time, enhanced reporting capabilities and other services that are not included in the standard Network Service.

D. Subject to other provisions in this Agreement, the Lead Generating Tools shall credit the AFFILIATE for each qualifying Transaction as defined herein. On the 20th day of each calendar month, the Lead Generating Tools will issue a statement to the AFFILIATE for Transactions reported for the previous month, as well as any compensation owed to the AFFILIATE. The Lead Generating Tools shall have no obligation to make payments to the AFFILIATE for which Lead Generating Tools has not received payment from the relevant referral. The AFFILIATE’s recourse for any earned relevant referrals not paid to the AFFILIATE is that the AFFILIATE shall show proof of the earned relevant referral to the Lead Generating Tools. The Lead Generating Tools reserves the right to disclaim any and all liability for such payment earned relevant referrals not paid to the AFFILIATE.

E. The AFFILIATE may elect to receive payment in any of the currencies that the Lead Generating Tools supports (as may be amended by the Lead Generating Tools). The conversion rate shall be determined in accordance with the Lead Generating tools operating standards using the rates prevailing upon the date that payment is made to the AFFILIATE, or upon the basis of historical conversion rates if rates are unavailable.

F. The number or amount of Transactions, Credits, Compensation and Deductions or Charge-back amounts as calculated by the Lead Generating Tools, shall be final and binding on the AFFILIATE.

G. If the AFFILIATE’s Account has not been credited with a valid, compensable Transaction that has not been deducted or Charge-back amounts during any rolling, six consecutive calendar month period ("Dormant Affiliate"), the Lead Generating Tools may terminate this Agreement, upon 10 calendar days written notice to the AFFILIATE.

H. If the AFFILIATE has a negative balance, the Lead Generating Tools deducted or Charge-back amounts equivalent to the current compensation due to the AFFILIATE and the AFFILIATE does not have an adequate compensation to cover the deductions and Charge-back amounts. When the AFFILIATE have a negative balance, the AFFILIATE must immediately remit payment to the Lead Generating Tools in an amount sufficient to bring the AFFILIATE Account to a zero balance, or the AFFILIATE Account is subject to 1.5% interest per month, compounded monthly.

4. PROPRIETARY RIGHTS.

A. The Lead Generating Tools is granting the AFFILIATE the right to display and Link to the Lead Generating tools Web Site or Web Site content in accordance with and for the limited purposes of promoting the Lead Generating tools business, subject to the terms and conditions of this Agreement. The Affiliate’s use of the Link signifies the AFFILIATE agrees 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 the Lead Generating Tools and the AFFILIATE, the Lead Generating Tools owns all rights in and to all information regarding the Visitors that the AFFILIATE refers to the Lead Generating Tools.

B. The AFFILIATE authorizes the Lead Generating Tools to utilize the Affiliate’s trademarks, service marks, trade names, and/or copyrighted material that the AFFILIATE provides to the Lead Generating Tools.

C. The AFFILIATE agrees that the Affiliate’s use of any of the Lead Generating tools Web Site (such as www.leadgeneratingtools.com) and the Affiliate’s use of any the Lead Generating tools 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"). The AFFILIATE explicitly agrees 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 the Lead Generating Tools.

D. All proprietary rights of either the Lead Generating Tools or the AFFILIATE, and all goodwill arising as a result of such rights, shall inure to the benefit of such owner.

E. The AFFILIATE acknowledges that the AFFILIATE has obtained no proprietary rights in the Lead Generating tools trademarks, service marks, trade names, URLs, copyrighted material, patents, and patent applications, and agrees not to challenge the Lead Generating tools proprietary rights. The AFFILIATE acknowledges that the AFFILIATE has obtained no proprietary rights in the Lead Generating tools Advertisers’ proprietary rights, and agrees not to challenge such Advertiser’s proprietary rights.

5. CONFIDENTIALITY.

A. The AFFILIATE or the Lead Generating Tools 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, the AFFILIATE must destroy or return to the Lead Generating Tools any Confidential Information provided by the Lead Generating Tools to the AFFILIATE under this Agreement.

B. The AFFILIATE agrees that the Lead Generating Tools may, but is not obligated to, provide the AFFILIATE email address(es) and basic Account detail (including but not limited to the AFFILIATE address, phone and fax number, Web Site name, the date the web site or subscription email first entered into operation, and visitor demographics). The Lead Generating Tools may provide any and all Visitor, Transaction and/or Tracking Code data to the AFFILIATE which such referred Visitor, and to any third party in the Lead Generating tools sole discretion, including but not limited to all regulatory, legislative and judicial bodies, and pursuant to allegations and claims of proprietary rights infringement. The Lead Generating Tools reserves the right to be able to utilize Tracking Code data provided to it, which may include: information about the AFFILIATE performance statistics, to analyze trends, monitor efficiencies, maintain the integrity of the tracking code, promote the capabilities and efficiencies, and promote the AFFILIATE and the AFFILIATE Web performance.

6. TERM, TERMINATION, DEACTIVATION AND NOTICES.

A. This Agreement shall commence upon the last date signed below.

B. The AFFILIATE may terminate this Agreement, with or without cause, upon 15 calendar days written notice.

B. The Lead Generating Tools may terminate this Agreement, one of the AFFILIATE’s Web Sites, or the AFFILIATE’s use of a promotional method, immediately upon written notice, in the Lead Generating tools sole discretion.

C. The Lead Generating Tools may temporarily deactivate or terminate the AFFILIATE Account if:

i. The AFFILIATE or the AFFILIATE’s agent are responsible for the improper functioning of Ad Content, or if the AFFILIATE otherwise interfere with and/or fail to maintain the Tracking Code;

ii. The AFFILIATE’s Account has no Transactions credited to the AFFILIATE for any 30 day period;

iii. The AFFILIATE maintains a negative balance in the AFFILIATE’s Account;

v. The Lead Generating Tools determines that the AFFILIATE is diluting, tarnishing or blurring the Lead Generating tools proprietary rights;

vi. The AFFILIATE begin proceedings to challenge the Lead Generating tools proprietary rights; or

vii. A third party (including a the Lead Generating tools Advertiser) disputes the AFFILIATE’s right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or good offered on the AFFILIATE Web Site, or through any of the AFFILIATE promotional means.

Upon termination of this Agreement, or in case of deactivation of the AFFILIATE’s Account, the AFFILIATE shall no longer accrue compensation for qualifying Transaction, including but not limited to subsequent sales and/or Leads for click-through that occurred prior to termination.

D. Programs and Offers may be discontinued at any time.

E. Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to:

i. For the Lead Generating Tools, via registered mail, return receipt requested or via an internationally recognized express mail carrier to Lead Generating Tools,  423 Culver Pkwy Rochester, NY 14609 (effective upon actual receipt); and

ii. For the AFFILIATE, via registered mail, return receipt requested or via an internationally recognized express mail carrier to the Affiliate’s Registered Address recorded in our system, (effective upon sending as long as the Lead Generating Tools does not receive an error message regarding delivery of the email) or five (5) days after mailing).

F. Upon termination of this Agreement, any outstanding payments shall be paid by the Lead Generating Tools to the AFFILIATE within 90 days of the termination date, and any outstanding debit balance shall be paid by the AFFILIATE to the Lead Generating Tools within 30 days of termination of this Agreement. All payments are subject to recovery for Deductions or Charge-backs accountings. Upon termination of this Agreement, any permissions granted under this Agreement will terminate, and the AFFILIATE must immediately remove all Links to the Lead Generating Tools. 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. 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 liable for any of the consequences of such interruptions. The Lead Generating Tools may modify the Web Site or marketing campaign, or discontinue providing a web site or marketing campaign, or any portion thereof, at any time.

B. 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.

C. THE AFFILIATE represents and warrants that:

i. The AFFILIATE has all appropriate authority to operate, and to any and all content on, the AFFILIATE’s Web Site(s);

ii. The AFFILIATE has all appropriate authority in any promotional method the AFFILIATE may choose to use;

iii. The AFFILIATE’s Web Site(s) and the AFFILIATE’s promotional methods do not and will not infringe a third party’s, the Lead Generating tools Advertiser(s), or the Lead Generating tools proprietary rights; and

iv. The AFFILIATE shall remain solely responsible for any and all Web Sites owned and/or operated by the AFFILIATE and all of the AFFILIATE’s promotional methods.

The Lead Generating Tools may or may not review all content on the AFFILIATE’s Web Site or used by the AFFILIATE in the AFFILIATE’s promotional methods.

D. The AFFILIATE 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 AFFILIATE or the content of the AFFILIATE’s Web Site(s) will render the Lead Generating Tools liable to any proceedings whatsoever.

E. LIMITATION OF LIABILITIES – ANY OBLIGATION OR LIABILITY OF Lead Generating Tools UNDER THIS AGREEMENT SHALL BE LIMITED TO THE COMPENSATION FOR QUALIFIED TRANSACTION DUE TO THE AFFILIATE BY Lead Generating Tools 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 AFFILIATE AGREES THAT Lead Generating Tools SHALL NOT BE LIABLE TO THE AFFILIATE, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY ANOTHER THE AFFILIATE 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, Lead Generating Tools 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 Lead Generating tools SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF THE AFFILIATE’S INFORMATION OR WEB SITE. ALL ‘INFORMATION’ AND ‘COMPUTER PROGRAMS’ PROVIDED TO THE AFFILIATE 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 AFFILIATE. Lead Generating Tools IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY ADVERTISER OR THE AFFILIATE, OR SUCH ADVERTISER OR THE AFFILIATE’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. AFFILIATE’S INDEMNIFICATION OBLIGATIONS.

A. The AFFILIATE shall defend, indemnify and hold the Lead Generating Tools and the Lead Generating tools 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 the Lead Generating tools, directly or indirectly as a result of:

i. The AFFILIATE’s breach of or non-compliance with this Agreement;

ii. The AFFILIATE’s violation of any law, or an alleged violation of law by the Lead Generating Tools, that is a direct or indirect result of the AFFILIATE’s use of this Agreement;

iii. The AFFILIATE’s use of or participation of any other affiliate program;

v. Any content, goods or services offered, sold or otherwise made available by the AFFILIATE to any person;

vi. The AFFILIATE ‘s acts or omissions in using, displaying or distributing any internet links obtained from the Network Service or elsewhere, including but not limited to the AFFILIATE’s use of internet links via email distribution;

viii. Any claim that the Lead Generating Tools is obligated to pay tax obligations in connection with payment made to the AFFILIATE pursuant to this Agreement; and

ix. Any violation or alleged violation by the AFFILIATE of any rights of another, including breach of a person’s or entity’s intellectual property rights (each i. through ix. individually is referred to hereinafter as a "Claim").

B. Should any Claim give rise to a duty of indemnification under this Section 8, the Lead Generating Tools shall promptly notify the AFFILIATE, and the Lead Generating Tools shall be entitled, at its own expense, and upon reasonable notice to the AFFILIATE, to participate in the defence of such Claim. Participation in the defence shall not waive or reduce any of AFFILIATE’s obligations to indemnify or hold the Lead Generating Tools harmless. The AFFILIATE shall not settle any Claim without the Lead Generating tools prior written consent.

C. The AFFILIATE 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 "Lead Generating Tools" shall include officers, directors, employees, corporate the AFFILIATE’s, 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. In the event of a third party claim against either the Lead Generating tools intellectual property, against the Lead Generating tools right to offer any service or good on Lead Generating tools Web Site(s) or if, in the Lead Generating tools opinion, such a claim is likely, the Lead Generating Tools shall have the right, at its sole option and in its sole discretion, to:

i. Secure the right at Lead Generating tools expense to continue using the intellectual property, good or service; or

ii. The Lead Generating tools expense replace or modify the same to make it non-infringing or without misappropriation.

C. 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 venturers 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. The AFFILIATE agrees that the AFFILIATE’s consent is not necessary to modify this Agreement.

D. Choice
of Law/Forum and Attorney Fees – This Agreement is
governed by the laws of the New York State Edit, without
reference to the principles of conflict of laws. 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 New York State. 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.
LGTMarketing or LeadGeneratingTools controls and operates its Web Site from its offices in Rochester, NY 14609 and access or use where illegal is prohibited.

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 and Savings Clause – The terms of this agreement shall be construed as a series of separate covenants, one for each jurisdiction to which such restriction applies. If, in any judicial proceeding, a court of competent jurisdiction shall refuse to enforce any of the separate covenants deemed included in this agreement, or shall find that the term or geographic scope of one or more of the separate covenants is unreasonably broad, the parties shall use their best good faith efforts to attempt to agree on a valid provision which shall be a reasonable substitute for the invalid provision. The reasonableness of the substitute provision shall be considered in light of the purpose of the covenants and the reasonable protectable interests of each party. The substitute provision shall be incorporated into this Agreement. If the parties are unable to agree on a substitute provision, then the invalid or unreasonably broad provision shall be deemed deleted or modified to the minimum extent necessary to permit enforcement. Except as otherwise specifically provided for, required by, pursuant to, or any provision of this agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.

G. Waiver – 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.

H. Assignment – Neither party may assign this Agreement without the prior express written permission of the other party. Notwithstanding the foregoing, the AFFILIATE’s consent shall not be required for assignment or transfer made by the Lead Generating Tools (1) due to operation of law, or (2) to an entity that acquires substantially all of the Lead Generating tools stock, assets or business, or (3) to a related entity (e.g. parent or subsidiary of parent).

I. Acknowledgement – The AFFILIATE’s use or participation of this Agreement is irrefutable acknowledgement by the AFFILIATE that the AFFILIATE has read, understood and agreed to each and every term and provision of this Agreement. The Lead Generating Tools may establish from time to time rules and regulations regarding use of or participation in this Agreement via notices and are incorporated herein.

K. Marketing – The AFFILIATE agrees that the Lead Generating Tools may identify the AFFILIATE in client lists and may use the AFFILIATE’s name and/or logo solely for such purpose in its marketing materials. Any other uses of the AFFILIATE’s name and/or logo not otherwise described or contemplated herein shall require the AFFILIATE’s prior written consent.

L. Entire Agreement – This Agreement 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.

M. Amendment – 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 initialled by both parties. Notwithstanding the foregoing, the Lead Generating Tools shall have the right to change, modify or amend ("Change") this Agreement, in whole or in part, by notice of a revised Agreement at least 15 calendar days prior to the effective date of such Change. The AFFILIATE’s continued use of and participation in the revised Agreement after the effective date of such Change shall be deemed the Affiliate acceptance of the revised Agreement.

N. Counterparts and Execution by Facsimile – This Agreement may be executed in counterpart and/or by facsimile, each of which shall constitute a duplicate original and all of which shall constitute the entire agreement.

 Enrollment In Our Affiliate Program Constitutes Your Acceptance Of These Terms