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Network Agreement

This Network Agreement ("Agreement") is made by and between you ("you", "your" or "Affiliate") and eBay Partner Network, Inc. (hereafter "ePN" or "we"), a Delaware corporation with an address at 2145 Hamilton Ave., San Jose, CA 95125. This Agreement, which also includes the Code of Conduct, the applicable Program Terms and the eBay Partner Network Privacy Policy, governs your participation in the eBay Partner Network.

Via the service offered by ePN ( the "Network"), you can earn performance based compensation by promoting a website or content of a third party who wants their website or content to be advertised by Affiliates, as further described below.

This new version of the Agreement is effective as of February 20, 2013 for new Affiliates. By using any of the affiliate tools or by promoting advertisers' web sites, you are representing and warranting that you understand and agree to this new version of the Agreement. For existing Affiliates, this new version takes effect on February 20, 2013 as stated in the section entitled "Amendment" of this Agreement.

Contents

Definitions
Registration and your account
Your Participation in the Network and Promoting Participating Sites and Content
Tracking and Reporting
Compensation
Restricted Activities
Working With Agents
Privacy
Compliance, Monitoring and Remedies
Intellectual Property
Confidentiality
Term and Termination
Representations, Warranties, Disclaimers and Limitations
Miscellaneous
  1. Definitions
    1. Advertiser - A company or individual that participates in the Network for the purposes of enabling Affiliates to promote such Advertiser's website and/or content. All Advertisers are subject to the prior approval of ePN. Advertisers do not have a direct contractual relationship related to the Network with Affiliates.
    2. Affiliates - A company or individual that participates in the Network for the purposes of promoting Participating Sites and Content in an effort to earn performance-based compensation as a result of Qualifying Transactions. Affiliates do not have a direct contractual relationship related to the Network with Advertisers.
    3. Agent - A sub-affiliate, sub-publisher, distribution partner or any other similar third-party relationship through which you intend to participate in a Program.
    4. Link - A URL, embedded in text, graphics, button, icon or similar mechanism that provides an online connection from your Promotional Method or Promotional Content to Participating Sites and Content. The Link also includes the Tracking Code.
    5. Mobile Website Traffic - Traffic to Participating Sites and content that is driven through a website, accessed from a mobile device such as a cell phone, smart-phone or other device that ePN deems to be a mobile device. The term "Mobile Website Traffic" encompasses both full websites and mobile versions of websites.
    6. Participating Sites and Content - Any Advertiser website or content that is designated as being eligible for promotion by Affiliates through the Network.
    7. Program - A performance-based marketing program operated by ePN that enables Affiliates to promote an Advertiser's Participating Site and Content as set forth herein in exchange for certain performance-based consideration established in the applicable Advertiser's Program Terms.
    8. Program Terms - The terms and conditions that must be accepted by an Affiliate and that govern an Affiliate's participation in a particular Program. Program Terms may consist of Advertiser Terms and Conditions and Program Details where an Advertiser has more than one Program for its Participating Sites and Content.
    9. Promotional Content - Buttons, banners, widgets, text and other creative content that (i) are used by Affiliates to promote Participating Sites and Content, (ii) contain Links and (iii) are specific to a Program. Promotional Content may be provided to you by ePN and/or Advertisers, or created by you using Promotional Tools in accordance with the terms of this Agreement.
    10. Promotional Method - The location where you place Promotional Content or the method by which you otherwise promote Participating Sites and Content using Promotional Content, including but not limited to content you create with the Promotional Tools.
    11. Promotional Tools - Tools or API platforms that may be provided by ePN or a third party to you for use by you to create your own Promotional Content.
    12. Qualifying Transaction - Any activity by an end user that qualifies to receive compensation pursuant to the terms of this Agreement and the Program Terms that govern the applicable Program.
    13. Special Promotional Methods - Methods, used for promoting Participating Sites and Content, other than a Link on your own website.
    14. Tracking Code - Information you receive from ePN to track the Qualifying Transactions you generate and attribute them to your account.
    15. Software Application - Any program that you or your partners place on a user’s computer, mobile phone, tablet, or other device. The term “Software Application” includes toolbars, custom web browsers, browser plug-ins, and mobile apps. The term “Software Application” does not include software running on a user’s computer only temporarily (e.g. HTML and JavaScript).
  2. Registration and your account. ePN allows you to register online for the Network and Programs in the Network to earn money by promoting Participating Sites and Content to achieve Qualifying Transactions using approved Promotional Methods in accordance with this Agreement.
    1. Registration. To participate in the Network, you must submit a complete application using the online registration tools. You may not submit an application if you or your account have been terminated by ePN at an earlier point in time. ePN will evaluate your application and notify you if ePN accepts or rejects it. ePN may, in its sole discretion, reject your application and terminate the agreement for any reason without any compensation being due by ePN for such termination. Participation in the Network is limited to parties that lawfully can enter into contracts under applicable law. Being accepted to the Network does not mean that you are accepted to any Program. Your application to each Program must be accepted separately. Unless you are accepted to a Program you may not promote its Promotional Content. You may not register more than one account unless you have prior written approval from eBay.
    2. Accurate Information. You agree to provide ePN with complete and accurate information about you (including your payment and tax information) and your Promotional Methods, and to maintain up-to-date account information. ePN has the right to confirm or otherwise verify, in its sole discretion, the truth and accuracy of any registration information at any time.
    3. Account Security. You will be responsible for all activity on your account and for loss, theft or unauthorized disclosure of your password (other than through ePN's gross negligence or willful misconduct or omission). You shall provide us with prompt written notification of any known or suspected unauthorized use of your account or breach of the security of your account.
    4. Your Relationship with ePN and the Advertisers. You may not in any manner misrepresent or embellish the relationship between ePN, the Advertiser and you (including by expressing or implying that ePN or the Advertiser support, sponsor, endorse, or contribute money to any charity or other cause). Your participation in the Network and the Programs does not constitute a contractual relationship between you and the Advertiser.
    5. eBay and eBay's Programs. If you have an eBay account, your eBay account must be in good standing at all times.
  3. Your Participation in the Network and Promoting Participating Sites and Content
    1. Program Terms The Program Terms define approved Promotional Methods, end user activities that may qualify for compensation and may include additional information about compensation. They also contain other rules specific to each Program or several Programs. In the event of a conflict between this Agreement and the Program Terms, the Program Terms will prevail.
    2. Links. ePN will provide you with Links to promote Participating Sites and Content. You are not allowed to modify a Link unless it is specifically designed to be modified, and, then, only in accordance with the stated modification parameters. If the Links you use are not dynamically updated, you are obligated to update the Links upon notification.
    3. Promotional Content. When you are accepted as Affiliate in a Program, ePN or the Advertiser may provide you with pre-approved Promotional Content. You may not modify any Promotional Content that ePN or the Advertiser provides without obtaining ePN's or the Advertiser's prior written permission. If you are unsure about your right to use or modify any Promotional Content, please contact ePN. If ePN or the Advertiser requests so, you will stop using any Promotional Content provided to you or created by you. All Promotional Content that you create must comply with this Agreement.
    4. Promotional Tools. When you are accepted as Affiliate in a Program, ePN or the Advertiser may provide you with Promotional Tools for creating your own Promotional Content; for example an API platform. Promotional Tools may have their own rules governing their use which you must accept before using them.
    5. Approval for Links, Content and Tools. All Links and Promotional Content you use must be clearly recognizable as an advertisement for the relevant Participating Sites and Content. If you choose to create your own Promotional Content, you must get ePN's or the Advertiser's prior written approval for the Promotional Content. You must also secure permission before using any materials protected by third parties' intellectual or proprietary rights (including without limitation copyrights, trademark rights, patent rights and rights of publicity). Some Promotional Tools may also be used to create new tools and applications. If you create new tools and applications for use in the Network or a Program, you must get ePN's or the Advertiser's prior written approval for the tools or applications.
    6. Promotional Methods. To participate in one of the Programs in the Network, you will need to comply with that Program's list of approved Promotional Methods in the Program Terms, in addition to all other terms of this Agreement.
  4. Tracking and Reporting.
    1. Tracking. For ePN to track Qualifying Transactions resulting from your Promotional Methods, you must include and maintain the official ePN Tracking Code provided to you by ePN within your Links. You will not modify the Tracking Codes in any Promotional Content.
    2. Access to Tracking and Reporting Tools. ePN will provide you with access to tracking and reporting tools and other support services. Tracking details regarding transactions are not available on a real-time basis and there may be reporting delays regarding transactions.
  5. Compensation. Subject to other provisions in this Agreement, the Code of Conduct and the Program Terms, you will be compensated for each Qualifying Transaction in accordance with the then-current payment schedule under the applicable Program Terms. The compensation will be calculated based on ePN's tracking data, which is deemed definitive and shall control in the event of any tracking dispute. The fact that a Qualifying Transaction and a corresponding compensation amount is reported in the reports available to you via the Network in the course of a month does not mean that this amount is due to you, as ePN will determine actual payments after each month.
    1. Payments.
      1. Timing. Each month, ePN will issue to you any positive balance in your account for transactions reported for the previous month, provided that your payment and tax information is complete and correct and your account balance exceeds the required minimum account balance of 25 USD, 25 CAD, 25 EUR or 25 GBP depending on the currency of your account. The number or amount of transactions, credits for payments and debits for charge-backs, as ePN calculates it, shall be final and binding on you.
      2. Form of Payment. You can collect payments (i) with a verified PayPal account or (ii) by direct deposit if available for your country of residence, in the currency that is determined by your country of residence. Depending on your account balance, not all payment methods may be available to you. The conversion rate will be determined in accordance with ePN's operating standards, using the rates prevailing on the date the Qualifying Transaction is completed.
      3. Escheatment. ePN will make all commercially reasonable efforts to pay out any positive balance that is due to you. In certain circumstances, it may be impossible for ePN to pay you because, based on ePN’s records, for a period of 24 months or more: (a) Your account has been inactive, meaning that you have not logged into your account or you have not accepted funds, payments or other amounts that ePN has attempted to pay or deliver to you; or (b) ePN has been unable to reach you, or has not received adequate payment instructions from you, after contacting you at the email address shown in ePN’s records; or (c) You have not generated the minimum amount of commissions to qualify for payment. In these circumstances, ePN may, without further notice to you, turn the unpaid or undelivered amounts over to the eligible State, in accordance with applicable laws.
    2. Tax. The payment rate used for computing compensation paid to you is inclusive of any and all taxes owed by you. You are responsible for any taxes that may be due on the services provided by you. In no cases will any additional compensation be paid to you for taxes. If the withholding of any tax is required in respect of any payment to you, ePN will (i) withhold the applicable amount from such payment and (ii) pay such amount to the relevant authorities in accordance with any applicable laws in the relevant jurisdiction(s). Upon request from you, ePN will provide a copy of the tax receipt documenting payment of the tax to the relevant authorities. You agree to complete and provide to us, or if required, to the applicable taxing authority, at least 10 days prior to the payment due date, such forms, certifications or other documents as may be reasonably requested by ePN, in order to reduce or exempt withholding taxes with respect to payments made to you when and where applicable by law. If it is later determined that ePN should have withheld and/or paid additional tax but did not withhold or pay such tax, then you shall pay the applicable tax and hold ePN harmless from any penalties or interest thereon.
    3. Non-Payment, Withholding, Reversal and Chargebacks
      1. Notwithstanding anything to the contrary herein, ePN shall have no duty to pay you for what would otherwise be Qualifying Transactions during any current or previous month when you were in breach of this Agreement.
      2. ePN reserves the right to withhold your compensation for any and all previous months and compensation that you are accruing if ePN, in its sole discretion, has reason to believe that you or your Agent(s) have breached this Agreement or have engaged in potentially fraudulent activities.
      3. ePN may apply a debit to your account in an amount equal to a payment previously made to you or a compensation that has been credited to your account, but has not been paid out yet, if ePN determines, in its sole discretion, that there has been (i) duplicate entry or other clear error; (ii) non-bona fide transactions or other fraudulent activity; (iii) breach of, or other failure to complete or reversal of the Qualifying Transaction; or (iv) failure to comply with any terms of this Agreement. ePN may apply a chargeback to your account at any time, including previous payment cycles.
  6. Restricted Activities. Your Promotional Methods must comply with the law, the ePN Code of Conduct, the Program Terms of the Programs you applied for and were accepted to, and all other terms of this Agreement. Without limiting the generality of the foregoing, you hereby acknowledge and agree to comply with the standards set forth below.
    1. Compliance with Laws. Your participation in the Network and the Programs must be in compliance at all times with all applicable laws, regulations, decisions and best practices in any country that you target with your Promotional Method and that are applicable to promoting Participating Sites and Content, including but not limited to:
      1. Any applicable consumer protection and advertising laws, regulations or directives, which may include:
        1. Section 5 of the U.S. Federal Trade Commission Act or any future interpretation by the Federal Trade Commission of Section 5 as it relates to affiliate programs or advertising generally, or
        2. EU directives 2002/58/EC, 1997/7 EC and 2005/29/EC or any other applicable EU directives, and any applicable implementing national laws and regulations especially the requirement to identify the owner and operator of the website via contact details that are posted on the website (imprint obligation).
      2. Any applicable local code of conduct for affiliate marketing, including but not limited to the Direct Marketing Association's Best Practices for Online Advertising and Affiliate Marketing.
    2. Code of Conduct. You will not cause any clicks or transactions to be made that are not in good faith, as further described in the Code of Conduct. You will promote the Participating Sites and Content in a way that uses ethical and legal business practices, that does not mislead the end user, and that delivers bona fide end user transactions. While promoting the Participating Sites and Content, you must at all times comply with the ePN Code of Conduct (https://publisher.ebaypartnernetwork.com/PublisherRegCC?lang=en-US).
    3. Infringement. You may not use Promotional Methods or engage in any activity - in connection with your participation in the Network or a Program - that violates intellectual property or proprietary rights of third parties. This includes, but is not limited to, incorporating a third party's trademark (or a term confusingly similar to it) into your URL.
    4. Special Promotional Methods. If your Special Promotional Method is not approved by the Program Terms, you are required to obtain ePN's or the Advertiser's express written permission in advance to use that Promotional Method in that Program. You are responsible for verifying whether the applicable Program Terms allow or approve your Special Promotional Method. ePN reserves the right to ask you to terminate any special Promotional Method at any time, with or without notice or cause, and you agree to immediately comply. The following are non-limiting examples for special promotional methods:
      1. e-mail, instant messaging, IRC channels or other electronic communications,
      2. downloadable software,
      3. incentive programs including vouchers, coupons, or
      4. distribution of Promotional Content via distribution partners or ad networks,
      5. promoting Participating Sites and Content by placing Links in Paid Search results,
      6. use of a Developers Program tool or API to create Promotional Content.
      7. holding in-person trainings and classes
      You will not promote Participating Sites and Content using Special Promotional Methods unless the Program Terms or ePN approve such promotion expressly in writing, in advance, and you comply with the additional terms set out in the Code of Conduct (https://publisher.ebaypartnernetwork.com/PublisherRegCC").
    5. Mobile Traffic. You are allowed to promote Participating Sites and Content through mobile devices under the condition that you comply with the terms of this Agreement. ePN may determine in its sole discretion what it considers to be Mobile Website Traffic.
    6. eBay Trademarks. You will not adopt or use, nor buy or otherwise book as a keyword for paid search, any company name, any trademark, trade name., brand, shop sign, domain name, or URL (specifically, any term before the third "/" of your URL) that incorporates as a part thereof or in full any of eBay Inc.'s, or its corporate affiliates', (a) trademarks (including without limitation eBay, PayPal, and Half), tradenames, company names, brands, shop signs, domain names or URLs (including the translations and transliterations), or any variations thereof; or (b) any term that consists of a generic or descriptive word, followed by the terms BAY and/or PAL. Further, you will not display your company name, branding or trademark in an uneven, staggered, multi-color format that, in ePN's sole discretion, invokes the distinctiveness of the famous multi-color eBay logo.
    7. Advertiser Trademarks. Unless approved in writing by the Advertiser you will not adopt or use an Advertiser's company names, trademarks, trade names, brands, shop signs, domain names or URLs (specifically, any term before the third "/" of your URL) or any variations thereof as your own company name, trademark, trade names, brand, shop sign, domain name or URL.
  7. Working With Agents. You must get ePN's express written approval before you enter into your first agreement with a sub-affiliate, sub-publisher, distribution partner, ad network or any other similar third-party relationship through which you intend to participate in a Program (all of whom would be your "Agents" as defined in this Agreement). You are limited to a single tier of Agent relationships. You will include in your terms and conditions with your Agents a clause prohibiting them from entering into any additional tier of Agent relationship with respect to the Program. You will not work with Agents that have previously been terminated by ePN.
    1. Your Relationship With Agents. You will not make any commitments or representations on behalf of ePN or the Advertiser with regard to any relationship you enter into with your Agents in connection with your promotion of Participating Sites and Content.
      • Identifying Information. You will not enter into a relationship with an Agent without collecting identifying information for the Agent, which shall include:
        • in the case of a natural person, the Agent's first and last name, physical address, country, telephone number, and email address; and
        • in the case of corporations, partnerships, proprietorships, limited liability companies, organizations, associations, cooperatives, agencies, or other legal entities, entity details and the first and last name, physical address, country, telephone number, and email address for the natural person or persons who own, manage, or control the Agent.
      • Tracking Information. You must identify each Agent with unique tracking information.
      • Subject to this Agreement. You will provide all Agents with a copy of this Agreement, including but not limited to the Code of Conduct and the applicable Program Terms and document in writing their receipt and acceptance of these documents. Agents do not have a direct contractual relationship with ePN or the Advertisers.
      • Subject to Remedies. You will be responsible for your Agents' activities in any Program. Any violation by your Agents of this Agreement, the Code of Conduct, or Program Terms shall constitute a violation by you, and ePN shall have full recourse against you with respect to such a violation, including without limitation, suspension, or termination from the Program, specific performance, injunctive relief, and attorneys' fees.
      • Limitation of Liability. In your contract with your Agents you will expressly exempt ePN and the Advertiser from any liability.
    2. Notice to ePN. Upon ePN's request you will provide documentation of all Agents'
      1. identifying information,
      2. tracking ID, and
      3. acceptance of this Agreement.
    3. Reporting and Complaint Mechanism. You will establish and maintain a functioning e-mail address or other internet-based mechanism for consumers to report complaints regarding the practices of any Agent and make best efforts to associate each complaint with the Agent that is the subject of the complaint. You must be able to identify by tracking information and identifying information any Agent associated with any suspected violation of this Agreement. You will promptly investigate any complaints received through this mechanism and immediately terminate any Agent that you reasonably determine has engaged, or is engaging, in violations of applicable law or this Agreement, the Code of Conduct or the applicable Program Terms. You will also provide to ePN or the Advertiser all reasonable assistance in case of one of your Agents infringing this Agreement.
  8. Privacy.
    1. Affiliate Privacy.
      1. Communications. ePN and the Advertiser may from time to time contact you, primarily via email or via the Network, to send you updates and other information about the Programs you are registered in and the Network.
      2. ePN Privacy Policy. ePN's use of the information it receives from or about you as part of your participation in the Network is subject to ePN's Privacy Policy (https://publisher.ebaypartnernetwork.com/PublisherRegPP?lang=en-US).
      3. Personal Information Received from ePN. To the extent that you receive information from ePN relating to the Network that relates to an identifiable individual, you agree to protect that information and keep such information confidential.
    2. End User Privacy.
      1. End User Data. The Advertiser will own all rights in and to all information regarding the end users that you refer to Participating Sites and Content through the Network. ePN will have access to this information and will be able to process it on behalf of the relevant Advertiser.
      2. Personally Identifiable Information. You agree that you are responsible for all personally identifiable information that you collect from end users and that you will obtain explicit, opt-in consent from end users to collect, use or disclose this information. You further agree that unless you have gotten the explicit, informed consent of the end user, you will not enable the Tracking Code to collect any personally identifiable information from end users or otherwise allow you to profile end user activities
      3. Your Privacy Policy. You will conspicuously post a privacy policy on your website or otherwise make it available to all end users. 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, use and disclosure of visitor information. You will fully and accurately disclose your use of third-party technology, including ePN's tracking technology, use of cookies and options for discontinuing use of such cookies.
  9. Compliance, Monitoring and Remedies.
    1. Right to Monitor and Audit. You agree that ePN, the Advertisers and their service providers may monitor or audit your sites or activities, or those of your Agents, in relation to your participation in the Network and the Programs. You will not seek to block or otherwise interfere with the monitoring, and ePN and the Advertisers, and their service providers may use technical means to overcome any methods you may use to block or interfere with such monitoring. To the extent not prohibited by applicable law, audits may include requests for documents and server logs, requests for information and visits to your facilities and those of your Agents. Your failure to reasonably comply with ePN's efforts to audit your or your Agents' compliance with this Agreement shall constitute a material breach of this Agreement. If applicable law does not allow you to share server logs with ePN, you will provide ePN with other proper proof of traffic that you sent to Participating Sites.
    2. Not Currently Under Investigation. You warrant that you are not currently under order or investigation by any federal, state, local or international regulatory or law enforcement organization. You will inform ePN if at any point during your participation in the Network you become under such order or investigation.
    3. Global Compliance. Any infractions of this Agreement may be monitored and enforced globally in ePN's discretion.
    4. Remedy for Breach. If ePN, in its sole discretion, believes that you or your Agents have breached this Agreement or that you or your Agents have engaged in fraudulent activity, it may take any and all steps it deems appropriate including without limitation:
      • Issue a warning;
      • Conduct an investigation;
      • Suspend your account from participating in a specific Program or from the Network as a whole so that you shall no longer be entitled to any future-compensation for a Qualifying Transaction;
      • Terminate your account from a specific Program or from the Network as a whole; and/or
      • Withhold or recover any compensation.
      In addition to any other available remedies, ePN may, at its sole discretion, seek, without limitation, specific performance, injunctive relief and/or attorneys' fees.
    5. Suspension. - If ePN suspends your account from participating in the Network or you are suspended from a Program, you will no longer get paid for any future activity and you are required to immediately remove all existing Links. ePN, in its sole discretion, may (but has no obligation to) reinstate your account in the event you have, to ePN's satisfaction, taken all necessary remedial actions.
  10. Intellectual Property.
    1. Promotional Content. Provided your application to a Program is accepted, ePN grants you a revocable, non-exclusive, non-transferable (unless ePN or the Advertiser approved your use of Agents) worldwide, royalty-free license for the duration of your participation in that Program, to display Links and Promotional Content in accordance with this Agreement, the Program Terms and the Code of Conduct for the limited purposes of promoting the Participating Sites and Content.
    2. Promotional Tools. When your application to a Program is accepted, ePN grants you a revocable, non-exclusive, non-transferable (unless ePN approved your use of Agents), right to use the Promotional Tools that ePN or the Advertiser make available to you solely to facilitate your participation in the Program. ePN or the Advertiser reserve all rights in these tools, including all intellectual property rights. The use of a Promotional Tool may be subject to further terms and conditions that you must accept.
      You agree that you will:
      1. use any Promotional Tools only in a lawful manner and only in accordance with the terms of this Agreement;
      2. use any Promotional Tool only for the Participating Sites and Content for which it is intended;
      3. not corrupt, modify or disable the Promotional Tools;
      4. not sell, redistribute, sublicense or transfer the Promotional Tools; and not use any Promotional Tools in a manner intended to drive transactions for any sites or content other than the relevant Participating Sites and Content
    3. ePN or the Advertiser may revoke your license to use certain Promotional Content or certain Promotional Tools at any time for any reason or no reason, in their sole discretion.
    4. Use of Your Marks. You authorize ePN and the Advertiser of the Programs you are participating in to use your trademarks, service marks, tradenames, company names and copyrighted material that you provide through your account to promote your participation in the Program.
    5. Your Use of eBay Proprietary Rights. You acknowledge that you obtain no proprietary rights in eBay Inc's, or its corporate affiliates' trademarks, service marks, tradenames, URLs, copyrighted material, patents and patent applications or other intellectual property, and agree not to challenge eBay Inc.'s, or its corporate affiliates' proprietary rights in any way. You will use all ePN provided content and services in a way that does not, in ePN's sole discretion, blur or dilute, tarnish or adversely affect eBay's proprietary rights.
    6. Retention of Rights. Any and all proprietary rights, goodwill and other benefits and rights resulting from the use hereunder of trademarks, trade names or company name inures to the benefit of the owner.
  11. Confidentiality. In connection with your participation in the Network and the Advertisers' Programs you will be provided with data and information that is confidential and proprietary to ePN or the Advertiser(s), as is designated by the disclosing party or that is reasonably understood to be proprietary or confidential ("Confidential Information"). Confidential Information does not include 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 can show it had in its possession prior to the date of this Agreement. You agree to make commercially reasonable efforts, but in no case less effort than you use to protect your own confidential information, to maintain the confidentiality of and to protect any proprietary interests of ePN or the Advertiser(s). You may deliver a copy of such Confidential Information (a) pursuant to a subpoena issued by any court or administrative agency, (b) to your accountants, attorneys or other agents on a confidentiality basis and (c) otherwise as required by applicable law, rule, regulation or legal process, upon written notification to ePN. Upon termination of this Agreement or your participation in a Program, you must destroy or return any Confidential Information provided to you under this Agreement and if requested by ePN provide a certification of destruction.
  12. Term and Termination.
    1. Term. This Agreement shall commence when you accept it by providing the required information and clicking the acceptance button online and shall continue until terminated in accordance with the terms of this Agreement. ePN reserves the right to reject your application which automatically terminates the Agreement. Some rights contained in this Agreement depend on acceptance to the Network or a specific Program.
    2. Termination by Affiliate You may terminate this Agreement upon 3 days written notice.
    3. Termination by ePN or an Advertiser
      1. ePN may terminate (1)this Agreement, (2)your account, (3)any of your websites, Agents, or Affiliates, (4)your use of a Promotional Method, or (5)your participation in a certain Program, at any time for convenience in its sole discretion upon 3 days notice. An Advertiser may terminate your participation in its Program or your use of a Promotional Method at any time for convenience in its sole discretion upon 3 days notice.
      2. ePN may terminate (1)this Agreement, (2) your account, (3)any of your websites, Agents, or Affiliates, (4)your use of a Promotional Method, or(5) your participation in a certain Program, for cause with immediate effect. An Advertiser may terminate your participation in this Program or your use of a Promotional Method for cause with immediate effect. Breach of this Agreement is cause for immediate termination. Incidents that may cause ePN to terminate this Agreement for cause include, but are not limited to:
        1. If ePN suspects that you or your Agent are responsible for the improper functioning of Links, Promotional Content or Promotional Tools or if you otherwise interfere with or fail to maintain the Tracking Code; or
        2. If 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 through any of your promotional methods.
        3. If ePN determines you are diluting, tarnishing, blurring or adversely affecting eBay's proprietary rights.
      3. Upon termination ePN will deactivate your account and all accounts that are linked to you and you shall no longer accrue payments in your account, including but not limited to subsequent Qualifying Transactions where the clicks on the Links occurred prior to termination. If ePN terminates this Agreement for cause, you will not be eligible to enter into a new click-through agreement with ePN, and any attempt to do so will be null and void. You are also not allowed to participate in the Network as an Agent for a third party Affiliate.
    4. Termination of Programs and Offers. Programs and offers may be discontinued at any time.
    5. Post-Termination. Upon termination of this Agreement, you shall pay us any outstanding debit balance within 30 days of the termination date. Upon termination of this Agreement, and provided termination is not due to your breach of this Agreement, ePN will pay any outstanding payments to you within 90 days of the termination date, and you shall pay us any outstanding debit balance within 30 days of the termination date. Upon termination of this Agreement, any permissions granted under this Agreement will automatically and by right terminate, and you must immediately upon notice of termination remove all Links to Participating Sites and Content. Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement (e.g. audit, confidentiality, indemnification, limitation of liability, misc., etc.), 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.
  13. Representations, Warranties, Disclaimers and Limitations.
    1. 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.
    2. Non-infringement Warranties. You represent and warrant that (i) you have all appropriate authority to operate, and to any and all content on, your website(s); (ii) you have all appropriate authority in any Promotional Method you may choose to use; (iii) any Promotional Content you create, your website(s), any trade names or trademarks used pursuant to Section J(4) above, and your Promotional Methods do not and will not infringe any third party's or eBay's intellectual property or proprietary rights; (iv) you shall remain solely responsible for any and all websites owned and/or operated by you and all of your Promotional Methods, (v) you are acting in your professional capacity and not as a consumer and (vi) you are over 18 years of age. ePN may or may not review all content on your website or used by you in your Promotional Methods.
    3. Third-Party Disputes. In the event of a third-party claim against ePN's or the Advertiser's intellectual property or right to offer any service or good or if, in ePN's opinion, such a claim is likely, ePN shall have the right, in its sole discretion, to take any action to terminate the practices responsible for such third party claims and/or to secure, at its expense, the right to continue using the intellectual property or good or service, and/or to replace or modify the same to make it non-infringing or without misappropriation.
    4. Indemnification Obligations. You will defend, indemnify and hold ePN and the Advertisers (collectively, the "Indemnified Party") harmless against all claims, liabilities and expenses claimed or incurred by an Indemnified Party as a result of any third party claim directly or indirectly arising from or related to (a) any breach by you or your Agents of this Agreement, the Program Terms or Code of Conduct (b) violation by you or your Agents of applicable laws or regulations, (c) distribution or use of Promotional Content and Promotional Tools by you, your Agents, or anyone else that you are affiliated with; (d) acts or omissions by you or your Agents in using, displaying or distributing any Links, including but not limited to your use of Links in emails; (e) any claim that the Indemnified Party is obligated to pay tax obligations in connection with payment made to you pursuant to this Agreement or any Program Terms, and (f) any violation or alleged violation of any rights of another, including breach of a person's or entity's intellectual property rights, (g) you and your Agents participation in the Program(s) ((a)-(g) collectively, "Claims"). Should any Claim give rise to a duty of indemnification under this section, the Indemnified Party shall promptly notify you and will cooperate with you at your expense in the defense of such Claim. The Indemnified Party will be entitled, at its own expense, to participate in the defense of such Claim. Should any Claim give rise to a duty of indemnification, you are obligated to participate in the defense of such claim if requested to do so by ePN or the Advertiser. Participation in the defense shall not waive or reduce any of your obligations to indemnify or hold the Indemnified Party harmless. You will not settle any Claim without the Indemnified Party's prior written consent, and you will indemnify for any reasonable attorneys' fees or other costs incurred by an Indemnified Party in investigating or enforcing this section. In the context of this section, the term "ePN and/or Advertiser" shall include their respective officers, directors, employees, corporate affiliates, subsidiaries, agents, and subcontractors.
    5. Limitation of Liabilities. ANY OBLIGATION OR LIABILITY OF ePN UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF THE PAYMENTS ePN PAID TO YOU UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST ePN PURSUANT, OR IN ANY WAY RELATED, TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. YOU AGREE THAT NEITHER ePN NOR ANY ADVERTISER THAT IS PART OF THE EBAY INC. CORPORATE FAMILY SHALL BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, 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. YOU WARRANT THAT NO PROMOTIONAL METHOD USED BY YOU WILL RENDER ePN OR THE ADVERTISER LIABLE TO ANY PROCEEDINGS WHATSOEVER.
    6. Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ePN DISCLAIMS ALL WARRANTIES, 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 ePN's SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF YOUR INFORMATION OR WEBSITE. THOUGH ePN MAY REVIEW AFFILIATE'S BEHAVIOR AS PART OF ITS NETWORK QUALITY EFFORTS, ePN MAY NOT BE HELD LIABLE FOR AN AFFILIATES BREACH OF THIS AGREEMENT, THE CODE OF CONDUCT OR THE PROGRAM TERMS. ALL INFORMATION AND COMPUTER PROGRAMS PROVIDED TO YOU IN THE COURSE OF THIS AGREEMENT ARE PROVIDED "AS IS" WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. ePN IS UNDER NO CIRCUMSTANCES RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY THIRD PARTY OR ANY WEBSITE, OR THE CONTENT OF ANY WEBSITE OR THAT ANY PARTY MAKES AVAILABLE. ePN MAKES NO REPRESENTATION OR GUARANTEE WITH RESPECT TO THE AVAILABILITY OR UPTIME OF THE NETWORK, THE TRACKING FUNCTIONALITY, OR ANY PARTICIPATING SITE AND CONTENT. ePN AND THE ADVERTISERS MAY CONDUCT MAINTENANCE ON ANY OF THE FOREGOING AT ANY TIME WITH OR WITHOUT NOTICE TO YOU. THIS AGREEMENT DOES NOT CONTAIN ANY OBLIGATIONS, REPRESENTATIONS OR WARRANTIES BY THE ADVERTISER AND DOES NOT GRANT YOU ANY RIGHTS AGAINST THE ADVERTISER.
    7. Remedies. No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
    8. Benefit of the Bargain. The provisions of this section are an essential element of the benefit of the bargain reflected in this Agreement.
  14. Miscellaneous.
    1. 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.
    2. Choice of Law/Attorneys' Fees. This Agreement, the Code of Conduct and the Program Terms are 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, the Code of Conduct and the Program Terms shall be in the state courts and, to the extent that federal courts have exclusive jurisdiction, in San Jose, California. 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. ePN controls and operates the Network from its offices in the USA and access or use where illegal is prohibited. You expressly waive and withdraw your rights under any law or statute conferring jurisdiction on the basis of nationality to courts other than the ones expressly designated above.
    3. English You accept that English is the language of this Agreement, the Code of Conduct and the Program Terms and the English versions of this Agreement, the Code of Conduct, the Privacy Policy and the Program Terms shall be controlling in all respects. Translations of these documents that may be provided are for your convenience only. The English versions of this Agreement, the Code of Conduct, the Privacy Policy and the Program Terms can be found here (https://publisher.ebaypartnernetwork.com/PublisherHelpUserAgreement, https://publisher.ebaypartnernetwork.com/PublisherRegTc?advertiser_id=1, https://publisher.ebaypartnernetwork.com/PublisherRegTc?advertiser_id=2).
    4. Amendment. ePN may amend this Agreement by notifying you by email to the address on your account, as shown by ePN’s records, or by message via the Network. You may review a revised Agreement for up to seven days after ePN sends this notice. After seven days, the revised Agreement will automatically take effect and become fully enforceable. If you do not agree with the revised Agreement, you will remove yourself from the Network through your account, and immediately remove and stop promoting any Links. ePN may establish from time to time rules and regulations for the Network as published on the Network website or in the Network and incorporated herein.
    5. Assignment. 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 ePN's assignment or transfer (1) due to operation of law, or (2) to an entity that acquires substantially all of ePN's stock, assets or business, or (3) to a related entity (e.g., parent or subsidiary of parent). Your participation in the Network is irrefutable acknowledgement by you that you have read, understood and agreed to each and every term and provision of this Agreement.
    6. Intended beneficiaries. The Advertisers are explicitly designated as third-party beneficiaries to this Agreement but only in relation to rights they wish to rely upon or enforce against the Affiliates. In no circumstance may the Advertisers rely upon or enforce any term of this Agreement against eBay.
    7. No Partnership or Joint Venture. Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as the agent of the other party for any purpose whatsoever. Neither party shall have the authority or power to bind the other or to contract in the name of or create a liability against the other in any way or for any purpose.
    8. Notices. Except as provided elsewhere herein, both parties must send all notices relating to this Agreement (i) to ePN, via registered mail, return receipt requested or via an internationally recognized express mail carrier to ePN Inc., Attn: Legal Dept., 2145 Hamilton Ave., San Jose, CA 95125 USA (effective upon actual receipt); and (ii) to you, by notification via the Network, email or mail to the address listed on your account (effective upon sending as long as ePN does not receive an error message regarding delivery of the email) or five (5) days after mailing).
    9. 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.
    10. Entire Agreement. This Agreement, including the Code of Conduct, the applicable Program Terms and the ePN Privacy Policy, is the entire agreement between the parties pertaining to its subject matter and supersedes all prior written or oral agreements (including prior versions of this Agreement and any conflicting confidentiality agreements), representations, warranties or covenants between the parties with respect to such subject matter.
    11. No Waiver. ePN's failure to enforce your strict performance of any provisions of this Agreement will not constitute a waiver of ePN's right to subsequently enforce such provisions or any other provision of this Agreement.
  15. Hierarchy of Contractual Documents. In case of conflict between the various contractual documents, the following hierarchy will apply:
    • - Network Agreement
    • - ePN Privacy Policy
    • - Code of Conduct
    • - Specific Advertiser Terms
    • - Program Terms