General terms and conditions for participation in Lavasoft's Affiliate Programme - Lavasoft

February 15, 2011

NOTE: PLEASE THOUROUGHLY REVIEW THESE GENERAL TERMS AND CONDITIONS FOR PARTICIPATION IN LAVASOFT'S AFFILIATE PROGRAMME (THE "GENERAL TERMS AND CONDITIONS") BEFORE YOU COMMENCE YOUR PARTICIPATION IN LAVASOFT'S AFFILIATE PROGRAMME. IF YOU DO NOT AGREE TO BE BOUND BY THESE GENERAL TERMS AND CONDITIONS, LAVASOFT IS NOT WILLING TO APPOINT YOU AS AN AFFILIATE AND YOU ARE NOT ALLOWED TO PARTICIPATE IN THE LAVASOFT AFFILIATE PROGRAMME. PLEASE NOTE THAT THE COMMENCMENT OF ANY OF THE ACTIVITIES THAT ARE ALLOWED UNDER THE LAVASOFT AFFILIATE PROGRAMME WILL BE CONSIDERED AS AN ACCEPTANCE OF THESE GENERAL TERMS AND CONDITIONS.

1. BACKGROUND

1.1 Lavasoft Limited, 40/D, St. Julian's Court, Sur Fons Street, St. Julian's, Malta, corporate identity number C 45996 (hereinafter "Lavasoft") is a software publisher that markets and distributes, on behalf of itself and its licensors, security software products.

1.2 Lavasoft has established an affiliate program, under which approved affiliates are entitled to promote Lavasoft and its security software products subject to the terms and conditions set out in these General Terms and Conditions (the "Lavasoft Affiliate Programme").

2. DEFINITIONS

2.1 The following capitalized terms will have the meanings ascribed to them below, unless the context would obviously require otherwise.

"Affiliate" means an affiliate whose Affiliate Application has been accepted by Lavasoft by e-mail or otherwise in writing and who accepts these General Terms and Conditions.

"Affiliate Application" means the application form that must be submitted to Lavasoft in connection with the application to become a Lavasoft Affiliate.

"Affiliate Revenue Share" shall mean the revenue share that the Affiliate is entitled to, if any, in relation to sales of Lavasoft software products that are tracked by the Lavasoft Tracking Functionality as sales that results from the Affiliate Promotional Activities performed hereunder.

"Affiliate Mailers" means newsletters and other mailers that the Affiliate issues from time to time to customers and other individuals who have accepted to receive such mailers from the Affiliate.

"Affiliate Promotional Activities" shall mean the promotional activities that the Affiliate performs hereunder in order to promote Lavasoft and the Lavasoft software products as further specified in Section 3.1 hereto.

"Affiliate Resource Page" means the resource page that the Affiliate is granted access to when it has been approved as an Affiliate by Lavasoft, which specifies the Lavasoft Marks and the Lavasoft Materials that the Affiliate is entitled to use whilst performing the Affiliate Promotional Activities hereunder.

"Affiliate Sites" means websites that are owned and controlled by the Affiliate.

"Affiliate User Account" means the Affiliate's user account for the Lavasoft Affiliate Programme that: (i) specifies the contact details for the Affiliate; (ii) enables the Affiliate to use Lavasoft Tracking Functionality so that sales that directly relate to the Affiliate Promotional Activities can be properly tracked; (iii) specifies the Affiliate Revenue Share, if any.

"Effective Date" means the date when the Affiliate commences with any of the Affiliate Promotional Activities.

"Lavasoft Guidelines and Policies" means: (i) the Lavasoft Branding Guidelines; (ii) the Google Chrome Guidelines; and (iii) and all other guidelines and policies of Lavasoft, its licensors and cooperation partners, including any updates of any of the foregoing, which Lavasoft makes available to the Affiliate on the Affiliate Resource page or otherwise in writing hereunder (including e-mails).

"Lavasoft Marks" means the name, trademarks, service marks, trade names, logos and/or other designations of origin of Lavasoft as specified on the Affiliate Resource Page.

"Lavasoft Materials" means documents, texts, banners, graphics, logotypes, photos, screenshots, box shots and any and all other materials provided to the Affiliate on the Affiliate Resource Page or by any other means.

"Lavasoft Site" means www.lavasoft.com including the shopping carts linked thereto.

"Lavasoft Software" shall mean a master of certain Lavasoft software products that Lavasoft may, in its sole discretion, provide the Affiliate hereunder, that: (i) is set to a limited license period for trial purposes as agreed between Lavasoft and the Affiliate from time to time; and (i) contains Lavasoft Tracking Functionality. For the avoidance of any doubt, any and all references to Lavasoft Software herein shall include the Trial Software Products.

"Lavasoft Tracking Functionality" means Lavasoft tracking functionality which tracks whether a sale of a Lavasoft software product relates to the Affiliate Promotional Activities performed hereunder.

"Trial Software Products" means free of charge electronic versions of the Lavasoft Software.

3. LICENSE RIGHTS AND RESTRICTIONS

3.1 Subject to the Affiliate's compliance with these General Terms and Conditions (including but not limited to the requirements set out in Section 4.1 below), Lavasoft grants the Af-filiate, during the term hereof, a non-exclusive, non-transferable, non-sublicensable and limited license, to:

1. use the Lavasoft Marks and the Lavasoft Materials on the Affiliate Site(s) to pro-vide links from the Affiliate Sites to the Lavasoft Site;
2. use the Lavasoft Marks and the Lavasoft Materials in Affiliate Mailers to provide links to the Lavasoft Site;
3. subject to Lavasoft's prior written approval, distribute/make available for download Trial Software Products on the Affiliate Sites;
4. subject to Lavasoft's prior written approval, provide download links for Trial Software Products in Affiliate Mailers; and
5. subject to Lavasoft's prior written approval, use the Lavasoft Marks, the Lavasoft Materials and the Lavasoft Software for any other promotional activities.

3.2 The Affiliate may not assign, delegate, sublicense, pledge or otherwise transfer the rights or licenses set out herein, or any of its obligations hereunder to any third party other than as expressly granted under these General Terms and Conditions.

3.3 The Affiliate may not: (i) alter, change, modify or adapt the Lavasoft Marks, the Lavasoft Materials or the Lavasoft Software; (ii) reverse engineer, decompile, compile, translate, create derivative works of, decipher, decrypt, dissemble or otherwise convert the Lavasoft Software to a human readable form (except to the extent as permitted by applicable mandatory law); (iii) use the Lavasoft Software, the Lavasoft Marks or the Lavasoft Materials for timeshare, service bureau, or any other unauthorized purposes; or (iv) alter, obscure, remove, interfere with or add to any of the Lavasoft Marks used on or contained in the Lavasoft Software, unless otherwise approved by Lavasoft in writing (in each specific case).

3.4 The Lavasoft Marks, the Lavasoft Materials and the Lavasoft Software and any and all patents, copyrights, trademarks, design rights and any and all other intellectual property rights associated therewith, are the exclusive property of Lavasoft and its licensors. All rights in and to the Lavasoft Marks, the Lavasoft Materials and the Lavasoft Software are reserved by Lavasoft and its licensors and the Affiliate obtains no other rights than the limited license rights explicitly granted under Section 3.1 above.

3.5 Lavasoft shall have the right to conduct an audit, through an independent certified public accountant, to verify that the Lavasoft Software is used in accordance with the limits stipulated by these General Terms and Conditions.

4. THE AFFILIATE'S OBLIGATIONS

4.1 The Affiliate undertakes to:

1. place links on the Affiliate Sites to the Lavasoft Site through use of the Lavasoft Marks and the Lavasoft Materials;
2. ensure that the Affiliate Sites do not contain any content that is illegal or which can be considered as defamatory, racist, abusive or fraudulent;
3. ensure that the Affiliate Mailers that include Lavasoft Marks, Lavasoft Materials or download links for Trial Software Products cannot be considered as spam or unsolicited e-mails;
4. ensure that all use of the Lavasoft Marks, the Lavasoft Materials and the Lavasoft Software is made in compliance with the Lavasoft Guidelines and Policies and Lavasoft's instructions from time to time;
5. upon Lavasoft's request, promptly remove from any Affiliate Sites or any Affiliate Mailer any Lavasoft Marks, Lavasoft Materials or any text relating to Lavasoft or the Lavasoft software products;
6. upon Lavasoft's written request, promptly cease or suspend, the distribution of Trial Software Products;
7. in the event that updates and/or upgrades of the Lavasoft Software are provided by Lavasoft, promptly cease the distribution of, and provision of links to, Trial Software Products based on any prior versions of the Lavasoft Software;
8. ensure that the use of the Lavasoft Marks, the Lavasoft Materials and the Lavasoft Software (including for the avoidance of any doubt the distribu-tion/making available of Trial Software Products hereunder) are made in compli-ance with any and all applicable laws and regulations, including but not limited to export control laws, privacy laws, marketing laws and consumer protection laws - without limiting the generality of the foregoing, the Affiliate specifically acknowl-edge that portions of the Lavasoft Software may be of U.S. origin and agree to comply with all applicable U.S. governing import, export and re-export of the Lavasoft Software (including for the avoidance of any doubt, Trial Software Prod-ucts), including but not limited to the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by the U.S. gov-ernment;
9. ensure that the contact information in the Affiliate User Account is complete, correct and at all times accurate; and
10. ensure that no third party is given access to the password of the Affiliate User Account and immediately inform Lavasoft of any suspected misuse of the afore-mentioned password.

4.2 The Affiliate shall, during the term hereof and thereafter, indemnify Lavasoft against any and all liabilities, damages, losses, costs and expenses (including reasonable legal fees and expenses) suffered or incurred by Lavasoft due to: (i) the Affiliate's breach of these General Terms and Conditions; or (ii) otherwise due to the Affiliate's use of the Lavasoft Marks, the Lavasoft Materials and the Lavasoft Software hereunder.

5. LAVASOFT'S OBLIGATION

Lavasoft shall pay any Affiliate Revenue Share that the Affiliate is entitled to in connec-tion with the Affiliate Promotional Activities hereunder, if any, without undue delay. Any Affiliate Revenue Share percentage shall be calculated on the end user purchase price of the applicable Lavasoft software product exclusive of any and all taxes and charges.

The Affiliate will only be entitled to Affiliate Revenue Share on sales of Lavasoft software products which can be tracked by the Lavasoft Tracking Functionality.

6. DISCLAIMER

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, THE LAVASOFT MARKS, THE LAVASOFT MATERIALS AND THE LAVASOFT SOFTWARE (AND ANY AND ALL PARTS THEREOF) ARE PROVIDED "AS IS" AND LAVASOFT MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE LAVASOFT MARKS, THE LAVASOFT MATERIALS OR THE LAVASOFT SOFTWARE, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MER-CHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTIES' INTELLECTUAL PROPERTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LAVASOFT MAKES NO REPRESENTATIONS OR WARRANTIES THAT: (I) THE USE OF THE LAVASOFT SOFTWARE WILL BE UN-INTERUPTED OR THAT THE LAVASOFT SOFTWARE WILL BE ERROR-FREE; OR (II) THE LAVASOFT SOFTWARE WILL DETECT AND CLEAN THE END USERS COM-PUTERS FROM ANY AND ALL CONCEIVABLE MALWARE.

7. LIMITATION OF LIABILITY

7.1 EXCEPT AS EXPRESSLY SET FORTH IN THESE GENERAL TERMS AND CONDITIONS AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR: (I) INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES; NOR FOR (II) DAMAGE TO PROPERTY; LOSS OF USE OR DATA; LOSS OF PRODUCTION; OR LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND (WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL); NO MATTER WHAT THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.2 Notwithstanding anything to the contrary herein, Lavasoft's total accumulated liability hereunder shall not exceed the payments made to the Affiliate hereunder during the twelve (12) month period immediately preceding the event that gave rise to such claim.

7.3 Notwithstanding the above, the limitation of liabilities set out in Section 7.1 above shall not apply in case of gross negligence or wilful misconduct or in case of a breach of, or in relation to, Section 3, Section 4.1 (ii)-(x), Section 4.2 and Section 8.

7.4 No action, regardless of form, arising out of any alleged breach of these General Terms and Conditions may be brought by either party more than twelve (12) months after the cause of action occurred or became known to the claiming party, whichever is later.

8. CONFIDENTIALITY

The Affiliate undertakes to keep and treat as confidential and not disclose to any third party any information relating to Lavasoft's business and trade secrets received in con-nection with the Affiliate's participation in the Lavasoft Affiliate Programme (including but not limited to product related and commercial information) nor make use of such information for any purpose whatsoever other than for the purposes of its participation in the Lavasoft Affiliate Programme. The confidentiality undertaking shall last during the term of the Affiliate's participation in the Lavasoft Affiliate Programme and for a period of five (5) years thereafter.

9. TERM AND TERMINATION

9.1 The Affiliate undertakes to keep and treat as confidential and not disclose to any third party any information relating to Lavasoft's business and trade secrets received in con-nection with the Affiliate's participation in the Lavasoft Affiliate Programme (including but not limited to product related and commercial information) nor make use of such information for any purpose whatsoever other than for the purposes of its participation in the Lavasoft Affiliate Programme. The confidentiality undertaking shall last during the term of the Affiliate's participation in the Lavasoft Affiliate Programme and for a period of five (5) years thereafter.

9.2 Lavasoft may further prematurely terminate the Affiliate's participation in the Lavasoft Af-filiate Programme upon written notice to the Affiliate (including e-mail), with immediate ef-fect: (i) if the Affiliate, in Lavasoft's reasonable discretion, is in material breach of these General Terms and Conditions; (ii) if the Affiliate's use of the Lavasoft Marks, in Lavasoft's reasonable discretion, dilutes or tarnish the Lavasoft Marks or harms the repu-tation of Lavasoft in any way; (iii) if the Affiliate becomes insolvent or enter into liquida-tion, bankruptcy or other procedure due to its inability to pay its debts; or (iv) in the event of a change of control of the Affiliate.

9.3 Upon termination or expiration of the Affiliate's participation in the Lavasoft Affiliate Programme, all rights granted to the Affiliate hereunder shall terminate and the Affiliate shall: (i) cease any and all use of the Lavasoft Marks, the Lavasoft Materials and the Lavasoft Software; and (ii) destroy any Confidential Information of Lavasoft received hereunder.

9.4 Sections which by their nature are intended to survive the termination or expiration of these General Terms and Conditions, shall so survive the expiration or termination hereof, including but not limited to Section 4.2, Section 6, Section 7, Section 8 and Sec-tion 12.

10. REVISIONS OF THESE GENERAL TERMS AND CONDITIONS

Lavasoft reserves the right to revise these General Terms and Conditions upon at least thirty (30) days prior written notice to the Affiliate (including e-mail). If the Affiliate does not accept the revised General Terms and Conditions, the Affiliate is entitled to terminate its participation in the Lavasoft Affiliate Programme with immediate effect upon written notice to Lavasoft (including e-mail).

11. MISCELLANEOUS

11.1 All notices required or permitted to be given by either party under these General Terms and Conditions shall be in writing and may be delivered by courier, registered mail, facsimile or e-mail and shall be deemed given upon dispatch of such notice. A notice to the Affiliate shall be made to the contact details specified in the Affiliate User Account, and notices to Lavasoft shall be made to: Lavasoft Limited, Amery Street 48/4, Sliema SLM 1701, Malta fax: + 356 2142 3256; e-mail: [email protected].

11.2 The Affiliate may not assign any of its rights or obligation under these General Terms and Conditions to a third party without the prior written consent of Lavasoft.

11.3 The failure by Lavasoft or the Affiliate to enforce any provisions of these General Terms and Conditions or to exercise any right in respect thereto shall not be construed as constituting a waiver of its rights thereof.

11.4 If any provision of these General Terms and Conditions is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

11.5 The Affiliate's participation in the Lavasoft Affiliate Programme is not intended to establish any partnership, agency, joint venture, employment, or other relationship between the Lavasoft and the Affiliate except that of independent contractors.

11.6 These General Terms and Conditions contains the entire agreement between the parties on the subject matter hereof and supersedes all undertakings and agreements previously made between the parties with respect to the subject matter of these General Terms and Conditions.

11.7 Except as set out in Section 10 above, these General Terms and Conditions may be modified only by a written document duly signed by both parties and referencing these General Terms and Conditions.

12. GOVERNING LAW AND ARBITRATION

12.1 These General Terms and Conditions and the Affiliate's participation in the Lavasoft Affiliate Programme will be governed by the laws of Malta, without regard to any conflicts of law principles, and the parties hereby submit to the exclusive jurisdiction of the courts of Malta.

12.2 Notwithstanding the above, nothing in this Section 12 shall prevent either party from seeking any interim or final injunctive relief by a court if competent jurisdiction.