OMNISCAPE™ Affiliate Program Terms and Conditions

AFFILIATE AGREEMENT

TERMS OF SERVICE AND TERMS AND CONDITIONS

YOU MUST READ AND AGREE TO THIS THE ENTIRE AGREEMENT TO BE ACCEPTED AS AN AFFILIATE.

YOU MAY PRINT THIS PAGE FOR YOUR RECORDS.

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND TRANSMIRA, INC. (DBA OMNISCAPE.COM)

BY SUBMITTING THE ONLINE APPLICATION, YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS AND TERMS OF SERVICE OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.

Overview

This agreement describes the terms and conditions for participation in the OMNISCAPE™ affiliate program. In this agreement, the term “Affiliate” refers to you (the applicant). In this agreement, “Omniscape” and “OMNISCAPE” refer to Transmira, Inc. (“Transmira”), a North Carolina Corporation, with whom you are entering this agreement. By signing up to be an Affiliate in the OMNISCAPE™ Affiliate Program (“Program”) you are confirming that you have read the agreement and agree to be bound by following the terms and conditions (“Terms of Service”). If you do not want to agree to these Terms of Service, you must not participate in the Affiliate Program.

Transmira reserves the right to update and change the Terms of Service from time to time without notice. Any new features that augment or enhance the current Program, including the release of new features, functionality, terms, and tools and resources, shall be subject to the Terms of Service. Continued use of the Program after any such changes shall constitute your consent to such changes. You can review the most current version of the Terms of Service at any time at: https://omniscape.com/tos/affiliate-tos/

Violation of any of the terms below will result in the termination of your Account and for forfeiture of any outstanding affiliate commission payments earned during the violation. You agree to use the Affiliate Program at your own risk.

Eligibility

Eligibility for the OMNISCAPE™ Affiliate Program

To participate in the Affiliate Program, you must submit an application through the OMNISCAPE™ Affiliate Registration Signup, available at https://omniscape.com/affiliate-area/. Transmira reserves the right, in its sole discretion, to accept or reject any application for membership in the Affiliate Program for any reason.

Account Terms

  1. Affiliates must be 18 years or older to participate in the OMNISCAPE™ Affiliate Program.
  2. You must be a human. Accounts registered by “bots” or other automated methods are not permitted.
  3. You must provide your legal full name, a valid email address, and any other information requested in order to complete the signup process.
  4. Your login may only be used by one person – a single login shared by multiple people is not permitted.
  5. You are responsible for maintaining the security of your account and password. Transmira cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
  6. You are responsible for all Content posted and activity that occurs under your account (even when Content is posted by others who have accounts under your account).
  7. One person or legal entity may not maintain more than one account without expressed written permission from Transmira.
  8. You may not use the Affiliate Program for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).

Identifying Yourself as an OMNISCAPE™ Affiliate

You may not issue any press release with respect to this Agreement or your participation in the Program; such action may result in your termination from the Program. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, say you develop our products, say you are part of Transmira or OMNISCAPE™, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that we support, sponsor, endorse, or contribute money to any charity or other cause).

You may not purchase products through your affiliate links for your own use. Such purchases may result (in our sole discretion) in the withholding of referral fees and/or the termination of this Agreement.

Relationship Between You and Us

You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Agreement.

Usage and Obligations

Affiliates are permitted to use the OMNISCAPE™ brand and marketing resources available in the Affiliates section of the OMNISCAPE™ application and website. Logos and other assets cannot be modified. The Affiliate does not gain any trademark, copyright or any other rights to these materials.

The Affiliate will never imply that they are acting on behalf of Transmira or OMNISCAPE™ and will never advertise OMNISCAPE™ products directly. The Affiliate will never bid for advertisements that compete with OMNISCAPE™.

The Affiliate will never represent themselves, Transmira, OMNISCAPE™, or their relationship with Transmira in a false or misleading way.

The Affiliate will not engage in the distribution of an unsolicited bulk email (spam) mentioning or referencing Transmira or OMNISCAPE™.

Affiliate Obligations

To register for the OMNISCAPE™ affiliate program, you will complete and submit the online application at the omniscape.com website. The fact that we auto-approve applications does not imply that we may not re-evaluate your application at a later time. We may reject your application at our sole discretion. We may cancel your application if we determine that your site, sites, or social media accounts are unsuitable for our Program, including if it or they:

  1. Promotes sexually explicit materials;
  2. Promotes violence;
  3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
  4. Promotes illegal activities;
  5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law;
  6. Includes “Transmira”, “OMNISCAPE” or variations or misspellings thereof in its domain name, username, or ID;
  7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion.
  8. Contains software downloads that potentially enable diversions of commission from other affiliates in our program.

You may not create or design your website, social media account, or any other website that you operate, explicitly or implied in a manner which resembles our website and social media accounts, nor design your website or social media accounts in a manner which leads customers to believe you are omniscape.com or any other affiliated business.

As a member of the OMNISCAPE™ Affiliate Program, you will have access to the Omniscape.com Affiliate Area. Here you will be able to review Program details, generate HTML code (that provides for links to web pages within the omniscape.com web site) and banner creatives, and browse and get tracking codes for our coupons and deals. In order for us to accurately keep track of all guest visits from your site and social media accounts to ours, you must use the HTML code that we provide for each banner, text link, or other affiliate link we provide you with.

Transmira reserves the right, at any time, to review your placement and approve the use of Your Links and require that you change the placement or use to comply with the guidelines provided to you.

The maintenance and the updating of your site and social media accounts will be your responsibility. We may monitor your site and social media accounts as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.

It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site and social media accounts. You must have express permission to use any person’s copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third-party rights.

Your responsibilities

You will be solely responsible for the development, operation, and maintenance of your site and social media accounts and for all materials that appear on your site or social media. For example, you will be solely responsible for:

  • The technical operation of your site and all related equipment;
  • Ensuring the display of Special Links on your site and social media does not violate any agreement between you and any third party (including without limitation any restrictions or requirements placed on you by a third party that hosts your site or social media);
  • The accuracy, truth, and appropriateness of materials posted on your site and social media (including, among other things, all Product-related materials and any information you include within or associate with Special Links);
  • Ensuring that materials posted on your site or social media do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights);
  • Ensuring that materials posted on your site or social media are not libelous or otherwise illegal;
  • Ensuring that your site and social media accurately and adequately discloses, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors’ browsers.

OMNISCAPE Rights and Obligations

We have the right to monitor your site and social media accounts at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site or social media that we feel should be made, or to make sure that your links to our web site are appropriate and to notify you further of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the OMNISCAPE™ Affiliate Program.

Transmira reserves the right to terminate this Agreement and your participation in the OMNISCAPE™ Affiliate Program immediately and without notice to you should you commit fraud in your use of the OMNISCAPE™ Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, Transmira shall not be liable to you for any commissions for such fraudulent sales.

This Agreement will begin upon our acceptance of your Affiliate application and will continue unless terminated hereunder.

Customer Definition

Customers who buy products through this Program will be deemed to be our customers. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. Because price changes may affect Products that you have listed on your site, you should not display product prices on your site. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.

Referrals

You will receive commission for Qualified Referrals to OMNISCAPE™. The percentage and type of commission may change at any time and without notice.

“Qualified Referrals” mean customers referred by you to OMNISCAPE™ who: (1) click on your unique tracking link; (2) within ninety (90) days of clicking on your unique tracking link, successfully purchase and remit payment for an OMNISCAPE product; and (3) maintain an active account.

Affiliates who share the same personal/company details, including but not limited to, last name, email address, IP address, website details, or commission payment details, as their referred customer will be deemed to have made a “Self-Referral.” Referral commission and any earnings associated with this type of “Self-Referral” will not be paid. Transmira, in its sole discretion, will determine the classification of any referral as a “Self-Referral.”

Referrals made to current OMNISCAPE™ customers will be considered “Current Customer Referrals” and referral commission and any earnings associated with Current Customer Referrals will begin accruing after the referral was made. You will not receive referral commission for a Current Customer Referral for any payments the customer made to OMNISCAPE before the referral. Transmira, in its sole discretion, will determine the classification of any referral as a “Current Customer Referral.”

Commissions

For a sale to generate a commission to an Affiliate, the customer must complete the order form and remit full payment for the product. Commissions will only be paid on sales that are made when the customer clicks through qualified, correctly structured Affiliate links. Properly coded links are the sole responsibility of the affiliate. Commissions can be viewed on the Affiliate Dashboard in the Affiliate Area on omniscape.com.

For a Product sale to be eligible to earn a referral fee, the customer must click-through a Special Link from your site, email, or other communications to a Product Site and sign up for the product during that session. The session ends once someone closes their web browser, navigates away from the Product Site, or otherwise leaves the Product Site without signing up for a product before leaving the site. If they leave the site without making a purchase, you will not earn a commission. If the customer is already designated as a referral of another Affiliate, you will not earn a commission. Customers must click through your affiliate link and complete a purchase to be designated as your referral, otherwise they may come back later on their own, and then purchase a product, you will not earn a commission.

If the Affiliate is on a one-time payment option, they will receive a commission for each new signup.

If the Affiliate is on a recurring payment schedule, they will continue to accumulate commissions for each paid transaction by the customer for as long as the customer remains a paying customer. For Affiliates participating in the recurring program, commissions will also accumulate for plan upgrades if offered.

The current commission chart may be found at: https://www.omniscape.com/affiliate/affiliate-program The commission structure is subject to change at our discretion. We will notify all Affiliates in advance to a commission structure change. Commissions earned under the previous structure will be paid under the previous structure. Commissions under the new structure will be paid under the new structure.

We will only pay commissions on links that are automatically tracked and reported by our systems. We will not pay commissions if someone says they signed up or someone says they entered a referral code if it was not tracked by our system. We can only pay commissions on business generated through properly formatted special links that were automatically tracked by our systems.

We reserve the right to disqualify commissions earned through fraudulent, illegal, or overly aggressive, questionable sales or marketing methods.

Payment

Payments are only made via PayPal.

As long as your current affiliate earning are over $100, you’ll be paid roughly every 45 days. If you haven’t earned $100 since your last payment, we’ll pay you roughly 45 days after you’ve crossed the threshold. Commissions earned on referrals become payable and added to your earnings 30 days after the referred customer becomes a Qualified Referral.

If your affiliate account never crosses the $100 threshold, your commissions will not be realized or paid. We are only responsible for paying accounts that have crossed the $100 threshold.

If at any time a Qualified Referral files a credit card dispute, any earned Affiliate commission on the disputed charge shall become frozen in your account until the dispute is settled. You will not receive any interest on commissions that have been frozen. If the dispute is settled in Transmira’s favor, any associated earned Affiliate commission will become payable to you. If the dispute is settled in the Qualified Referral’s favor, any associated earned Affiliate commission shall not be paid to you. If commissions have already been paid out to you, the amount of earned commissions on the disputed charges shall be debited to your account.

Commission payments will be paid in US Dollars and only via Paypal. You are responsible for paying all applicable fees associated with accepting payments, including but not limited to, currency conversion fees, transaction fees, withdrawal fees, deposit fees, and other related fees. Commissions are generally paid out on the last Thursday or Friday of each month, subject to change at our discretion based on the month, holidays, or other events that may delay payments.

Documentation

In order to receive payments for earned commissions, you must provide Transmira a completed Form W-8, Form W-9, or other applicable form as instructed by Transmira. You will be deemed to have permanently waived all rights to Commissions that were earned more than 120 days before submitting a completed the appropriate form to Transmira. You are responsible for any and all tax liabilities, including, without limitation, income tax liabilities, that arise from or in any way relate to any commissions paid out to you by Transmira.

Transmira reserves the right to request documentation in order to approve your account. These requests may be made during the OMNISCAPE™ Affiliate Program application process or at any time while you have an active account in the Affiliate Program. If requests for documentation are not responded to in a timely manner, Transmira reserves the right to terminate, deactivate, or not approve your account.

Refunds

We have a strict no refunds policy.

However, in the event a refund must be made due to a dispute or other valid reason for a transaction for which the Affiliate has earned commissions, any commissions earned on the refund amount will be deducted from the Affiliate’s balance.

Payments by Paypal

Commissions are paid by PayPal and only by PayPal. We cannot send checks, credit cards, or send cash. You are required to have a PayPal account to receive commissions. If you don’t have a PayPal account you can sign up for one at any time, but you will not be paid until you have one.

Marketing

You shall bear your own costs and expenses related to marketing and promoting OMNISCAPE™ and/or the OMNISCAPE™ Affiliate Program. Transmira is not obligated to reimburse or credit you for any marketing expenses. If Transmira does reimburse you for any marketing expenses, such reimbursement shall not create a duty or obligation to reimburse any future marketing expenses.

You may not engage in any of the following marketing activities and you represent and warrant that your marketing practices do not violate any of these restrictions:

  1. Affiliates shall not make any false, misleading, or disparaging statements with respect to the OMNISCAPE™ Affiliate Program, Transmira, OMNISCAPE™, its employees, its customers, its Services, Products, or its Affiliates.
  2. Affiliates shall not create websites or advertisements that copy, imitate, or resemble the look and feel of OMNISCAPE™ Services, Products, Applications, Websites, and Social Media accounts. Affiliates shall not copy OMNISCAPE’s website or any portions thereof, including, without limitation, any of Transmira’s trademarks or other intellectual property, and display them on their own site or subdomain or use them in any way without Transmira’s prior expressed written consent.
  3. Affiliates shall not offer cash back, coupons, rewards or other incentives as part of their marketing efforts for the OMNISCAPE™ Affiliate Program.
  4. Affiliates shall not use traffic that is generated by, including, but not limited to, pay to click, pay to read, banner exchanges, click exchanges, cost-per-view advertising, pop-up/under, spam, purchased traffic, or similar methods without prior written consent from Transmira.
  5. Affiliates shall not use cookie stuffing techniques that set the tracking cookie without the potential customer actually clicking on the Affiliate’s referral link.
  6. Affiliates are responsible for ensuring their tracking codes are working properly before sending traffic to Transmira’s servers and Omniscape.com. Any modification to the links is the sole responsibility of the Affiliate. Referral fees may be withheld, as determined in Transmira’s sole discretion, for tracking errors caused by editing, masking, redirecting or tampering with affiliate links.
  7. Affiliates shall not bid on or use Transmira’s and OMNISCAPE™ trademarks or misspelled keywords for the purpose of pay-per-click on internet search engines without prior written consent from Transmira.
  8. Affiliates shall not use Transmira’s trademarks or misspelled keywords in their domain names.
  9. Affiliates shall not use redirected pages and links to send a potential customer to Transmira’s website.
  10. Affiliates shall not engage in domain forwarding (i.e. purchasing a domain and setting it to forward directly to Transmira’s websites (including Transmira.com and Omniscape.com, and .net variations, using an affiliate link).
  11. Affiliates shall not engage in the advertisement of business-opportunity websites or use marketing practices that attract fraudulent or short-term customers.
  12. Affiliates shall not engage in any marketing activity that may harm the reputation or credibility of Transmira, including using low-quality marketing materials, or advertising on any website that promotes violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or any illegal activities, or violates the intellectual property or other rights of a third party.
  13. Affiliates shall not send any email in violation of the federal CAN-SPAM statute, 15 U.S.C. 1571, et seq.
  14. Affiliates must include a physical mailing address and unsubscribe information for any marketing email sent promoting Transmira’s and OMNISCAPE™ Services and Products.
  15. Affiliates shall make clear that they, not Transmira or OMNISCAPE™, are the sender of all marketing communications related to the promotion of Transmira’s and OMNISCAPE™ Services and Products.
  16. Affiliates shall not engage in any marketing or promotional activities that violate applicable laws, rules, or regulations.
  17. Affiliates shall not market using facsimile, broadcast, telemarketing, text message marketing, or other offline marketing methods regarding Transmira, OMNISCAPE™ or our Services and Products without the expressed written consent of Transmira.
  18. Affiliates shall not use malware or spyware to market or promote Transmira or OMNISCAPE™ Services or Products.

Promotion Restrictions

You are free to promote your own web sites, but naturally any promotion that mentions OMNISCAPE™ or Omniscape.com could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by Omniscape.com. For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name.

Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote Omniscape.com so long as the recipient is already a customer or subscriber of your services or web site, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote Omniscape.com so long as the news group specifically welcomes commercial messages.

At all times, you must clearly represent yourself and your web sites as independent from Omniscape.com. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the OMNISCAPE™ Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.

Affiliates that among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as Omniscape.com, Omniscape, www.omniscape, www.omniscape.com, and/or any misspellings or similar variations or alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to their own website prior to re-directing it to ours, will be considered trademark violators, and will be banned from Transmira’s OMNISCAPE™ Affiliate Program. We will do everything possible to contact the affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, and on the first occurrence of such PPC bidding behavior.

Affiliate shall not transmit any so-called “interstitials,” “parasiteware,” “parasitic marketing,” “shopping assistance application,” “toolbar installations and/or add-ons,” “shopping wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited OMNISCAPE’s site (i.e., no page from our site or any omniscape.com’s content or branding is visible on the end-user’s screen).

As used herein a. “parasiteware™” and “parasitic marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non-affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing pop ups or commission tracking cookies to be put in place, or other commission tracking cookies to be overwritten; (c) set commission tracking cookies through loading of the OMNISCAPE™ site in IFrames, hidden links and automatic pop ups that open omniscape.com’s site; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.

Links/Graphics on-site, Emails, Other Communications

Once you have signed up for the OMNISCAPE™ Affiliate Program, you will be assigned a unique Affiliate Code. You are permitted to place links, banners, or other graphics we may provide with your Affiliate Code on your site, in your emails, or in other communications. We may change the design of the artwork at any time without notice, but we won’t change the dimensions of the images without proper notice.

To permit accurate tracking, reporting, and referral fee accrual, we will provide you with special link formats to be used in all links between your site and social media accounts and the OMNISCAPE™. You must ensure that each of the links between your site and omniscape.com properly utilizes such special link formats. Links to OMNISCAPE™ placed on your site or social media accounts pursuant to this Agreement and which properly utilize such special link formats are referred to as “Special Links.” You will earn referral fees only with respect to sign-ups on omniscape.com occurring directly through Special Links; we will not be liable to you with respect to any failure by you or someone you refer to use Special Links or incorrectly type your Affiliate Code, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this Agreement.

Affiliate links must point to the appropriate page of the product(s) being promoted. Deep links, or links to other pages inside omniscape.com will not earn credit.

Grant of Licenses

We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the “Licensed Materials”) that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of the OMNISCAPE™ Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of omniscape.com and the good will associated therewith will inure to the sole benefit of omniscape.com and Transmira.

Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.

Media Release and Authorization / Other

You grant Transmira full rights, copyrights, and permission to use any and all photographs, images, video, audio, artwork, 3D objects, animations, writing, code, and other media taken or created by Transmira or its agents or employees, or submitted by You to Transmira or OMNISCAPE™ (hereinafter “Media”) in any media or format (including, but not limited to, print, internet, film, television, digital, and no matter how distributed or published) for any purpose, including, but not limited to, advertising, promoting, and marketing of Transmira, OMNISCAPE™ or any product or service sold and marketed by Transmira. You agree that this assignment of rights and authorization to use Media may be assigned by Transmira to any other party, may be combined with other Media, sounds, text and graphics, and may be manipulated, cropped, altered or otherwise modified in Transmira’s sole discretion. You agree not to make any monetary assessment against Transmira in exchange for the release under this section. You hereby release and forever discharge Transmira from any and all liability and from any damages. You further acknowledge and agree that this release is binding upon Your heirs and assigns and that the release is irrevocable.

Confidentiality

All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked “Confidential,” will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.

Non-Disparagement

During the term of these Terms of Service and for one (1) year after it has expired or been terminated, You agree that You will not disparage OMNISCAPE™, Transmira, its officers, directors, employees, contractors, or partners, or otherwise take any action that could reasonably be expected to adversely affect Transmira’s or OMNISCAPE™’s reputation. Under these Terms of Service, “disparage” includes, but is not limited to, any negative statement, whether written or oral, about OMNISCAPE, Transmira, and its officers, directors, employees, contractors, or partners. You agree and acknowledge that this provision is a material term of the Terms of Service, the absence of which would have resulted in Transmira refusing to enter into this agreement.

Disclaimers

TRANSMIRA MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING OMNISCAPE.COM SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF TRANSMIRA’S ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITES AND APPLICATIONS WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

Disclaimers

We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of the Product Sites will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.

Representations and Warranties

You represent and warrant that:

This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms;

You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;

You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.

Independent Investigation

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

Assumption of Risk

You are solely responsible for ensuring that your participation in the OMNISCAPE™ Affiliate Program complies with applicable law and does not violate the rights of any third party, including, without limitation, intellectual property rights. You assume all liability for any claims, suits or grievances filed against you, including, but not limited to, all damages related to participation in the OMNISCAPE™ Affiliate Program.

Limitations of Liability

TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, TRANSMIRA, ITS PRESENT AND FUTURE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, SUPPLIERS, AND ANY THIRD PARTY INFORMATION PROVIDERS TO THE SITES, SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM YOUR PARTICIPATION IN THE OMNISCAPE™ AFFILIATE PROGRAM. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, TRANSMIRA SHALL NOT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH YOUR PARTICIPATION IN THE OMNISCAPE™ AFFILIATE PROGRAM. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, TRANSMIRA SHALL NOT BE LIABLE TO ANY PARTY FOR CLAIMS ARISING OUT OF OR IN CONNECTION WITH YOUR PARTICIPATION IN THE AFFILIATE PROGRAM. TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS PROHIBITED OR FAILS OF ITS ESSENTIAL PURPOSE, TRANSMIRA’S SOLE OBLIGATION TO YOU FOR DAMAGES SHALL NOT EXCEED THE AMOUNT OF COMMISSIONS YOU EARNED OVER THE TWELVE (12) MONTHS PRECEDING THE CLAIM(S), UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW.

Indemnification

You hereby agree to indemnify and hold harmless Transmira, and its subsidiaries and affiliates, and their present and future directors, officers, employees, agents, shareholders, partners, members, and other owners, from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, (iii) any claim related to your site, including, without limitation, content therein not attributable to us, or (iv) resulting from any violation of these Terms of Service by you or arising from or related to your use or misuse of the OMNISCAPE™ Affiliate Program.

Third Party Rights

The sections titled Limitations of Liability and Indemnification are solely for the benefit of Transmira and its present and future officers, directors, employees, agents, licensors, suppliers, and any third-party providers. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on their own behalf. Except as set forth herein, nothing express or implied in these Terms of Service is intended or implied to confer, and nothing herein shall confer, any rights, remedies, liabilities, or obligations whatsoever upon any person or entity. You may not assign your rights under these Terms of Service without Transmira’s prior written consent.

Term and Termination

The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice (mail or email) of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to any Product Site, and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program. Transmira reserves the right to end the OMNISCAPE™ Affiliate Program at any time. Upon OMNISCAPE™ Affiliate Program termination, Transmira will pay any outstanding earnings accrued above $100.

Transmira, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the OMNISCAPE™ Affiliate Program, or any other Transmira or OMNISCAPE™ product or service, for any reason at any time. Suspension, termination, and deletion of your account for reasons such as fraudulent, illegal, or overly aggressive, questionable sales or marketing methods, or any breach of this agreement by you, will result in the forfeiture and relinquishment of all potential or to-be-paid commissions in your Account. Transmira reserves the right to refuse service to anyone for any reason at any time.

Unlawful Activity; Termination of Access

Transmira reserves the right to investigate complaints or reported violations of these Terms of Service and to take any action it deems appropriate, including but not limited to, reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties, and disclosing any information necessary or appropriate to such persons or entities. Transmira may discontinue your participation in the OMNISCAPE™ Affiliate Program at any time for any reason or no reason.

Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone participating in the OMNISCAPE™ Affiliate Program. YOU WAIVE AND HOLD HARMLESS TRANSMIRA AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS, FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR AS A RESULT OF, ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

Governing Law

This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of North Carolina, without regard to its conflict of laws rules.

Nothing in this agreement shall be deemed as preventing Transmira from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, dilution, or violation of our data security, intellectual property rights, or other proprietary rights.

YOU AND TRANSMIRA EACH AGREE TO WAIVE THE RIGHT TO TRIAL BY JURY AND THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE ARISING HEREUNDER WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT YOU WILL NOT SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU ACT OR PROPOSE TO ACT IN A REPRESENTATIVE CAPACITY. YOU FURTHER AGREE THAT NO PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF TRANSMIRA AND ALL PARTIES TO ANY SUCH PROCEEDING.

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THE SITES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

Compliance with Laws

As a condition to your participation in the OMNISCAPE™ Affiliate Program, you agree that while you are a Program participant you will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, etc. are now in effect or later come into effect during the time you are a Program participant. Without limiting the foregoing obligation, you agree that as a condition of your participation in the Program you will comply with all applicable laws (federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.

Disputes and Arbitration

Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or your relationship with us or any of our affiliates shall be submitted to confidential arbitration in Raleigh, North Carolina, USA, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the state of North Carolina (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction at our discretion. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.

Remedies for Violations

Transmira reserves the right to seek all remedies available at law and in equity for violations of these Terms of Service.

Modification and Changes to Terms of Service

Transmira may review and update these Terms of Service at any time and may modify any of the terms and conditions within this Agreement at our sole discretion. These modifications may include, but not limited to changes in the scope of available commissions, commission schedules, payment procedures and OMNISCAPE™ Affiliate Program rules.

In such event, you will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and the OMNISCAPE™ Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in the OMNISCAPE™ Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.

Entire Agreement: Severability of Provisions: No Waiver

These Terms of Service constitute the entire agreement with respect to participation in the OMNISCAPE™ Affiliate Program. If any provision of these Terms of Service is deemed unlawful, void, or unenforceable by a court of law exercising proper jurisdiction, that provision shall be deemed severed from the remaining provisions and shall not affect their validity and enforceability. No waiver of any provision hereof shall be valid unless in writing signed by the parties.

You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.

The failure of Transmira to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service constitutes the entire agreement between you and Transmira and govern your use of the Service, superseding any prior agreements between you and Transmira (including, but not limited to, any prior versions of the Terms of Service).

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