Affiliate Program Agreement

Factory Direct Authorized Sales Affiliate Program Agreement

Please read this Terms and Conditions Agreement (the "Agreement") carefully before submitting the application, otherwise known as the "Factory Direct Authorized Sales Affiliate Registration Form" (herein after as the "Application"), for participation in our free Factory Direct Authorized Sales Affiliate Program (the "Program"). This is a binding Agreement between you, the individual filling in the fields on and submitting the Application, or you acting on behalf of an entity as a representative of the entity on the Application being submitted ("Factory Direct Authorized Sales Affiliate" and "Member" and "Independent Contractor" and "you" and "your") and zzzPhone.com ("zzzPhone" and "us" and "we" and "our"). By filling in the required fields, and placing a check mark in the indicated field(s), and submitting the Application, you hereby ACCEPT AND AGREE to all of the terms and conditions set forth in this Agreement.
1. Application Process
By submitting the Application you are expressing your desire to participate in the Program, as an Factory Direct Authorized Sales (an "Independent Contractor"), through which you may promote zzzPhone products and services and be compensated for the number of qualified individuals that use such products and services as a direct result of your promotion. You represent and warrant that:
(i) the information submitted in the Application is truthful and accurate;
(ii) the person submitting the Application is of the legal age of majority according to the country in which you reside, or for Individual(s) who is/are under the legal age of majority (Under 18 years), submit a pre-signed Parent/Guardian Consent/Agreement Form authorization for granting approval from a parent or a guardian;
(iii) in the event you are an entity, the person submitting the Application has the full right, power and authority to enter into this Agreement on behalf of such entity; and
(iv) the execution of this Agreement by such person, and the performance by you of your obligations and duties hereunder, do not and will not violate any agreement to which you are a party or by which you are otherwise bound. You acknowledge that zzzPhone makes no warranties, representations, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement. zzzPhone will evaluate the Application and will notify you of our acceptance or rejection of the Application in a timely manner.
zzzPhone may reject the Application, and at any time may terminate this Agreement, if you advertise any of zzzPhone's products and/or services on a Web site, deemed in zzzPhone's sole discretion, to be unsuitable.
        Unsuitable Web sites include, but are not limited to, those that:
        1.a Contain sexually explicit or obscene materials, or materials that are otherwise deemed offensive;
        1.b Advocate discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
        1.c Promote or engage in illegal activities;
        1.d Violate intellectual property rights of third parties;
        1.e Contain or promote deceptive information;
        1.f Promote gambling, or;
        1.g Violate any of zzzPhone's Policies, as may be modified from time to time by zzzPhone, in its sole discretion without further notice.
2. Linking With, To, and/or Use Of, zzzPhone Promotional Materials
Factory Direct Authorized Sales Affiliate Entitlement:
If your Application is accepted by zzzPhone, you may use (to the extent provided in Article 4 and Article 10 below) the electronic graphic art work and any corresponding links to zzzPhone products and services as necessary to participate in, and for the purpose of your marketing in the Program as an Factory Direct Authorized Sales Affiliate. zzzPhone gives to you a unique identification number ("ID#" and "Identifier" and "Username") for the purpose of marketing zzzPhone's products and services, links on your website to third party program(s), when and/or where and/or if zzzPhone deems such link(s) feasible and/or possible with respect to any such third party program(s), that will be the link(s) owned by you as long as you have subscribed to such third party program(s),and starter packs ("advertising" and "marketing") material, including HTML codes for such links, through the secure login area (termed "administration" and "back-office"), that will provide you with tracking and reporting of all Customers and Factory Direct Authorized Sales Affiliate s (as defined in Section 5) acquired through your Web site, and the Customers and Factory Direct Authorized Sales Affiliate s acquired through your personally sponsored Factory Direct Authorized Sales Affiliate s. It is your responsibility to integrate the zzzPhone marketing and advertising materials into any Web site(s), out side of the Web site we provide you, properly integrate in accordance with the instructions available in your administration, and zzzPhone shall not be liable to you in any way with respect to your failure to properly integrate the zzzPhone promotional material into your Web site(s), including to the extent such failure may result in any reductions of amounts that would otherwise be paid to you under this Agreement. You agree not to modify any zzzPhone promotional material in any way without the express written permission of zzzPhone. You may only display the zzzPhone promotional material on your Web site(s) as is, and if you have Web site(s) you must submit an Application for each such Web site you intend to display the zzzPhone promotional material on. Without limiting the foregoing, you shall not promote or otherwise announce the availability of the zzzPhone promotional material on your Web site(s) anywhere other than within your Web site(s), including, but not limited to, using the zzzPhone promotional material in E-mail and promoting or otherwise announcing the availability of the zzzPhone promotional material on your Web site(s) through E-mail unless it has been specifically requested from you.
No Purchase Necessary:
Factory Direct Authorized Sales Affiliate status is granted in compliance of or with any Local, State, Federal, and/or International laws that may exist. For the purpose of this Agreement, the Factory Direct Authorized Sales Affiliate is classified as, and is covered under any such laws requiring, a "no purchase necessary" entry into a program where commission fees may be paid for sales of a company's products and/or services.
One (1) Account Per Individual:
Only one (1) Factory Direct Authorized Sales Affiliate account can be created and/or obtained per individual. Any individual registering with or for multiple Factory Direct Authorized Sales Affiliate accounts will be in breach of this Agreement and the Fair Trade guidelines set forth by the USA Federal Trade Commission ("FTC"). Multiple entries in zzzPhone's Factory Direct Authorized Sales Affiliate program are deemed to fall under the illegal practice of Position Stacking. Position Stacking for the purpose of generating multiple payments on single Customer acquisition(s) (the fraudulent act performed to obtain more that one (1) payment per Customer referral), thus taking away the earnings from an Factory Direct Authorized Sales Affiliate 's referring, sponsoring, or enroller Factory Direct Authorized Sales Affiliate and/or the company, is not allowed and is strictly enforced. Any multiple Factory Direct Authorized Sales Affiliate accounts registered in the zzzPhone Factory Direct Authorized Sales Affiliate Program will be deleted, with or without notification being provided to the individual in violation, and, in zzzPhone's sole discretion, may result in the termination of the primary or initial Factory Direct Authorized Sales Affiliate account an individual registers. All Factory Direct Authorized Sales Affiliate registrations that request payment of earnings, or that may be due earnings, are manually observed for Position Stacking prior to earnings being paid. In the event an Factory Direct Authorized Sales Affiliate account contains earnings that has been deemed to be a Stacked Position the earnings generated in or with the violating account those earnings will not be paid to the Factory Direct Authorized Sales Affiliate or individual in violation of this Agreement and those earnings will become permanently lost upon deletion of the violating account(s). Any referred Customer(s) and/or Factory Direct Authorized Sales Affiliate account(s) registered with account(s) found in violation of Position Stacking will roll up ("compress") to be assigned to the next legally registered Factory Direct Authorized Sales Affiliate account in the genealogical structure of the Program.
Commission Fees, Earnings, Entry:
The Factory Direct Authorized Sales Affiliate agrees to accept any and all commission fees and/or earnings they may receive, generated from zzzPhone's tracking of the Factory Direct Authorized Sales Affiliate 's personal sales, as is, and understand that it is the sole responsibility of the Factory Direct Authorized Sales Affiliate to understand and/or calculate where and/or how the commission fee has been or was generated. Commissions will be sent via mail or bank transfer, once the commissions is US $400.00 or more, You understand that credit and/or placement for any of your potential sales and/or Factory Direct Authorized Sales Affiliate members may be lost if your potential customer(s) and/or Factory Direct Authorized Sales Affiliate (s) do not fill in the fields as the customer and/or Factory Direct Authorized Sales Affiliate makes their purchase of products and/or services or to become a Factory Direct Authorized Sales Affiliate, and understand that zzzPhone can not and will not pay you a commission fee, provide you with credit for, and/or reassign an otherwise lost sale to you on any customer and/or Factory Direct Authorized Sales Affiliate that neglects to fill in the form containing your referral ID#. Commissions are only paid from products and/or services sold. zzzPhone shall not be liable to you in any way, including your inability to properly use marketing material(s) provided by us to the extent such failure may result in any reductions of amounts that would otherwise be paid to you under this Agreement. ZzzPhone reserves the right to modify the Factory Direct Authorized Sales Affiliate Program and/or terminate any and/or all Factory Direct Authorized Sales Affiliate entries in the Program, upon breach of agreement, at any time, at its sole discretion, and/or cancel, terminate, and/or remove any Factory Direct Authorized Sales Affiliate ID# from the Program deemed to be "Inactive" by zzzPhone. Factory Direct Authorized Sales Affiliate s may also enter the Program by printing out the "Factory Direct Authorized Sales Affiliate Registration Form" and sending it to us via email to zzzphonecom@gmail.com.
NOTE: If you choose to become a Factory Direct Authorized Sales Affiliate, we feel obligated to inform you that from our experiences in E-Commerce that an individual entering into "a Program", of any kind, where the Participant is not also a Customer of the products and/or services they intend to offer, can become a hindrance to the Participant in marketing any respective products and/or services in that Program, and that, in our opinion, "Free", especially on the Internet, does not work when entering into "a Program" for the purpose of making it a possible source of income or to possibly generate a Fee or an income, or, to be considered by the Participant to be a business, Internet business, and/or home base business where or from which an income may be derived.
Income and Sponsorship:
For the reason of our experiences, zzzPhone presents our Factory Direct Authorized Sales Affiliate Program as is, and may supply promotional material and/or any form of support to or for the Factory Direct Authorized Sales Affiliate, and zzzPhone in no way warrants, or makes any guarantee, express or implied, that you can or will derive an income from your involvement in our Factory Direct Authorized Sales Affiliate Program, or that you will be paid any Fee for sales generated through the ID# we offer. Factory Direct Authorized Sales Affiliate(s) have other Factory Direct Authorized Sales Affiliate(s) as their Sponsor, and are only able to offer products and services for sale with the intent of earning a commission fee for a product and/or service they sell. Factory Direct Authorized Sales Affiliate s do not receive earnings or a commission fee on or for the act of enrolling other Factory Direct Authorized Sales Affiliate (s) that may join as a result of their efforts.
3. Your Advertisements
You may add as many links to our website(s), or remove such links, at any time and without prior approval from zzzPhone. You are solely responsible for, and zzzPhone hereby disclaims any and all liability for the development, operation, and/or maintenance of, and/or any and all costs associated with, including, but not limited to, your advertisements and/or your website(s), any and/or all content thereon, and any and/or all equipment used there for. You hereby agree that your private website(s) or any advertising of any form or kind shall not, in any way, copy or resemble the look and feel of, or create the impression that it is, part of zzzPhone, or its products and/or services, or any of zzzPhone's partners or its Factory Direct Authorized Sales Affiliate(s) or subsidiaries' websites beyond those provided by zzzPhone supplied Application Program Interfaces (APIs) or other supplied program code. You agree that your website(s) shall at all times during the Term of the Agreement comply with the policies identified in Article 1(1.g), and shall not engage in any of the activities listed in Article 1(1.a) through (1.f). You acknowledge that certain names are proprietary to zzzPhone.com and may not be used in any way, nor imply that you hold any right to our name(s) by creation of a similar name or by using some, all, or part of our name(s) within your created name, including, but not limited to, use of our name(s) as a part of, or as, your E-mail alias attached to any domain or in the registration of any domain name that you own, intend to own, or as an agent of or for an entity. For the purpose of inquiry of our names please refer to Article 13(13.d).
4. Limited License to Use zzzPhone Promotional Materials
zzzPhone hereby grants to you the Factory Direct Authorized Sales Affiliate a non-exclusive, revocable license to display on your private website(s) the zzzPhone promotional material solely as necessary for, and for the purpose of, promoting the products and/or services associated with the Factory Direct Authorized Sales Affiliate Program as set forth at our website(s) and only as is on the website(s) we may issue you identifying you as a participant in the Factory Direct Authorized Sales Affiliate Program. To the extent, if any, that zzzPhone promotional materials contain zzzPhone's trademarks, service marks, and/or trade names, you shall not use such marks in a manner that might be deemed to create a unitary composite mark. You agree not to use the zzzPhone promotional materials in a manner that is, or otherwise include materials on your website(s) that are, disparaging of zzzPhone. zzzPhone reserves all proprietary rights in and to the zzzPhone promotional material not expressly granted herein. You agree this license can be revoked at any time for any or no reason upon notice by zzzPhone to you (regardless of termination of this Agreement) and you agree upon receipt of such notice immediately to cease using all zzzPhone promotional material.
5. Payments
5.a Referral Fees

On a monthly basis, within thirty (30) days after the end of each calendar month, zzzPhone shall issue you a "commission" for each qualified new Factory Direct Authorized Sales Affiliate who registered and paid for or customer who purchases, one or more of the zzzPhone products and/or services set forth below directly from a link within the zzzPhone promotional material within your free Factory Direct Authorized Sales Affiliate website using the special promotion Identifier, and thereafter became a qualified new customer in such month. A "qualified new customer" means any person or entity who registers for one or more of the zzzPhone products and/or services during the Term as a direct result of your promotion of the zzzPhone product and/or service by linking from one of the zzzPhone promotional materials on your website using your special promotional Identifier, or for any person or entity who registers for one or more of the zzzPhone products and/or services during the Term as a direct result of the customer filling in a form on or at the respective Factory Direct Authorized Sales Affiliate 's web site that contains their ID# as the Referrer, and who pays the then-standard fees required for purchase as specified below. The minimum commission fee for the end user sale of each of the following type(s) of plans for the zzzPhone products and/or services is as follows:

Service Type:(Products and Services)	Fee Paid per Sale
Customized ZZZ Cell Phone Sold Directly to End User from White Labelers Website	12% of total sale
Customized ZZZ Cell Phone Sold Through Tier 1 Factory Direct Authorized Sales Affiliate:	2% of total sale
Customized ZZZ Cell Phone Sold Through Tier 2 Factory Direct Authorized Sales Affiliate:	1% of total sale

zzzPhone may choose to offer you a bonus and/or a higher commission fee during promotional events, for a particular period of time, or for particular types of zzzPhone Services. zzzPhone will either provide you notice of such bonus and/or higher commission fee to the E-mail address in your Application or will post notice of such bonus and/or higher commission fee in the administration. You acknowledge that zzzPhone may offer a bonus and/or commission fee to other participants in the program that is higher than the bonus and/or commission fee you receive. Nothing in the foregoing shall limit zzzPhone's ability to lower and/or limit the duration of the minimum fee contained herein in accordance with Article 7.
5.b Liability for payment
zzzPhone's sole obligation in regards to remitting payment to you for the payments described in Section 5.a shall be to mail such payment to the address submitted to zzzPhone in the Application or in the event your address changes, to the address thereafter submitted to the administration. You are solely responsible for assuring your address of record is current and correct. In the event a payment sent to such address is returned to zzzPhone for any reason other than an error in such address on the part of zzzPhone, you hereby waive any and all rights to receive such payment. zzzPhone shall not be liable for any payment to you if:
(i) your Factory Direct Authorized Sales Affiliate account is suspended and/or terminated due to having become "Inactive" as outlined in Article 13 Section 13.f,
(ii) if you request or initiate cancellation of your Factory Direct Authorized Sales Affiliate account,
(iii) if zzzPhone deems that you have engaged in any fraudulent or criminal activity in connection with the Program
(iv) if zzzPhone deems that you have breached this Agreement.
5.c Income
We make no expressed or implied warranties or representations with respect to the Factory Direct Authorized Sales Affiliate Program or your potential to earn income from the Factory Direct Authorized Sales Affiliate Program. In addition, we make no representation that the operation of our website(s) or the Factory Direct Authorized Sales Affiliate website(s) will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions, errors, and/or loss of any data.
5.d Factory Direct Authorized Sales Affiliate Purchase(s)
If you make purchase of any product(s) and/or service(s) for your use and/or the use of another individual and/or any entity you are fully responsible for the payment and terms associated with the product(s) and/or service(s). All product(s) and service(s) that are software-based and/or media-based and/or downloadable that you have made purchase of (e.g. software, MP3, MP4, etc.) are considered "opened media" products and/or services and are nonrefundable. In the event you have purchased any product(s) and/or service(s) and wish to cancel your order(s) you may do so at any time by submitting your request on the zzzPhone Billing and Accounts form located through the "Contact Us" section of your Factory Direct Authorized Sales Affiliate back-office, from which you will receive a confirmation e-mail that your billing has been stopped and/or canceled. If you request a cancellation through the Billing and Accounts form and do not receive the confirmation e-mail it is your sole responsibility to seek confirmation that your billing has in fact been stopped and/or canceled. In the event you submit a cancellation request to zzzPhone's Billing and Accounts Personnel via the aforementioned form you will have use of the product(s) and/or service(s) associated with your purchase up until what would have been your next billing day/date. By making Application to become and/or by having been accepted to become an Factory Direct Authorized Sales Affiliate you hereby acknowledge and accept and agree and understand that you are legally liable and responsible for full advance payment of any and/or all billing of/on any and/or all product(s) and/or service(s) you personally purchase.
5.e Customer/Organization Purchase(s)
As a Factory Direct Authorized Sales Affiliate (an "Independent Contractor") you operate, run, or otherwise "are in charge of" your own business and like any business, there are inherent costs associated with doing business. In the event you and/or any customer and/or any Factory Direct Authorized Sales Affiliate located in your genealogical organization causes cost or loss of income to zzzPhone, by or via whatever means, you hereby acknowledge and accept and agree and understand that by becoming an Factory Direct Authorized Sales Affiliate that you are not financially, legally liable and responsible for any and all payment(s), collection(s), and/or reimbursement(s) of any and/or all cost(s), loss of income(s), profit(s), and/or money/monies due and/or payable and/or owed to zzzPhone (a "Bad Debt"), including, but not limited to, legal and/or attorney fees, credit and/or debit card chargeback or non-sufficient funds fees, bank fees, merchant fees, membership fees, product fees, service fees, etc. caused from purchase and/or use of any and/or all product(s) and/or service(s) that you and/or any customer and/or any Factory Direct Authorized Sales Affiliate located in your genealogical organization may and/or does make purchase of. In the event any of the aforementioned instance(s) arise zzzPhone will make reasonable effort to collect on the Bad Dept from the individual(s) and/or entity that caused such Bad Debt.
6. Administration
Through the administration Site zzzPhone shall provide you, the Factory Direct Authorized Sales Affiliate, with monthly reports, which may or may not include setting forth the number of sales your unique ID# generated from zzzPhone promotional material, click-throughs to a zzzPhone website that were generated from zzzPhone promotional material on our or a Factory Direct Authorized Sales Affiliate website(s), and qualified new customers obtained by you through your website in any given month. zzzPhone may, in its sole discretion, permit you to access certain data selected by you (the “Data”) in connection with data transmitted during interaction with the zzzPhone promotional material that will permit additional reporting through the administration Site (e.g., if the Data is a preference, sorting qualified new affiliates and or sales by such preference). In the event zzzPhone permits access of such Data you represent, warrant, and agree that the Data can not and shall not be used to identify persons or entities: (i) that interact with the zzzPhone promotional materials, (ii) that purchase any zzzPhone Product(s) and/or Service(s), or (iii) contact any of zzzPhone Factory Direct Authorized Sales Affiliate(s). zzzPhone shall also provide monthly reports detailing the monthly volume bonuses and/or commission fees that are due to you. Also, on a calendar year basis, zzzPhone will provide a report detailing any annual bonus that is due to you. The form, content, and timing of the foregoing reports may vary from time to time in zzzPhone’s sole discretion.
7. Modification of This Agreement
zzzPhone may modify any term(s) and condition(s) in this Agreement, including any amount(s) payable as commissions, fees and bonuses under Article 5, at any time in its sole discretion by posting a notice or a new Agreement on the administration Site, but such new Agreement shall be effective no sooner than five (5) days after such notice or new Agreement is posted on the administration Site. The location of the new Agreement in your administration Site is on the left main menu link titled "Factory Direct Authorized Sales Affiliate Agreement". YOUR SOLE REMEDY AND RECOURSE IN THE EVENT ANY SUCH MODIFICATION IS UNACCEPTABLE TO YOU IS TO TERMINATE THIS AGREEMENT, PROVIDED THAT ZZZPHONE SHALL PAY TO YOU ALL AMOUNT(S) DUE TO YOU PRIOR TO YOUR TERMINATION IN ACCORDANCE WITH SECTION 12.a. Notwithstanding the five (5) day notice period for termination provided in Article 9, such termination by you in the event of a modification shall be effective immediately upon receipt by zzzPhone of notice thereof. Your continued participation in the Factory Direct Authorized Sales Affiliate Program after such five (5) day period has passed shall constitute acceptance of any such, or the, modification(s).
8. Press Releases; Publicity
You may not announce your use of the zzzPhone promotional material(s) on your Web site(s) unless you first receive zzzPhone's prior written approval of such announcement. zzzPhone may announce your use of the zzzPhone promotional material(s) on any and/or all of zzzphone’s or any Factory Direct Authorized Sales Affiliate Web site(s) in its sole discretion.
9. Terms and Termination
This Agreement shall be effective on the date zzzPhone accepts the Application and shall continue until either party terminates this Agreement as set forth herein (the "Term"). Either party may terminate this Agreement at any time for any or no reason upon five (5) days notice; (i) in the case of termination by zzzPhone, at zzzPhone's option, the E-mail address contained in the Application or by posting such notice on the administration Site, and (ii) in the case of termination by you, to zzzPhone via the "Cancel My Factory Direct Authorized Sales Affiliate Account" link located through the "Contact Us" section found on the left main menu of the Factory Direct Authorized Sales Affiliate administration. Notwithstanding the foregoing, zzzPhone may terminate this Agreement immediately with or without notice to you in the event you breach this Agreement and/or for any reason(s) as outlined in Section 5.b at zzzPhone's option and/or sole discretion.
10. Limitation of Liability; Disclaimer; Indemnification; etc.
10.a Liability
UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT YOU SHALL REMAIN LIABLE TO ZZZPHONE TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 10.c. IN NO EVENT SHALL THE LIABILITY OF ZZZPHONE, IN CONNECTION WITH THIS AGREEMENT, FOR DAMAGES, NOT EXCLUDED IN THE IMMEDIATELY PRECEDING SENTENCE, EXCEED THE AMOUNT OF ANY COMMISSION FEE PAYABLE BY ZZZPHONE TO YOU UNDER THIS AGREEMENT.
10.b Additional Warranties
YOUR WEBSITE(s) AND/OR ID# (EXCEPT AS PROVIDED IN SECTION 1), ALL OF ZZZPHONE'S AND ITS FACTORY DIRECT AUTHORIZED SALES AFFILIATE 'S WEB SITES, THE ZZZPHONE PROMOTIONAL MATERIALS, THE ZZZPHONE SOFTWARE AND ZZZPHONE PRODUCT(S) (COLLECTIVELY, "SUBJECT MATTER") ARE PROVIDED "AS IS" AND "AS AVAILABLE". EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SUBJECT MATTER, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
10.c Indemnification
You agree to defend, indemnify and hold harmless zzzPhone, its Customers, Factory Direct Authorized Sales Affiliate (s), and/or its partners, subsidiaries, and/or their respective officers, directors, agents, distributors, franchisees, affiliates and/or employees against any loss, damage, expense, or cost, including reasonable attorneys fees (including allocated costs for in-house legal services) arising out of any claim, demand, action, suit, investigation, arbitration, or other proceeding by a third party ("Liabilities") based on;
(i) your material breach of any covenant, duty, representation, or warranty of this Agreement,
(ii) materials contained on your website(s) (including any allegation that such materials infringe a third party's proprietary rights),
(iii) or otherwise related to the data,
(iv) or otherwise related to your advertisements and/or website(s) and the content thereon.
10.d Independent Contractor
Any and all Participant(s) for zzzPhone's Factory Direct Authorized Sales Affiliate Program are Independent Contractors, and nothing in this Agreement is intended to or will create any form of partnership, joint venture, agency, franchise, and sales representative or employment relationship between the parties.
10.e Mediation & Arbitration
If a dispute arises under this agreement, we agree to first try to resolve it with the help of a mutually agreed-upon mediator in the following location: Las Vegas, Nevada. Any costs and fees other than attorney fees associated with the mediation will be shared equally by each of us. If it proves impossible to arrive at a mutually satisfactory solution through mediation, we agree to submit the dispute to binding arbitration at the following location: Las Vegas, Nevada, under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitration may be entered in any court with jurisdiction to do so. Mediation will be shared equally by each of us; you, the Factory Direct Sales Affiliate and zzzPhone.
11. Copyright Notice
All material supplied to our Factory Direct Authorized Sales Affiliate is; Copyright 2007-2008 zzzPhone.com. All rights reserved. Permission to copy and distribute any and/or all material, promotional or otherwise, and/or documents and/or related graphics from our website(s) is granted subject to; any copies of any and/or all material, promotional or otherwise, and/or documents and/or related graphics contained within your website(s) or portions thereof must include the following disclaimer:
This Web page has been developed and is maintained exclusively by: (Your Full Name), an Independent Factory Direct Authorized Sales Affiliate Member of zzzPhone.com. This Web page is not authored, sponsored, and/or maintained by zzzPhone.com, and in the event zzzPhone.com may or does modify its products, programs, and/or its policies, information contained on this page is subject to change.
All material and/or documents published by zzzPhone may contain other proprietary notices or describe products, services, processes or technologies owned by zzzPhone or third parties. Nothing contained herein shall be construed as granting to the Factory Direct Authorized Sales Affiliate a license under any copyright, trademark, patent, or other intellectual property right of zzzPhone or any third party.
ALL WEBSITES THAT ARE SHOWCASING ANY ZZZPHONE PRODUCTS WHATSOEVER, MUST BE SUBMITTED TO ZZZPHONE PRIOR TO SUBMISSION TO ANY SERVER FOR APPROVAL. NO EXCEPTION.
11.a Trademarks
The zzzPhone name and logo and all related product and service names, design marks, and slogans are the trademarks, service marks or registered trademarks of zzzPhone. All other products and service marks contained herein are the trademarks of their respective owners. You may not remove or otherwise manipulate the appearance your Factory Direct Authorized Sales Affiliate website that zzzphone provides for you, to present our products as your own individual brand, but may present your products as “co-branded” with both your logo or store name in coincidence with zzzPhone branding and logos.
11.b Consent To Monitoring And Disclosure
zzzPhone is under no obligation to monitor the information residing on or transmitted to server(s) it uses. However, anyone using our website(s) agree(s) that zzzPhone may monitor the server and or its website(s) contents periodically to;
(i) comply with any necessary laws, regulations or other governmental requests, and
(ii) to operate the website(s) properly or to protect itself and its users. zzzPhone reserves the right to modify, reject or eliminate any information residing on or transmitted to the said server(s) that it, in its sole discretion, believes is unacceptable or in violation of these terms and conditions. Should any user on our website(s) provide zzzPhone with information, including but not limited to feedback, data, answers, questions, comments, suggestions, plans, ideas or the like, such information shall be deemed to be non-confidential and zzzPhone assumes no obligation to protect such information from disclosure. The submission of such information to zzzPhone shall in no way prevent the purchase, manufacture or use of similar products, services, plans and ideas by zzzPhone for any purpose whatever and zzzPhone shall be free to reproduce, use, disclose and distribute the information to others without restriction.
11.c Disclaimer Of Liability
THE USER OF THIS WEBSITE(S) ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF OUR WEBSITE(S) AND THE INTERNET IN GENERAL. ZZZPHONE AND ITS FACTORY DIRECT AUTHORIZED SALES AFFILIATE(S) DISCLAIM ALL WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS, EXPRESS OR IMPLIED, WITH REGARD TO THE INFORMATION ACCESSED FROM, OUR WEBSITE(S) OR THE INTERNET, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ZZZPHONE DOES NOT ASSUME ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION, SOFTWARE, APPARATUS, PRODUCT OR PROCESS DISCLOSED ON OUR WEBSITE(S) OR OTHER MATERIAL ACCESSIBLE FROM OUR WEBSITE (S). IN NO EVENT SHALL ZZZPHONE BE LIABLE FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTUOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR THE INFORMATION ON OUR WEBSITE(S) OR THE INTERNET IN GENERAL.
11.d Warranties
Any zzzPhone material on our website(s) may include technical inaccuracies or typographical errors. zzzPhone has the right to make changes and updates to any information contained within our website(s) without any given prior notice.
THE INFORMATION PROVIDED ON OUR WEBSITE(S) IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY ZZZPHONE.com, ITS BUSINESS FACTORY DIRECT AUTHORIZED SALES AFFILIATE S OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. NEITHER ZZZPHONE NOR ITS BUSINESS FACTORY DIRECT AUTHORIZED SALES AFFILIATE S WARRANTS THAT THE INFORMATION ON ZZZPHONE WEBSITE(S) OR ON THE INTERNET IN GENERAL, WILL BE UN-INTERRUPTIBLE OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE FROM OUR WEBSITE (S) IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
11.e Disclaimer Of Endorsement
Reference herein to any products, services, processes, hypertext links to third parties or other information by trade name, trademark, manufacturer, and supplier or otherwise does not necessarily constitute or imply its endorsement, sponsorship or recommendation by zzzPhone. Product and service information is the sole responsibility of each individual Factory Direct Authorized Sales Affiliate and or its vendor(s). The zzzPhone name and logo and other trademarks and trade names owned by zzzPhone may not be used in any commercial manner without the prior written consent of zzzPhone.
DO NOT SEND ANY INQUIRIES UNRELATED TO COPYRIGHT INFRINGEMENT (e.g. REQUESTS FOR TECHNICAL ASSISTANCE OR CUSTOMER SERVICE, REPORTS OF E-MAIL ABUSE, etc.) TO THE CONTACT LISTED BELOW. YOU WILL NOT RECEIVE A RESPONSE IF SENT TO THIS CONTACT.
Pursuant to Title 17, United States Code, Section 512(c)(2), all notifications of claimed copyright infringement on the zzzPhone web site(s) should be sent ONLY to our Designated Agent.
Pursuant to Title II of the Digital Millennium Copyright Act, all claims of copyright infringement for material that is believed to be residing on zzzPhone's system, should be promptly sent in the form of written communication to zzzPhone 's Designated Agent:
ATTN To:
Legal Department - Agent for Claims
zzzPhone.com
3773 Howard Hughes Parkway
Las Vegas, NV 89169
Under Title 17, United States Code, Section 512(c)(3)(A), the Notification of Claimed Infringement must include the following:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single on-line site are covered by a single notification, a representative list of such works at that site;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
4. Information reasonably sufficient to permit the service provider to contact the Complaining Party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted;
5. A statement that the Complaining Party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the Complaining Party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
WE CAUTION YOU THAT UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES. THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS FEES INCURRED BY US, BY ANY COPYRIGHT OWNER, OR BY ANY COPYRIGHT OWNER'S LICENSEE THAT IS INJURED AS A RESULT OF OUR RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.
12. Miscellaneous
12.a Survival
Section(s) 5.d, 5.e, Article 10 and Section(s) 12.b, 12.d shall survive the expiration or termination of this Agreement. Additionally, to the extent this Agreement is not terminated as a result of fraud relating to the Program by you or otherwise as a result of your breach of this Agreement, zzzPhone's obligation to pay commissions and other bonuses under Article 5 shall survive for so long as is necessary to account for commissions and other bonuses generated from qualified Factory Direct Authorized Sales Affiliate and their customers properly registered prior to the date of termination.
12.b Applicable Law; Jurisdiction
This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of The People’s Republic of China except for its conflicts of law principles. Each party irrevocably consents to the exclusive jurisdiction of the courts of The People’s Republic of China and the federal courts situated in The People’s Republic of China, in connection with any action to enforce the provisions of this Agreement, to recover damages or other relief for breach or default under this Agreement, or otherwise arising under or by reason of this Agreement.
12.c Solicitation of zzzPhone Customers
You will not send unsolicited, commercial E-mail (i.e., "UCE" and "UBE" and "Spam") about zzzPhone's products or services, absent a Prior Business Relationship. For purposes of this Agreement, a "Prior Business Relationship" will mean that the zzzPhone prospective customer to whom commercial e-mail is being sent has voluntarily either;
(i) engaged in a transaction with you other than granting permission to receive information for any of zzzPhone service(s) and or product(s) through an zzzPhone promotional material provided on your Web site, or
(ii) provided information to you through a contest, registration, or other communication, which included clear notice to the zzzPhone customer that the information provided could result in commercial e-mail being sent to any zzzPhone customer by you or its affiliates. Any commercial e-mail or other online communications to zzzPhone prospective customers that are otherwise permitted hereunder, shall;
(a) include a prominent and easy means to "opt-out" of receiving any future commercial communications from you, and
(b) shall also be subject to zzzPhone's then-standard restrictions on distribution of bulk e-mail.
12.d Excuse
Neither party will be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions which are beyond such party's reasonable control and which such party is unable to overcome by the exercise of reasonable due diligence.
12.e Waiver
The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.
12.f Assignment
You shall not assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of zzzPhone. Zzzphone will not deny any reasonable request.
12.g Injunctive Relief and Remedies:
You acknowledge a violation of this Agreement could cause irreparable harm to zzzPhone for which monetary damages may be difficult to ascertain. You therefore agree that zzzPhone will have the right, in addition to its other rights and remedies, to seek and obtain injunctive relief for any violation of this Agreement. Except where otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which the party may possess at law or in equity.
12.h Excluded Countries
The zzzPhone site, products, and services are subject to export controls in all countries that zzzphone does business in. No product, service, or software may be downloaded, sold or otherwise exported or re-exported;
(i) into (or to a national or resident of) Cuba, Libya, North Korea, Iran, Sudan, Syria or any other country to which the United Nations has embargoed goods, or
(ii) to anyone on the United Nations list of Specially Designated Nationals or the United Nations Table of Deny Orders. By becoming a Factory Direct Authorized Sales Affiliate, using or downloading from our Web sites, or using any of our software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
12.i Acknowledgment
You acknowledge that you have read this Agreement and agreed to all the terms and conditions. You understand that zzzPhone may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement, and zzzPhone and or its Factory Direct Authorized Sales Affiliates may operate Web sites that compete with your Web site.
12.j Acceptance and Agreement With all zzzPhone Policies
You agree to, will comply with, and fully acknowledge, without limitation, any and all Policies, Terms, Conditions, including, but not limited to, zzzPhone's Anti-Spam Policy and our Privacy Policy and accept that any Policies, Terms, Conditions, and/or Agreements may be modified from time to time by zzzPhone, in its sole discretion without any prior notices given.
13. Definitions
13.a "zzzPhone Customer
means any Factory Direct Authorized Sales Affiliate and / all users of any zzzPhone product(s) and/or service(s).
13.b "zzzPhone Service
means any / all version of the zzzPhone brand of commercial online products and services.
13.c "zzzPhone Software
means the proprietary software used with any / all version of the zzzPhone brand products and services.
13.d "zzzPhone Name(s)
means any and/or all of our domain names including, but not limited to, zzzPhone, or any word(s) containing zzzphone in any manner whatsoever that is used in our product and service brands.
13.e "Inactive Factory Direct Authorized Sales Affiliate
means any Factory Direct Authorized Sales Affiliate who is no longer actively marketing and/or making sales of our products and/or services or has not accessed their account through the administration for a period of three (3) months, or if an Factory Direct Authorized Sales Affiliate "Opts-Out" from receiving E-mail from zzzPhone at any time that in effect will cause suspension and/or termination of an Factory Direct Authorized Sales Affiliate account
13.f "Factory Direct Authorized Sales Affiliate
means any Factory Direct Authorized Sales Affiliate who does or does not purchase any of zzzPhone's products or services and/or is or is not a full paying member of one of our approved third party programs within the zzzPhone designated organization and/or offers some or all of zzzPhone's products and services to end users with the intent of earning a Commission from zzzPhone.
Factory Direct Authorized Sales Affiliate Agreement Last Updated on: April 15, 2008
This "Authorized Sales Affiliate Program Agreement" is 2008 by Melvin R. Still ..
admin@unifiedtelcom.com .. (541) 296-0067.