AIWIN
CORPORATION EBIZ PARTNER AGREEMENTThis eBiz
Partner Agreement (the "Agreement") is entered into by and
between AiWin Corporation ("AiWin"), with its principal place of
business at Aiwin Corporation: Unit B, 8/F., Eastern Flower
Centre, 22-24 Cameron Road, Tsimshatsui, Kowloon, Hong Kong, and
YOU ("eBiz Partner"). Any reference herein to the "Parties" will
be a collective reference to AiWin and eBiz Partner.
BACKGROUND
AiWin
Corporation (“AiWin”) is an e-marketing application service
provider and the operator of the AiWin.com Website. AiWin has
established an eBiz Partner marketing network comprised of
marketing eBiz Partners (as defined below) to promote products
and services offered by AiWin.com and/or Network Subscribers.
eBiz Partner wishes to become a marketing eBiz Partner in order
to promote various products and services offered by AiWin.com.
In consideration of the covenants and agreements set forth in
this Agreement, and for other good and valuable consideration,
the receipt and sufficiency of which are acknowledged, the
Parties, intending to be legally bound, agree as follows:>
DEFINITIONS
As used in
this Agreement, the following terms shall have the following
meanings:
“eBiz Partner”
means any website operator, retailer, kiosk operator,
e-marketing company, telemarketer, or operator of other
e-marketing campaigns that has entered into an agreement with
AiWin.com pursuant to which AiWin.com compensates the eBiz
Partner for transactions resulting from business directed to the
AiWin.com Website by the eBiz Partner.
“eBiz Partner Site”
means the website operated by eBiz Partner.
“Customer” means an individual user who submits a Request to or
through the AiWin.com Website as the sole and direct result of
eBiz Partner's marketing activities under this Agreement.
“AiWin.com Website”
means the website operated by AiWin Corporation Inc, which
is located at the URL www.AiWin.com.
“Hyperlink” means text or images on a web page that a visitor to
a website can click on to access or connect to another web page
or website.
"Intellectual Property"
has the meaning assigned to it in Section 5.1
“Request” means an order or valid inquiry from a Customer,
generated by eBiz Partner under this Agreement and delivered or
AiWin.com, for a Product or Service provided or performed by a
Network Subscriber or AiWin.com, containing the specific
information required by the entity to which the Request is
delivered.
“Channel”
means any sales and marketing channel or network now or
later established and maintained by AiWin.com or a corporate
partner of AiWin.com
“Network Link”
means any Hyperlink and related code that AiWin.com provides
to eBiz Partner for eBiz Partner to insert into pages on the
eBiz Partner Site to facilitate connection from the eBiz Partner
Site to the AiWin.com Network and to identify eBiz Partner
Leads.
“eBiz Partner Program” means the program pursuant to which
AiWin.com compensates eBiz Partners for Requests or Transactions
resulting from valid inquiries that AiWin.com receives from the
eBiz Partner and/or Customer whom is referred by eBiz Partner
under a “eBiz Partner Agreement” or similar agreement.
“On-line Application”
means AiWin.com's form of application, accessible only
through the AiWin.com Website and/or eBiz Partner Website, that
AiWin.com requires potential eBiz Partners to complete before
considering them for membership in the eBiz Partner Program, as
amended from time to time.
“Products”
means those AiWin.com's products and services delivered from
eBizOffice.com, access to which an eBiz Partner offers visitors
to its website from time to time under this Agreement, as
described more fully in Section 2.1 of this Agreement.
“eBizOffice.com” means the Website of providing web products and
services operated by AiWin Corporation.
“Term”
means the term of this Agreement, as set forth in Article 7 of this
Agreement.
“Transaction”
means a valid inquiry about, or a closed sale of, a product
or service that AiWin.com makes to a consumer whose Request was
submitted to the AiWin.com via the eBiz Partner Website pursuant
to an “eBiz Partner Agreement” or similar agreement, or directly
to AiWin.com.
1. EFFECTIVE MEMBERSHIP
1.1 Membership. To become an eBiz Partner, eBiz Partner must (a) complete,
execute and deliver to AiWin.com the On-line Application, this
Agreement, and applicable Payment agreed by eBiz Partner in this
Agreement, and (b) receive written notification of approval from
AiWin.com. AiWin.com may deny eBiz Partner membership in
AiWin.com's eBiz Partner Program for any reason in AiWin.com's
sole and absolute discretion.
1.2 Effective Date. This Agreement will become effective on the date on which
AiWin.com notifies eBiz Partner of approval via email, after
having first approved the On-line Application and received this
Agreement executed by eBiz Partner ("Effective Date"). Email
notification to eBiz Partner of approval of eBiz Partner's
On-Line Application shall be deemed execution of this Agreement
by AiWin.com
1.3 Annual Membership Fee. To maintain partnership of eBiz Partner, eBiz
Partner will pay AiWin.com the Membership Fee annually at the
date of 1st of January of each calendar year. Failure to pay the
annually Support Fee will cause the termination of this
agreement. AiWin will issue notification to eBiz Partner in the
accordance with following circumstances:
1.3.1. Overdue Membership Fee Notification.
No later than calendar twenty-five (25) days from the date of
Membership Fee due date, AiWin will issue a notification to eBiz
Partner for the overdue payment of Membership Fee payment.
1.3.2. Suspension of Membership Notification.
On the calendar date of forty (40) days from the date of
Membership Fee due date, AiWin will issue a notification to eBiz
Partner for the suspension of Membership. The filed Membership
will be temporarily suspended form the date of Notification
issued and be only re-activated if the filed eBiz Partner pay
the overdue amount of Membership Fee in full amount within
calendar day of three (3) months from the date of first overdue
payment.
1.3.3. Terminated Membership Notification.
On the calendar date of three (3) months from the date of first
Membership Fee overdue payment, AiWin will issue a Notification
to suspended eBiz Partner for the termination of this agreement
and the filed Membership will be terminated permanently from the
date of Notification issued.
2. ESTABLISHING NETWORK AFFILIATION
2.1 Network Links. Subject to the terms and conditions of this Agreement, eBiz
Partner shall promote AiWin.com products and services offered by
AiWin.com and/or other production website(s). eBiz Partner may
select from time to time products and services eBiz Partner
wishes to offer, which products and services shall be referred
to collectively as "Products." eBiz Partner shall add
appropriate Network Links to the eBiz Partner Site as required
by AiWin.com, all in accordance with the provisions of this
Agreement and any AiWin.com Network policies and procedures as
established from time to time.
3. EBIZ PARTNER RESPONSIBILITY FOR WEBSITES
3.1 eBiz Partner Duties>. eBiz Partner is solely responsible for the
development, operation, and contents of the eBiz Partner Site
and for maintenance of all Network Links, if any. Such
responsibilities in relation to the eBiz Partner Site include,
but are not limited to:
3.1.1the technical operation of the eBiz Partner Site and all related
equipment;
3.1.2posting on the eBiz Partner site those Network Links and Product
descriptions provided by AiWin.com;
3.1.3ensuring the accuracy and appropriateness of materials posted on the
eBiz Partner Site;
3.1.4ensuring that materials posted on the eBiz Partner Site do not violate
or infringe upon the rights of any third party (including, for
example, copyrights, trademarks, privacy or other personal or
proprietary rights); and
3.1.5ensuring that materials posted on the eBiz Partner Site are not in any
way illegal, abusive, libelous, discriminatory, obscene,
offensive, fraudulent, deceptive, or misleading.
3.2 Indemnification. eBiz Partner shall indemnify and hold AiWin.com and its
officers, directors, shareholders, eBiz Partners, employees, and
agents harmless from and against all claims, actions, suits,
proceedings, claims, payment disputes, judgments, damages, costs
and expenses, including reasonable attorney's Commissions, and
other liabilities (collectively “Claims”) arising from or
related to (a) eBiz Partner's breach of any provision of this
Agreement; (b) eBiz Partner's development, operation, or
maintenance of eBiz Partner's business, any eBiz Partner Site,
any other World Wide Web Internet site owned or operated by eBiz
Partner (or which is Hyperlinked to AiWin.com through the eBiz
Partner Site or any other World Wide Web Internet site owned or
operated by eBiz Partner); and (c) eBiz Partner's negligent or
fraudulent acts or omissions.
4. TRACKING AND PAYMENT OF SALES COMMISSIONS
4.1 Tracking of Transactions.
Promptly following the Effective Date, AiWin.com will assign
eBiz Partner an eBiz Partner ID number. Each time a Customer
accesses the AiWin.com Network and submits a Lead (as described
in Section 4.4) through the Marketing eBiz Partner Network
Links, AiWin.com will record the Marketing eBiz Partner ID and
the associated Lead and any related Transaction information.
4.2 Sales Commissions. AiWin.com will pay Commission ("Sales Commissions") to eBiz
Partner for marketing Products and Services through the
Marketing eBiz Partner Network Links, all in accordance with the
terms and conditions of this Agreement. AiWin.com shall pay
Sales Commissions to eBiz Partner based solely on the number of
Requests or Sales that result in Transactions generated by eBiz
Partner and eBiz Partner’s associate partner(s), subject to the
limitations of this Article. eBiz Partner will be eligible to
receive up to five (5) levels of associate partner’s shared
Commission (Refer to AiWin eBiz Partner Sales Commissions and
Management Fees Agreement).
4.4 Commission Schedule. AiWin.com shall pay Sales Commissions for valid
transactions at the rates and terms specified at www.AiWin.com’s
member website.
4.4 No Sales Commissions Due.
AiWin.com shall have no obligation to pay eBiz Partner Sales
Commissions relating to a Transaction or partner Registration as
following circumstances:
4.4.1 If a Lead or Transaction or Registration arises from a breach by eBiz
Partner of any provision of this Agreement;
4.4.2 If a Transaction or a Registration is generated through a channel other
than eBiz Partner, including without limitation, Transactions
that AiWin.com receives directly from Customers returning to
AiWin.com and from Customers already in AiWin.com's database
prior to receipt of a Lead from eBiz Partner; or
4.4.3 If a Customer disputes or rejects a Transaction, or a potential eBiz
Partner withdraw a Registration.
4.5 Payment Schedule. AiWin.com will pay Sales Commissions to eBiz Partner under
this Agreement, less any taxes AiWin.com is required to withhold
by law, no later than thirty (30) calendar days following the
end of each month for Transactions as to which AiWin.com has
actually received monies from the applicable Network Subscriber.
AiWin.com shall have no obligation to pay a Sales Commission
under this Agreement until AiWin.com has received payment from
the Customer responsible for the applicable Transaction.
4.6 Payment Method. AiWin.com will pay the Sales Commissions by check, mailed
to eBiz Partner at the address set forth in the On-line
Application or such other address that eBiz Partner provides in
accordance with Section 8.12, or transfer the amount of payment
directly to the bank account provided by eBiz Partner under this
Agreement signed by both of AiWin and eBiz Partner,
4.7 Disputed Commissions. If a Customer or Partner Program Subscriber disputes
or rejects a Transaction or Registration and AiWin.com has
already paid eBiz Partner the related Sales Commission and
Management Fees, AiWin.com is authorized to deduct the amount of
the Sales Commission or Management Fees relating to the disputed
or rejected Transaction or Registration from eBiz Partner's next
monthly payment due under this Article 4. If there are no
subsequent Sales Commissions or Management Fees due eBiz
Partner, eBiz Partner shall reimburse AiWin.com the amount of
the disputed Sales Commission or Management Fees no later than
thirty (30) calendar days after receipt of an invoice or demand
from AiWin.com.
4.8 Promotional Verbiage, Creative, Text Links and Banners.
In marketing and Hyperlinking to the AiWin.com Website, eBiz
Partner may use only the promotional text, creative design, text
links, banners or HTML linking codes for Network Links
(“Creative Materials”) posted at
http://www.AiWin.com/member.asp. A AiWin.com Network eBiz
Partner representative must approve any deviation from or
alteration to the Creative. eBiz Partner agrees to use only such
Creative as AiWin.com provides.
4.9 Frivolous Data, Incentives, Spam and Falsification.
Should AiWin.com in its sole discretion determine that eBiz
Partner is guilty of spamming, providing false account
information, falsely enticing Customers to submit Requests,
supplying frivolous data, or artificially increasing eBiz
Partner's number of Requests and/or acting or attempting to act
in any illegal, false, misleading or deceptive manner, AiWin.com
shall have the right to immediately terminate this Agreement for
cause, in which case AiWin.com shall have no obligation to pay
eBiz Partner any Sales Commissions and Management Fee that might
otherwise then be due or payable. eBiz Partner shall at all
times during the Term comply with AiWin.com's Guidelines for
Approved Opt-In Email Lists, which are attached to and made a
part of this Agreement.
4.10 Effect of Termination on Sales Commissions.
Upon termination of this Agreement pursuant to Article 7,
AiWin.com shall be obligated to pay eBiz Partner only those
Sales Commissions then due under this Article 4 through the date
of Termination. AiWin.com may withhold, for a reasonable time
and in its sole and absolute discretion, Sales Commissions
AiWin.com believes are disputed Commissions as described in
Section 4.6.
.11 Applicable Tax to eBiz Partner.
All eBiz Partners are liable to pay applicable income tax
associate to Sales Commissions and Management Fees received from
AiWin, whereas, AiWin will not be liable to pay tax applied to
each individual eBiz Partner.
5. LICENSE
5.1 Limited License and Specifications.
AiWin.com grants to eBiz Partner a non-exclusive, fully
revocable, royalty-free license for use of AiWin.com’s and
eBizOffice.com's trade names, trademarks, banners, logos and
AiWin.com and AiWin’s production website(s) Images, symbols and
other intellectual property used in the AiWin.com Network
(collectively referred to as "Intellectual Property") and eBiz
Partner’s Website branded by eBiz Partner and/or the company
owned by eBiz Partner, subject to the restrictions below.
5.2 AiWin.com Approval Procedure.
eBiz Partner shall notify AiWin.com at least ten (10) business
days prior to the use of each item of Intellectual Property eBiz
Partner intends to use. AiWin.com shall have the right to
inspect and approve or reject each use of the Intellectual
Property by eBiz Partner prior to eBiz Partner's use. At
AiWin.com's request, eBiz Partner must produce a sample of any
Intellectual Property to be used, displayed, or produced, as
well as a sample of the eBiz Partner Site, if any, containing
the Intellectual Property.
5.3 eBiz Partner Recognition of AiWin.com.
The AiWin.com Intellectual Property shall remain the exclusive
property of AiWin.com and eBizOffice.com. eBiz Partner will not
now or in the future assert any claim to any goodwill,
reputation or ownership of any of the Intellectual Property.
Nothing in this Agreement endows eBiz Partner with any right,
title or interest in or to the Intellectual Property, beyond the
non-exclusive, revocable license described in Section 5.1. eBiz
Partner will use the Intellectual Property only in accordance
with the provisions of this Agreement, and will identify the
Intellectual Property on eBiz Partner's web site as property of
the owner of each item of Intellectual Property so used or
displayed. The license or sub-license for such use automatically
will be revoked upon the termination of this Agreement. eBiz
Partner understands that not all intellectual property within
the AiWin.com Network is the property of AiWin.com and agrees
not to use any other eBiz Partner’s Intellectual Property
without the prior written approval of AiWin.com and the relevant
eBiz Partner.
5.4 Revocation. AiWin.com may revoke the sub-licenses granted under Section
5.1.2 of this Agreement at any time, with or without cause, by
providing eBiz Partner written notice of the revocation. If eBiz
Partner modifies any aspect of the Intellectual Property it
receives under or pursuant to this Agreement, AiWin.com may
terminate this Agreement without notice at AiWin.com's sole
discretion.
6. CUSTOMER POLICIES
6.1 Customers. eBiz Partner agrees that Customers who submit Requests,
inquire about or purchase Products, or enter into Transactions
through the Marketing eBiz Partner Network Links will be deemed
to be AiWin.com customers, and that eBiz Partner shall not
state, represent or imply otherwise. eBiz Partner agrees that
Customers will be subject to all rules, policies and operating
procedures as established by AiWin.com and posted on the
AiWin.com Website from time to time at
http://www.AiWin.com/privacy/ and that eBiz Partner will neither
impose alternative rules, policies and operating procedures on
Customers, nor modify AiWin.com's rules, policies and operating
procedures as posted on the AiWin.com Website. AiWin.com may
modify the rules, policies and operating procedures at any time.
7. TERM AND TERMINATION
7.1 Duration. This Agreement will have an initial term (“Term”) of one
year beginning on the Effective Date as defined in Section 1.2.
The Term will renew automatically for another year at the end of
each preceding term (each an “Automatic Renewal Term”), provided
however, that after the initial Term, either Party may terminate
this Agreement at any time, with or without cause. In addition,
eBiz Partner may terminate this Agreement if eBiz Partner timely
rejects a Proposed Modification (as defined in Section 8.1)
during the Term or any Automatic Renewal Term. Any such
termination shall be effected by providing written notice of
termination to the other party and will be deemed effective on
the date written notice of it is given.
7.2 Termination for Cause by AiWin.com.
Notwithstanding any provision in this Agreement to the contrary,
AiWin.com may terminate this Agreement at any time and without
notice upon the occurrence of any of any of the relevant events
described elsewhere in the agreement or any of the following
events:
7.2.1A material breach by eBiz Partner of any provision in this Agreement,
including, without limitation, the terms of the license
described in Article 5.
7.2.2Any willful misconduct, misuse by eBiz Partner of the AiWin.com Website
or the Network, or any use of the AiWin.com Website or Network
for purposes that are inconsistent with those permitted under or
contemplated by this Agreement, including without limitation the
operation of any illegal business or activity through eBiz
Partner's website or business.
7.2.3Any introduction by eBiz Partner of any computer virus, disabling code,
time bomb, trap door, or similarly destructive program,
information, command or code (collectively, “Virus”) into the
AiWin.com Website or the Network or any software or systems
related thereto.
7.2.4Any eBiz Partner activity that causes the AiWin.com Website, the Network
or any Network Subscriber's website or computer system to
malfunction or any failure to make changes recommended by
AiWin.com deemed necessary to correct malfunctions.
7.2.5Any other action of eBiz Partner, whether intentional or unintentional,
that has the purpose or effect of damaging the AiWin.com
Website, the Network, or any Network Subscriber's website or
computer system, or causing any of them to malfunction or the
purpose or effect of reflecting adversely on the goodwill and/or
reputation of AiWin.com, the Network or any Network Subscriber
as determined in the sole judgment of AiWin.com.
7.2.6Any material violation by eBiz Partner, in the reasonable discretion of
AiWin.com, of any applicable law or regulation.
7.3 Obligations.Except as expressly provided in this Agreement, termination
of this Agreement will not relieve either Party of obligations
incurred during the Term.
8. GENERAL TERMS
8.1 Modification. AiWin.com may periodically post any proposed modifications
to this Agreement (“Proposed Modifications”) at
http://www.AiWin.com/member.asp. eBiz Partner will be notified
of proposed changes via email and will be given 30 days in which
to accept the Proposed Modifications. eBiz Partner agrees to
review the Proposed Modifications, if any, within 30 days after
AiWin.com transmits notification of the Proposed Modifications
(the “Notice Period”). Unless eBiz Partner terminates this
Agreement before expiration of the Notice Period in accordance
with Section 7.1, eBiz Partner will be deemed to have agreed to
the Proposed Modifications effective as of the first day of the
month immediately following the end of the 30 day notice period.
In addition, AiWin.com reserves the right to add, discontinue or
change any of the Products covered by this Agreement upon giving
eBiz Partner notice at least five business days prior to the
effective date of the addition, discontinuance or change.
8.2 Relationship of the Parties.
Each Party is acting as an independent contractor under this
Agreement. Neither this Agreement nor the relationships
contemplated under this Agreement are intended to or will be
deemed to result in an agency, partnership, joint venture,
franchise, sales representative or employment relationship with
the other Party. eBiz Partner shall have no authority to enter
into any agreements, or make any warranties or representations,
on behalf of AiWin.com.
8.3 Non-Circumvention. eBiz Partner agrees, during the Term and any Automatic
Renewal Term, and for a period of at least one year thereafter
(the “Restricted Period”), neither eBiz Partner nor any of its
shareholders, directors, officers, employees, eBiz Partners,
agents, representatives, successor and assigns will enter into
any business transaction or enter into any contract with any
Network Subscriber pursuant to which the Network Subscriber will
provide eBiz Partner access to products or services offered or
marketed by AiWin.com or through the Network without prior
written consent from AiWin.com, which consent AiWin.com may
withhold in its sole and absolute discretion.
8.4 Limitation of Liability.
EBIZ PARTNER ACKNOWLEDGES THAT IT IS AWARE THAT THERE ARE
SUBSTANTIVE RISKS, INCLUDING BUT NOT LIMITED TO LOSS AND
CORRUPTION OF DATA, DELAYS, NONDELIVERIES, MISDELIVERIES AND
SERVICE INTERRUPTION ASSOCIATED WITH RECEPTION, TRANSMISSION,
STORAGE, MANIPULATION AND OTHER USES OF DATA OVER THE INTERNET.
IN NO EVENT WILL AIWIN.COM BE LIABLE FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES ARISING OUT OF
THIS AGREEMENT, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT,
NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT AIWIN.COM HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS
WILL APPLY NOTWITHSTANDING THE FAILURE OF ANY ESSENTIAL PURPOSE
OF ANY LIMITED REMEDY. THE PARTIES FURTHER AGREE THAT
AIWIN.COM'S AGGREGATE MONETARY LIABILITY ARISING OUT OF THIS
AGREEMENT WILL NEVER EXCEED THE TOTAL SALES COMMISSIONS PAID OR
PAYABLE TO EBIZ PARTNER PURSUANT TO THIS AGREEMENT DURING THE
ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE DATE ANY SUCH ALLEGED
LIABILITY OCCURS.
8.5 Disclaimers of Warranties.
AIWIN.COM EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES
WITH RESPECT TO THE EBIZ PARTNER PROGRAM AND THE PRODUCTS SOLD
THROUGH THE EBIZ PARTNER PROGRAM, INCLUDING IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE
PARTIES AGREE THAT NO IMPLIED WARRANTIES HAVE ARISEN DUE TO
COURSE OF PERFORMANCE, DEALING OR TRADE USAGE. EBIZ PARTNER
AGREES THAT AIWIN.COM HAS MADE NO EXPRESS OR IMPLIED WARRANTIES
REGARDING THE OPERATION OF WWW.AIWIN.COM, AND THAT AIWIN.COM
WILL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY LOSS SUFFERED BY
EBIZ PARTNER OR ANY CUSTOMER AS A RESULT OF USING WWW.AIWIN.COM,
THE NETWORK OR ANY NETWORK SUBSCRIBER SITE, INCLUDING BUT NOT
LIMITED TO DATA LOSS AND/OR OTHER LOSSES RESULTING FROM DELAYS,
OPERATION ERROR OR INTERRUPTION, IMPROPER OR INCOMPLETE DELIVERY
OF INFORMATION, POSSIBLE COMPUTER VIRUSES, INTERFERENCE OF
SERVICE OR OTHERWISE, REGARDLESS OF CAUSE.
8.6 Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the Parties relating to the subject matter and
supersedes all prior agreements, writings, commitments,
discussions and understandings between them.
8.7 Severability/Waiver. If any term of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, then this
Agreement, including all of the remaining terms, will remain in
full force and effect as if such invalid or unenforceable term
had never been included. No delay, omission, or failure to
exercise any right or remedy provided for in this Agreement will
be deemed to be a waiver thereof or an acquiescence in the event
giving rise to such remedy, but every such right or remedy may
be exercised, from time to time, as may be deemed expedient by
the Party exercising such right or remedy.
8.8 Confidentiality. eBiz Partner agrees not to disclose the terms and
conditions of this Agreement to anyone without the prior written
approval of AiWin.com, Inc.
8.9 Assignment. This Agreement and/or the respective
rights and obligations arising out of this Agreement cannot be
assigned or transferred by eBiz Partner under any circumstances,
including, but not limited to, by court order, operation of law,
merger, statute, regulation, ordinance, or otherwise, without
AiWin.com's prior express written consent, which consent
AiWin.com may withhold in its sole and absolute discretion. Any
attempt to assign this Agreement in violation of this Section
8.9 will be null and void. In the event of a permissible
assignment, this Agreement will be binding on, inure to the
benefit of, and enforceable against the Parties and their
respective successors and assigns.
8.10 Injunctive Relief. eBiz Partner agrees that monetary damages would not
be an adequate remedy for the breach of certain provisions of
this Agreement including but not limited to Article 5.
Accordingly, if eBiz Partner breaches or threatens to breach any
of eBiz Partner's obligations, AiWin.com will be entitled,
without showing or proving any actual damage sustained, to a
temporary restraining order, and will thereafter be entitled to
apply for a preliminary injunction, permanent injunction and/or
order compelling specific performance, to prevent the breach of
eBiz Partner's obligations under this Agreement. Nothing in this
Agreement will be interpreted as prohibiting AiWin.com from
pursuing or obtaining any other remedies as otherwise available
to it for such actual or threatened breach, including recovery
of damages.
8.11 Governing Law/Jurisdiction.
This Agreement will be governed by and construed under the laws
of Canada, without reference to principles of conflict of laws,
and any action, including, but not limited to litigation,
brought by the Parties to enforce or interpret any provision of
this Agreement will be brought in an appropriate provincial
court in the city and county of Vancouver, British Columbia or
the federal court for the British Columbia, Canada. eBiz Partner
hereby consents to jurisdiction in such venue and expressly
waives any objection to same.
8.12 Notice. Any notice required or permitted by this Agreement will be
in writing (which includes electronic) and shall be sent by (i)
prepaid registered or certified mail, return receipt requested,
(ii)courier, (iii) facsimile or (iv) email, in each case
addressed to the other Party at the appropriate address shown on
the signature page of this Agreement or at such other address
for which such Party gives notice hereunder. Except as set forth
in Section 7.1, notice given by mail will be deemed to be
effective only upon receipt during normal business hours and or
notice given by facsimile or email will be effective only upon
receipt during normal business hours. If notice is given after
normal business hours by facsimile or email, it will be deemed
received as of the start of the next business day.
8.13 Survival. The provisions of Sections 3.1, 3.2, 5.3 and Article 8 will
survive the Termination of this Agreement.
8.14 Incorporation. Documents attached here to or referred to in this Agreement
(including web pages at specified URLs) are an integral part of
this Agreement and are intended by the Parties to be
incorporated into this Agreement and be binding on the Parties.
8.15 Miscellaneous. This Agreement may be executed in one or more counterparts,
each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
Nonperformance of either Party will be excused to the extent
that performance is rendered impossible by strike, fire, flood,
governmental acts or orders or restrictions, failure of
suppliers, or any other reason where failure to perform is
beyond the control and not caused by the negligence of the
non-performing Party. Headings used in this Agreement are for
reference purposes only and in no way define, limit, construe or
describe the scope or extent of such section or in any way
affect this Agreement. This Agreement will be construed within
its fair meaning and no inference will be drawn against the
drafting party in interpreting this Agreement.
8.16 Acknowledgment. By clicking on an "Accept" or similar button on the
AiWin.com Website following this Agreement, or by manually
executing this Agreement, eBiz Partner acknowledges and agrees
that eBiz Partner has thoroughly read, accepted and agrees to be
bound by the terms of this Agreement. eBiz Partner confirms that
eBiz Partner has independently evaluated and weighed the risks
and benefits of participating in the eBiz Partner Program, and
has agreed to all the terms of this Agreement without reliance
on any representation, guarantee or statement existing outside
of this Agreement.
8.17 Incentive Program
By subscribing the eBiz
Partner
membership, You understand and agree that you are
personally responsible for your behavior
on the website and enroll Top Seller
Awards Incentive. You agree to indemnify,
defend and hold harmless AiWin, its
affiliates, licensors, employees, and agents from and against
all claims, losses, expenses, damages and costs (including, but
not limited to, direct, indirect, incidental, consequential,
and/or exemplary damages), and reasonable attorneys’ fees,
resulting from or arising out of your use, misuse, or inability
to use the Website or the Content, or any violation by you of
TOP SELLER AWARDS Incentive's Terms and Conditions.
Guidelines for Approved Opt-In Email Lists
Prior to
starting each and any type of new email, newsletter, or other
form of marketing campaign via the Network, eBiz Partner MUST
complete and send an EMAIL APPROVAL FORM to AiWin.com. Until
eBiz Partner has been notified that eBiz Partner's request to
email is approved, eBiz Partner agrees not to conduct any type
of emailing via the Network.
SPAMMING
(any form of emailing for a commercial purpose that is
unsolicited) IS NOT PERMITTED. If eBiz Partner spams, AiWin.com
reserves the right at any time and without notice to disable
eBiz Partner's Hyperlink to AiWin.com and the Network. To
prevent this from happening, AiWin.com has instituted an
Anti-Spam Policy that sets forth the minimum standards AiWin.com
requires its Marketing eBiz Partners to adhere to in light of
current laws, rules and regulations governing the transmission
of e-mail and the best practices in the industry. In the event
any state or federal law, rule or regulation governing e-mail
communications is enacted or amended after the effective date of
the Agreement, setting forth standards more restrictive than
those set forth herein, the more restrictive standards contained
in such enacted or amended law, rule or regulation shall apply
to all Marketing eBiz Partners, notwithstanding anything to the
contrary set forth in this Anti-Spam Policy. Any emails,
newsletters, or other forms of marketing campaigns by eBiz
Partner MUST be "permission" or "opt-in" based and meet the
following standards to prevent eBiz Partner's account from being
labeled as "SPAM".
1) eBiz
Partner may distribute emails solely to those persons who have
actively opted-in to receive the email. The content of each
email shall include (a) eBiz Partner's correct point-of-origin
email address, transmission information and routing information,
(b) clear, prominent opt-out instructions in the email and in
the first line of the text, if required by applicable law; (c) a
toll-free telephone number or valid email address at which
recipient may contact eBiz Partner to file complaints and/or
opt-out; (d) accurate information regarding the manner in which
the recipient opted-in to receive the email and (e) the
identifier and any disclaimers that AiWin.com assigned to the
email. eBiz Partner shall not, without AiWin.com's prior written
approval, include any redirect links or frames in an email.
Without limiting the generality of the foregoing, in no event
may eBiz Partner forge email header information or otherwise
engage in false or misleading conduct.
2) eBiz
Partner shall (a) make adequate disclosures as required by law
to those on its email list(s) regarding eBiz Partner's email and
Privacy and Security Policies; (b) respond to all complaints
within one (1) business day after eBiz Partner becomes aware of
the complaint, (c) provide AiWin.com with a copy of every
complaint, immediately upon eBiz Partner's receipt thereof, (d)
implement any corrective action AiWin.com may require and (e)
comply with any legal and/or other requirements AiWin.com may
reasonably specify.
3) eBiz
Partner must provide a simple method for subscribers to the
emails to opt-out of their subscriptions with clear and
effective instructions for unsubscribing. As such, emailing from
a list must cease promptly once a subscription is terminated.
4) eBiz
Partner must provide a manual opt-out procedure (e.g., an email
address to which messages may be sent for further contact via
email or telephone) available for those who wish to terminate
their subscriptions but are unable or unwilling to follow
standard automated procedures.
5) eBiz
Partner must ensure that the impact of its email is minimized by
proper list management procedures such as pruning of invalid or
undeliverable addresses.
6) eBiz
Partner must take adequate steps to ensure that its lists are
not used for abusive purposes such as emailing malicious emails
or chain letters or not being in compliance with the Children's
Online Privacy Protection Act (COPPA).
7) eBiz
Partner must not email to an unsubscribe list. As such, eBiz
Partner should maintain a "suppression list" of email addresses
from which all subscription requests are rejected to prevent
subscription of addresses appearing on the suppression list by
unauthorized third parties.
8) eBiz
Partner shall examine the terms and conditions under which the
email addresses on all third party lists were originally
compiled to ensure that all recipients have in fact opted-in to
the type of mailing list eBiz Partner intends to operate. eBiz
Partner shall ensure that all third party lists used by or on
behalf of eBiz Partner were collected by the third party source
in accordance with the same standards listed above and must
create a new emailing list when there is a substantive change in
either the subject matter or frequency of messages. A
notification about the new emailing list may be appropriate on
the existing emailing list, but existing subscribers should
never be subscribed automatically to the new list. For example,
if Company A acquires Company B, and Company B has compiled
opt-in mailing lists, Company A should not summarily incorporate
Company B's mailing lists into its own.
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