This JVZoo Seller Agreement (this "Agreement") is made by and between BBC Systems Inc., a Florida corporation, d/b/a JVZoo or JVZoo.com ("JVZoo" or "Us" or "We"), and you, as a seller participating in the JVZoo network and associated services ("Seller," "Vendor," or "You").
You must agree to abide by the terms and conditions contained in this Agreement in order to participate in the network and services provided by JVZoo. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE REGISTERING FOR THE JVZoo NETWORK AND SERVICES. By signing up for the JVZoo network and services, You indicate Your acceptance of the terms and conditions set forth in this Agreement. If You do not accept this Agreement, do not register for or continue use of the JVZoo network or services.
1. Definitions. The following is a list of defined terms used throughout this Agreement.
a. Affiliate. An "Affiliate" is an individual or entity that registers with JVZoo and agrees to display Links (hereinafter defined) and otherwise market products or services for Sellers (hereinafter defined) in order to generate approved sales by such Sellers, in exchange for commissions.
b. Insertion Order. An "Insertion Order" is the form describing the particular specifications by which a Seller is willing to allow an Affiliate to market its products or services. Insertion Orders may specify types of media used (e.g., Links or banner ads), details of approved sales, and commissions available for such approved sales. Insertion Orders may appear under a Seller's page in the Product Library or may be supplied separately to an Affiliate.
c. JVZoo Knowledgebase. "JVZoo Knowledgebase" is the information available at https://jvzoo.zendesk.com/hc/en-us.
d. JVZooPay. "JVZooPay" is a service offered by JVZoo through which commissions attributable to Affiliates can be facilitated upon any applicable terms and conditions.
e. Link. A "Link" is a hyperlink placed by an Affiliate that, when clicked on, serves the Seller's website to the internet user's browser. The Link may be in the form of text, a product image, a button, a banner, or any other format acceptable to the Seller and defined in an applicable Insertion Order.
f. Product Library. The "Product Library" is the section of the JVZoo.com website where Sellers list the products or services for which they are willing to enter into an arrangement with an Affiliate for purposes of allowing that Affiliate to post Links and otherwise market the Seller's products or services.
g. Seller. A "Seller" is an individual or entity that registers with JVZoo and agrees to pay a commission for approved sales to a customer or user generated by an Affiliate registered with JVZoo. A Seller may also be referred to as a "Vendor."
2. The Service. JVZoo operates a program (the "Affiliate Program") whereby You can sign up with JVZoo in order to arrange to have Affiliates post Links and otherwise market Your products or services, pursuant to the individual terms You propose. All relationships and interactions between You and any Affiliates will be managed by and conducted through the Affiliate Program and will be subject to the terms and conditions of this Agreement, the JVZoo Affiliate Agreement, the JVZoo Privacy Policy and any other applicable policies or agreements listed on the JVZoo.com website (the "Site"). Each arrangement with each Affiliate will additionally be subject to the terms posted by You in the JVZoo Product Library or specified in the applicable Insertion Order.
As part of the Affiliate Program and the service offered on the Site, JVZoo may publish ratings for the Affiliates and/or the Sellers participating in the Affiliate Program, based on information supplied by the Affiliate or the Seller during the registration process and on information relating to sales performance for such Affiliate or Seller. Such ratings are based on criteria chosen by JVZoo, in its sole discretion. You acknowledge and agree that JVZoo has the right to evaluate information relating to You and to publish on the Site the ratings for You, based on the criteria, information, and methods JVZoo chooses, in its sole discretion. In no event does JVZoo warrant or guarantee correctness, comprehensiveness, completeness, accuracy, timeliness, or fitness for a particular use or purpose of any ratings on the Site, nor does JVZoo warrant or guarantee any results or performance based on any particular ratings. Such ratings are provided solely as a tool to aid Affiliates and Sellers in their decision about who they would like to work. You are solely responsible for investigating and determining the Affiliates with which You choose to work and for the consequences of such determination. In no way shall any rating be deemed an endorsement by JVZoo of any particular Affiliate.
3. Registration. In order to register as a Seller with JVZoo and to participate in the Affiliate Program, You must be at least eighteen (18) years of age and must complete the required application form found on the Site, which requires supplying a name, supplying a valid e-mail address and creating an acceptable password. Additionally, You must comply with all the requirements for creating a valid JVZoo supported payment processing account and/or a JVZooPay supported payment processing account, as applicable, and linking such account(s) with the JVZoo payment system, as detailed in Section 5. JVZoo reserves the right, in its sole and absolute discretion, to (i) deny any person or entity the right to register with JVZoo or participate in the Affiliate Program and/or (ii) terminate any person or entity's participation in the Affiliate Program at any time.
As part of the registration process, You will select a username and password combination that You use to access Your account within the Affiliate Program (Your "JVZoo Account"). You shall provide JVZoo with accurate, complete and updated registration information. You may not select the name of another person or entity with the intent of impersonating that person or entity or deceiving Affiliates, other Sellers or other users as to Your true identity. You agree that JVZoo may rely on any data, information, notice or request furnished to JVZoo by You that is reasonably believed by JVZoo to be genuine and to have been sent or presented by a person reasonably believed by JVZoo to be authorized to act on Your behalf. You shall notify JVZoo by e-mail sent to the following address of any known or suspected unauthorized uses of Your JVZoo Account, or any known or suspected breach of security, including loss, theft or unauthorized disclosure of Your username or password: support[at]JVZoo.com. You are solely responsible for maintaining the confidentiality of Your username and password and are solely responsible for all usage and activity on or through Your JVZoo Account, including use of Your JVZoo Account by a third party authorized by You. Any fraudulent, abusive or otherwise illegal activity may be grounds for termination of Your JVZoo Account by JVZoo, in its sole and absolute discretion, and referral to the appropriate law enforcement agencies.
JVZoo reserves the right to send e-mails to You at the e-mail address You provide and to otherwise communicate with You for purposes related to the Affiliate Program, including, but not limited to, informing You of applicable changes or additions to the Affiliate Program, the Site or this Agreement.
4. Prohibited Websites, Content, Products, and Services.
You may not use the Affiliate Program to advertise, sell, or link to any websites, products, or services that contain, promote, or engage in any of the following, in JVZoo's sole discretion:
JVZoo reserves the right to prohibit Seller from promoting or selling any website, product, or service through the Affiliate Program in JVZoo's sole discretion.
5. Payment Processing Account(s). In order to be eligible to participate in the Affiliate Program using instant payments or a delayed payment plan (each as detailed in Section 9 below), You must register and create an account with a JVZoo supported payment processor supporting such payment method, as set forth in the JVZoo Knowledgebase, which includes supplying all information required by such JVZoo supported payment processor. You are responsible for complying with all requirements for registration with such supported payment processor and for otherwise complying with all applicable terms and conditions located on the JVZoo supported payment processor's website. In addition, You must complete the necessary processes in order to properly link Your JVZoo supported payment processing account to the JVZoo payment system. Failure to properly link Your JVZoo supported payment processing account to the JVZoo payment system may be grounds for termination of Your JVZoo Account and Your participation in the Affiliate Program, as JVZoo determines in its sole and absolute discretion.
In order to be eligible to participate in the Affiliate Program using JVZooPay (as detailed in Section 10 below), You must register and create an account with a JVZooPay supported payment processor, as set forth in the JVZoo Knowledgebase, which includes supplying all information required by such JVZooPay supported payment processor. You are responsible for complying with all requirements for registration with such JVZooPay supported payment processor and for otherwise complying with all applicable terms and conditions located on the JVZooPay supported payment processor's website. In addition, You must complete the necessary processes in order to link Your JVZooPay supported payment processing account to the JVZoo payment system. Failure to properly link Your JVZooPay supported payment processing account to the JVZoo payment system may be grounds for termination of Your ability to utilize JVZooPay, as JVZoo determines in its sole and absolute discretion.
In no event shall JVZoo be responsible for ensuring proper registration with Your JVZoo supported payment processor or Your JVZooPay supported payment processor, proper linking to the JVZoo payment system, or proper payment of any sums under this Agreement. Each payment through the Affiliate Program is required to be processed through a JVZoo supported payment processor, using Your JVZoo payment processing account, or through a JVZooPay supported payment processing, using Your JVZooPay supported payment processing account, and are subject to all terms and conditions provided on the supported payment processor's website. You are solely responsible for ensuring proper receipt of payments. In no event does JVZoo make any representations or warranties of any kind relating to the supported payment processor's website, Your JVZoo payment processing account, Your JVZooPay payment processing account, or any payments through such account(s); nor is JVZoo liable in any way for any error or omission on the part of any JVZoo supported payment processor or JVZooPay supported payment processor.
6. Licenses and Intellectual Property. You hereby grant to Us a worldwide, nonexclusive, limited, revocable right to use and display on the Site and make available to Our Affiliates for use and display the Links, advertisements and trademarks that You choose to display with JVZoo.
We grant You a nonexclusive, non-transferable, revocable, limited license to access and make use of the Site, software and material provided thereon in order to post Your Links, advertisements and related materials; provided, that, You fully comply with this Agreement.
In addition, the registered and unregistered trademarks, service marks, tradenames, graphics, logos, page headers, button icons, scripts, trade dress, or other indicia of trade origin (collectively, "Trademarks") of JVZoo may not be used in connection with any business, product, or service whose source is not JVZoo, in any manner that is likely to cause confusion among customers, the trade, or the public, or in any manner that disparages or discredits JVZoo or any of its Affiliates. All other Trademarks not owned by JVZoo that appear on the Site are the property of their respective owners, who may or may not be affiliates with, connected to, or sponsored by JVZoo. Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademarks of JVZoo or its Affiliates displayed or contained in the Site without the express, written consent of JVZoo or its Affiliates.
All content on the Site, including, but not limited to, text, design, graphics, logos, button icons, images, audio clips, digital downloads, interfaces, data compilations, software, and code, and the compilation of all content on the Site, as well as all software used on the Site, is the property of JVZoo, its Affiliates, or its Sellers, and is protected by United States and international copyright laws. Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the copyrighted works displayed or contained in the Site without the express, written consent of JVZoo.
a. Trademark Use. Notwithstanding the foregoing, You shall ensure proper use of the JVZoo Trademarks. You shall properly identify any JVZoo Trademarks, including by using the registered symbol, ®, where appropriate, and You shall not change or distort the color, sizing, or other design features of any JVZoo Trademarks, only using the JVZoo Trademarks as provided by JVZoo. The list of acceptable JVZoo Trademarks, along with applicable specifications, can be found here: https://www.JVZoo.com/logos. You shall not combine the JVZoo Trademarks with any other logos, words, graphics, symbols, or other Trademarks. Further, You shall not use the JVZoo Trademarks in any way that falsely implies any sponsorship, affiliation, or endorsement of You by JVZoo. Whenever You use the JVZoo Trademarks, You shall also display in the primary and more prominent position Your own logo, company name, and related Trademarks. JVZoo reserves the right, in its sole discretion, to modify or terminate Your use of the JVZoo Trademarks at any time and for any reason, including for failure to comply with these Trademark use requirements.
7. JVZoo Commission Fee. JVZoo will charge a commission fee of 5% of the gross selling price on each product or service sold by a Seller through the Affiliate Program. Mindless Donkey Inc.; BBC Systems Inc.; and JVZoo.com are all entities affiliated with Us, and payment of the commission fee to JVZoo may be reflected on Your account information as a payment to any of the foregoing entities.
Any commission fee which is not collected immediately will be invoiced within the JVZoo system. You may view this activity in the Invoices section of Your Account. Invoices that remain unpaid after fourteen (14) days will automatically be deducted from any owed commissions as reflected within JVZooPay. If there are not sufficient funds to collect and cover the invoice(s), JVZoo may limit, freeze, or permanently disable Your account. You understand and agree that We may attempt to collect funds for invoices from any JVZoo account You may have.
8. Product Library and Insertion Orders. Once You have registered for the Affiliate Program, You are free to list as many of Your products or services in the Product Library for which You would like to have Affiliates post Links and otherwise advertise. For each listing, You are free to determine the types of advertisements You would like Affiliates to use (including Links, banner ads, and other advertising materials), the kinds of media in which Your approved advertisements can appear, and how much of a commission fee per completed sale will be paid to an Affiliate for advertising such product or service. You must provide this information through an Insertion Order, which You and the Affiliate or Affiliates of Your choosing must sign.
9. Affiliate Commission Fee. You agree to pay the agreed-upon commission fee for each completed sale that an Affiliate with whom You have approved to sell your products or services sends to You through the Links or materials it posts in the approved media (the "Commission Fee"). If You do not elect in the applicable Product Library or in the relevant Insertion Order to use JVZooPay to pay a Commission Fee to an Affiliate (as detailed in Section 10 below) and You do not elect to use a delayed payment plan to pay a Commission Fee to an Affiliate (as hereafter detailed), the Affiliate will receive a Commission Fee for a completed sale once a customer or user completes an order form on the Seller's checkout page for the relevant product or service, completes the relevant form on Your selected JVZoo supported payment processor's website, and remits full payment for the product or service ordered from You. For each such order that completes the preceding process, Affiliate will receive the agreed-upon Commission Fee, and You agree to allow Your selected JVZoo supported payment processor to provide such Commission Fee for each such completed sale. Alternatively, as a Seller not using JVZooPay to pay Commission Fees to an Affiliate, You may have the option through Your JVZoo Account to elect a delayed payment plan for any Commission Fee to an Affiliate. Under such delayed payment plan, You agree to pay a Commission Fee to an Affiliate for each completed sale at least sixty (60) days after the date the customer or user completes an order form on the Seller's checkout page for the relevant product or service, completes the relevant form on Your selected JVZoo supported payment processor's website, and remits full payment for the product or service ordered from You. In the event You fail to pay any Commission Fee to an Affiliate within seventy (70) days after the date specified above, JVZoo reserves the right, in its sole and absolute discretion, to permanently prohibit You from utilizing JVZoo in any manner, including but not limited to, utilizing a JVZoo Account, and JVZoo may seek all remedies under this Agreement or by law to collect all outstanding amounts owed by You. Before You can elect to use such delayed payment plan, You must first provide JVZoo with Your valid credit card information. If You are an existing Seller electing to use such delayed payment plan for the first time, You will be required to provide Your valid credit card information before You can re-access Your JVZoo Account. By electing such a delayed payment plan and providing Your credit card information to JVZoo, You represent and warrant that the information You provide is valid, accurate, and complete, and You specifically authorize JVZoo to use such credit card information to secure payment for any amounts owed by You pursuant to this Agreement. You shall notify JVZoo immediately of any changes to the credit card information You supply. Failure to provide valid, accurate, and complete credit card information or to notify JVZoo of any changes to that information will cause You to lose eligibility for any delayed payment plan, in addition to any other remedies available to JVZoo.
10. JVZooPay Affiliate Commission Fee. As a Seller, You may have the option through your JVZoo Account or in the applicable Product Library or Insertion Order to elect to use JVZooPay to pay Commission Fees to Affiliates. In such case, the Commission Fee attributed to an Affiliate will be credited into the Affiliate's JVZooPay account balance for a completed sale once a customer or user completes an order form on the Seller's checkout page for the relevant product or service, completes the relevant form on Your selected JVZooPay supported payment processor's website, and remits full payment for the product or service ordered from You. For each order that completes the foregoing process, You agree to allow Your selected JVZooPay supported payment processor to pay such Commission Fee for each completed sale into JVZooPay, such that an Affiliate may receive the Commission Fee from JVZooPay in accordance with any applicable terms and conditions.
Additional terms concerning JVZooPay are found in Section 9 of the Affiliate Agreement (https://www.jvzoo.com/affiliateagreement), which is hereby incorporated by reference as if stated fully.
11. Taxes and Related Charges. You are solely responsible for ensuring the collection and payment of any and all applicable state, local, or other taxes or related charges arising from any customer purchasing Your products or services. You agree to indemnify Us from any liability connected with the same.
12. SPAM. SPAM, OR UNSOLICITED COMMERCIAL E-MAIL, IS ABSOLUTELY PROHIBITED. We will terminate Your Account and immediately dismiss you from the Affiliate Program if We determine that You have sent SPAM or Unsolicited Commercial E-mail, whether in connection with the Affiliate Program or otherwise, and You will not be entitled to any payment or reimbursement for funds remaining in Your JVZoo supported payment processing account or Your JVZooPay supported payment processing account. Further, You agree to comply with all U.S. state and federal SPAM laws, including, but not limited to, the Federal CAN-SPAM Act of 2003 and any rules or regulations promulgated by any Federal Trade Commission or any other federal agency thereunder. You also agree to indemnify Us from any liability connected with SPAM or unsolicited e-mail transmissions by You or connected to You.
13. Inactive Accounts. JVZoo reserves the right, in its sole and absolute discretion, to terminate Your JVZoo Account if it is left inactive for more than six (6) months and to remove the same from the Site. An "inactive" account is one for which both of the following are true for at least six (6) months: (i) no one has logged into the account, and (ii) no one has used the account for any transactions with Affiliates. Any inactive account having a balance or other credit that remains uncollected for more than two (2) calendar years after such commission or credit is earned is forfeited by You and will no longer be available to You.
14. Seller Content. You represent that all content, data, or information You provide to JVZoo or post on the Site is solely owned by You or provided by You with the express authority of the person or entity You represent; does not infringe upon any other individual's or entity's rights (including, without limitation, intellectual property rights); and is not defamatory, libelous, unlawful, or otherwise objectionable. You shall not provide, promote, distribute, sell, place, or otherwise publish as an Seller (or in connection with the Affiliate Program) any content, product, service, or website that includes content, that is libelous, defamatory, obscene, pornographic, abusive, fraudulent or violates any law. You are solely responsible for the content, products, services, data, and information You provide, promote, distribute, sell, place, or otherwise publish and for Your website.
15. Sale of Physical Products. In addition to the other terms contained in this Agreement, if Seller offers for sale any physical, tangible, and/or non-digital goods or products ("Physical Products") through the Affiliate Program, the following terms apply:
a. Fulfillment and Shipping. Seller is solely responsible for timely fulfilling and shipping all orders for Physical Products and collecting and/or paying the cost for such shipment and fulfillment.
b. Applicable Law and Taxes. Seller is solely responsible for complying with any applicable state, local, federal, or other law, rule, or regulation related to the sale or shipment of any Physical Products. Seller is solely responsible for the collection and payment of any taxes related to the sale of any Physical Products.
c. Refunds. If a customer contacts JVZoo and represents that customer purchased, but did not receive, a Physical Product from Seller, JVZoo may request that Seller provide JVZoo with written confirmation of the shipment and delivery of the Physical Product to customer. If JVZoo requests such confirmation and Seller fails to provide such confirmation within two (2) business days of the request, and either (i) more than five (5) business days have elapsed since the customer placed the order with Seller, or (ii) the shipment period stated by Seller in Seller's advertisement, website, or offer to customer has passed, then JVZoo reserves the right to issue the customer a refund and offset that amount from amounts owed to Seller or otherwise obtain that amount from Seller, including charging any Seller account on file with JVZoo.
d. Representations and Warranties. Seller represents and warrants that any Physical Products offered, advertised, or sold by Seller (i) are not illegal in any jurisdiction in which the Physical Product is manufactured, sold, or shipped; (ii) comply with all applicable laws, (iii) do not infringe upon the rights of any third-party; (iv) are not defective or recalled, (v) do not promote or contain any of the content contained in Section 4, above; and (vi) comply with any and all other terms and guidelines posted by JVZoo on the Site and in any other part of the Affiliate Program materials.
16. Representations, Warranties, and Covenants.
a. Mutual Representations.
Each party represents and warrants that: (i) it has the right to enter into and fully perform the services contemplated herein, consistent with this Agreement; (ii) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with this Agreement; and (iii) at all times while Seller is participating in any of JVZoo's services, using the Site, or participating in the Affiliate Program, each party shall comply with all applicable laws and regulations. Neither party makes any guarantee, representations or warranties, express or implied, as to the level of consumer response that will result from the Affiliate Program.
b. Seller Representations.
Seller represents and warrants that: (i) Seller's websites, advertisements, links, disclosures, landing pages, claims, representations, scripts, videos, and any other media related to Seller's sale or promotion of its products or services (collectively the "Advertisements") will comply with all applicable State and Federal laws; (ii) Advertisements do not contain or promote, nor link to any website that contains or promotes, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content, products, services or activities; (iii) Seller owns or has the legal right to use, distribute, and/or sell (as applicable) all content, copyrighted material, products, and services displayed on Seller's websites and other media; (iv) Affiliate shall not offer or promote products or services (or websites or links to websites) containing any pornographic, racially or ethnically discriminatory, political, software pirating or hacking, hate-mongering, or otherwise objectionable or illegal content; (v) Seller shall at no time use JVZoo's proprietary software or any materials provided by JVZoo or an Affiliate in any manner other than that which is specifically contemplated herein; (vi) Seller will not engage in any kind of deceitful, deceptive, misleading, or other unfair trade practices or advertising, or any other fraudulent or other unlawful practice; (vii) Seller shall at no time engage in, disseminate, promote or otherwise distribute links or marketing materials through the use of contextual media, specifically, downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable); (viii) Seller will not provide Links to any website or provide any other advertising materials that contain inappropriate content, which includes, but is not limited to, content that: (a) promotes the use of alcohol, tobacco or illegal substances, nudity, sex, pornography, adult-oriented content (such as phone sex or escort services), expletives or inappropriate language; (b) promotes gratuitous violence, abuse or threats of physical harm; (c) promotes illegal or unethical activity, racism, hate, SPAM, mail fraud, gambling, sweepstakes, pyramid schemes, investment and money-making opportunities or illegal advice; (d) promotes use of illegal substances or illegal activities (such as bomb building, counterfeiting money or using pirate software (e.g., Warez or Hotline)); (e) is libelous, defamatory, infringing, false, misleading or contrary to public policy; (f) is otherwise prohibited by Federal or State law; or (g) may bring JVZoo or its associated Affiliates (or both) negative publicity; (ix) Seller will not engage in any spoofing, redirecting or trafficking from adult-related websites in an effort to gain traffic or websites that are point, lottery or rewards based and encourage users to click on offers or use offers to generate revenue for users to win points, rewards, or other incentives (unless expressly approved in writing by JVZoo); (x) Seller will not violate any third party terms and conditions, which includes, but is not limited to, the unauthorized use of a third party website for commercial gain or post bulletins to non-owned accounts; (xi) Seller will not use deceptive or misleading practices (such as the use of spyware, adware, devices, programs, robots, iframes, hidden pictures, redirects, spiders, computer scripts or other automated, artificial or fraudulent methods designed to appear as if a consumer is generating a lead); and (xii) Seller's products and services do not infringe upon the rights of any third-party.
Seller further represents and warrants that all of Seller's Advertisements (as defined above) and all information contained in or linked through the Advertisements comply with the following: (1) Advertisements are truthful and not deceptive or misleading; (2) Seller and Advertisements present all material information clearly and conspicuously; (3) Seller can substantiate any express or implied claims, including any health, safety, or beauty claims, with competent and reliable scientific evidence consisting of tests, analyses, research, studies, or other evidence based upon the expertise of professionals in the relevant area that have been conducted and evaluated in an objective manner by persons qualified to do so, using procedures accepted in the profession to yield accurate and reliable results, and will produce such substantiating materials to JVZoo upon request; (4) Seller can demonstrate the accuracy and factual basis for any assertions that a specific level of scientific support exists for an express or implied health, safety, or beauty claim, and Advertiser will produce such substantiating materials to JVZoo upon request; (5) Seller can substantiate any earnings claims or other specific claims asserted regarding Seller's products or services, including, but not limited, to the amount of earnings or leads a customer can expect from using the Seller's product; (6) Advertisements contain all necessary disclosures and disclaimers to comply with all FTC rules and guidance concerning the use of testimonials or representations concerning specific results obtained by customers of the Seller's products and whether the average customer can reasonably expect to achieve similar results; (7) Seller and Advertisements comply with all applicable FTC rules, regulations, and guidance, as amended from time to time, including but not limited to, the following: (i) the FTC Guides Concerning Use of Endorsements and Testimonials in Advertising, (ii) the FTC's Business Opportunity Rule, as amended from time to time, (iii) the FTC Guide Concerning Use of the Word "Free" and Similar Representations, (iv) the FTC's Advertising Guide for Dietary Supplements, (v) the FTC's .com Guidelines for Disclosures for Digital Advertising, (vi) all applicable FDA statutes, regulations, and guidelines, including, but not limited to, the Nutrition Labeling and Education Act, the Federal Food, Drug, and Cosmetic Act, the Dietary Supplements Health and Education Act, and the regulations implementing these Acts, (vii) the Restore Online Shopper's Confidence Act, (viii) the Children's Online Privacy Protection Act, (ix) Telemarketing and Consumer Fraud and Abuse Prevention Act and all rules and regulations promulgated by the Federal Trade Commission or Federal Communications Commission thereunder, (x) any and all other applicable federal or state laws, rules, codes and regulations; (8) all emails must comply with the CAN-SPAM Act of 2003 and all rules and regulations promulgated by any federal agency thereunder; (9) Advertisements will not load any computer program onto an individual's computer (excluding cookies) without JVZoo's prior written approval and the individual's express consent; (10) Advertisements do not infringe upon the rights of any third party; (11) Advertisements do not use celebrity photos or claimed endorsements unless prior consent has been obtained from the celebrity by the Seller; and (12) Advertisements include a conspicuously posted privacy policy that complies with all laws and regulations and fully and accurately discloses Seller's collection and use of user data.
Seller further represents and warrants that the products or services Seller offers through the Advertisements either: (1) do not constitute a Business Opportunity as defined by 16 C.F.R. § 437.1(c); or (2) may constitute a Business Opportunity as defined by 16 C.F.R. § 437.1(c) and Seller complies with the Business Opportunity Rule and provides all appropriate disclosures and forms to Seller's prospective customers as required by the Rule, including the completed "Disclosure of Important Information About Business Opportunity" in the time and form required by the FTC under 16 C.F.R. § 437.3. Seller further represents and warrants that the Seller and the Advertisements either: (1) do not make any Earnings Claims as defined by 16 C.F.R. § 437.1(f); or (2) if the Seller or Advertisements may make an Earnings Claim as defined by 16 C.F.R. § 437.1(f) then Seller shall disclose to Seller's prospective customers the completed Earnings Claim Statement required by the FTC under 16 C.F.R. § 437.4. Seller further represents and warrants that Seller has a reasonable basis for such Earnings Claims, has in its possession written materials that substantiates such Earnings Claims, and will produce such substantiating materials to JVZoo immediately upon request. If the FTC amends the business opportunity rule, Seller represents and warrants that it will comply with the amended business opportunity rule.
17. Limitation of Liability; Disclaimer of Warranty. IN NO EVENT SHALL JVZOO BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM: (A) VENDOR'S USE OF ANY OF JVZOO'S SERVICES OR THE SITE, INCLUDING ANY RELIANCE ON ANY AFFILIATE OR VENDOR RATING ON THE SITE, (B) ANY RATING OF VENDOR AND/OR ANY AFFILIATE DISPLAYED BY JVZOO ON THE SITE, (C) VENDOR'S PARTICIPATION IN THE AFFILIATE PROGRAM, (D) ANY OF VENDOR'S PRODUCTS OR SERVICES OR ADVERTISING OR PROMOTIONAL MATERIALS, OR (E) VENDOR'S JVZOO SUPPORTED PAYMENT PROCESSING ACCOUNT, JVZOOPAY SUPPORTED PAYMENT PROCESSING ACCOUNT, OR ACTS OR OMISSIONS OF YOUR SELECTED PAYMENT PROCESSOR.
DUE TO THE NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY, DOWN TIME OR OTHER INTERRUPTIONS IN SERVICE REGARDING THE SITE, THE LINKS, YOUR SELECTED JVZOO SUPPORTED PAYMENT PROCESSOR'S WEBSITE AND ITS SERVICES, OR THE OTHER SERVICES DESCRIBED HEREIN MAY OCCUR. WITHOUT LIMITING THE ABOVE, THE LINKS, THE SITES, THE MATERIALS IN THE PRODUCT LIBRARY AND ANY OTHER INFORMATION OR MATERIALS PROVIDED TO VENDOR ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY OF ANY KIND, AND JVZOO MAKES NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS THEREIN; (C) THAT THE SECURITY METHODS EMPLOYED BY JVZOO OR ITS AFFILIATES WILL BE SUFFICIENT IN ALL CIRCUMSTANCES OR AGAINST ALL ATTACKS; (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY OF ANY INFORMATION SET FORTH THEREIN OR THEREON; (E) REGARDING YOUR SELECTED JVZOO SUPPORTED PAYMENT PROCESSOR, ITS WEBSITE, ITS SERVICES, OR ITS SECURITY; OR (F) AGAINST INTERFERENCE WITH ENJOYMENT OF A PARTY'S WEBSITE. ALL INFORMATION AND COMPUTER PROGRAMS PROVIDED BY JVZOO IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER. SOME STATES LIMIT THE ABILITY TO DISCLAIM ALL WARRANTIES, SO THIS CLAUSE OR SOME PORTIONS OF IT MAY NOT APPLY TO YOU.
JVZOO'S LIABILITY AND VENDOR'S REMEDIES are limited solely and exclusively to those described herein. JVZOO'S liability, whether based On tort, contract, warranty, strict liability, or another legal claim, shall not exceed the lesser of: (a) $1,000; or (b) the amount in commission FEEs paid to JVZoo PURSUANT TO THIS AGREEMENT during the six (6) month period PRECEDING THE CLAIM. In no event shall JVZOO be liable for any loss of profits, loss of use, PROPERTY DAMAGE, DAMAGE FOR BODILY INJURY, or ANY indirect, incidental, special or consequential damages, even if JVZOO HAS been advised of the possibility of such damages.
JVZoo makes no representations and warranties whatsoever, and disclaims any responsibility and liability, regarding the content or nature of any advertisement or marketing materials, or any product or service advertised in connection therewith or on any linked pages. JVZoo has no liability to Seller for unapproved hyperlinks or materials, including all copy, images, URL names and search terms used by Seller for promotions, campaigns or programs. JVZoo makes no representations whatsoever about any other website that Seller may access through JVZoo's services or the Affiliate Program. When Seller accesses a website that is not associated with and is independent from JVZoo, Seller acknowledges that JVZoo has no control over the content of such website.
JVZoo does not guarantee that Seller will achieve any particular earnings or results through Seller's use of the Affiliate Program. JVZoo incorporates by reference the earnings disclaimers found at https://www.JVZoo.com/earnings.
18. Indemnity. Seller will defend, indemnify, and hold harmless JVZoo, the Affiliates, and their affiliates, directors, employees, agents, successors and assigns from and against all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorneys' fees and expenses) (collectively "Claims") arising from, related to or associated with any acts or omissions of Seller, the advertisement, sale, or use of any of Seller's products or services (including any Physical Products), any breach of this Agreement by Seller, or any breach by Seller of any representations or warranties contained herein. JVZoo reserves the right, at Seller's expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Seller hereunder. Seller hereby acknowledges that the Affiliates are intended third party beneficiaries of the foregoing indemnification obligation. No settlement may be consummated without JVZoo's express written authorization, which shall not be unreasonably withheld. As part of this indemnification obligation, JVZoo shall have the right of offset against any amounts owed hereunder to Seller for any indemnification obligations set forth above.
Seller will immediately notify JVZoo of any current, impending, or potential legal action against it by a third party for matters relating to JVZoo, the Affiliate Program, this Agreement, or any information provided in connection therewith (or any combination of the foregoing) when the same arises.
19. Confidentiality. Subject to the Privacy Policy set forth on the Site, in the course of this Agreement, each party may have access to confidential and proprietary information ("Confidential Information") relating to the Seller, JVZoo or Affiliates. Each party agrees not to disclose or disseminate the Confidential Information without prior express written consent from the relevant party to whom such Confidential Information relates, except to the extent required by law. The term "Confidential Information" shall include, without limitation, the terms of this Agreement (including pricing and payments) and information regarding existing or contemplated services, products, Affiliates, Sellers, processes, techniques, advertising or know-how, or any information or data developed pursuant to the performance of the services. However, Confidential Information shall not include information that is or becomes part of the public domain through no action or omission of the receiving party, that becomes available to the receiving party from third parties without such receiving party's knowledge of any breach of fiduciary duty, or that the receiving party had in its possession prior to the date of this Agreement. Notwithstanding the foregoing, in no event shall the ratings published by JVZoo on the Site or the Seller's sales information and general performance data for Seller's participation in the Affiliate Program be deemed Confidential Information.
20. EU Personal Data. As of May 25, 2018, You agree that at any time when You have not accepted the JVZoo Data Processing Addendum (or when it is not in full force and effect for any other reason), You shall be prohibited from Processing Client Personal Data regulated by EU Data Protection Laws (all capitalized references in this Section 20 and not otherwise defined in this Agreement shall have the meaning defined in the said Addendum), including, but not limited to, the EU General Data Protection Regulation) or requesting that JVZoo Process such Client Personal Data on your behalf, and shall be obligated to immediately cease and desist from any such Processing activities, for as long as the said Addendum is not in full force and effect. You agree to indemnify and hold harmless JVZoo and its officers, directors, employees, agents, affiliates, successors, and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind which JVZoo may sustain as a consequence of the breach by You of Your obligations pursuant to this paragraph. For the sake of clarity, in the context of performing the services contemplated herein, JVZoo is acting as a Processor and you are acting as a Controller.
21. Copyright Infringement. JVZoo has implemented procedures for receiving written notification of claimed infringements of copyright and for processing such claims, in accordance with the Digital Millennium Copyright Act ("DMCA"). To file a copyright infringement notification with Us, You will need to send Us a written communication that includes substantially the following information (see 17 U.S.C 512(c)(3) for further detail, or consult Your legal counsel to confirm these requirements):
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 on the Site are covered by a single notification, a representative list of such works on the 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 Us to locate the material (the best way to tell Us this is to provide a URL in the body of an email);
4. Information reasonably sufficient to permit Us to contact You, such as an address, telephone number, and, if available, an electronic mail;
5. A statement that You have 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 You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Such written notice should be sent to JVZoo's designated agent as follows:
Laura Casselman
JVZoo
1809 E. Broadway Street
Suite 125
Oviedo, FL 32765
Phone: (406) 285-8966
Email: support[at]JVZoo.com
The full legal name and physical address of the service provider is as follows:
BBC Systems Inc.
1809 E. Broadway Street
Suite 125
Oviedo, FL 32765
Alternate names the public may be likely to use to search for our designated agent include BBC Systems Inc., JVZoo, and www.JVZoo.com.
Only DMCA notices regarding copyright infringement should go to JVZoo's copyright agent.
Please note that under Section 512(f) of the Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. You acknowledge and agree that if You fail to fully comply with all of the requirements listed above, Your DMCA notice may not be valid.
If You believe that content You submitted that was removed (or to which access was disabled) is not infringing, or that You have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content, You may send a counter-notification containing the following information to JVZoo's designated copyright agent, at the above address/email:
1. Your physical or electronic signature;
2. Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
3. A statement that You have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
4. Your name, address, telephone number, and e-mail address, a statement that You consent to the jurisdiction of the federal court in Seminole County, Florida, and a statement that You will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by JVZoo's copyright agent, We may send a copy of the counter-notice to the original complaining party informing that party that We may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at JVZoo's sole discretion.
Please note that under Section 512(f) of the Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that We enforce a policy that provides for the termination in appropriate circumstances of subscribers who are repeat infringers.
22. Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, however, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.
23. General.
a. Entire Agreement.
This Agreement, together with the terms for each of the applicable Insertion Orders, constitutes the entire agreement between the parties and supersedes all prior agreements or understandings between the parties.
b. Term. This Agreement shall begin upon Our acceptance of Your Seller application and shall remain in effect until terminated by either party. Either party may terminate this Agreement at any time, with or without cause, upon providing written notice of termination to the other party.
c. Governing Law. This Agreement and all rights and obligations arising out of or connected to this Agreement, including matters of construction, validity, and performance, shall be governed by and construed according to the laws of the State of Florida, without regard to its conflicts of laws provisions. Any disputes arising under or relating to this Agreement shall be brought exclusively in the state or federal courts of Seminole County, Florida, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any suit, action, or proceeding arising out of or connected to this Agreement.
d. Waiver. No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.
e. Assignment.
Seller may not assign any of its rights hereunder without the prior written consent of JVZoo, which consent may be withheld for any reason.
f. Severability.
In the event that any provision of this Agreement is found invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be deemed to apply only to the maximum extent permitted by law, and the remainder of this Agreement shall remain valid and enforceable according to its terms.
g. Relationship.
The parties agree that JVZoo is acting as an independent contractor in offering its services and managing the Affiliate Program and that the relationship between JVZoo and Seller shall not constitute a partnership, joint venture or agency. Neither JVZoo nor any of JVZoo's employees or agents (collectively referred to herein as the "Employees") shall be considered: (i) an employee, agent or legal representative of Seller, or (ii) shall have any authority to represent Seller or to enter into any contracts or assume any liabilities on behalf of Seller. JVZoo retains all the rights and privileges of sole employer of the Employees, including, without limitation, the right to control, hire, discipline, compensate and terminate such Employees. Neither JVZoo nor any of the Employees shall have any right to receive any employee benefits as are in effect generally for Seller employees.
h. Amendments.
JVZoo reserves the right to change, modify, add or remove portions of this Agreement at any time and may add to, change, suspend or discontinue any aspect of the Affiliate Program at any time. In the event of any material change, JVZoo will notify You via e-mail, newsletter or the Site at least three (3) days prior to any such changes taking effect, at which time You may either agree to such changes or withdraw from the Affiliate Program.
i. No Third Party Benefit. Except as explicitly stated herein, the parties intend that no other person or entity is or shall be entitled to bring any action to enforce any provision of this Agreement against either of the parties, and that the covenants, undertakings, and agreements set forth in this Agreement shall be solely for the benefit of, and shall be enforceable only by, the parties and their respective successors and assigns as permitted hereunder.
j. Headings. Headings herein are used solely for convenience and are not intended nor in any sense are to be given any weight in the construction of the Agreement.
k. Notice.
Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission or verified e-mail; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally recognized overnight courier service to Seller at the address provided during the registration process and to JVZoo at the following address:
JVZoo.com
1809 E. Broadway Street
Suite 125
Oviedo, FL 32765
1906294.05.2