These are the Terms Of Service (Use) for this site and service. You are bound to these by continuing to register, accepting a registration or ordering any items from this us. READ THESE TERMS FULLY AND THOROUGHLY UNDERSTAND THEM.
First things first - DO NOT attempt to manipulate or navigate the site by using the URL path window of the browser - it will trigger a warning into our log and will will block your IP - PERIOD. If the links do not work - do not try another clever way. Also you cannot "register" as a user - you are registered when you first "BUY" something - so do not try.
We work with Internet sellers worldwide to increase their market exposure and in most cases place the order directly with them for direct shipping if the order is taken by us for "drop shipping". "Drop Shipping" is when the owner holds the item, and ships it on demand from us to a third party - which would be you as a buyer. It is also called "order fulfillment", and even eBay does it with a company they bought called GSI Commerce . The difference is we do web presence enhancement and marketing services for small businesses who items in stock and support their business, whereas eBay competes with small businesses and buys up larger operations to do so, because eBay can do so from greater profits by higher fees of 10 to 15 percent of the seller's sale, versus ours which is 3 present or less. In this agreement we have the right to dictate a certain form of shipment at a certain rate.
All members on this site are assigned an affiliate status and ID, so you can sell items through a sub-domain webstore on this site that will be "https://mystore.bigbay4bestbuys.com"
To see if we support your country and currency as a seller visit https://stripe.com/global
There is no set up fee; however there is no "free" account setup either - you are assigned an account when you purchase any item, and you have the option then of opening a sub-domain account for "free" which is both an affiliate id and ability to open a web store to sell items. This is done this way because so many people want to open bogus accounts - with fake names and fake addresses - and when something is actually shipped to you connected to a billing account for a credit or debit card - it is more likely to be "real" and as with you. We do have several kinds of web stores and web site hosting packages you can pay for. Search 99.9 in the search box upper left
You agree you will check your email twice per day for any orders needing to be filled and fill them right away, and in no case later than two days after payment. If you are an overseas seller, you MUST ship by US Postal Service, UPS, FedEx or DHL in the appropriate sized envelope or package at the very least minimum the carrier specifie and no smaller ever. In the case of the US Postal Service - that would be 4 x 6 inches with an appropriate International label
We may provide you an interface to a webstore presence to sell your items and to collect fees by Bank Cards through Wells Fargo on a platform called "STRIPE:, and if we do, this agreement shall also apply and by continuing to register if you use our service through us tio STRIPE you also agree to this agreement here => https://stripe.com/connect/account-terms which is the Stripe Connected Account Agreement,
Payment processing services for sellers on our platform are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service(collectively, the “Stripe Services Agreement”). By agreeing to this agreement and these terms or continuing to operate as an account holder or affiliate on this site our platform you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of our platform enabling payment processing services through Stripe, you agree to provide our platform - bigbay4bestbuys.com and any affiliated site of ours, accurate and complete information about you and your business, and you authorize us to share it and transaction information related to your use of the payment processing services provided by Stripe.
We do not have a "Buyer Protection Program"; as technically such a thing is illegal under California law if not administered strictly in compliance with consumer and merchant rights by a duly licensed legal professional. PayPal and eBay have repeatedly found themselves in lawsuit after lawsuit all primarily surrounding what they are trying to call "safe" Buyer Protection Program efforts. We are an order facilitator primarily and ship only those items we actually stock and sell. Most times the listing will say if it sold by us directly. Often we can offer a product at a less expensive price than one finds on eBay - because eBay's fees are typically 10 to 15 percent and ours are zero to 3 percent. We do however enforce the terms and provisions of the FTC Mail Order Rule as to shipping and notice requirements as to all sellers on this site
We act as an “Electronic fund transfer service provider” (TSP) if we provide you a web store presence [See 12 eCFR §205.14] but we will adhere our conduct and business operations under application of the Federal Trade Commission “Mail Order Rule” as do we expect of the trading member. [See 16 CFR Part 435] for regulatory requirements for such commerce, including Internet based sales operators; and, our role under the Uniform Commercial Code (UCC) which most all States have a version of incorporated into their State Codes and which also bind 15 USC 7001 to 7031 – the Electronic Signatures in Global and National Commerce Act thereto. The California Uniform Commercial Code, codifies and expands the UCC of which a general index of a definition of terms of the parties involved is found at UCC §2-103. In matters in our control we will adhere to the Electronic Funds Transfer Act (EFTA) where applicable and in regard to matters of request for refund set forth in 12 CFR 1005.34. In all other cases if there is a clear violation of these Terms of ‘Service we may take action, but in most other areas where there is difference of opinion as to goods received or ordered or terms of the transaction, the terms of the transaction shall control and the parties involved find themselves with the option to file the matter in a court of law. We may, and you agree, in our discretion, pending the outcome of the court action, suspend both the members’ trading rights on our platform.
In issues under our control we use the Federal Trade Commission (FTC) Mail Order Rule as a guide to issues which is also know a the Telephone sales rule but applies to Internet commerce also as amended. See the links embedded or https://www.ftc.gov/tips-advice/business-center/guidance/business-guide-ftcs-mail-internet-or-telephone-order and https://www.ftc.gov/news-events/press-releases/2014/09/ftc-issues-final-amendments-mail-or-telephone-order-merchandise also known as 16 CFR Part 435 also found here => https://www.law.cornell.edu/cfr/text/16/part-435 Those links as to rules having the force and effect of law are incorporated herein to this document..
That said, we have zero tolerance for fraud, and schemes using Bank Cards, and so we will take action to block any offending user or refund if possible actions done in clear violations of law, taking into account the sellers issues and intent. If the matter is too complicated we will refer you to your Bank Card department or to a court of law, as we cannot adjudicate a matter for anyone.
Things you cannot sell in the Marketplace: on this site are
- Adult goods and services
- Alcoholic Beverages
- Body parts
- Bulk marketing tools, e-mail advertising, opt-in or any commercial messaging services
- Cable descramblers and black boxes
- Certification test exams and study aids
- Child pornography
- Copyright unlocking devices
- Copyrighted media
- Copyrighted software
- Copyrighted or trademark materials (images & texts)
- Counterfeit Designer Items (replicas or imitation of designer products)
- Counterfeit and unauthorized goods
- Coupons and vouchers
- Credit card protection, credit repair services, applications for financial services or loans, collection services
- Currency Exchanges or Derivatives
- Drugs and drug paraphernalia
- Drug test circumvention aids
- Endangered species
- Fake Documents
- Financial products, services, and stored value
- Fund solicitations
- File sharing services, torrent files
- Firearms & ammunition, stun guns, bb guns, pellet guns, blowguns, dart guns and illegal knives
- Firearm parts, stun gun parts, bb gun parts, and pellet gun parts
- Gambling, gambling transactions or sports gambling prognostication
- Government IDs or documents
- Hacking and cracking materials or software for same
- Hazardous materials, combustibles, corrosives
- Illegal Goods, Acts and Services
- Items made from wild or exotic animal skins (even if farm raised) and taxidermy items of wild or exotic animals; including, but not limited to any animal endangered or threatened under the US Endangered Species Act
- Items from drop ship service networks,unless pre-approved by us
- Listing for upgrades, to postage, for insurance, for shipping etc.
- Listings for upgrades to another product
- Live animals
- Miracle cures
- Mod chips, mod chips accessories or other devices designed to circumvent copyright protection or emissions law as to engines
- Money making schemes, Multi level marketing products (MLM)
- Multiple listings of the same item are not allowed. Listing items in lots with a different price per item in lots is not allowed. Each item should be listed only once.
- Non-prescription Supplements, drugs, and items that the FDA has issued a warning or recall
- Offensive goods
- Offensive goods, crime
- Pirated materials and products
- Pre-adult content - pictures, videos, etc. of individuals under the age of 18 years
- Pre-order items
- Precious metals
- Prescription drugs or pharmacies, controlled substances, unapproved drugs
- Personal Information about another individual
- Prescription drugs and products that require a prescription or other regulated items by law.
- Prostitution services
- Pyrotechnic devices and hazardous materials
- Ransom sites (A ransom site is one where a virus or other thing is claimed to be on the user's system - and re-directs them to another site to pay a fee to removce it)
- Regulated goods
- Signal jammers or products that unscramble protection on cable and satellite signals
- Travel packages and offers
- Tobacco, cigars for smoking, e-cigarettes, cartridges for e-cigarettes, e-liquid, other smoking-cessation devices, vaporizers and diffusers used for any type of smoking or oral inhalation, any smoking device or smoking related item
- Traffic devices or signs
- Wholesale currency
This Prohibited Products and Activities List is not exhaustive and finite and Click2Sell may at any time include other Products into this list or change the list without your consent. All Suppliers shall be informed of these changes via e-mail.
In the case of any of the above items if posted and / or sold you agree we may take down the listing, reverse the sale, and refund the buyer; and in our sole discretion cancel your account and close your store, and as applicable notify banking and law enforcement authorities.
All sellers are required to use door to door delivery confirmation services; and, if the shipper is outside of the United States shipping into the United States - must use a commercial door to door carriers as UPS, FedEx, DHL or the US Postal Service (USPS) satellite acceptance or "ePacket" equivalent that will allow tracking full on door to door. All shipments must be actively entered into the shipping system no later than 72 hours after shipment claim of shipping notification to avoid any possibility of refund for non-shipment issues. Please note that USPS Delivery confirmation services is considered ONLY proof of mailing - not proof of delivery unless the recipient admits actual delivery or any type of signature confirmation service or extra services such as Registered, Insured or Certified mail is added. There are NO LOCAL PICKUPS unless the listing specifically allows for such AND - a signature of recipient upon pickup is performed - as SHIPPING may be performed from a variety of places around the globe.
AUTOMATIC AFFILIATES ASSIGNMENT
The Affiliates Program Operating Agreement is incorporated herein this agreement (“Operating Agreement”) and contains the terms and conditions that govern your participation in the Wilbur Union Affiliates Program (the “Program”). “We,” “us,” or “our” means Wilbur Union or any of its affiliate companies (excluding those that sell retail products), as the case may be. “You” or “your” means the applicant. A “site” means a website. “Wilbur Union Site” means the Bigbay4bestbuys.com site or any other U.S. site that is owned or operated by or on behalf of us or our affiliates and which is identified as participating in the Program as applicable. “Your site” means any site(s) and software application(s) that you own or operate and link to the Wilbur Union Site. Note that software applications are prohibited from participating in the Program unless expressly approved pursuant to the Affiliate Program Participation Requirements outlined herein.
BY CHECKING THE BOX OR CLICKING THE "ACCEPT AND CONTINUE" BUTTON, AS APPLICABLE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS OPERATING AGREEMENT, OR BY CONTINUING TO PARTICIPATE IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE, REVISED OPERATING AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON THE WILBUR UNION.COM SITE, YOU (A) AGREE TO BE BOUND BY THIS OPERATING AGREEMENT; (B) ACKNOWLEDGE AND AGREE THAT YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS OPERATING AGREEMENT; AND (C) HEREBY REPRESENT AND WARRANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR) AND THAT YOU ARE AND WILL REMAIN IN COMPLIANCE WITH THIS OPERATING AGREEMENT, INCLUDING THE AFFILIATE PROGRAM PARTICPATION REQUIRMENTS OUTLINE HEREIN. IN ADDITION, IF THIS OPERATING AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS OPERATING AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS OPERATING AGREEMENT.
We often act as a virtual consignment vendor, and the listing of an item shall constitute constructive possession. Our definition in consignment shall be that which Small Business Adminstration defines as "consignment" which is "Consignment is a resale business involving three parties - the owner of goods or items (consignor), the seller (consignee), and the buyer (customer). Typically, a consignee owns a resale shop that sells items for multiple consignors. When a buyer purchases an item in the shop, both the consignee and the consignor receive a portion of the profit."
READ THESE TERMS FULLY AND THOROUGHLY UNDERSTAND THEM. We approach this as the FTC does for Internet sales and as a medical office does for customer privacy. We do not allow blogs, chats or cross member contact unless the member requests it. We do not support "feedback" reviews.
For our Customer support policy, as previously stated we follow the FTC guidelines from http://business.ftc.gov/documents/bus02-business-guide-mail-and-telephone-order-merchandise-rule .
The FTC Mail order rule, issued in 1975, requires that marketers who solicit buyers to order merchandise through mail or telephone must have a reasonable basis to expect that they can ship ordered merchandise within the time frame they advertise, or, if no time frame is specified, within 30 days. The Rule also requires that, when a seller cannot ship within the promised time, the seller must obtain the buyer’s consent to a delay in shipping or refund payment for the unshipped merchandise. In 2007, the FTC sought public comment on how the Rule could be amended to address changes in technology and commercial practices. Based on a review of comments received, the FTC has concluded that the Rule continues to benefit consumers and will be retained. In addition, the Commission proposes the following amendments to the Rule:
• Clarify that the Rule covers all orders placed over the Internet;
• Revise the Rule to allow sellers to provide refunds and refund notices to buyers by any means at least as fast and reliable as first-class mail;
• Clarify sellers’ obligations when buyers use payment methods not spelled out in the Rule, such as debit cards or prepaid gift cards;
• Require that refunds be made within seven working days for purchases that were made using third-party credit, such as Visa or MasterCard cards. For credit sales where the seller is the creditor (such as merchants using their own store charge cards) the refund deadline would remain one billing cycle.
The vote to amend as above was approved by a vote of 5 to 0, as such it covers law and policy we have no need to re-make of conflict with. In part PayPal's approach still conflicts with this rule and is why we stay as clear of PayPal as possible.
The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them. To file a complaint in English or Spanish, visit the FTC’s online Complaint Assistant or call 1-877-FTC-HELP (1-877-382-4357). The FTC enters complaints into Consumer Sentinel, a secure, online database available to more than 2,000 civil and criminal law enforcement agencies in the U.S. and abroad.
These items and information are, unless otherwise agreed to be amendment or affiliate terms, for direct personal use only and may not be resold as parts or in part for any service to another particularly if they are healthcare items, buyt all other items are vended in accord a license . In essence we follow the HIPAA disclaimer as thus:
""This website may contain items that may contain issues about information that may be privileged and confidential and protected from disclosure under the law, including the Health Insurance Portability and Accountability Act (HIPAA) and its various implementing regulations and must be protected in accordance with those provisions. You, the reader/recipient, are obligated to maintain it in a safe, secure and confidential manner. You are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited and may subject you to criminal or civil penalties. If you have received this correspondence in error, please notify the sender at once and delete the material from any computer and destroy any copies you have made.""
If a member contacts the admin to contact another member (how they came to know of each other on this site is odd) we will handle the matter ourselves.
We do not utilize “feedback”. If a member wants to praise the site or a product we will do likewise - handle it ourselves. Spam will be deleted. Product reviews, feedback and other disclosure of information from this site not publicly posted is not allowed. Publicly posted information is found on the main pages before you log in.
This site may have a mix of medical Insurance related items and consumer items; and usually an insurance carrier is pleased to pay less for cash and carry to the patient. In that case we would need a prescription from a doctor to replace the part specifying that the patient will do the swap of the part; before purchase - before an insurance carrier will even consider paying the reimbursement claim. You also get a free video on how to set up the cylinder properly for a new unit only.
You CANNOT buy from manufacturers direct nor their distributors direct so do not try. You would need to say if you have a prescription BEFORE shipment in the additional terms section also, and you would need to upload a pic of the prescription after payment and specify an insurance carrier and your policy number you want to seek reimbursement from - AFTER the sale.
We do not guarantee reimbursement but only tell you we can usually accomplish submitting it as a provider. Some HMO's however are staunch lock-outs to out of network providers.
Attention: This sale may involve a discount or reduction in price. We are required to properly disclose and reflect this discount in costs claimed or charges made to federal health care programs in accordance with the provisions of 42 U.S.C. §1320 (a) – 7b (b) (3) (a) and/or 42 C.F.R § 1001.952 (h) (1). Failure to do so subjects us to civil and/or criminal penalties. Limited Warranty (new and rebuilt units only) The manufacturer warrants to the original purchaser that this (a new) product is free from defects in materials and workmanship. This warranty does not apply if this product (1) was not purchased from an authorized dealer, (2) has been altered in a way, or (3) has not been used in accordance with the manufacturer's Instructions for Use (IFU).
Any Limited Warranty does not cover damage due to accidents, neglect, misuse, or operation beyond capacity, parts damaged by improper installation, substitution or parts not approved by the manufacturer, or any other alteration or repair by others that, in the manufacturers judgment, materially or adversely affects the product or part. The duration of this Limited Warranty varies by product, but is effective from the date of delivery to the purchaser. Our sole obligation under this Limited Warranty is to either repair or replace the product at no charge, or to credit purchaser’s account for the value of the defective product at our sole discretion. Use of this product is not a guarantee against injury.
If the transaction involves a healthcare item, the User should consult with his/her health care provider immediately if user experiences any kind of adverse medical reaction following use of this product. User should consult with his/her health care professional with any questions as to how this product applies to user’s specific medical condition. If user does not agree to the above conditions, he/she should contact his/her health care professional before using this product.
Most manufacturer(s) disclaim and excludes any other express or implied warranties not set forth in this Limited Warranty, including but not limited to warranties of merchantability or fitness for a particular purpose.
This generic Limited Warranty excludes liability for any personal injury, property damage, or special, incidental, or consequential damages arising out of, related, or incident to use the product, even if we or the manufacturer has been advised of the possibility of such potential loss or damage, unless state law otherwise precludes this exclusion. Durable Medical Equipment prosthetic and Orthotics Supply (DMEPOS) parts are not considered "medical devices" unless the entire item is built and assembled to a specific person to do a specific medical task as would be a COMPLETE prosthetic leg custom made for a patient. We will not do that here, and are not doing that here; however we still will follow law requiring that you provide us a specific prescription, as failure to do so voids the manufacturer’s warranty, and only we can submit warranty claims - by the policy of the manufacturer.
We provide you full seller information after the sale. DO NOT EMAIL US ASKING TO CALL US OR WE CALL YOU. No out of site message system communications will be done at all. We have a duty to assure a NEW item is properly set up for use so as to not strain the design of the item.
For instance in the case of a prosthetic item, an improper bench alignment will put the some knee units unit into hyper support mode and consume battery power excessively and can lead to hydraulic cylinder failure. The United States Food and Drug Administration DOES NOT regulate EXTERNAL prosthetic devices, ONLY prosthetic devices intended for IMPLANTATION. See 21 CFR 888 et seq See http://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/CFRSearch.cfm?CF... .
HOWEVER, manufacturers of external prosthetic items almost always require the item be set up according to their design specs by a Certified prostheticist IF the warranty is to remain intact and able to be honored.
Further insurance carriers REQUIRE a prescription from a professional who can issue such, in order to pay or consider paying a claim for reimbursement, and they will only accept that claim from a provider certified to install the item per the manufacturers directive to maintain the warranty if they are going to pay the claim.
Thus we can sell to you cash and carry - a NEW item - but you will have no warranty that can be honored. AGAIN . . . DO NOT START EMAILING CURIOSITY QUESTIONS, SERIOUS BUYER INQUIRIES ONLY. "The sale of this item may be subject to regulation by the U.S. Food and Drug Administration and state and local regulatory agencies. If so, do not purchase this item unless you are an authorized purchaser.
If the item is subject to FDA regulation, your status will be verified as an authorized purchaser of this item before shipping of the item." - as set forth above Shipment occurs usually the same day payment is received, unless it is a special order item, or the warehouse is out of stock, in which case we follow mail order policy from http://www.ftc.gov/bcp/edu/pubs/business/adv/bus02.shtm
THUS . . . THESE ARE THE TERMS AFFECTING THE SALE AND GRANT OF LICENSE TO USE - IF YOU BID ON OR PURCHASE THIS ITEM YOU WILL BE BOUND BY THESE TERMS BELOW FOR US TO COMPLY WITH LAW
1. NON-COMPETE COVENANT. For a period of six years after the effective date of this Agreement automatically renewing thereafter if not formally canceled by notice via certified mail at least thirty days prior to the date of this agreement anniversary, Licensee Party will not directly or indirectly engage in any business that competes with THIS SELLER. If canceled at any time, a six year period then runs from the date of that cancellation. This covenant non-compete covenant however shall never expire, and shall apply to the geographical area that includes the area covered by that of the Internet, which would be worldwide.
2. NON-SOLICITATION COVENANT. For a period of six years after, and renewing each successive period each thereafter, the effective date of this Agreement, Licensee Party will not directly or indirectly solicit business from, or attempt to vend, license or provide the same or similar products or services as are now provided to, any customer or client of THIS SELLER. Further, for a period of six years after the effective date of this Agreement. Licensee Party will not directly or indirectly solicit, induce or attempt to induce any employee of THIS SELLER to terminate his or her employment with THIS SELLER or any of it’s affiliates. This agreement is valid whether the initial sale commenced through eBay.com or not and/or have been timely pay for as such. Licensee Party may not vend these or similar items on eBay.com or any other online sales service without prior authorization.
3. PAYMENT. THIS SELLER will ship to Licensee upon payment and completion of a properly completed order as set forth above.
4. CONFIDENTIALITY Licensee will not at any time or in any manner, either direct1y or indirectly, use for the personal benefit of Licensee, or divulge, disclose, or communicate in any manner any information that is proprietary to THIS SELLER and Licensee will protect such information and that it as strictly confidential. The obligation of Licensee not to disclose confidential information or item(s) or product(s) shall continue for a period of six years after the effective date of this Agreement and as successively automatically renewed thereafter if not formally canceled 30 days prior to the anniversary date of this agreement. Licensee will return to THIS SELLER all records, notes, documentation and other items that were used , created, or controlled by Licensee in the performance of this agreement whether created and provided by THIS SELLER or not.
5. THE OWNER is THIS SELLER, The Recipient is a Licensee, of a proprietary product and design protected by design copyright and/or Patents and Patents Pending.. The Owner has requested that the Recipient will protect the confidential material and information which may be disclosed between the Owner and the Recipient. Therefore, the parties also further agree as follows.
6. CONFIDENTIAL INFORMATION OR ITEM(S) OR PRODUCT(S) The term "confidential information or item(s) or product(s)" means any information or material which is proprietary to the Owner or vended by the Owner, whether or not owned or developed by the Owner, which is not generally known other than by the Owner, and which the Recipient may obtain through any direct or indirect contact with the Owner.
a) "Information" includes without limitation:
a.1 Business records and plans
a.2 Customer lists and records
a.3 Trade secrets
a.4 Technical information
a.5 Products (and or pictures of them)
a.6 Product design information
a.7 Pricing structure
a.10 And other proprietary information.
b. “confidential information or item(s) or product(s)” does not include:
b.1 Matters of public knowledge that result in disclosure by the Owner.
b.2 Information rightfully received by the Recipient from a third party without a duty of confidentiality;
b.3 Information independently developed by the Recipient;
b.4 Information disclosed by operation of law;
b.5 Information disclosed by the Recipient with the prior written consent of the Owner;
b.6 And any other information that both parties agree in writing is not confidential.
7. PROTECTION OF CONFIDENTIAL INFORMATION OR ITEM(S) OR PRODUCT(S) The Recipient understands and acknowledges that the confidential information or item(s) or product(s) has been developed or obtained by the Owner by the investment of significant time, effort and expense, and that the confidential information or item(s) or product(s) is a valuable, special and unique asset of the Owner which provides the Owner with a significant competitive advantage, and needs to be protected from improper disclosure. In consideration for the receipt by the Recipient of the confidential information or item(s) or product(s), the Recipient agrees as follows:
a) No Disclosure. The Recipient will hold the confidential information or item(s) or product(s) in confidence and will not disclose the confidential information or item(s) or product(s) to any person or entity without the prior written consent of the Owner.
b) No Copying/Modifying. The Recipient will not copy or modify any confidential information or item(s) or product(s) without the prior written consent of the Owner.
c) Unauthorized Use. The Recipient shall promptly advise the Owner if the Recipient becomes of aware of any possible unauthorized disclosure or use of the confidential information or item(s) or product(s).
d) Application to Employees. The Recipient shall not disclose any confidential information or item(s) or product(s) to any employees of the Recipient, except those employees who are required to have the confidential information or item(s) or product(s) in order to perform their job duties in connection with the limited purposes of this Agreement. Each permitted employee to whom confidential information or item(s) or product(s) is disclosed shall sign and/or be under the same and similar nondisclosure agreement substantially the same as this Agreement at the request of the Owner.
e) Third Party Dispute Resolution. The Recipient shall not seek third party dispute resolution of any kind unless they have contacted Owner and attempted to resolve any dispute of any kind and must bear proof of such in the form of emails or other communication before proceeding to court or any other form of dispute resolution. The results of the attempts to resolve the dispute shall be made an admitted record to any further proceeding. The recipient shall not post any comments of any kind in any public forum as such is and shall be considered a breach of the confidentiality of this agreement.
8. UNAUTHORIZED DISCLOSURE OF INFORMATION INJUNCTION If it appears that the Recipient has disclosed (or has threatened to disclose) confidential information or item(s) or product(s) in violation of this Agreement, the Owner shall be entitled to an injunction to restrain the Recipient from disclosing the confidential information or item(s) or product(s) in whole or in part. The Owner shall not be prohibited by this provision from pursuing other remedies, including a claim for losses and damages.
9. RETURN OF CONFIDENTIAL INFORMATION OR ITEM(S) OR PRODUCT(S). Upon the written request of the Owner, the Recipient shall return to the Owner all written materials containing the confidential information or item(s) or product(s). The Recipient shall also deliver to the Owner written statements signed by the Recipient certifying that all materials have been returned within five (5) days of receipt of the request.
10. RELATIONSHIP OF PARTIES. Neither party has an obligation under this Agreement to purchase any service or item from the other party, or commercially offer any products using or incorporating the confidential information or item(s) or product(s). This Agreement does not create any agency, partnership, or joint venture.
11. NO WARRANTY. The Recipient acknowledges and agrees that the confidential information or item(s) or product(s) is provided on an “AS IS” basis. THE OWNER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE confidential information or item(s) or product(s) or Item or Product(s) AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE OWNER BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF ANY PORTION OF THE confidential information or item(s) or product(s) or Item or Product(s) OR PRODUCTS BEYOND WHAT THE WARRANTY COVERS. The Owner does not represent or warrant that any product or business plans disclosed to the Recipient will be marketed or carried out as disclosed, or at all. Any actions taken by the Recipient in response to the disclosure of the confidential information or item(s) or product(s) or shall be solely at the risk of the Recipient.
12. LIMITED LICENSE TO USE. The Recipient shall not acquire any intellectual property rights under this Agreement except the limited right to use as set forth above. The Recipient acknowledges that, as between the Owner and the Recipient, the confidential information or item(s) or product(s) or Item or Product(s) and all related copyrights and other intellectual property rights, are (and at all times will be) the property of the Owner, even if suggestions, comments, and/or ideas made by the Recipient are incorporated into the confidential information or item(s) or product(s) or Item or Product(s) or related materials during the period of this Agreement. In accord this License to use, are incorporated the Terms of the Affiliate Program Requirements below as a sub-section of this clause numbered as Roman Numeral items 1 to 21 (I to XXI) and as a subsection of this clause item XXI as Arabic numberals 1 to 31) of section XXI..
I. Program Purpose
The purpose of the Program is to permit you to advertise Products on your site and to earn advertising fees for Qualifying Purchases (defined in Section 7) made by your end users. A “Product” is any item sold on the Wilbur Union Site, other than any product that is listed on this page(collectively, “Excluded Products”). A Product may also include certain services. . In order to facilitate your advertisement of Products, we may make available to you data, images, text, link formats, widgets, links, and other linking tools, and other information in connection with the Program (“Content”). Content specifically excludes any data, images, text, or other information or content relating to products offered on any site other than the Wilbur Union Site.
To begin the enrollment process, you must submit a complete and accurate Program application. You must identify your site in your application. We will evaluate your application and notify you of its acceptance or rejection. We may reject your application if we determine that your site is unsuitable. Unsuitable sites include those that:
(a) promote or contain sexually explicit materials;
(b) promote violence or contain violent materials;
(c) promote or contain libelous or defamatory materials;
(d) promote discrimination, or employ discriminatory practices, based on race, sex, religion, nationality, disability, sexual orientation, or age;
(e) promote or undertake illegal activities;
(f) are directed toward children under 13 years of age, as defined by the Children’s Online Privacy Protection Act (15 U.S.C. §§ 6501-6506) and any regulations promulgated thereunder;
(g) include any trademark of Wilbur Union or its affiliates, or a variant or misspelling of a trademark of Wilbur Union or its affiliates, in any domain name, subdomain name, or in any username, group name, or other identifier on any social networking site (see the Trademark Guidelines for examples); or
(h) otherwise violate intellectual property rights.
If we reject your application, you are welcome to reapply at any time. However, if we accept your application and we later determine that your site is unsuitable, we may terminate this Operating Agreement.
You will ensure that the information in your Program application and otherwise associated with your account, including your email address and other contact information and identification of your site, is at all times complete, accurate, and up-to-date. We may send notifications (if any), approvals (if any), and other communications relating to the Program and this Operating Agreement to the email address then-currently associated with your Program account. You will be deemed to have received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your account is no longer current.
In addition, if at any time following your enrollment in the Program you become a resident of Arkansas, Colorado, Maine, Missouri, Rhode Island, or Vermont, you will become ineligible to participate in the Program, and this Operating Agreement will automatically terminate, on the date you establish residency in that state. In addition, you must promptly notify us in writing of your Arkansas, Colorado, Maine, Missouri, Rhode Island, or Vermont residency, which you may do via the Contact Affiliates Customer Service form available here.
If you are a Non-US person participating in the Program, you agree that you will perform all services under the Operating Agreement outside the United States. If, for any reason, you cannot comply with this requirement, you must notify us using this link for an exception.
If you wish to include Special Links (defined below) in a software application designed and intended for use on mobile phones, tablets, or other handheld devices (a “Mobile Application”), you must create an Wilbur Union developer account at the Wilbur Union Mobile App Distribution Portal. You should refer to this page for additional details on building and submitting your Mobile Application for approval. In addition to this separate submission and approval process for Mobile Applications, the suitability and other requirements of this Section 2 will apply to Mobile Applications.
Content and Special Links may only be displayed in Mobile Applications that are Approved Mobile Applications. An “Approved Mobile Application” means a Mobile Application that we have approved for distribution and that is developed and distributed to end users by Associate through the Wilbur Union Appstore, and also includes substantially similar versions of such Approved Mobile Application that are distributed through channels other than the Wilbur Union Appstore, such as Google Play. For clarity, currently only Mobile Applications that are distributed via the Wilbur Union Appstore (or Android Mobile Applications that are distributed via another channel, but are substantially similar to a version distributed via the Wilbur Union Appstore) are eligible for approval.
III. Links on Your Site
After you have been notified that you have been accepted into the Program, you may display Special Links on your site. “Special Links” are links to the Wilbur Union Site that you place on your site in accordance with this Operating Agreement, that properly utilize the special “tagged” link formats we provide, and that comply with the Affiliates Program Linking Requirements. Special Links permit accurate tracking, reporting, and accrual of advertising fees. All your Special Links displayed in Approved Mobile Applications must be served by the Wilbur Union Mobile Affiliates API ("AMA API"), including any Special Links displayed within an integrated web browser (e.g., WebView), and must use the Affiliates ID we have assigned to you expressly for your Approved Mobile Applications.
You may earn advertising fees only as described in Section 7 and only with respect to sales activity on the Wilbur Union Site occurring directly through Special Links. We will have no obligation to pay you advertising fees if you fail to properly format the links on your site to the Wilbur Union Site as Special Links, including to the extent that such failure may result in any reduction of advertising fee amounts that would otherwise be paid to you under this Operating Agreement.
IV. Program Requirements
By participating in the Program, you agree that you will comply with the Affiliate Program Particpation Requirements outlined herein and all pages, schedules, policies, guidelines, specifications, user manuals, and supporting materials that we make available to you, and other documents and materials referenced in this Operating Agreement (collectively, “Operational Documentation”).
You will provide us with any information that we request to verify your compliance with this Operating Agreement or any Operational Documentation. In addition to any other rights or remedies available to us, we may terminate this Operating Agreement, withhold (and you agree you are not eligible for) any advertising fees payable to you under this Operating Agreement, or both, if we determine that you or other persons that we determine are affiliated with you or acting in concert with you (whether in respect to any existing or previously terminated Affiliates account):
• have not complied with any requirement or restriction described in the Affiliates Program Participation Requirements page or any other Operational Documentation or have otherwise violated this Operating Agreement;
• have violated the Product Advertising API License Agreement (“License Agreement”);
• have violated any requirement or restriction described in the applicable agreements governing participation in any other Affiliates Program offering provided by any of our affiliates (e.g., the Wilbur Union EU Affiliates Programme, the Wilbur Union.ca Affiliates Program, the Wilbur Union.cn Affiliates Program, the Wilbur Union.co.jp Affiliates Program, the Wilbur Union.in Affiliates Program and the Wilbur Union.com.br Affiliates Program); or
• have violated the Wilbur Union Mobile App Distribution Agreement or the Wilbur Union Mobile App Distribution Program Materials License Agreement.
In addition, you hereby consent to us:
• sending you emails relating to the Program from time to time;
• monitoring, recording, using, and disclosing information about your site and visitors to your site that we obtain in connection with your display of Special Links (e.g., that a particular Wilbur Union customer clicked through a Special Link from your site before buying a Product on the Wilbur Union Site) in accordance with the Wilbur Union.com Privacy Notice; and
• monitoring, crawling, and otherwise investigating your site to verify compliance with this Operating Agreement and the Operational Documentation.
V. Responsibility for Your Site
You will be solely responsible for your site, including its development, operation, and maintenance and all materials that appear on or within it. For example, you will be solely responsible for:
• the technical operation of your site and all related equipment;
• displaying Special Links and Content on your site in compliance with this Operating Agreement and the Operational Documentation and any agreement between you and any other person or entity (including any restrictions or requirements placed on you by any person or entity that hosts your site);
• creating and posting, and ensuring the accuracy, completeness, and appropriateness of, materials posted on your site (including all Product descriptions and other Product-related materials and any information you include within or associate with Special Links);
• using the Content, your site, and the materials on or within your site in a manner that does not infringe, violate, or misappropriate any of our rights or those of any other person or entity (including copyrights, trademarks, privacy, publicity or other intellectual property or proprietary rights);
• any use that you make of the Content and the Wilbur Union Marks, whether or not permitted under this Operating Agreement.
We will have no liability for these matters or for any of your end users’ claims relating to these matters, and you agree to defend, indemnify, and hold us, our affiliates and licensors, and our and their respective employees, officers, directors, and representatives, harmless from and against all claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) relating to (a) your site or any materials that appear on your site, including the combination of your site or those materials with other applications, content, or processes; (b) the use, development, design, manufacture, production, advertising, promotion, or marketing of your site or any materials that appear on or within your site, and all other matters described in this Section 5; (c) your use of any Content, whether or not such use is authorized by or violates this Operating Agreement, any Operational Documentation, or applicable law; (d) your violation of any term or condition of this Operating Agreement or any Operational Documentation; or (e) your or your employees' negligence or willful misconduct.
VI. Order Processing
We will process Product orders placed by customers who follow Special Links from your site to the Wilbur Union Site. We reserve the right to reject orders that do not comply with any requirements on the Wilbur Union Site, as they may be updated from time to time. We will track Qualifying Purchases (defined in Section 7) for reporting and advertising fee accrual purposes and will make available to you reports summarizing those Qualifying Purchases.
VII. Advertising Fees
We will pay you advertising fees on Qualifying Purchases in accordance with Section 8 and the Affiliates Program Advertising Fee Schedule. Subject to the exclusions set forth below, a “Qualifying Purchase” occurs when (a) a customer clicks through a Special Link on your site to the Wilbur Union Site; (b) during a single Session that customer either (i) adds a Product to his or her shopping cart and places the order for that Product no later than 89 days following the customer’s initial click-through, (ii) purchases a Product via our 1-Click feature, or (iii) streams or downloads a Product from the Wilbur Union Site if the Product is a Digital Product; and (c) the Product is shipped to or streamed or downloaded by, and paid for by, the customer.
A “Session” begins when a customer clicks through a Special Link on your site to the Wilbur Union Site and ends upon the first to occur of the following: (x) 24 hours (except in the case of Special Links to the myhabit.com site or the local.Wilbur Union.com site, in which case 30 days) elapses from that click; (y) the customer places an order for a Product that is not a Digital Product; or (z) the customer follows a Special Link to the Wilbur Union Site that is not your Special Link.
A “Digital Product” is a Product sold under the name “Wilbur Union MP3,” “Wilbur Union Shorts,” “eDocs,” “Wilbur Union Instant Video,” “Wilbur Union Software Downloads,” “Game Downloads,” and “Kindle Books,” “Kindle Newspapers,” “Kindle Blogs,” “Kindle Newsfeeds,” or “Kindle Magazines.”
Qualifying Purchases exclude, and we will not pay advertising fees on any of, the following:
• any Product that, after expiration of the applicable Session, is added to a customer’s Shopping Cart, is purchased by a customer via our 1-Click feature, or is streamed or downloaded by a customer, even if the customer previously followed a Special Link from your site to the Wilbur Union Site;
• any Product purchase that is not correctly tracked or reported because the links from your site to the Wilbur Union Site are not properly formatted;
• any Product purchased through a Special Link in a Mobile Application that was not an Approved Mobile Application or where the Special Link in an Approved Mobile Application was not served by the AMA API;
• any Product purchased through a Special Link by you or on your behalf, including Products you purchase through Special Links for yourself, friends, relatives, or Affiliates (e.g., personal orders, orders for your own use, and orders placed by you for or on behalf of any other person or entity);
• any Product purchased through a Special Link that violates the terms of this Agreement;
• any Product purchased for resale or commercial use of any kind;
• any Product purchased after termination of this Operating Agreement;
• any Product order that is canceled or returned; and
• any Product purchased by a customer who is referred to the Wilbur Union Site through any of the following:
o a Prohibited Paid Search Placement; or
o a link to the Wilbur Union Site, including a Redirecting Link, that is generated or displayed on a Search Engine in response to a general Internet search query or keyword (i.e., in natural, free, organic, or unpaid search results), whether those links appear through your submission of data to that site or otherwise.
“Prohibited Paid Search Placement” means an advertisement that you purchased through bidding on keywords, search terms, or other identifiers (including Proprietary Terms) or other participation in keyword auctions. “Proprietary Term” means keywords, search terms, or other identifiers that include the word “Wilbur Union,” “Kindle,” “myhabit,” or “Javari,” or any other trademark of Wilbur Union or its affiliates (see a non-exhaustive list of our trademarks), or variations or misspellings of any of those words (e.g., “ammazon,” “amaozn,” “kindel,” and “javary”). “Redirecting Link” means a link that sends users indirectly to the Wilbur Union Site via an intermediate site or webpage and without requiring the user to click on a link or take some other affirmative action on that intermediate site or webpage. “Search Engine” means Google, Yahoo, Bing, or any other search engine, portal, sponsored advertising service, or other search or referral service, or any site that participates in any of their respective networks.
VIII. Advertising Fee Payment
We will pay you advertising fees on a monthly basis for Qualifying Purchases shipped, streamed, or downloaded (as applicable) in a given month, subject to any applicable withholding or deduction described below. We will pay you approximately 60 days following the end of each calendar month using the payment method you choose from the following available options. If you have not selected one of the payment methods below, we will withhold any unpaid accrued advertising fees until you have done so.
(a) Payment by Direct Deposit. If you select payment by direct deposit, we will directly deposit the advertising fees you earn into the bank account you designate, but may accrue and withhold advertising fees until the total amount due to you is at least $10. If you select this method of payment, you must provide us with the name of your bank, the bank account type, the 9-digit routing number/ABA number, the account number, and the name of the primary account holder as it appears on the account. If you have chosen payment by direct deposit and you do not provide this information, or it is not valid (e.g., the account has been closed or changed) or the payment is otherwise rejected by your bank, you may instead receive payment by check and be subject to the processing fees described below until you provide valid account information.
(b) Payment by Wilbur Union.com Gift Card. If you select payment by Wilbur Union.com gift card, we will send you a gift card in the amount of the advertising fees you earn, redeemable for products on Wilbur Union.com, but we may accrue and withhold advertising fees until the total amount due to you is at least $10. All Wilbur Union.com gift cards will be subject to our then-current standard gift card terms and conditions.
(c) Payment by Check. If you select payment by check, we will send you a check in the amount of the advertising fees you earn, but we may accrue and withhold advertising fees until the total amount due to you is at least $100. We will deduct a processing fee in the amount of $15 from the advertising fees payable to you for each check we send to you.
If you have not earned any advertising fees in the 3 years prior to any given calendar month, then on the first day of that calendar month we may charge you an account maintenance fee that will be deducted from your unpaid accrued advertising fees. That account maintenance fee will be the lesser of $10 or the amount of unpaid accrued advertising fees in your account. Further, any unpaid accrued advertising fees in your account may be subject to escheatment under state law. We may be obligated by law to obtain tax information from you if you are a U.S. citizen, U.S. resident, or U.S. corporation, or if your business is otherwise taxable in the U.S. If we request tax information from you and you do not provide it to us, we may (in addition to any other rights or remedies available to us) withhold your advertising fees until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
IX. Policies and Pricing
Customers who buy products through this Program are our customers with respect to all activities they undertake in connection with the Wilbur Union Site. Accordingly, as between you and us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on the Wilbur Union Site will apply to those customers, and we may change them at any time.
X. Identifying Yourself as an Affiliate
You will not issue any press release or make any other public communication with respect to this Operating Agreement, your use of the Content, or your participation in the Program. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to any charity or other cause), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Operating Agreement. You must, however, clearly state the following on your site: “[Insert your name] is a participant in the Wilbur Union Affiliates Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to [insert the applicable site name (Wilbur Union.com, Wilbur Unionsupply.com, or myhabit.com)].”
XI. Limited License
Subject to the terms of this Operating Agreement and solely for the limited purposes of advertising Products on, and directing end users to, the Wilbur Union Site in connection with the Program, we hereby grant you a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to (a) copy and display the Content solely on your site; and (b) use only those of our trademarks and logos that we may make available to you as part of Content (those trademarks and logos, collectively, “Wilbur Union Marks”) solely on your site and in accordance with the Affiliates Program Trademark Guidelines.
The license set forth in this Section 11 will immediately and automatically terminate if at any time you do not timely comply with any obligation under this Operating Agreement or any Operational Documentation, or otherwise upon termination of this Operating Agreement. In addition, we may terminate the license set forth in this Section 11 in whole or in part upon written notice to you. You will promptly remove from your site and delete or otherwise destroy all of the Content and Wilbur Union Marks with respect to which the license set forth in this Section 11 is terminated or as we may otherwise request from time to time.
XII. Reservation of Rights; Submissions
Other than the limited licenses expressly set forth in Section 11, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to, and you do not, by virtue of this Operating Agreement or otherwise, acquire any ownership interest or rights in or to, the Program, Special Links, link formats, Content, any domain name owned or operated by us or our affiliates, Operational Documentation, our and our affiliates’ trademarks and logos (including the Wilbur Union Marks), and any other intellectual property and technology that we provide or use in connection with the Program (including any application program interfaces, software development kits, libraries, sample code, and related materials). If you provide us or any of our affiliates with suggestions, reviews, modifications, data, images, text, or other information or content about a product or in connection with this Operating Agreement, any Content, or your participation in the Program, or if you modify any Content in any way, (collectively, “Your Submission”), you hereby irrevocably assign to us all right, title, and interest in and to Your Submission and grant us (even if you have designated Your Submission as confidential) a perpetual, paid-up royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (a) use, reproduce, perform, display, and distribute Your Submission in any manner; (b) adapt, modify, re-format, and create derivative works of Your Submission for any purpose; (c) use and publish your name in the form of a credit in conjunction with Your Submission (however, we will not have any obligation to do so); and (d) sublicense the foregoing rights to any other person or entity. Additionally, you hereby warrant that: (y) Your Submission is your original work, or you obtained Your Submission in a lawful manner; and (z) our and our sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. You agree to provide us such assistance as we may require to document, perfect, or maintain our rights in and to Your Submission.
XIII. Compliance with Laws
In connection with your participation in the Program you will comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over you, including laws (federal, state, or otherwise) that govern marketing email (e.g., the CAN-SPAM Act of 2003).
XIV. Term and Termination
The term of this Operating Agreement will begin upon our acceptance of your application and will end when terminated by either you or us. Either you or we may terminate this Operating Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon any termination of this Operating Agreement, any and all licenses you have with respect to Content will automatically terminate and you will immediately stop using the Content and Wilbur Union Marks and promptly remove from your site and delete or otherwise destroy all links to the Wilbur Union Site, all Wilbur Union Marks, all other Content, and any other materials provided or made available by or on behalf of us to you under this Operating Agreement or otherwise in connection with the Program. We may withhold accrued unpaid advertising fees for a reasonable period of time following termination to ensure that the correct amount is paid (e.g., to account for any cancelations or returns). Upon any termination of this Operating Agreement, all rights and obligations of the parties will be extinguished, except that the rights and obligations of the parties under Sections 5, 9, 10, 12, 13, 14, 16, 17, 18, 19, and 20, together with any accrued but unpaid payment obligations of us under this Operating Agreement, will survive the termination of this Operating Agreement. No termination of this Operating Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Operating Agreement prior to termination.
We may modify any of the terms and conditions contained in this Operating Agreement (and any Operational Documentation) at any time and in our sole discretion by posting a change notice, revised agreement, or revised Operational Documentation on the Wilbur Union.com site or by sending notice of such modification to you by email to the email address then-currently associated with your Affiliates account (any such change by email will be effective on the date specified in such email and will in no event be less than two business days after the date the email is sent). Modifications may include, for example, changes to the Affiliates Program Advertising Fee Schedule, Affiliate Program Participation Requirements outlined herein, payment procedures, and other Program requirements. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS OPERATING AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF ANY MODIFICATION (E.G., THE DATE OF OUR POSTING OF A CHANGE NOTICE, REVISED OPERATING AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON THE WILBUR UNION.COM SITE OR THE DATE SPECIFIED IN ANY EMAIL TO YOU REGARDING SUCH MODIFICATION) WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
XVI. Relationship of Parties
You and we are independent contractors, and nothing in this Operating Agreement or the Operational Documentation will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us or our respective affiliates. You will have no authority to make or accept any offers or representations on our or our affiliates’ behalf. You will not make any statement, whether on your site or otherwise, that contradicts or may contradict anything in this section. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Operating Agreement, you will be deemed to have taken the action yourself.
XVII. Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THIS OPERATING AGREEMENT, THE PROGRAM, OPERATIONAL DOCUMENTATION, THE WILBUR UNION SITE, OR THE SERVICE OFFERINGS (DEFINED BELOW), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS OPERATING AGREEMENT, THE PROGRAM, THE WILBUR UNION SITE, AND THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL ADVERTISING FEES PAID OR PAYABLE TO YOU UNDER THIS OPERATING AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
THE PROGRAM, THE WILBUR UNION SITE, ANY PRODUCTS AND SERVICES OFFERED ON THE WILBUR UNION SITE, ANY SPECIAL LINKS, LINK FORMATS, OPERATIONAL DOCUMENTATION, CONTENT AND OUR AFFILIATES’ TRADEMARKS AND LOGOS (INCLUDING THE WILBUR UNION MARKS), AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS.” NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE PROGRAM, CONTENT, OPERATIONAL DOCUMENTATION, THE WILBUR UNION SITE, OR THE AFFILIATE-PROGRAM.WILBUR UNION.COM SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS OPERATING AGREEMENT. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS OPERATING AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OF THIS OPERATING AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM.
Any dispute relating in any way to the Program or this Operating Agreement will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law and the laws of the state of Washington, without regard to principles of conflict of laws, will govern this Operating Agreement and any dispute of any sort that might arise between you and us.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Operating Agreement as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Corporation Service Company, 300 Deschutes Way SW, Suite 304, Tumwater, WA 98051. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
Notwithstanding anything to the contrary in this Operating Agreement, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity’s intellectual property or proprietary rights. You further acknowledge and agree that our rights in the Content are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.
You acknowledge and agree that we and our affiliates may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Operating Agreement or operate sites that are similar to or compete with your site. You may not assign this Operating Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Operating Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Operating Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Operating Agreement. In the event of any conflict between this Operating Agreement and the Operational Documentation, the Affiliates Program Excluded Products page will control over this Operating Agreement, which will control over the remainder of the Operational Documentation. If you are enrolled to use the Product Advertising API and in the event of any conflict between this Operating Agreement and the License Agreement, this Operating Agreement will control except that the License Agreement will control with respect to your use of the Product Advertising API, Data Feed, and Product Advertising Content (each as defined in the License Agreement). Whenever used in this Operating Agreement, the terms “include(s),” “including,” “e.g.,” and “for example” mean, respectively, “include(s), without limitation,” “including, without limitation,” “e.g., without limitation,” and “for example, without limitation.” Any determinations or updates that may be made by us, any actions that may be taken by us, and any approvals that may be given by us under this Operating Agreement, may be made, taken, or given in our sole discretion.
XXI. 31 Mandatory Participation Requirements that must be adhered to
These Affiliate Program Participation Requirements outlined herein are part of this Operating Agreement that governs your participation in the Wilbur Union Affiliates Program. This page describes requirements and restrictions applicable to you as a Program participant. From time to time, we may modify the participation requirements described on this page in accordance with this Operating Agreement. All capitalized terms used below that are not defined on this page have the meanings given to them in the Operating Agreement.
1. You will ensure that your site is not unsuitable (as described in Section 2 of the Operating Agreement).
2. You will not display or otherwise use our or our affiliates’ trademarks or logos (including any Wilbur Union Mark) except solely as expressly permitted under and in accordance with the Operating Agreement.
3. You will not display or otherwise use any trademark or logo of any third party seller on the Wilbur Union Site in connection with any Special Link unless you have obtained from that seller the specific right to do so.
4. You will not remove, obscure, or alter, or make invisible, illegible, or indecipherable to visitors of your site, any “Privacy Information” link or any of our or our affiliates’ trademarks or logos (including any Wilbur Union Mark) that we include in a Special Link.
5. You will use Content solely in accordance with the terms of the Operating Agreement and within the express scope of the license granted in Section 11 of the Operating Agreement. Without limiting the foregoing, you will (a) use Content solely to send end users and sales to the Wilbur Union Site and will not link any Content to, or in conjunction with any Content direct traffic to, any page of a site other than the Wilbur Union Site (however, parts of your site that are not closely associated with the Content may contain links to sites other than the Wilbur Union Site); and (b) link each use of the Content solely to the related Product detail page or other relevant page of the Wilbur Union Site and not to any other page.
6. You will not engage in any promotional, marketing, or other advertising activities on behalf of us or our affiliates, or in connection with the Wilbur Union Site or the Program, that are not expressly permitted under the Operating Agreement. For example, you will not engage in any promotional, marketing, or other advertising activities in any offline manner, including by using any of our or our affiliates’ trademarks or logos (including any Wilbur Union Mark), any Content, or any Special Link in connection with an offline promotion or in any other offline manner (e.g., in any printed material, mailing, SMS, MMS, email or attachment to email, or other document, or any oral solicitation). Upon our request, you will provide us with written certification that you have complied with this Section 6. We will specify the form of, and content required in, that certification in our request. Any failure by you to provide the certification in accordance with our request will constitute a material breach of this Operating Agreement.
7. Except as agreed between you and us in a separate written agreement referencing this Participation Requirement, you will not use any Content or Special Link, or otherwise link to the Wilbur Union Site, on or in connection with:
a. any client-side software application (e.g., a browser plug-in, helper object, toolbar, extension, or component or any other application executable or installable by an end user) on any device, including computers, mobile phones, tablets, or other handheld devices, other than Approved Mobile Applications; or
b. any television set-top box (e.g., digital video recorders, cable or satellite boxes, streaming video players, blu-ray players, or dvd players) or Internet-enabled television (e.g., GoogleTV, Sony Bravia, Panasonic Viera Cast, or Vizio Internet Apps).
8. You will not add to, delete from, or otherwise alter any Content in any way, including by adding additional information (e.g., you may not insert words into a customer review), except that you may resize Content consisting of a graphic image in a manner that maintains the original proportions of the image or truncate Content consisting of text in a manner that does not materially alter the meaning of the text or cause the text to become factually incorrect or misleading.
9. You will not sell, resell, redistribute, sublicense, or transfer any Content or any application that uses, incorporates, or displays any Content. For example, you will not use, or enable or facilitate the use of, Content on or within any application, platform, site, or service (including social networking sites) that requires you to sublicense or otherwise give any rights in or to any Content to any other person or entity, nor will you create links formatted with your Affiliates tag for, or display such links on, a site that is not your site.
10. You will promptly remove from your site and delete or otherwise destroy any Content that is no longer displayed on the Wilbur Union Site or that we notify you is no longer available for your use.
11. You will not use any Content, including any name or likeness embodied in that Content, in a manner that implies a person’s or company’s endorsement or sponsorship of, or commercial tie-in or other association with, any product, service, party, or cause (including by placing unrelated third party materials in close proximity to Content).
12. You will not seek to purchase or register any Proprietary Term for use in any Search Engine; purchase, register, or otherwise use any Proprietary Term as or in a domain or subdomain name; or register or use any Proprietary Term as or in any Affiliates ID or “tag.” In addition to any other rights or remedies available to us, upon our request you will cause any Search Engine designated by us to exclude Proprietary Terms from keywords used to display your advertising content in association with search results (e.g., request exclusion by negative keyword bidding), assuming the Search Engine offers such exclusion capabilities.
13. You will not bid on or purchase keywords, search terms, or other identifiers (including Proprietary Terms) or otherwise participate in keyword auctions on any Search Engine if the resulting paid search advertisement is a Prohibited Paid Search Placement. You may purchase paid search advertisements and submit links to Search Engines to appear in response to a general Internet search query or keyword (i.e., in natural, free, organic, or unpaid search results), so long as you comply with the Operating Agreement and those paid or unpaid search results send users to your site and not directly or indirectly, via a Redirecting Link, to the Wilbur Union Site.
14. You will not offer any person or entity any consideration or incentive (including any money, rebate, discount, points, donation to charity or other organization, or other benefit) for using Special Links (e.g., by implementing any “rewards” or loyalty program that incentivizes persons or entities to visit the Wilbur Union Site via your Special Links).
15. You will not intercept, record, redirect, read, interpret, or fill in the contents of any electronic form or other material submitted to us by any person or entity.
16. You will not request, collect, obtain, store, cache, or otherwise use any account information used by our customers in connection with any Wilbur Union Site (including any usernames or passwords of Wilbur Union Site customers).
17. You will not modify, redirect, suppress, or substitute the operation of any button, link, or other feature of the Wilbur Union Site.
18. You will not make any orders or engage in other transactions of any kind on the Wilbur Union Site on behalf of any other person or entity, or authorize, assist, or encourage any other person or entity to do so.
19. You will not use Special Links to link to the Wilbur Union Site from references to items on your site that are not Products.
20. You will not take any action that could reasonably cause any customer confusion as to our relationship with you, or as to the site on which any functions or transactions (e.g., search, browse, or order) are occurring.
21. You will not include on your site, display, or otherwise use Special Links or Content in connection with any spyware, malware, virus, worm, Trojan horse, or other malicious or harmful code, or any software application not expressly and knowingly authorized by users prior to being downloaded or installed on their computer or other electronic device.
22. You will not frame the Wilbur Union Site, or any part of it, within your site, including by display within an integrated web browser (e.g., WebView) within a Mobile Application. However, displaying a Special Link on your site, including results from the AMA API, in accordance with the Operating Agreement will not be considered a violation of this Participation Requirement.
23. You will not post or serve any Special Links or other content promoting the Wilbur Union Site within any pop-up or pop-under windows, transitional page ads, or layer ads around or in conjunction with the display of any site that is not your site.
24. You will not include any Special Links in any content that you place on the Wilbur Union Site (for example, in connection with any advertising service available through the Wilbur Union Site or in a customer review, forum, listmania, guide, or any other customer-generated context available on the Wilbur Union Site).
25. You will not attempt to circumvent the Affiliates Program Advertising Fee Schedule or artificially increase your advertising fees (e.g., by intentionally featuring, purchasing, or requesting or encouraging any other person or entity to purchase, low-price items offered on the Wilbur Union Site (as determined by us) for the purpose of exceeding any advertising fee threshold, or by causing any page of the Wilbur Union Site to open in a customer’s browser other than as a result of the customer clicking on a Special Link on your site).
26. You will not attempt to intercept or redirect (including via software installed on users’ computers) traffic from or on, or divert advertising fees from, any site that participates in the Program.
27. You will not artificially generate clicks or impressions on your site or create Sessions on the Wilbur Union Site, whether by way of a robot or software program or otherwise.
28. You will not display or otherwise use any of our customer reviews or star ratings, in part or in whole, on your site unless you have obtained a link to that customer review or star rating through the Product Advertising API and you comply with the requirements set forth in the License Agreement section beginning at Clause 12 above the Roman numeral numbering
29. You will not purchase any Product(s) through Special Links for use by you or for resale or commercial use of any kind. Similarly, you will not request or encourage any of your friends, relatives, or Affiliates to purchase any Product(s) through Special Links for use by you or them or for resale or commercial use of any kind. Further, you will not offer any Products on your site for resale or commercial use of any kind.
30. You will not cloak, hide, spoof, or otherwise obscure the URL of your site containing Special Links (including by use of a redirecting page) or the user agent of the application in which Content is displayed or used such that we cannot reasonably determine the site or application from which a customer clicks through such Special Link to the Wilbur Union Site.
31. You will not knowingly collect, use, or disclose personal information from children under 13 years of age.
13. INDEMNITY. Each party agrees to defend, indemnify, and hold harmless the other party and its officers, directors, agents, affiliates, distributors, representatives, and employees from any and all third party claims, demands, liabilities, costs and expenses, including reasonable attorneys fees, costs and expenses resulting from the indemnifying party’s material breach of any duty, representation, or warranty under this Agreement.
14. ATTORNEYS FEES. In any legal action between the parties concerning this Agreement, the Owner is entitled to recover reasonable attorneys fees and costs.
15. GENERAL PROVISIONS. This Agreement sets forth the entire understanding of the parties regarding confidentiality. Any amendments must be in writing and signed by both parties either electronically under Public Law 106-229 and notice is made here and now. Notice of such agreement delivered by positive delivery email shall suffice under Public Law 106-229. This Agreement shall be construed under the laws of the State of California. This Agreement shall not be assignable by either party. Neither party may delegate its duties under this Agreement without the prior written consent of the other party. The confidentiality provisions of this Agreement shall remain in frill force and effect at all times after the effective date of this Agreement. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties regarding the subject matter of this Agreement, and there are no other promises or conditions in any other agreement whether oral or written.
17. SEVERABILITY. The patties have attempted to limit the non-compete provision so that it applies only to the extent necessary to protect legitimate business and property interests. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
18. INJUNCTION. It is agreed that if Licensee Party violates the terms of this Agreement irreparable has and will occur, and money damages will be in sufficient to compensate THIS SELLER, Therefore, THIS SELLER or the agent thereof will be entitled to seek injunctive relief (i.e,. a court order that requires Licensee Party to comply with this Agreement) to enforce the terms of this Agreement.
19. APPLICABLE LAW. This Agreement shall be governed by the laws of the State of California.
20. ENFORCEABILITY AND APPLICABILITY This Agreement is in force majure upon receipt of funds, delivery or shipping of the product, and this agreement may be modified by THIS SELLER upon service of any amendment upon the Licensee Party if not objected to within 5 days. If you purchase and seek reimbursement through an insurance carrier, we will then refund your purchase price AFTER payment is approved AND received from the carrier only. If the reimbursement effort is not successful and / or denied, then there is still no refund, but your warranty on new or rebuilt units will apply only submitted through US, per the manufacturer's normal warranty policies.