These Terms of Service, together with any other applicable agreements between you (“You” or “Marketing Partner”) and ArcaMax Publishing, Inc. (“ArcaMax”) describe the terms and conditions under which You may access and use ArcaMax’s services.
BY CLICKING THE “GET STARTED” BUTTON, COMPLETING THE ACCOUNT CREATION PROCESS, AND/OR USING ARCAMAX’S SERVICES (INCLUDING CONTINUING TO USE ARCAMAX’S SERVICES FOLLOWING ANY UPDATE TO THESE TERMS OF SERVICE), YOU AGREE TO BE BOUND BY ARCAMAX’S TERMS OF SERVICE (INCLUDING AS THEY MAY BE UPDATED FROM TIME TO TIME).
IF THE PERSON AGREEING TO THESE TERMS OF SERVICE IS DOING DO SO ON BEHALF OF A COMPANY OR OTHER ENTITY, SUCH PERSON REPRESENTS AND WARRANTS THAT SUCH PERSON HAS THE AUTHORITY TO BIND SUCH COMPANY OR OTHER ENTITY.
ArcaMax Services: ArcaMax will publish an electronic “newsletter” (the “Ezine”) containing content relating to a subject matter selected by Marketing Partner from options provided by ArcaMax. The Ezine will be published to subscribers generated via online marketing campaigns of various types to traffic from the Marketing Partner’s websites and applications following a double opt-in authentication process conducted by ArcaMax. The Ezine will be co-branded with the names and, as applicable, logos of ArcaMax and Marketing Partner. Arcamax will send or provide advertisements by email or other online means intended to reach the subscribers generated by Marketing Partner.
Application to Become a Marketing Partner: In order to be approved to use the ArcaMax services, You must accurately submit an application for an ArcaMax account through an ArcaMax website. In applying, You must not use any aliases or other means to mask your true identity or contact information. ArcaMax reserves the right to accept or reject any applicant at any time in ArcaMax’s sole discretion for any reason. ArcaMax further reserves the right, once an applicant has been accepted, to revoke that acceptance at any time in ArcaMax’s sole discretion for any reason.
Ezine Content: ArcaMax will determine the content of the Ezine as well as select the advertising to be provided. ARCAMAX WILL UNDERTAKE COMMERCIALLY REASONABLE EFFORTS IN SELECTING THE CONTENT OF THE EZINE AND THE ADVERTISING TO BE PROVIDED, HOWEVER, ARCAMAX MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER REGARDING THE CONTENT OF THE EZINE OR THE ADVERTISING TO BE PROVIDED, INCLUDING THEIR ACCURACY, THE LEGITIMACY OF ANY OFFER MADE IN THE ADVERTISING, OR THE QUALITY, SAFETY, OR USEFULNESS OF ANY PRODUCT OR SERVICE BEING ADVERTISED. ARCAMAX DOES NOT ENDORSE ANY PRODUCTS, SERVICES, OR INFORMATION PRESENTED IN THE EZINE OR THE ADVERTISING. All content (other than any content provided by Marketing Partner) and advertising is and shall remain the sole and exclusive property of ArcaMax or its third-party content licensors and advertisers, as applicable.
ArcaMax Is Publisher: ArcaMax shall be the publisher and sender of all content provided to subscribers through the ArcaMax services. Marketing Partner shall have no license or other rights whatsoever to publish, republish, sell, resell, disseminate, or distribute the content or advertising provided by ArcaMax.
Marketing Partner Provided Subscribers: Marketing Partner agrees to promote the cobranded Ezine by offering an opt-in within its website or other media. These subscriptions will be collected in ArcaMax’s behalf. In offering and soliciting subscriptions, Marketing Partner will comply with all applicable laws. Marketing Partner will not imply sponsorship of Marketing Partner by ArcaMax. Marketing Partner agrees to provide all subscriber email addresses and other subscriber data by electronic delivery to ArcaMax in the file format required by ArcaMax or by the use of ArcaMax-provided widgets. ArcaMax, in its sole and absolute discretion, may reject any subscribers, email addresses, data files, or data fields. In accordance with the Children’s Online Privacy Protection Rule (COPPA), Marketing Partner represents and warrants that it will not direct in whole or in part any advertising for subscriptions (or include the same in any website directed in whole or in part) to children under the age of thirteen (13) and that it will not knowingly send to ArcaMax any information derived from children under the age of thirteen (13). Subscribers are defined as unique, deliverable email addresses in the United States that click the link in the ArcaMax confirmation email, are 18+ years of age, are not rejected by ArcaMax, and are not currently subscribed to the same Ezines selected by Marketing Partner. Only the provision of subscribers by Marketing Partner as so defined will be eligible for compensation.
ArcaMax Provided “Widgets” In order to solicit subscriptions in connection with the ArcaMax services, You may use certain widgets, code, programs, and/or plug-ins (“Widgets”) available on the ArcaMax site for such purpose. ArcaMax makes no representation or warranty as to such Widgets and shall not be responsible for any harm to Marketing Partner’s servers, computers, or other hardware or software caused by or allegedly caused by such Widgets. You agree only to use such Widgets for their intended purpose and upon termination of the ArcaMax services, to immediately remove and cease using such Widgets.
Reporting and Payment: Marketing Partner will be able, by using log-in credentials through ArcaMax’s website, to view reports of the subscriber traffic provided by Marketing Partner and accepted by ArcaMax as well as the associated revenue paid and/or due to Marketing Partner. Only advertising revenue directly attributable to Marketing Partner’s subscriber traffic will be subject to revenue sharing. Ancillary or other revenue not directly attributable to Marketing Partner’s subscriber traffic will not be subject to revenue sharing. In the event that Marketing Partner believes that there is any inaccuracy in the data reported, Marketing Partner must advise ArcaMax within fifteen (15) calendar days. If not so advised, all data and reporting will be deemed accurate. In any event, absent manifest error as determined in ArcaMax’s sole and absolute discretion, the data in ArcaMax’s reports will be deemed accurate. Payment to Marketing Partner is dependent upon payment from advertisers to ArcaMax and that such payment has been fully and finally received without restriction and is not subject to credits or backcharges. ArcaMax provides payment through payment service providers. ArcaMax shall not be liable for the actions of any payment service provider. Marketing Partner shall be responsible for taxes imposed upon the payments made to Marketing Partner. ArcaMax may, in its sole discretion, refuse to process a payment or freeze or suspend any payment or block or terminate Marketing Partner’s account upon a reasonable suspicion of any violation of these Terms of Service or other agreements with ArcaMax or any fraudulent or illegal activity by Marketing Partner. ArcaMax also reserves the right to set-off any amount You owe ArcaMax.
No Promise of Success: You acknowledge that ArcaMax does not represent, warrant, or make any specific or implied promises as to the results that Marketing Partner will obtain through the use of the ArcaMax services or any revenue that may be generated from the use of the ArcaMax services.
Service Outages: ARCAMAX DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND THAT ARCAMAX MAY OCCASIONALLY EXPERIENCE OUTAGES DUE TO INTERNET DISRUPTIONS, HARDWARE OR SOFTWARE PROBLEMS, OR OTHER REASONS. ANY SUCH OUTAGE SHALL NOT BE CONSIDERED A BREACH BY ARCAMAX. Further, ArcaMax shall not be liable for any delay or failure to perform hereunder due to the inability of ArcaMax, Marketing Partner, or any other person or entity to connect to the Internet, any e-mail server, “blacklisting,” spam filters, or any other failure or unavailability of the Internet for any cause whatsoever including, without limitation, Internet congestion, virus attacks, denial of service attacks and/or power failures.
Indemnification: Marketing Partner agrees to indemnify, defend, save, and hold harmless ArcaMax against and in respect of claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, and reasonable attorneys’ fees, that ArcaMax may incur or suffer, that arise from: (a) any act or omission by Marketing Partner or any of Marketing Partner’s agents, employees, representatives, or contractors; (b) any violation of these Terms of Service by Marketing Partner or any of Marketing Partner’s agents, employees, representatives, or contractors; or (c) any violation of applicable law by Marketing Partner or any of Marketing Partner’s agents, employees, representatives, or contractors.
Disclaimer of Warranties: ARCAMAX’S SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITH NO REPRESENTATION OR WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ARCAMAX DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF ACCURACY, RELIABILITY, AVAILABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, ARCAMAX MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE OPERATION OF THE ARCAMAX SERVICE OR ANY CONTENT PROVIDED BY ARCAMAX AND DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION USED IN PROVIDING THE ARCAMAX SERVICES, ON ARCAMAX’S WEBSITE, OR PROVIDED BY ARCAMAX IS ACCURATE, COMPLETE OR CURRENT. MARKETING PARTNER AGREES TO USE THE ARCAMAX SERVICES AT MARKETING PARTNER’S OWN RISK.
Limitation of Liability: In no event will ArcaMax be liable to Marketing Partner or any person or entity affiliated with Marketing Partner, whether under a theory of contract, tort, or other legal theory, for: (i) special, punitive, exemplary, consequential, incidental, or indirect damages (including without limitation any damages related to loss of profit or loss of data) whether or not ArcaMax has been advised of the possibility of such damage; (ii) costs of procuring substitute services or technology; or (iii) direct damages in the aggregate exceeding the lesser of the revenue paid to Marketing Partner by Arcamax in the immediately preceding six (6) months or $5,000.00 (USD).
Basis of the Bargain: EACH PROVISION OF THESE TERMS OF SERVICE THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS REFLECTED IN THE LEVEL OF REVENUE SHARING MADE AVAILABLE TO MARKETING PARTNER AND, AS SUCH, IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THESE PROVISIONS ARE SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS OF SERVICE. IF ANY LIMITATION OF LIABILITY IN THESE TERMS OF SERVICE IS FOUND UNENFORCEABLE, LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Violation of Terms of Service: In the event of any violation of these Terms of Service or other agreements with ArcaMax or any fraudulent or illegal activity by Marketing Partner, ArcaMax may, in its sole and absolute discretion, reject service, delete Marketing Partner’s account, and/or withhold, freeze, and and/or cancel all payments otherwise due from ArcaMax.
Termination: Either ArcaMax or Marketing Partner may terminate the ArcaMax services without cause by providing one (1) business day of notice. No termination will affect any right of either party that arose prior to the termination, including without limitation any indemnities contained in these Terms of Service.
Relationship of the Parties: Notwithstanding the use of the term “Marketing Partner,” for all purposes, ArcaMax and Marketing Partner shall be and act as independent contractors to each other. This relationship does not constitute, create, or give effect to any employer/employee or franchiser/franchisee relationship, nor any joint venture, partnership, limited partnership, or agency among the parties, and neither party shall have any right or authority to act for or bind the other.
Assignment and Transfer: You may not transfer your account to anyone or authorize anyone else to use your account or password. You may not use anyone else’s account or password at any time.
Severability: If any provision of these Terms of Service is held to be ineffective, unenforceable or illegal for any reason, such decision shall not affect the validity of any or all of the remaining portions hereof.
Governing Law; Venue for Disputes; Waiver of Jury Trial: All matters related to the relationship and dealings of the parties shall be construed and governed by the laws of the Commonwealth of Virginia (USA) without resort to any principles thereof regarding choice of law. The parties irrevocably consent to the jurisdiction and venue of the General District Courts and Circuit Courts of Newport News, Virginia as the sole and exclusive forums for resolving any dispute hereunder or between the parties. EACH PARTY, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THE RELATIONSHIP BETWEEN ARCAMAX AND MARKETING PARTNER AND/OR THE SUBJECT MATTER OF THE ARCAMAX SERVICES AND/OR THESE TERMS OF SERVICE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALLENCOMPASSING OF ANY AND ALL DISPUTES BASED UPON OR ARISING OUT OF OR RELATED TO THE RELATIONSHIP BETWEEN ARCAMAX AND MARKETING PARTNER AND/OR THE SUBJECT MATTER OF THE ARCAMAX SERVICES AND/OR THESE TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
Class Action Waiver: Both parties agree to resolve any disputes, claims, or controversies on an individual basis, and that any claims arising out of, relating to or in connection with the relationship between ArcaMax and Marketing Partner and/or the subject matter of the ArcaMax services and/or these Terms of Service (including with respect to their validity or enforceability), will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding.
Waiver: No failure or delay on the part of either party in the exercise of any power, right or privilege hereunder shall be operated as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude any other or future exercise thereof, or of any other rights, power, or privileges.
Force Majeure: ArcaMax will not be liable for any delay or failure to perform because of any cause or condition beyond ArcaMax’s reasonable control.