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Last modified: February 03 2009
1. By your use of the products, services, and Web sites (hereinafter referred to collectively as the “Services”) of CheckOut.fm (hereinafter referred to as the “Company”), you agree to the terms and conditions set forth in this document. Your agreement with the Company also includes the Company’s Privacy Policy and any modifications hereto or to the Privacy Policy, as well as the Company’s Prohibited Activities Policy.
2. Your agreement to such terms and conditions constitutes a binding agreement between you and the Company in relation to your use of the Services.
3. To use the Services, you, first, must sign up for one of the programs currently offered by the Company, and by signing up for such program, you agree to the use of the Services. You can accept the terms and conditions of this Agreement by
(i) registering, for free, as a VIP Customer. This free registration entitles you to use the site and to use the coupons available, on the site, to save money by shopping on the site. In addition to the use of coupons, as a VIP Customer, you shall receive rebates in the amounts indicated on the Web site. Checks in the amount earned by you shall be sent to you by the Company on a monthly basis, provided that you achieve a minimum earning of $100 in cash rebates for that period. The Company stipulates a minimum of $100 in cash rebates in order to keep administrative costs down. If you do not achieve that amount for such pay period, you nevertheless will accumulate whatever earnings are achieved, and these earnings shall carry over as a balance to the next month until such minimum is realized.
(ii) register to become an E-Store Owner, for the initial annual fee of $99US. This fee shall enable you or anyone using your Web site (www.CheckOut.fm/UserID) to save, by using promoted sales offers or available coupons on the site, on purchases from retailers made through your Web site. As an E-Store Owner, the Company shall provide to you, within 24 hours of your registration, your own secure retail Web site which is linked to the Web site of the Company. Your Web site enables you or anyone shopping on your site to take advantage of special sales offers or use the coupons available to save on purchases made from your Web site. As an E-Store Owner, you shall receive marketing ideas and suggestions from the Company to help you market your E-Store to new shoppers. As an E-Store Owner, you shall also receive income in the form of rebates. Rebates for each retailer shall be shown to you on your Web site, but are not visible to VIP Customers shopping on your Web site. Whenever you or anyone else shops on your Web site (E-Store: a shopping portal to an increasingly large number of retailers), you shall receive 85% of such rebates. These rebates typically range from 1-70%, applicable to each retailer. Fifteen percent (15%) of each rebate is retained by the Company for its administrative costs and so that it may bring these and more money-making opportunities to you. For example, if the link to a retailer indicates a 10% rebate, you shall receive a rebate in the amount of 8.5% of the sale. In other words, if one using such link on your Web site purchases an item for $300, you shall receive $25.50 as a rebate. Checks in the amount earned by you shall be sent to you by the Company on a monthly basis, provided that you achieve a minimum earning of $100 in cash rebates for that period. The Company stipulates a minimum of $100 in cash rebates in order to keep administrative costs down. If you do not achieve that amount for such pay period, you nevertheless will accumulate whatever earnings are achieved, and these earnings shall carry over as a balance to the next month until such minimum is realized. A yearly renewal fee of $69US applies after year one to maintain your active Web Site.
As an E-Store Owner, you do not collect any referral fees should someone register at your site as an E-Store Owner or as an E-Retail Developer (see subparagraph (iii) below).
As an E-Store Owner, should you wish, later, to upgrade and to become an E-Retail Developer, you will not receive any referrals fees from prior sign-ups, generated from your site. You will collect referrals and tier one commission percentages (see subparagraph (iii) below) only from new registrations originating through your site once you have upgraded. The cost to upgrade from an E-Store Owner to E-Retail Developer is $249.
(iii) registering as an E-Retail Developer, for the initial annual fee of $299, which, in addition, to receiving your own secure E-Store Web site, from the Company, within 24 hours of registration, as well as marketing ideas and suggestions to help you market your Internet site to other shoppers, entitles you, as an E-Retail Developer, to receive additional marketing information, to help you market the E-Store concept to others; in addition to the cost-saving and income benefits of being an E-Store Owner owner, your status as an E-Retail Developer shall enable you also to earn commissions and referral fees. As an E-Store Developer, for each E-Store Owner or other E-Retail Developer signed up through your secure E-Store Web site, you shall be entitled to a three-tier referral fee on each E-Store Owner or E-Retail Developer registered through your Web site. You shall receive referral fees of $25 on each new E-Store Owner registered through your site (the first tier), $15 on each new E-Store Owner registered through the site of an E-Store Owner originated through your site (the second tier), and $5 on each new E-Store Owner registered on such a second tier site (the third tier). You shall earn a referral fee (payable semi-monthly, if earned) of $75 dollars for each new E-Retail Developer registered through your site (the first tier), $50 for each new E-Retail Developer registered through a second tier site, and $25 for each new E-Retail Developer registered through a third tier site. In addition, as an E-Retail Developer, you not only receive the cash rebates referred to in 3 (ii) above, as the owner of an E-Store, you also earn 8.5% of the monthly rebates generated from sales from E-Stores registered through your Web site (the first tier). The yearly renewal fee for an E-Retail Developer is $99.
4. Within 24 hours of your registration, if you register as an E-Store Owner or as an E-Retail Developer, we shall ship, to you, electronically, your own secure, retail Web site, along with marketing ideas and suggestions. You may cancel and terminate your account at any time within fourteen (14) days of your registration. If you cancel within such cancellation period, you shall be entitled to a refund of your registration fee less $45, which shall be retained by the Company as an administration fee. If you receive direct deposits on money earned as rebates or as referral fees, and payments are returned due to incorrect bank information, provided by you, there will be deducted, from the next payment to you, a $35 reprocessing fee.
5. The Company shall track all purchases through your secure E-Store site, as well as referral fees and commissions generated through your Web site (should you be a E-Retail Developer) and pay out to you all cash back earned through purchases through your affiliate Web site and all commissions and referral fees earned (should you be a E-Retail Developer). Please note that, depending upon the retailer, payouts from purchases may take as long as 90 days to post to your Web site. Payments are made monthly, subject to your achieving a minimum cash earning of $100. All earnings below such minimum shall accrue until such minimum is achieved and, therefore, paid out. Commissions and referral fees earned by you shall be payable only so long as your account is active.
6. You may not use the Services and may not accept the terms and conditions herein if (a) you are not of legal age to form a binding contract with the Company or (b) you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services.
7. The Company has subsidiaries and affiliated legal entities around the world (“Related Entities”). Sometimes, these Related Entities may provide the Services to you on behalf of the Company itself. You acknowledge and agree that the Related Entities shall be entitled to provide the Services to you.
8. To access certain Services, you may be required to provide information about yourself (such as identification or contact details) as part of the registration process for the Service, or as part of your continued use of the Services. You agree that any registration information you give to the Company always will be accurate, correct, and up to date as of the time it is given.
9. You agree to use the Services only for purposes that are permitted by (a) this Agreement and (b) any applicable law, ordinance, regulation, or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
10. You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by the Company.
11. You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services). Please also refer to the Companies Prohibited Activities Policy, to which you also hereby agree to be bound.
12. You agree that you are solely responsible for (and that the Company has no responsibility to you or to any third-party for) any breach of your obligations under this Agreement and for the consequences (including any loss or damage that the Company may suffer) of any such breach.
13. You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account that you use to access the Services or associated with your affiliated Web site. Accordingly, you agree that you will be solely responsible to the Company for all activities that occur through your affiliated Web site. If you become aware of any unauthorized use of your password, your account, or your affiliated Web site, you agree to notify the Company immediately at http://CheckOut.fm/ContactUs.
. 14. For information about the Company’s data protection practices, please read the Privacy Policy. This policy explains how the Company treats your personal information and protects your privacy, when you use the Services. You agree to the use of your data in accordance with the Company’s Privacy Policy.
15. You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos, or other images) which you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from which such content originated. All such information is referred to herein as the “Content.” Content presented to you, as part of the Services, including but not limited to advertisements in the Services and sponsored Content within the Services may be protected by intellectual property rights which are owned by the retailers, sponsors, or advertisers who provide that Content to the Company (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute, or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by the Company, or by the owners of that Content, in a separate agreement.
16. You agree that you are solely responsible for (and that the Company has no responsibility to you or to any third-party for) any Content that you create, transmit, or display while using the Services and for the consequences of your actions (including any loss or damage that the Company may suffer) by doing so. You may not incur any debt, expense, or obligation on behalf of the Company.
17. You acknowledge and agree that the Company (or its licensors) own all legal right, title, and interest in and to the Services, including any intellectual property rights, whether now existing or hereafter to exist, that subsist in the Services (whether those rights happen to be registered or not and wherever in the world those rights may now or hereafter exist). You further acknowledge that the Services may contain information that is designated confidential by the Company and that you shall not disclose such information without the Company’s prior written consent.
18. Nothing herein gives you a right to use any of the Company’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features, other than to the extent the Company provides such features to your affiliated Web site. Unless you have been authorized expressly to do so, in writing, by the Company, you agree that, in using the Services, you will not use any trade mark, service mark, trade name, or logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names, or logos. You may not, without express, written approval, by the Company, act as a spokesperson for the Company, and all inquiries made of you, by the media or otherwise, concerning the operation, policies, or business of the Company must be referred to the Company.
19. The Company gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by the Company as part of the Services as provided to you by the Company (hereinafter referred to as the “Software.”). This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by the Company, in the manner permitted by this Agreement.
20. You agree to grant the Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to exercise the copyright, publicity, and database rights, but not other rights, that you may have in your information, as provided to the Company, in any media, now or hereafter known, for the sole purpose of enabling the Company to use the information supplied by you in accordance with the Privacy Policy.
21. The Software that you use automatically may download and install updates, from time to time, from the Company. These updates are designed to improve, enhance, and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules, and completely new versions. You agree to receive such updates (and permit the Company to deliver these to you) as part of your use of the Services.
22. The sale of any and all merchandise or services, through the use of the Company’s Services, is an exclusive transaction between the buyer and the seller and may be subject to federal, state, and local taxes. The Company is not responsible for the collection or remittance of any sales tax that legally may be due to any governmental entity as a result of any transaction through the use of the Services.
23. The Company, at any time, may terminate this Agreement with you if (a) you have breached any provision of this Agreement (or have acted in manner that clearly shows that you do not intend to, or are unable to comply with, the provisions hereof) or (b) the Company is required to do so by law.
24. NOTHING, IN THESE TERMS, SHALL EXCLUDE OR LIMIT THE COMPANY’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT, BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION, WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” IN PARTICULAR, THE COMPANY, ITS RELATED ENTITIES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR, (C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND (D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED. THE COMPANY MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES OBTAINED THROUGH THE COMPANY’S SERVICES OR ANY TRANSACTION ENTERED INTO THROUGH SUCH SERVICES. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY, OR THROUGH OR FROM THE SERVICES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. THE COMPANY FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
25. YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE COMPANY, ITS RELATED ENTITIES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR: (A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; (B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO, LOSS OR DAMAGE AS A RESULT OF (I) ANY CHANGES THAT THE COMPANY MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES); (II) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES; (III) YOUR FAILURE TO PROVIDE THE COMPANY WITH ACCURATE ACCOUNT INFORMATION; (IV) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; THE LIMITATIONS ON THE COMPANY’S LIABILITY TO YOU SHALL APPLY WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
26. The Services may include hyperlinks to other Web sites or content or resources. The Company may have no control over any Web site or resource that is provided by companies or persons other than the Company.
27. You acknowledge and agree that the Company is not responsible for the availability of any such external site or resource and does not endorse any advertising, product, or other materials on or available from such Web sites or resources. You acknowledge and agree that the Company is not liable for any loss or damage that may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy, or existence of any advertising, product, or other materials on, or available from, such Web sites or resources.
28. The Company may, from time to time, make changes to the terms contained herein. When these changes are made, the Company shall make a new copy of the terms and conditions at http://CheckOut.fm/Terms, and any new terms or conditions shall be made available to you from within, or through, the affected Services.
29. You agree to indemnify and hold the Company and (as applicable) its subsidiaries, affiliates, officers, directors, agents, and employees harmless from any and all claims, damages, losses, costs (including reasonable attorney’s fees) or other expenses that may arise directly or indirectly by any third-party due to, as a result of, your breach of this Agreement, any documents incorporated herein by reference, including any violation, by you, of the law or of any term hereof.
30. You agree, while using the Services, to abide by all applicable laws, statutes, rules, regulations, or ordinances, including sales tax compliance.
31. You agree and acknowledge that no agency, partnership, joint venture, employer-employee, or franchisor-franchisee relationship is intended or created by this Agreement.
32. This Agreement constitutes the whole legal agreement between you and the Company and governs your use of the Services and supersedes any prior agreement between you and the Company in relation to the Services.
33. You agree that the Company may provide you with notices, including those regarding changes to the terms and conditions hereof, by e-mail, regular mail, or postings on the Services.
34. You agree that, if the Company does not exercise or enforce any legal right or remedy that is contained herein or that the Company has the benefit of under any applicable law, such failure shall not be taken to be a waiver of the Company’s rights, and those rights or remedies shall remain available to the Company.
35. If any court of law, having the jurisdiction to decide on the matter, rules that, or if, through operation of any law, regulation, rule, or ordinance, any provision of this Agreement is or shall become invalid, then that provision shall be removed, without affecting the rest of the terms and conditions hereof. The remaining provisions of this Agreement shall continue to be valid and enforceable.
36. This Agreement shall be governed by the laws of the State of Florida without regard to its conflict of laws provisions. You and the Company agree to submit to the exclusive jurisdiction of the courts located within the county of Broward, Florida, to resolve any legal matter arising from this Agreement. Notwithstanding this, you agree that the Company shall be entitled and permitted to apply for injunctive or equitable relief (or an equivalent type of urgent legal relief) in any jurisdiction.
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