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Affiliate agreement

AGREEMENT
Date of Last Revision: March 8, 2012
1. Legal Agreement.
Please read these terms carefully. Your registration and acceptance of these terms by clicking the “I accept” box on the registration page creates a binding legal agreement between Advanced Brain Technologies, LLC (“ABT”) and you (“you” and “your”). If you choose to accept these terms, you must do so as written, without modification. If you do not accept these terms, you will not be allowed the rights of an affiliate. By using this ABT site (“Site”) as an affiliate, you accept the terms and conditions described in this ABT Affiliate Agreement (“Agreement”). You warrant and represent that you have the legal authority to enter into this Agreement as an individual or on behalf of your employer. This Agreement incorporates the terms of ABT’s Terms of Use and Privacy Policy. The terms of this Agreement shall prevail over conflicting terms in any other documents found on any ABT site.

2. Registration.
By registering, you agree to provide the information requested on the registration page of this Site completely and accurately, and to update your information. You are responsible for keeping your information current. You are responsible for selecting and keeping confidential your user name and password. You may not share or disclose your user name and password to anyone other than ABT. You understand that you are responsible for all uses of this Site through your user name and password. You must notify ABT immediately if you know of or suspect unauthorized use of your user name and password for this Site.

3. Limited License.
ABT hereby grants to you a non-exclusive, non-assignable, non-transferable, non-sublicensable, limited license (“License”) to use ABT’s trademarks, service marks, and logos (“Intellectual Property”), to the extent of and in the form provided to you by ABT (including by web banners (“Web Banners”), marketing materials, slicks, and other forms), to advertise, market, and sell solely within the United States of America, and solely for distribution within the United States of America, through your website (“Purpose”) the products and services (“Products and Services”) that ABT may offer to affiliates from time to time. ABT reserves the right to add, remove, or discontinue any Products and Services, and to modify any Products and Services, from time to time in its discretion. ABT may, but is not obligated to, offer upgrades, updates, and improvements to the Products and Services. As part of the Purpose, upon your registration under this Site, ABT will assign you a unique URL and referral code (“Referral Code”), and Web Banners for your placement on your website. Your Referral Code will allow ABT to track payments due to you under this Agreement. You shall display all notices for the Intellectual Property that we require, and you shall promptly remove Web Banners and return Intellectual Property upon termination of this Agreement or as may we request. You shall not alter the Intellectual Property we provide to you. You may only use the Intellectual Property that we provide to you for the Products and Services for the Purpose. You agree that the Products, Services, Intellectual Property, Web Banner, and this Site contain proprietary content, components, and information that are owned by ABT and its licensors, and are protected by intellectual property and other laws, including patent, copyright, and trademark, and that you will not use such proprietary content, components, and information except as expressly permitted by the Products, Services, and this Agreement. Except as expressly stated in this Agreement, ABT does not grant you any license or ownership rights, including in the Products, Services, and Intellectual Property, and all rights not expressly granted by ABT to you under this Agreement are expressly reserved to ABT.

4. Additional Limitations.
You may not directly or indirectly, or attempt to, copy, create derivative works of, decompile, derive the source code of, disassemble, modify, reverse engineer, the Products and Services, in whole or in part, except as and only to the extent any of the foregoing restrictions is prohibited by applicable law or to the extent permitted by the licensing terms governing use of any open sourced components included in the Products and Services. You may not rent, lease, loan, sublicense, sell, or distribute the License, Products, or Services, except as expressly provided in this Agreement or by the licensing terms governing use of the Products and Services. You may not use the License, Products, Services, Intellectual Property, Web Banners, or this Site to cause harm to ABT or any third party, including by transmitting viruses, worms, trojan horses, malware, or by hacking or intentionally overloading a network. You may not use the License, Products, Services, Intellectual Property, Web Banners, or this Site in any manner to abuse, defame, harass, stalk, threaten, or an illegal manner, or to promote pornographic or other offensive materials, or otherwise violate the rights of ABT or any third party. Breach of these terms will result in immediate termination of this Agreement and may subject you to liability of ABT, its licensors, and other third parties. ABT will not be responsible for your unpermitted uses of the License, Products, Services, Intellectual Property, Web Banners, or this Site.

5. Payment.
For every sale of Products and Services that come to ABT directly through a link from your Referral Code, ABT will pay you a percentage of whatever revenue ABT collects from a customer, net of license fees ABT is required to pay its licensors, ABT’s service fees, shipping and handling, and applicable taxes and other governmental charges. The Products and Services that you may sell and the percentages we pay you for your sales of the Products and Services will vary according to the percentages published in the members area of our website (www.advancedbrain.com), or according to a separately negotiated written and executed agreement between you and ABT, if applicable. You will note that in the members area, certain Products and Services are not subject to any payment percentage. ABT reserves the right to modify the terms on its website and this Site from time to time. In any event, for Products and Services constituting paid memberships by end users, ABT will only pay you for two years from the date of initial sale on the terms of this Section and the terms in the members area. ABT will not pay you for clicks of the Referral Code that do not result in a sale of Products and/or Services from a customer. ABT will not pay you for sales to customers that are later cancelled, refunded, or credited, nor will ABT pay for your reissues of defective or damaged Products and Services. If you are paid on a sale that is cancelled or credited, ABT reserves the right to offset future payments due to you. ABT reserves the right to sell the Products and Services at prices, including discounts and promotions, it may determine in its sole discretion from time to time. This Site permits you to view the amounts owing to you. ABT shall pay you once per month within 30 days of the last calendar day of each month by paper check in United States dollars. ABT reserves the right to pay you by other means. ABT will direct payment by regular mail to the last known address indicated in your registration. You assume responsibility for updating your registration information, and ABT assumes no liability for delays in payment under this Agreement caused by your failure to update your registration information. If ABT owes you less than $50 net of applicable sales taxes for the sale of Products and Services within the United States of America in any given month, or less than $100 net of applicable sales taxes for the sale of Products and Services outside of the United States of America, ABT reserves the right to accumulate payments due to you until such payments amount to at least $50 and $100 net of applicable sales taxes, respectively.

6. Taxes.
ABT will require you to complete a United States Internal Revenue Service Form W-9, W-8, or other required form. You are responsible for computing, reporting, and paying of all applicable income, employment and other taxes in connection with payments you receive under this Agreement.

7. Termination.
You may terminate your License to use this Site by delivering written notice to ABT to the address on our website (www.advancedbrain.com), in which case you shall immediately cease using the License. ABT may immediately terminate this Agreement as required by law, due to your breach of any provision of this Agreement in ABT’s determination, or no sales or sales below the amounts listed in Section 5 above from your Referral Code in any six month period. Termination will become effective immediately. Upon termination, the License shall immediately terminate, and all license rights granted herein shall immediately terminate, and you will not be allowed to use the Intellectual Property for any purpose, including the Purpose. All provisions that by their nature should survive such termination or expiration shall survive such termination or expiration, including our payment obligations to you, and confidentiality, Intellectual Property, representations and warranties, disclaimers, indemnification, limitations of liability, venue, choice of law, and attorneys’ fees provisions. Upon termination, you shall remove all Intellectual Property and Web Banners, including the Referral Code, from your website.

8. Independent Contractor.
Your relationship with ABT is and shall be for all purposes of this Agreement as an independent contractor, and not as an employee, partner, joint venturer or agent of ABT. You shall have no authority or power to bind ABT to any obligation of any kind.

9. Indemnification.
You shall defend, indemnify, and hold ABT harmless from and against all costs, fees, expenses, and losses (including reasonable attorneys’ costs, fees, and expenses) incurred through claims, losses, liabilities, damages, and judgments arising out of your breach of this Agreement.

10. Disclaimer of Warranty.
ABT’S SOLE AND EXCLUSIVE LIABILITY FOR PRODUCTS AND SERVICES PURCHASED BY CUSTOMERS THROUGH YOUR REFERRAL CODE ARE DESCRIBED IN THIS AGREEMENT, THE TERMS OF USE, AND THE MATERIALS ACCOMPANYING PRODUCTS AND SERVICES. ABT RESERVES THE RIGHT TO AMEND ITS WEBSITES AND TERMS AND CONDITIONS THEREUNDER, INCLUDING THIS SITE AND THE TERMS OF USE, AS WELL AS MATERIALS ACCOMPANYING PRODUCTS AND SERVICES, IN ITS DISCRETION FROM TIME TO TIME. YOU ARE RESPONSIBLE FOR MONITORING SUCH SITES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE LICENSE, PRODUCTS, SERVICES, INTELLECTUAL PROPERTY, WEB BANNER, AND REFERRAL CODE PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” AND ABT MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT THERETO, AND ABT SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AGAINST NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY. ABT DOES NOT WARRANT THAT ANY OF THE FOREGOING SHALL MEET YOUR OR YOUR CUSTOMER’S REQUIREMENTS, THAT THE OPERATION THEREOF SHALL BE FREE OF ERROR (INCLUDING REGARDING MEDIA STREAMING, SERVICE LEVELS, DOWNLOAD SPEED, AND WI-FI, HOTSPOT, OR INTERNET CONNECTIVITY), OR THAT DEFECTS THEREIN SHALL BE CORRECTED. ABT DOES NOT MAKE ANY REPRESENTATIONS REGARDING SALES LEVELS YOU MAY ACHIEVE UNDER THIS AGREEMENT, AND DOES NOT GUARANTEE THAT YOU WILL MAKE ANY MINIMUM AMOUNT OF SALES UNDER THIS AGREEMENT. ABT DOES NOT MAKE ANY REPRESENTATIONS ABOUT THE HEALTH, THERAPEUTIC, OR OTHER BENEFITS THE PRODUCTS AND SERVICES WILL BRING TO ANY END USER, AND DOES NOT GUARANTEE THAT ANY END USER WILL ACHIEVE A PARTICULAR RESULT. THE PROVISIONS OF THIS SECTION SHALL BE IN EFFECT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

11. Limitations of Liability.
ABT SHALL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR LOST PROFITS, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF A PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PROVISIONS OF THIS SECTION SHALL BE IN EFFECT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ABT’s total liability under this Agreement shall not exceed the monthly amount due to you in the month in which a claim giving rise to liability hereunder occurs. The provisions of this Section shall be in effect to the maximum extent permitted by applicable law.

12. Compliance with Applicable Law.
You shall comply with all applicable international, federal, state, and local laws, rules, and regulations in your use of License, Products, Services, Intellectual Property, Web Banner, Referral Code, and this Site.

13. Notices.
All notices provided for herein shall be effected either by recognized express courier, postage pre-paid, or by United States Mail, postage pre-paid, to the address listed on our website in our case, and to the address you listed in you registration page in your case. Notice shall be deemed received two days following tender to such courier and three days following posting by Mail.

14. Dispute Resolution.
This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, United States of America, without regard to any applicable conflicts of law provisions. The parties hereto irrevocably consent to the exclusive jurisdiction and venue of the federal and state courts of competent jurisdiction located in Salt Lake City, State of Utah, United States of America, and the parties hereby waive any objection that venue in such courts is inconvenient. Neither the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) nor the Uniform Computer Information Transactions Act (“UCITA”) shall apply. In any action at law or in equity to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to collect from the non-prevailing party, in addition to any damages and injunctive relief, whether at law or in equity, all reasonable costs, fees, and expenses, including, without limitation, attorneys’ fees, costs, and expenses, expert witness fees, deposition transcript fees, postage, long-distance telephone charges, and travel costs.

15. Complete Agreement.
This Agreement contains the entire agreement of the parties and supersedes any and all other agreements, whether oral or in writing, between the parties concerning the subject matter hereof. Any modification of this Agreement shall be effective only if in a writing signed by the parties.

16. Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way.

17. Assignment.
You may not assign or sublicense any part of this Agreement, in whole or in part, without the prior written consent of Company.