4.
PAYMENT OF REFERRAL FEES
Nirvana
will pay you by check monthly as follows: (1)
Checks will be issued on the 15th
of each month. The amount of the check will
be for all referral fees earned in the prior month
time period, less any applicable required tax
withholding, chargebacks and/or refunds.
(2)
Referral fees
will not be paid for any customer who has returned
their OmniTrader and/or VisualTrader and requested
a refund or submitted a chargeback. (3)
Checks will not be issued for earned amounts of
less than $20. (4) For chargebacks and/or refunds issued after you have been paid,
we will deduct the corresponding referral fee
from your next monthly payment or bill you for
the refund amount if refund exceeds the referral
fee.
5.
POLICIES AND PRICING
Customers
who register through this Program are deemed to
be our customers. We will be responsible for all
aspects of order processing and fulfillment. Among
other things, we will prepare forms for purchases
and cancellations, and handle customer service.
Accordingly, all of our rules, policies, and operating
procedures will apply to those customers. We may
change our policies and operating procedures at
any time. With our sole discretion,
prices for OmniTrader and/or VisualTrader may
at any time reflect discounts, specials or promotions,
and the referral fee for those purchases will
reflect the discounted price.
6.
LIMITED LICENSE
Nirvana
grants you a limited, non-exclusive, non-transferable
right to display our icon and message images solely
for the purpose of identifying your web site as
a Nirvana Affiliate Program participant. You may
not modify the icon, the message, or any of our
images in any way. Nirvana reserves all of our
rights in the icons of our different sites, the
message, any other images, our trade names and
trademarks, and all other intellectual property
rights. An affiliate may not copy any part of
Nirvana's web sites for their own use without
written permission from Nirvana Systems.
We reserve the right to terminate any Nirvana
Affiliate Program participant who is in any way
in breach of this policy.
7.
RELATIONSHIP OF PARTIES
Nothing
in this Agreement shall create or constitute any
form of partnership, joint venture, agency, franchise,
sales representative, or employment relationship
between the parties. For the purposes of this
Agreement you are considered an independent contractor.
You shall have no authority to make or accept
any offers or make any representations on our
behalf. You shall not make any statement, whether
on your site or otherwise, that reasonably would
contradict anything in this Section.
8.
ASSIGNMENT
Your
Affiliate status is personal to you, and you may
not assign or otherwise transfer your rights or
obligations to anyone.
9.
SEVERABILITY
Should
any provision of the Agreement be held by a court
of law to be illegal, invalid or unenforceable,
the legality, validity and enforceability of the
remaining provisions of this Agreement shall not
be affected or impaired thereby.
10.
MODIFICATION
We may modify any of the terms and conditions
contained in this Agreement, at any time and in
our sole discretion, by posting a change notice
or a new agreement on our site. Modifications
may include, for example, changes in the scope
of available referral fees, referral fee schedules,
payment procedures, and Program rules. IF ANY
MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY
RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR
CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING
OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT
ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE
OF THE CHANGE.
11.
LIMITATION OF LIABILITY
We will not be liable for indirect, special, or
consequential damages (or any loss of revenue,
profits, or data) arising in connection with this
Agreement or the Program, even if we have been
advised of the possibility of such damages. Further,
our aggregate liability arising with respect to
this Agreement and the Program will not exceed
the total referral fees paid or payable to you
under this Agreement.
12.
DISCLAIMERS
We make no express or implied warranties or representations
with respect to the Program or any products sold
through the Program (including, without limitation,
warranties of merchantability, noninfringement,
or any implied warranties arising out of a course
of performance, dealing, or trade usage). In addition,
we make no representation that the operation of
our site will be uninterrupted or error-free,
and we will not be liable for the consequences
of any interruptions or errors.
13.
INDEPENDENT INVESTIGATION
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT
AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU
UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR
INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS
THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT
OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE
WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED
THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM
AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE,
OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
14.
ARBITRATION
Any dispute relating in any way to this Agreement
(including any actual or alleged breach hereof),
any transactions or activities under this Agreement
or your relationship with us or any of our affiliates
shall be submitted to confidential arbitration
in Austin, Texas, except that, to the extent you
have in any manner violated or threatened to violate
our intellectual property rights, we may seek
injunctive or other appropriate relief in any
state or federal court in the State of Texas (and
you consent to non-exclusive jurisdiction and
venue in such courts) or any other court of competent
jurisdiction. Arbitration under this agreement
shall be conducted under the rules then prevailing
of the American Arbitration Association. The arbitrator's
award shall be binding and may be entered as a
judgment in any court of competent jurisdiction.
To the fullest extent permitted by applicable
law, no arbitration under this Agreement shall
be joined to an arbitration involving any other
party subject to this Agreement, whether through
class arbitration proceedings or otherwise. You
agree that any cause of action arising out of
or related to the Service must commence within
one (1) year after the cause of action arose;
otherwise, such cause of action is permanently
barred.
15.
MISCELLANEOUS
This Agreement will be governed by the laws of
the United States and the state of Texas, without
reference to rules governing choice of laws. You
may not assign this Agreement, by operation of
law or otherwise, without our prior written consent.
Subject to that restriction, this 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
Agreement will not constitute a waiver of our
right to subsequently enforce such provision or
any other provision of this Agreement.
